Tian and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 595
•20 December 2024
Tian and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 595 (20 December 2024)
Applicant:Yuan Tian
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8234
Tribunal: General Member T Eteuati
Place:Brisbane
Date of decision: 20 December 2024
Date of reasons: 26 March 2025
Decision:The Tribunal affirms the reviewable decision
..................[SGD]....................
General Member T Eteuati
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417Trang and Minister for Home Affairs (Migration) [2019] AATA 4087
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
This is an application by Yuan Tian (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 11 October 2024 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class BB Subclass 155, Resident Return visa.
The Applicant first arrived in Australia in 2007, aged 18, and has taken 7 trips overseas since then. The applicant indicated that these trips were to China. Most of those trips were for around a month in length but the last trip lasted almost 6 months between December 2020 and 12 May 2021 when the Applicant last arrived in Australia.
The Applicant married in 2011. The couple’s first child, a daughter, was born in 2013 and their son was born in 2022.
The Applicant was first found guilty of offences relating to the operation of a motor vehicle in 2013. He was before the courts on five occasions in 2015 and was convicted for a range of different offences including offences relating to the operation of a motor vehicle, failure to appear in accordance with bail acknowledgement, drug offences and stolen property offences. In 2016, the Applicant was convicted of driving while disqualified and stating a false name or home address and was resentenced for a number of his previous crimes.
In 2017, the Applicant was convicted of offences including stolen property offences, offences relating to the operation of a motor vehicle, stating false name or home address, dealing with proceeds of crime, possessing identity information to commit an indictable offence, and a drug offence.
In 2024, the Applicant was convicted of a number of offences including entering a casino as an excluded person, supplying prohibited drug, possessing prohibited weapon without permit, convey tobacco products know of intent to defraud revenue, possess prohibited drug, supply prohibited drug greater than indictable and less than commercial quantity and deal with property proceeds of crime greater than or equal to $100,000.
On 26 April 2024, the Applicant was convicted of a deal with property proceeds of crime greater than or equal to $100,000 and supply prohibited drug > indictable and < commercial quantity and sentenced to 2 years and six months imprisonment. He was also sentenced to 20 months imprisonment for convey tobacco products know of intent to defraud revenue.
On 22 May 2024, while the Applicant was still in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of at least 12 months and was serving a full-time term of imprisonment.
On 19 June 2024, the Applicant made representations seeking that the cancellation decision be revoked.
On 11 October 2024, the Minister refused to revoke the cancellation of the Applicant’s visa.
On 17 October 2024, the Applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 13 and 18 December 2024. On 20 December 2024, the Tribunal handed down its decision affirming the reviewable decision without delivering reasons. Following are the reasons for that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a) Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test.
The weight of authority is that there is no discretion, in the strict sense, residual or otherwise, to be exercised in determining whether to revoke the cancellation of a visa under section 501CA: see discussion of the relevant authorities including Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 by O’Sullivan J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315.[1] Rather, as North ACJ stated in Gaspar v Minister for Immigration and Border Protection(2016) 153 ALD 337 at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
[1] Cf comments of Derrington J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 at [55] to [61].
In Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548, Collier J (with whom Logan and Murphy JJ agreed) agreed with this interpretation of section 501CA(4) adding at [32]:
I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A12 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R4. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 13 and 18 December 2024. The Tribunal has also reviewed the video recording of the hearing.
DOES THE APPLICANT PASS THE CHARACTER TEST
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
...
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 29 May 2024 shows the following offences committed by the Applicant:
Date
Court
Offence
Sentence
26 April 2024
Downing Centre District Court
Deal with property proceeds of crime => $100,000 and
Supply prohibited drug >indictable & <commercial quantity
Conviction recorded: 2 years and 6 months Imprisonment aggregate
Supply prohibited drug >indictable & <commercial quantity
Taken into account
Convey etc tobacco products know of intent defraud revenue
Conviction recorded: 20 months imprisonment
Possess prohibited drug
Taken into account
Possess or use a prohibited weapon without a permit
Taken into account
22 January 2024
Burwood Local Court
Excluded person enter casino 2 counts
Conviction recorded, no other penalty
5 June 2017
Burwood Local Court
Possess identity info to commit etc indictable offence-3 Counts.
Deal with property proceeds of crime <
$100000
Conviction recorded: 15 months imprisonment aggregate
Possess prohibited drug
18-month good behaviour bond
Driver or rider state false name or home address
Fined $550
Drive motor vehicle during
disqualification period - 2nd+off
12 Months imprisonment
Goods in personal custody suspected being stolen (not m/v)
6 Months imprisonment
A number of past convictions called up and applicant resentenced
30 June 2016
Downing Centre Local Court
Drive motor vehicle during disqualification period - 2nd+off
10 Months imprisonment suspended.
Fined $1000
Driver or rider state false name or home address
Fined $800
A number of past convictions called up and applicant resentenced
12 November 2015
Burwood Local Court
Drive motor vehicle during disqualification period - 2nd+off
50-hour community service order
Fail to appear in accordance with bail acknowledgment.
Conviction with no other penalty
Use unregistered registrable Class A motor vehicle on road
$300 fine
Enter intersection/crossing showing red traffic arrow
$200 fine
Drive motor vehicle during
disqualification period - 2nd+off
50-hour community service order
Goods in personal custody suspected
being stolen (not m/v)
25-hour community service order
Goods in personal custody suspected
being stolen (not m/v)
12-month good behaviour bond
Fail to appear in accordance with bail
acknowledgment
Conviction with no other penalty
27 October 2015
Burwood Local Court
Driver or rider state false name or
home address
$500 fine
23 July2015
Burwood Local Court
Drive motor vehicle during
disqualification period - 2nd+off
18-month good behaviour bond and fined $1000
1 June 2015
Parramatta Local Court
Goods in personal custody suspected
being stolen (not m/v)
$1000 fine
14 April 2015
Central Local Court
Possession of equipment for
administering prohibited drugs
$110 fine
Drive motor vehicle during
disqualification period - 1st off
$770 fine
Possess prohibited drug
$330 fine
Drive vehicle under influence of alcohol
- 1st off
$660 fine
Fail to appear in accordance with bail
acknowledgment
$220-
Fail to appear in accordance with bail
acknowledgment
$220 fine
28 October 2013
Downing Centre Local Court
Fail to appear in accordance with bail
acknowledgment
$220
Drive vehicle on road or road related
area, m/v tax not paid
Conviction with no other penalty
Drive motor vehicle not carry licence
Conviction with no other penalty
Drive motor vehicle while licence
suspended - 1st off
$500
Use uninsured motor vehicle
$200
Use unregistered registrable Class A
motor vehicle on road
$200
As the Applicant has been sentenced to terms of imprisonment of 12 months or more on 26 April 2024 and 5 June 2017, the Applicant does not pass the character test.
Is there another reason to revoke the mandatory cancellation of the Applicant’s visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction).
The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three other considerations:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of the Direction provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the direction provides:
When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, 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.
Paragraph 8.1(2) of the Direction provides:
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
The nature and seriousness of the Applicant’s conduct to date
When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides 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 and/or sexual 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The nature and seriousness of the Applicant’s conduct
The Applicant criminal history is provided at paragraph 27 above and his offending is outlined in general terms in paragraphs 4 to 6 above. There is very little detail about the Applicant’s offences between 2013 and 2017. Those offences included offences relating to operation of motor vehicles, drug offences and offences relating to stolen property. At least four of those offences resulted in sentence of imprisonment with two of those offences attracting sentences for over 12 months imprisonment. Indeed, the Applicant’s visa was mandatorily cancelled in 2017 as a result of these offences, but that cancellation was revoked on 17 April 2018 after consideration of representations by the Applicant.
On 26 April 2024, the Applicant was convicted of a number of offences including:
·Deal with property proceeds of crime => $100,000
·Supply prohibited drug >indictable & <commercial quantity
·Convey etc tobacco products know of intent defraud revenue
Deal with property proceeds of crime => $100,000
The sentencing remarks of Judge Anderson on 26 April 2024 indicate that on 6 January 2022 a search warrant was executed at the Applicant’s residence in Campsie. The police found $250,000 in cash in various locations in the house including the Applicant’s wife’s wallet, and a bedside table and within a hessian bag located on the dining room chair. The money seized was money that the Applicant had directed a co-offender to pick up and remove from the property as the police were coming to search the location. The Applicant was convicted of Deal with property proceeds of crime => $100,000 in relation to this conduct and sentenced to an aggregate sentence (with an offence of Supply prohibited drug > indictable & < commercial quantity) of two years and six months imprisonment. The sentencing judge provided an indicative sentence of 18 months imprisonment in relation to this offence.
The police found 3.6 g of methamphetamine when executing the search warrant. In relation to this conduct the Applicant was found guilty of possess prohibited drug and this was taken into account on a Form 1.
Police also found a baton which was 22 cm in length and had an extendable arm on it. In relation to this conduct the Applicant was found guilty of possess or use a prohibited weapon and this was taken into account on a Form 1.
Supply prohibited drug >indictable & <commercial quantity
The sentencing remarks indicate that this offence involved the supply of 28.4 grams of methylamphetamine by the Applicant to a customer.
The Applicant was convicted and sentenced to an aggregate sentence ( with Deal with property proceeds of crime => $100,000) of two years and six months imprisonment. The sentencing judge provided an indicative sentence of 18 months imprisonment in relation to this offence.
Convey etc tobacco products know of intent defraud revenue
The sentencing remarks indicate that this offence involved the offender’s role in conveying a large quantity of tobacco products knowing they were imported with the intent to defraud the revenue. The offender’s role in relation to this matter was to arrange the unloading of tobacco products from a container. Regarding the quantity of tobacco, the sentencing Judge stated:
The container was found to contain approximately 3,500 kilograms of loose tobacco and approximately 840,000 cigarettes, or 4,200 cartons. The cigarettes were found within boxes that were labelled as containing water purifiers whilst the loose tobacco was within ordinary unmarked boxes.
An expert was retained by the Crown who estimated the value in potentially lost customs duty was $5,595,240 on the loose tobacco and a further $940,002 in customs duty which would have been evaded on the seized cigarettes, bringing the total potential loss to the Commonwealth of $6,535,242.
Regarding the Applicant’s level of involvement, the sentencing Judge stated:
In this instance the offender appears to be slightly more than a middle man organising people to unpack the imported container. The intercepted messages between the offender, his co-offender Ms Wang, and others indicate a certain level of appreciation that he was aware of what needed to be done and the number of people that needed to do it. It does seem to be a fairly unsophisticated role and its duration was very limited. On my interpretation of the facts it seems to have been about four days from his first and last messages to the co-offender.
The Applicant was sentenced to 20 months imprisonment for this offence.
Regarding the seriousness of the Applicant’s offending the Tribunal accepts the Applicant’s submission that the offending does not fall within any of the types of offending that are specifically considered serious or very serious by the Australian Government and the Australian community under paragraph 8.1.1 (1). The Applicant’s offending is not violent or sexual offending, offending against women or children, offending relating to forced marriage, offending committed against vulnerable members of the community or government representatives or officials and were not crimes in relation to immigration detention.
I find the sentences of imprisonment for some of the Applicant’s offences were significant. The applicant has been sentenced to 6 terms of imprisonment ranging from six months imprisonment 2 ½ years imprisonment.
I also consider that the Applicant’s offending was quite frequent having been convicted or found guilty of over 35 offences in 2013, 2015, 2016, 2017 and 2024. There also appears to be a trend in increasing seriousness in relation to the Applicant’s offending.
As mentioned previously, the Applicant had as visa cancelled in 2017 as a result of his serious offending up until that point but had that cancellation revoked in 2018 after a delegate considered representations from the Applicant. The notification letter of 17 April 2018 regarding revocation of visa cancellation relevantly stated:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
The Applicant went on to commit his most serious offences after having the original visa cancellation revoked.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
50.Paragraph 8.1.2(2) of Direction 110 provides:
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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 most of the Applicant’s offending involves drug (and tobacco) related offending, offences related to the operation of motor vehicles and property related offences (possessing stolen property/ proceeds of crime).
If the Applicant were to repeat his drug related offending this could result in distribution of harmful illicit drugs to members of the community with the resulting well-documented harms to individuals and the community: see for example Trang and Minister for Home Affairs (Migration) [2019] AATA 4087 where Deputy President Boyle, at [65] to [67], outlined a number of observations made by Judges and Members of the Tribunal regarding the deleterious effects of the drug trade.
If the Applicant where to repeat his traffic offences, this could result in severe physical and psychological harm to members of the community.
If the Applicant were to repeat his dishonesty offences this could lead to members of the community being unlawfully deprived of their property and money and if the Applicant repeats his unlawful trafficking of tobacco offences this could lead to the loss of revenue to the Commonwealth and contribute to the inability of the Commonwealth to control the consumption of harmful tobacco products in the community.
Regarding the likelihood that the Applicant will re-offend, the Applicant’s evidence both in his written material and at the hearing was that he would not offend. The Applicant has acknowledged that he has committed serious crimes and violated Australian laws. He has expressed remorse and guilt for his past offences. He has indicated that he offers no excuses for his offences and fully admits to them and that they were all due to his own ignorance, greed and confusion. The Applicant indicated that he now deeply realised the error and his ways and had a firm determination to reform. He indicated that his time in prison (including when his son was born), being unable to assist his is very ill son and the realisation that any further offending would inevitably result in his permanent separation from his wife and two children combined to ensure that he would never reoffend. He indicated that this reform was primarily driven out of a concern for the consequences for his two young children and especially his ill son of potentially growing up without the presence of their father and the support including financial support that he could provide if he remained in Australia.
In the representations seeking revocation of the cancellation decision the Applicant attributed his offending in 2016 to his mother’s gambling addiction and the Applicant’s drug addiction. The representations indicate that the Applicant’s mother and the applicant have ceased gambling and the Applicant has ceased using drugs. In addition, regarding the applicant’s motor vehicle related offences, the representations indicate that the applicant is suspended from driving until 2039 and therefore is unlikely to commit any more traffic offences.
The Applicant has undertaken a number of rehabilitation and vocational courses to assist in his rehabilitation and future employment. This evidence also shows that the Applicant is making efforts to better himself.
The Tribunal also heard from three of the Applicant’s friends who had each known the Applicant for many years and each one, while not knowing much about the Applicant’s offending, considered that the Applicant was of good character.
Against this evidence in the Applicant’s favour, is the Applicant’s history of relatively frequent offending, that the protective factors including his wife, daughter and friends have not prevented him from offending in the past, neither have periods of imprisonment and other court punishments. In addition, the Applicant knew that further offending could result in the cancellation of his visa because his visa had previously been cancelled in 2017, only for the Applicant to be given another chance to remain in Australia with his family when the delegate revoked the cancellation of his visa after considering representations from the Applicant. The material before the Tribunal suggests that drugs and drug and gambling debts were central causes of the Applicant’s past offending. The Applicant was taking drugs and gambling up until his arrest in 2022 and his abstinence from drugs and gambling has not been tested in the community. Further, the Applicant has indicated that he still has about $100,000 in drug and gambling debts.
In the sentencing remarks 26 April 2024, the sentencing judge referred to a report on the Applicant prepared by a psychologist named Andrew Wong, which was dated 15 March 2024, and prepared for the sentencing exercise. The sentencing judge stated:
He was diagnosed with having an amphetamine use disorder, a cocaine use disorder and a gambling disorder, all of which were in remission, given that he was in what is described as a “controlled environment” by Mr Wong. Mr Wong reached this conclusion:
“Based on the above factors and the available information at the time of the assessment it is my clinical opinion that Mr Tian had a moderate risk of general reoffending which directly translated to a need for a moderate level of intensity of intervention and monitoring. The biggest protective factor for Mr Tian at this stage is his wife and young children and his personal need to be their role model and father, however, he lacked the coping strategies to completely desist from gambling and drug use, especially when under significant stress. Although he displayed motivation for desistance he had not attempted a crime free lifestyle in the past and this required support and monitoring in the community”.
The offender had suggested to Mr Wong that his criminal behaviour was driven by his chronic and severe substance dependence and gambling problem. I have taken all of those matters into account and I will explain how shortly.
With respect to mitigating factors which are to be taken into account via s 21A(3) of the Crimes (Sentencing Procedure) Act for the New South Wales
offences. I take into account that he has pleaded guilty, that his letter to the Court expresses remorse, which I accept, but sadly there is little before the Court upon which I could make a finding that he has good prospects of rehabilitation. At best I would say he has some insight into the nature of his conduct and how it might be connected to his offending.
A report on the Applicant dated 2 December 2024 was also prepared by Tim Watson-Munro, a psychologist for the purposes of these proceedings. The report concluded: concluded:
7. In terms of treatment, I believe that Mr Tian would benefit from a combination of Cognitive Behaviour Therapy (CBT) and supportive and motivational psychotherapy. The CBT can provide him with skills focussed on reinforcing relapse prevention strategies referable to drug use and gambling. He would also benefit from systematic desensitisation to deal with his anxiety and to improve upon his low self-esteem. He would benefit from supportive and motivational psychotherapy in terms of his readjustment to life in the Australian community.
8. There are a number of protective factors in place now which will reduce the risk of him reoffending. These include his expressions of remorse, his willingness to have treatment, the support of his wife and children, his desire to re-join the Australian workforce, as well as his general maturation and his improved judgment arising from being substance free for some eight years now. Taking all factors into account, I believe that with continuing support, structure and supervision, the risk of him reoffending in the Australian community is now trending towards low.
When questioned at the hearing about Mr Wong’s findings above, Mr Watson-Munro indicated that he agreed with those findings for the most part but that he differed slightly with Mr Wong’s conclusion that the Applicant had a moderate risk of re-offending. Rather, Mr Watson-Munro indicated that he could not find that the Applicant had a low risk of re-offending but rather that the Applicant’s risk of re-offending was below moderate but more than low. He said that the Applicant would benefit from psychological treatment if released into the community and that ultimately the Applicant’s accuracy of his assessment of the applicant’s risk of offending would be determined once the applicant was released into the community.
I am willing to accept the view of Mr Watson Munro that the Applicant’s risk of reoffending is less than moderate but higher than low. I have done so because Mr Watson-Munro’s assessment is the most recent report, I have the whole of Mr Watson-Munro’s report and know what material was before Mr Watson-Munro whereas I only have the conclusion of Mr Wong’s report and am not aware of what material was before Mr Wong. In particular, Mr Watson-Munro had information before him as to the Applicant’s expressions of remorse and courses undertaken and importantly, information about the Applicant’s son’s illness and the Applicant’s motivation to remain in Australia in those circumstances especially in the interests of his wife and two children.
I have found that much of the Applicant’s offending was serious and that the Applicant currently has a risk of reoffending which is below moderate but higher than low. I consider that such a risk represents a real and significant risk especially in circumstances where a repeat of much of the Applicant’s offending could result in serious harm to the Australian community.
I find that the primary consideration of the Protection of the Australian community weighs against revocation of the cancellation of the Applicant’s visa and have given heavy weight to this primary consideration.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
This consideration is not relevant in this matter.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) provides that in considering the strength, nature and duration of any other ties a non-citizen has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s wife, two children and his parents live in Australia. The Applicant arrived in Australia as an 18-year-old with his mother. His father has arrived in 2014. The Applicant’s two children are Australian citizens and his wife and parents are permanent residents. The Tribunal accepts that each of those family members will be greatly impacted by the Tribunal’s decision. I have discussed more fully the implications and hardship of the Applicant’s removal for the Applicant’s wife and children under the consideration of children’s best interests below.
The Applicant’s wife and children are currently living on Centrelink payments. If the Applicant has to return to China, his wife has said that she and the children will remain in Australia. That will mean that the Applicant’s wife will have to raise their two children including a two-year-old child who has severe aplastic anaemia, and an eleven-year-old daughter, without the Applicant’s support both financially and otherwise. The Applicant’s wife will be without her husband and their children will grow up without their father present. The Applicant’s wife may not be able to travel to China to visit her own elderly and ailing parents as she has to care for the two children without the Applicant’s support. In addition, the Applicant’s parents who are both now elderly will not have their son to care for them in their old age.
The Applicant began offending some 6 years after he arrived in Australia and while he has spent time in prison, I find that during the periods that he has not been offending or imprisoned he was contributing positively to the community.
I have considered the statements put on by longstanding friends of the Applicant. I am satisfied that the Applicant has strong ties to the Australian community forged over almost 20 years living in Australia. I have also considered under this consideration the hardship to the Applicant himself of being removed from a country where he has spent his whole adult life and made deep and lasting connections with Australia including establishing a family here and having his parents in Australia.
I find that this primary consideration weighs heavily in favour of the revocation of the cancellation decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration requires a decision-maker to make a determination about whether visa cancellation, refusal or non-revocation is or is not in the best interests of each child under 18 affected by the decision.
In considering the best interests of a child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant children in this case are each of the Applicant’s two Australian children. His 11-year-old daughter and his 2-year-old son.
Application of factors appearing at paragraph 8.4(4) of the Direction to the seven relevant minor children
Sub-paragraph (a): The Applicant plays a parental role in relation to both of his children. While direct contact with the children has been disrupted at times because of periods when the Applicant has been imprisoned or detained (for example he was in prison when his son was born) the Tribunal is satisfied that the Applicant is very close with both of his children and would play an important parental role in their lives if he were allowed to remain in Australia.
Sub-paragraph (b): whether the Applicant will play a positive role in the future, very much depends upon whether the Applicant continues to offend, and the Tribunal has found that there is a real chance that he will continue to offend. If he does not offend, the Tribunal considers that he will play a positive parental role at least until the children turn 18 and there are currently no orders in place which would affect the Applicant’s access to his children.
Sub-paragraph (c): there is limited direct evidence of the impact of the Applicant’s conduct on each of his two children. There is compelling evidence from the Applicant, his wife and his daughter (including the wife’s testimony during the hearing which I have reviewed by watching the video recording of the hearing subsequent to the hearing) that each of the Applicant’s two children, and especially his daughter, suffered including emotionally as a result of the absence of their father owing to his imprisonment. It was evident from the Applicant’s wife’s evidence that it has been extremely difficult for her to cope with looking after the two children without the Applicant’s assistance, especially after their son’s severe aplastic anaemia diagnosis last year.
In their letter of 26 February 2024, Dr Musarra and Dr Mitchell describe the Applicant’s son’s condition as follows:
Richard was diagnosed with severe aplastic anaemia earlier this month after presenting with pancytopenia and fevers. Aplastic anaemia is a condition where for some reason the bone marrow is unable to produce the cells of the blood- the cells of the blood being red blood cells which carry oxygen and provide energy, white blood cells which fight infection and platelets which prevent bleeding. There are several causes of a plastic anaemia including infectious, genetic, autoimmune or idiopathic, and currently Richard continues to undergo testing looking for these.
Whilst we await these results, Richard requires inpatient supportive care. This includes blood products including red blood cells or platelets, as well as intravenous antibiotics while his white blood cells are very low and he continues to have fevers. The expected duration of his admission at this stage is unclear, however it is likely he will remain an inpatient until he undergoes definitive treatment.
In the Applicant’s most recent statement he indicated that his son’s condition persists and that he is still continuing with treatment. He stated:
When Richard’s red blood cell and white blood cell counts are below a certain level, he needs a blood transfusion immediately. Usually, spots will appear on the lower layer of his skin. Sometimes he has a fever of over 38 degrees and a bacterial infection, so he needs to go to the hospital immediately. Basically, he needs a white blood cell transfusion every time – these transfusions are provided by the blood bank of the children’s cancer hospital he attends. He goes to the hospital regularly every week to draw blood. If he has a fever, he needs to go to the hospital immediately. Since he was diagnosed with this condition, I believe he has required 7 or 8 transfusions of red blood cells and 15-20 transfusions of white cells.
The Applicant’s wife has had to concentrate most of her attention on their son at the expense of their daughter. The Applicant’s wife’s evidence was that she was greatly assisted by the Applicant’s release on bail during March and April 2024 and that her daughter’s spirits visibly lifted having a father with her to care for her. This temporary release on that occasion also allowed for the Applicant’s wife to more readily care for their son especially during his medical treatment.
It is clear from the Applicant’s evidence and that of his wife and his daughter that the Applicant loves his children dearly and that each of the children love their father deeply and wish for him to be released from detention to live with them.
In this sense the Applicant’s offending has deeply impacted on each of the children. The Tribunal also considers that the applicant’s offending has negatively impacted the children through the hardship to their mother, practically in the sense that she has to look after the children, including a very sick son, in the absence of the Applicant, financially in that the Applicant has been unable to assist financially in supporting his family and emotionally in the toll that it is taken on the applicant’s wife. This would have in turn impacted the children.
The Tribunal considers that if the Applicant should reoffend, which it has found is a real risk of occurring, that it is likely that his wife and his children will have the hardship of being separated from their father revisited on them. If the Applicant were allowed to remain and he re-offends there is also a very real chance that he will be removed from Australia.
Sub-paragraph (d): given the close nature of the parental relationship between the Applicant and each of the children, continued separation from the children will continue to adversely affect each of the children. This will be especially so if the Applicant is removed to China as this will prevent any in-person contact between the Applicant and the children unless the children were able to visit him in China. The Applicant and his children will be able to maintain contact through electronic means, but that, of course, is no substitute for real in-person contact.
The Tribunal notes however that while there is no doubt that the children will each continue to suffer hardship as a result of the absence of their father if he is removed. If the Applicant were to continue to reoffend, which the Tribunal has found is a real risk, it may well be that removing the Applicant from Australia now may be preferable for the interests of the children rather than giving them false hope now only for the Applicant to reoffend and be removed at a later point.
Sub-paragraph (e): The Applicant’s mother currently cares for both children and performs the parental role for each of them. However, if the Applicant ceases to re-offend the Tribunal finds that each of the children would be better off having both of their parents raise them in Australia.
Sub-paragraph (f):The Applicant’s 11-year-old daughter has written a heartfelt statement explaining her family situation including her brother’s illness and how difficult it has been for her hard-working mother. She has also explained how she feels lonely without her father, misses him and hopes he can return home. She also explains how her brother’s sickness and her mother’s hard work in caring for him have been difficult for her. She has explained how the load on her mother would be much easier if her father was to return home and indicated that she would dearly like her father to return home so that they can complete their family . She explained how her heart bloomed when her father was released for two months last year.
There is no question that the Applicant’s daughter, whose letter reveals a maturity beyond her years, deeply wishes for her father to be able to remain in Australia and return to live with the family. The Tribunal also accepts evidence from the Applicant and his wife that their son also wishes the same.
Sub-paragraphs (g) and (h): these paragraphs do not apply directly. The Tribunal has indicated above how the Applicant’s absence from the children’s lives due to his offending has affected each of them.
Conclusion: Primary Consideration 4
Ultimately, whether or not non-revocation of the cancellation of the Applicant’s visa is or is not in the best interests of each of the children will likely depend on whether the Applicant reoffends. If the Applicant is to reoffend, the children will be once again placed in the situation they find themselves in now, with the Applicant separated for them and each unsure as to whether their father will be removed permanently. If the Applicant is to reoffend , on one view, it seems inevitable that he will eventually be removed. So on one view, if the Applicant is to reoffend it may well be in the best interests of each child to the cancellation of the Applicant’s Visa is not revoked.
However, it is not inevitable that the Applicant will reoffend and even if the Applicant does reoffend it is not inevitable that the Applicant will be removed from Australia. The Tribunal is willing to find that non-revocation of the cancellation of the Applicant’s visa is not in either child’s best interests. That is, each of the children’s best interests is currently served by revoking the cancellation of the Applicant’s visa so that each child may remain with their father in Australia.
The Tribunal notes that there was a suggestion in some of the documents from the Applicant that the Applicant may need to remain in Australia to be a blood or marrow donor for his son even though the suggestion was that the Applicant was not a 100% match as a donor. There was also a suggestion that the Applicant and his wife may try to have another child in the hope that child could be a donor for their son. There was no medical evidence that the Applicant’s blood or marrow was necessary for the Applicant’s son or that such donations may be needed from a sibling of the child. These issues were raised with the Applicant’s representative at the hearing and the Applicant’s representative indicated that no such arguments were maintained. The argument was that the Applicant was needed to complete the family so that the children grew up with a father and were supported financially and otherwise by their father. The Applicant’s presence was crucial at a time when their son was undergoing treatment for his severe condition.
The Tribunal places heavy weight on this primary consideration in the Applicant’s favour.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Most relevantly in the current case, the Applicant breached the statement of Australian community expectations set out in 8.5(1) of the Direction when he failed to obey Australian laws. By engaging in serious crimes in breach of this expectation, paragraph 8.5(1) expresses the Australian community expectation, as a norm, that Government not allow the Applicant to remain in Australia.
The Tribunal notes that the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are. Rather, the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.
The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant’s offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.
Conclusion: Primary Consideration 5
The Tribunal places heavy weight on this primary consideration in favour of non-revocation.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
It may well be, as the respondent submitted, that this other consideration is only strictly relevant where there is a protection finding in an applicant’s favour or when there is an issue as to whether international non-refoulement obligations are owed in respect of an applicant. No such issues arise in this case and in that sense, it is not relevant.
However, I have also considered the legal consequences of affirming the non-revocation decision on the Applicant and his family. If the decision is affirmed, it will result in the Applicant remaining an unlawful non-citizen and remaining in immigration detention until he is removed from Australia (which could be s long time), in the very unlikely circumstance that he is granted a visa or if circumstances become such that there is no real prospect of removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future (see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005).
As the Applicant has pointed out, the Applicant’s removal from Australia having had his visa cancelled under section 501, will almost inevitably mean that he will never be able to return to Australia (because of the operation of special return criterion 5001 in Schedule 5 to the Migration Regulations 1994). I have considered these legal consequences of affirming the non-revocation decision. I have also considered the practical consequences for the Applicant, his family and others of affirming the decision. I consider that the fact that the Applicant will, in all likelihood, be removed from Australia, never to return to Australia and that he could be detained for some time in immigration detention before removal, weigh in the Applicant’s favour and I give this consideration moderate weight. I note that these consequences have been given weight under other considerations which favour the Applicant such as ties to Australia and best interests of children.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
The Applicant is 35 years of age and according to the sentencing remarks of 26 April 2024 Mr Wong reported that the Applicant had been diagnosed with having an amphetamine use disorder, a cocaine use disorder and a gambling disorder, all of which were in remission. These were noted my Mr Watson-Munro who recommended the following treatment:
In terms of treatment, I believe that Mr Tian would benefit from a combination of Cognitive Behaviour Therapy (CBT) and supportive and motivational psychotherapy. The CBT can provide him with skills focussed on reinforcing relapse prevention strategies referable to drug use and gambling. He would also benefit from systematic desensitisation to deal with his anxiety and to improve upon his low self-esteem. He would benefit from supportive and motivational psychotherapy in terms of his readjustment to life in the Australian community.
It is not clear whether such treatment is available in China or whether the Applicant would be able to access it or afford if it were available. There is no evidence that the Applicant would not be able to access any government medical or economic support available to other Chinese citizens.
As the Applicant was born and raised in China until he was 18 and has visited and stayed there on a number of occasions since his arrival, there would not be any substantial language or cultural barriers to the Applicant re-establishing himself in China. He has some extended family members in China but the evidence before the Tribunal was that those relatives would be unwilling or unable to assist the Applicant in re-establishing himself.
The Tribunal considers that the Applicant would be assisted in finding employment in China by his work experience in Australia. Having said that, the evidence was that work as a gyprocker was not available throughout China and that the Applicant would have to compete with others for that sort of work.
The Tribunal acknowledges that it would be difficult for the Applicant to re-establish himself in China and weighs this consideration moderately in his favour.
Other Consideration (c): Impact on Australian business interests
The parties submit that this consideration is not relevant and the Tribunal agrees.
Conclusion: Is there another reason to revoke the cancellation of the Applicant’s visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs heavily against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was serious, that there could be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs heavily against revocation of visa cancellation.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia (and hardship to the applicant) weighs in favour of revocation of the cancellation decision and attributed heavy weight to this consideration.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of the Applicant’s two children, weighs heavily in favour of revocation of the cancellation decision.
The Tribunal has found that while there are no protection issues which arise, the consequences of affirming the decision especially regarding the Applicant’s permanent removal from Australia and possible prolonged detention before that weigh moderately in the Applicant’s favour as does the consideration of the extent of impediments if removed.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of General Member Tigiilagi Eteuati
Solicitor for the Applicant: Mr Mark Northam
Northam LawyersSolicitors for the Respondent:
Ms Monique Munro
Clayton UtzFile No 2024/8234
Between Yuan Tian (Applicant)
AndMinister for Immigration and Multicultural Affairs (Respondent)
Heard on 13 and 18 December 2024
Before General Member Eteuati
Applicant’s Material Number Submission Date of Document A1 Applicant’s Statement of Facts Issues and Contentions 13 November 2024 A2 Annexure 1 – Statement of Yuan TIAN 11 November 2024 A3 Annexure 2 – Certificates of Completion for Courses 23 November 2023 A4 Annexure 3 – Family Photos (provided as separate PDF file due to size) A5 Annexure 4 – Statement of applicant’s wife 11 November 2024 A6 Annexure 5 – Article ‘Aplastic Anaemia’ (NIH) A7 Annexure 6 – Article ‘Aplastic Anaemia’ (NCBI Bookshelf/NIH) A8 Annexure 7 – Statement of Applicant’s friend 12 November 2024 A9 Annexure 8 – Statement of Applicant’s friend A10 Annexure 9 – Statement of Applicant’s friend A11 Annexure 10 – Statement of Applicant’s daughter 11 November 2024 A12 Psychologist Report by Tim Watson-Munro (and Curriculum Vitae) 2 December 2024 Respondent’s Material Number Submission Date of Document R1 G-Documents R2 Respondent’s Statement of Facts, Issues and Contentions 3 December 2024 R3 Attachment A – Sentencing Remarks - Burwood Local Court 5 June 2017 R4 Bundle of Summonsed Material
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