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

Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4319 (29 October 2020)
Division:GENERAL DIVISION
File Number: 2020/5013
Re:Man Chun Tsang
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:29 October 2020
Place:Sydney

The decision under review is affirmed.
........[sgd]................................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act 1958 – mandatory visa cancellation – section 501(3A) – subclass 820 visa – Applicant failed character test – drug supply and related offences – sentenced to a term of imprisonment for 12 months or more – whether there is another reason why the cancellation should be revoked – Hong Kong – non-refoulement – remorse – rehabilitation – application of Direction No. 79 – weighing of primary and other considerations – safety of the Australian community – expectations of the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
YKZZ and Minister for Home Affairs (Migration) [2019] AATA
ZJKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4125 (15 October 2020)
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
29 October 2020
INTRODUCTION

The applicant is a 35 year old citizen of Hong Kong.[1] He first arrived in Australia in 2004 as an 18 year old. He entered the country on a student visa, completing various qualifications, including a Bachelor of Commerce degree and a postgraduate degree in Finance. He has spent most of his adult life in Australia.
[1] G1, 2.
On 5 November 2016, the applicant married his present wife, Ms Siying Liu, a 21 year old permanent resident of Australia. On 26 April 2018, he was granted a Partner (Temporary) (Class UK) subclass 820 visa (‘visa’), having previously held various temporary student visas.
On 19 December 2019, he pleaded guilty to an offence of supply prohibited drugs on an ongoing basis. He was sentenced to a term of imprisonment of 3 years and 4 months. The sentence commenced on 19 September 2018, and expires on 18 January 2022, with a non-parole period of 2 years. On 18 September 2020, he became eligible for parole.
On 20 January 2020, the applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above (‘the original decision’). He was invited to make representations about revocation of the original decision. On 27 February 2020, he made representations through his representative to the Department, seeking revocation of the mandatory cancellation of the visa pursuant to paragraph 501CA(4)(a) of the Act.[2]
[2] G9, 83.
On 7 August 2020, a delegate of the respondent Minister decided not to revoke, pursuant to subsection 501CA(4) of the Act, the mandatory cancellation of the visa.[3] By letter dated 10 August 2020, the applicant was notified of the decision not to revoke the mandatory cancellation.[4] On 19 August 2020, he applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
[3] G2, 16.
[4] G2, 9.
THE PRESENT PROCEEDINGS
The application was heard by video conference on 15 and 16 October 2020.
The material before the Tribunal consisted of:
(a)Submissions by the applicant and respondent dated 18 September 2020 and 2 October 2020 respectively (otherwise known as Statements of Facts, Issues and Contentions); together with a document filed by the applicant entitled “Evidence in Reply to the Respondent’s Statement of Issues”, dated 12 October 2020;
(b)Statutory declarations dated 18 September 2020 by:
(i)Man Chun Tsang, applicant;
(ii)Siying Liu, wife;
(iii)Zhe Yang, friend;
(iv)Kit Lye Wong, friend and potential employer.
(c)Documents tendered by the respondent under section 501G of the Act (the G-documents);
(d)Additional documents tendered by the respondent including: Tender Bundle and Supplementary Tender Bundle.
THE CHARACTER TEST
The character test is defined in subsection 501(6) of the Act. A person will not pass the character test if they have a ‘substantial criminal record’: paragraph 501(6)(a). The phrase ‘substantial criminal record’ is defined in subsection 501(7); and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c).
Pursuant to sub-paragraph 501(3A)(a)(i) of the Act, the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’.
When a visa is mandatorily cancelled pursuant to subsection 501(3A), the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision: paragraphs 501CA(3)(a) and (b).
The Minister may revoke the original decision if representations have been made in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is ‘another reason’ why the original decision should be revoked: subsection 501CA(4).
If the conditions of subsection 501CA(4) are satisfied then the mandatory cancellation decision must be revoked: see YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, where Collier J at [31] considered that in subsection (4) “may” is to be interpreted as “must”.
ISSUE
It is not in dispute that the applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more.
I am satisfied that the conditions for the exercise of the power under section 500 of the Act are satisfied.
The sole issue is therefore whether there is ‘another reason’ why the original decision should be revoked.
DIRECTION NO. 79
A determination under subsection 501CA(4) must be carried out in accordance with any written directions given under subsection 499(1) of the Act: subsection 499(2A).
The Minister has given such written directions. Direction No. 79 commenced on 28 February 2019. See: Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction No. 79’).
The Tribunal is bound to comply with the terms of Direction No. 79, by reason of subsection 499(2A) of the Act.
Under the heading ‘General Guidance’, paragraph 6.2(1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.2(3) provides:
The principles provide a framework within which decision-makers should approach their task in deciding whether to…revoke a mandatory cancellation under section 501CA…
Paragraph 6.3, under the heading ‘Principles’, sets out the seven basic principles forming part of that framework. The principles are:
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused (emphasis added).
Taking the relevant considerations into account: paragraph 8 of Direction No. 79
The principles in paragraph 6.3 inform the manner in which the decision-maker must assess the considerations which are required to be taken into account in exercising the relevant discretion: paragraph 7(1).
Part C of Direction No. 79 governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:
(a)Considerations are divided into primary and other considerations which must be taken into account by decision makers: see paragraph 8(1);
(b)Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);
(c)Both primary and other considerations may weigh in favour of, or against…whether or not to revoke a mandatory cancellation…: see paragraph 8(3);
(d)Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4); and
(e)One or more of the primary considerations may outweigh other primary considerations: see paragraph 8(5).
Paragraph 13(2) sets out the ‘primary considerations’ to be taken into account as follows:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 sets out the ‘other considerations’ to be taken into account where relevant, and states:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 13.1(1) of Direction No. 79 provides that when considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Under paragraph 13.1(2) I should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date;
(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
Paragraph 13.1.1 outlines nine factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. The factors fall into those defined in terms of the identity of the victim or the context or nature of the offending, and other factors relevant to the offender. Thus, violent and/or sexual crimes are viewed very seriously; and crimes of a violent nature against women or children are also viewed very seriously, regardless of the sentence imposed. Crimes committed against vulnerable members of the community, or government representatives are serious. Crimes committed in immigration detention or while escaping from detention are serious. Offending after a warning has been given that further offending may have consequences for the non-citizen’s migration status is also potentially serious.
The relevant offending was not of a violent or sexual nature. The offending was not directed against vulnerable members of the community. Nor is there any evidence of offending in immigration detention, or of offending after receiving an administrative warning. These factors do not apply in this case.
The remaining five factors referred to are potentially relevant.
Crimes of a violent nature against woman – Paragraph 13.1.1(1)(b)
The applicant has not been convicted of any crime of a violent nature involving a woman or child. There is however an incident of some concern that happened shortly after the applicant and Ms Siying Liu were married on 5 November 2016. Police records indicate that on 26 November 2016, some three weeks later, Ms Liu contacted the police to say that the applicant had pushed her in the course of an argument. Ms Liu was 21 at the time; ten years younger than the applicant.
The police file note records that Ms Liu contacted the police at about 8.40am on Saturday 26 November 2016. She described a heated argument that had taken place that morning. She had been out until 3:00am and her husband (the applicant) had seen messages on her phone to a male friend. An argument ensued where both parties pushed each other. She left his apartment. She contacted police shortly after because she was worried about the intensity of the argument. The file note includes the following:
The nature of the offence is not very serious. While the victim and POI have both pushed each other the situation did not escalate any further following this and the parties separated from each other. The victims priority appeared to be re−establishing contact with the POI to sort out their issues. Police explained the process of action that can be taken if she wished however she did not want any further police involvement.[5]
[5] Respondent’s Tender Bundle, 159.
The sentence imposed – Paragraph 13.1.1(1)(d)
On 19 December 2019, the applicant was sentenced to a term of imprisonment of 3 years and four months with a non-parole period of two years for the offence of supply prohibited drugs on an ongoing basis. This sentence commenced on 19 September 2018 and expiries on 18 January 2022. The offence was treated as mid-range in terms of seriousness.
Two Form 1 matters were taken into account: recklessly deal with proceeds of crime (particularised by reference to an amount of $83,120); and supply prohibited drug, the latter involving 7.14 grams of cocaine found in the applicant’s unit in three plastic bags. The police also confiscated electronic scales, three mobile phones, and empty plastic resealable bags.
The seriousness of the applicant’s conduct is reflected in the imposition of a lengthy head sentence of three years and four months, and the fact the applicant was directed to serve 24 months in prison, before release on parole.
The aggregate sentence imposed included the two Form 1 offences. As noted above, one of them involved recklessly deal with proceeds of crime. The confiscated amount seized on 19 September 2018 was $83,120, and this was treated as the relevant amount for sentencing purposes.
An assessment of the gravity of offending is somewhat complicated by later developments. On 7 February 2020, the sentencing judge heard an application by the Director of Public Prosecutions (NSW) for a confiscation order in relation to the cash amount of $83,120 found in the flat.[6] The application failed. The judge made a finding that the bulk of the money ($79,970) was not used in the commission on an offence and was therefore not tainted property. This amount was returnable to the applicant and was not subject to a confiscation order. Only $3,150 was tainted.[7]
[6] District Court proceedings, 7 February 2020. Member’s File, tab 4.
[7] G7, 117.
The learned judge, who had previously imposed the sentence on the basis of agreed facts (which included reference to the amount of $83,120), was satisfied on the balance of probabilities that there was a plausible unchallenged explanation for the quantity of money found in the apartment. The judge rejected a submission that the applicant/defendant was bound by his previous admission of guilt on the Form 1, noting that a person is not estopped from denying his or her guilt or particulars of the offence by reason of a prior plea of guilty.
His Honour referred to an amount of $48,465.60 received by the applicant for a personal injuries claim arising from a vehicle accident. The applicant provided the court with his bank statement which supported his claim to have withdrawn $35,000 in readiness to purchase a retail item that was ultimately not purchased. He also received various wedding gifts, some of which were in the form of cash gifts. The court also considered hardship grounds associated with the cost of legal representation and the cost of relocating back to Hong Kong.
Given that the reckless dealing offence was taken into account in sentencing the applicant, and given the very significant reduction in amounts involved, it is not unreasonable to infer that some reduction of the gravity of the offending considered overall is appropriate.
The frequency of offending – Paragraph 13.1.1(1)(e)
The applicant pleaded guilty to the offence of supplying cocaine on an ongoing basis, between 6 and 30 August 2018, somewhat confined in point of time.
There were at least three instances of supply referred to in the agreed sentencing facts, and the judge’s sentencing remarks appear to suggest that there may have been other instances. As noted by the sentencing court:
Each offender indeed played a role as submitted. I am also mindful that each offender was engaged in the drug supply beyond the three individual supplies which were outlined to varying degrees, but specifically in so far as Mr Tsang is concerned, that was evidenced by the additional cocaine, the three mobile phones and the electronic scales, clear resealable bags, cutting cards and the large quantity of cash located in his unit following his arrest.[8]
[8] G4, 55-56.

However, in the subsequent confiscation proceedings, heard on 7 February 2020, the judge noted that there was no allegation of any other involvement in drug supply other than the matters to which the applicant pleaded guilty. Having heard the applicant’s evidence, the judge was satisfied that there was no evidence to support the applicant’s involvement in any supplies except for the period earmarked by the principal offence.
The cumulative effect of repeated offending – Paragraph 13.1.1(1)(f)
As noted above, the offending does not form part of a general pattern of criminal behaviour. Although there are at least three instances of supply, there is no evidence of such offending outside the relevant dates.
False or misleading information – Paragraph 13.1.1(1)(g)
The respondent argued that the applicant failed to inform the Department of Immigration and Border Protection[9] during the period that his partner visa was being processed, that he had separated from his wife Ms Liu. This issue was canvassed at some length at the hearing. The evidence presented by the applicant and his wife is that due to the stresses in the marriage, it had been decided that the couple would take some time out, to ‘cool off’. Neither intended to end the marriage. Ms Liu said that she moved to her mother’s flat in 2018, partly for reasons of convenience; it being much closer to her place of work. I am satisfied from the evidence given by both the applicant and Ms Liu that the fact that they ceased to cohabit for a period in 2018 did not impose on the applicant an obligation to inform the Department of a material change of circumstance.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[9] Now named Department of Home Affairs.
I note the risks specifically identified at 13.1.2(1), namely,
(a) the nature of 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 available information and evidence on the risk of reoffending.
As to the first element, the nature of the harm to the Australian community from drug use is clear. It is the policy of both the New South Wales state government and the Commonwealth government to restrict the supply, selling and use of drugs as far as possible, and to use the criminal law as a deterrent, especially in the case of those engaged in supplying prohibited drugs. As noted by the sentencing judge:
These drug offences, and they can be conveniently called that, are offences which, sadly, are all too prevalent in our community. So many lives have been destroyed as a result of the distribution and consumption of illicit drugs. When it comes to the purposes of sentencing… the legislation in s 3A of the Crimes (Sentencing Procedure) Act clearly indicates the legislative intent when it comes to an appropriate sentence on an offender. So the purposes of sentencing have been expressed in clear terms and the legislature who represents our community has seen fit to provide in the legislation these purposes.
Firstly, to ensure that the offender is adequately punished for the offence. Secondly, to prevent crime by deterring the offender and other persons from committing similar offences. Thirdly, to protect the community from the offender. Fourthly, to promote the rehabilitation of the offender. Fifthly, to make the offender accountable for his or her actions. Sixthly, to denounce the conduct of the offender and, finally, to recognise the harm done to the victim of the crime and the community….[10]
[10] G4, 33.
As to the second element, the applicant was sentenced on the basis that he had no criminal antecedents and was otherwise of good character. There is some reason to be optimistic with regards to the prospects of rehabilitation. The sentencing judge said:
So when it comes to mitigating factors, certainly the offender does not have any criminal history. He is a person who is otherwise of good character. I do consider that he is unlikely to re-offend, having regard to those matters that I referred to during the course of these remarks thus far. I do also think there are good prospects of rehabilitation, particularly having regard to the way he has performed within the custodial environment. He has indeed taken responsibility for the offences, so I am satisfied that there is an evidentiary basis to find that remorse has been genuinely indicated and, of course, there is the plea of guilty.[11]
[11] G4, 57.
I note that the trial judge was favourably impressed by the strong letters of support he received during the applicant’s sentencing, including a letter from the applicant’s father, which clearly made an impression on the judge. Despite the serious nature of the offence of which he stands convicted, I share with the sentencing judge the belief that he is unlikely to reoffend. It cannot be said that there is no risk of reoffending. It is hard to imagine a case in which this could be said. But having heard from the applicant and his wife and other witnesses who gave evidence in his favour, I think this is a case where the prospects of recidivism are very low.
I also note that during his period in incarceration, he received very favourable reports, and was assessed as a minimum risk prisoner. The following entry from the NSW Department of Corrective Services dated 17 July 2019 is indicative of his positive attitude to prison:
TSANG has been working within the powder coating business unit for the past 10 months as the clerk. During his time here he has displayed a great working attitude, communicates well within the team environment and can be relied upon to complete any required task. As clerk TSANG is responsible for the business units general day to day organization and ensuring that all allocated paperwork is completed and attached to all outgoing Job order. Nil behavioural issues to report.[12]
[12] G9, 143.
In relation to recidivism, there is a troubling aspect, which inevitably arises when there is a joint enterprise. The applicant did not act alone in this offending. He gave evidence to the Tribunal as to the manner in which he fell into the company of his associates and agreed to participate in this offending. In essence, he was struggling with relationship issues, depressed and drinking to excess, and in an inebriated state agreed to ‘warehouse’ the drugs, and felt he could not extricate himself from the agreement when he sobered up. He said that he tried to withdraw from the enterprise, but felt threatened by his associates. He said that they told him – ‘we know where you live’.
If his visa is restored, and he finds himself in difficult financial circumstances, which is not unlikely, he may be targeted or tempted to participate in such activity again. This is not a fanciful possibility. The risk of repeat offending is not trivial.
Despite this risk, I find that the prospects of recidivism are very low. I note that the applicant has spent more than two years in prison and has now been in immigration detention for a few months. He has no track record of criminal behaviour, outside of the convicted offences. He is clearly remorseful for his offending and it is reasonable to infer that he understands the folly of participating in anything to do with drugs.
Finally, there is the question of remorse. I note that during the proceedings of 7 February 2020 relating to the confiscation order, the applicant denied his involvement in any ongoing supply. There was some discussion about his negotiated plea of guilty at the sentencing hearing. In the event, the applicant was successful in the confiscation proceedings and I do not think any adverse inference can be drawn as to his remorse for the principal offence. The judge found that he had remorse, and it is clear from the evidence given in the Tribunal proceedings that he was remorseful for his actions.[13]
[13] Transcript, 15 October 2020, p 96.
CONCLUSION WITH RESPECT TO PC1
My conclusion with regard to PC1 is that, by reason of the serious nature of any drug supply offence involving cocaine, this consideration weighs in favour of non-revocation of the mandatory cancellation. In the particular circumstances of this case, I think it weighs moderately in favour of non-revocation.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
There are no minor children, and this issue is not relevant.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’), a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Stewart J analysed the clause as follows, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial, which is an attractive feature given the heterogeneity of views in this area.
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
…
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”.[50] That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
The High Court declined to grant special leave to appeal from the majority decision.[14]
[14] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
In assessing the weight to be assigned to PC3, I have due regard to the views of the executive government relating to the removal of non-citizen offenders from this country. The views of the government are encapsulated within Direction No. 79.
In assessing the weight to be assigned to this factor, the individual circumstances of the applicant are ‘necessarily front and centre’ in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3 which are stated to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3). Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling the visa: paragraph 6.3(4).
I note that the applicant has resided in Australia for 16 years and first arrived in 2004 as an 18 year old. He has lived here for virtually all of his adult life. The delegate noted that:
Given Mr TSANG has lived in Australia for virtually all of his adult life since the age of 18, I hold the view that the Australian community may afford a somewhat higher tolerance of his criminal conduct. However I have reduced such weight as I give this consideration as Mr TSANG has recently spent several years isolated from the community while in custody, since his offences in 2018.
This reference to a ‘higher level of tolerance’ reflects the principle contained in Direction No. 79, paragraph 6.3(5) that:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
I do not think that the import of principle 6.3(5) should be diluted by reference to the time served in prison. Firstly, the portion of time spent in prison is 12.5% (two out of 16 years); and secondly, the offence for which he was arrested in September 2018 was his first offence. The ‘higher level of tolerance’ principle should not be diluted in such a case, for dilution in such a case undermines the principle itself.
Nevertheless, given the serious nature of a drug supply offence involving cocaine, and the significant sentence imposed upon the applicant, I find that this primary consideration weighs firmly against the applicant. It is not of the utmost weight because this is not the most egregious case of drug supply. It was limited in duration and committed by a person with no previous criminal history. Nevertheless, it is a serious offence committed without apparent need, in terms of substance addiction, and motivated by greed, and I regard it as weighing firmly against the applicant.
OTHER CONSIDERATIONS
a) OC1: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
...

As noted by Senior Member A. Nikolic AM CSC in ZJKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4125 (15 October 2020):
114. Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed in the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [103] ‘the term “non-refoulement obligations” ...is not confined to the protection obligations to which s 36(2) refers’.
115. In determining whether non-refoulement obligations are engaged, a decision-maker must consider whether there is a real risk or a real chance of the claimed harm occurring,[15] and give active intellectual consideration to any clearly articulated representations regardless of characterisation.[16] The Tribunal’s engagement with such claims, however, relates to the question of whether to exercise the discretion under s 501(1) of the Act, rather than the more expansive analysis routinely undertaken for Protection Visa applications.[17]
[15] See: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246]-[247].
[16] See: Ali v Minister for Home Affairs [2020] FCAFC 109; Minister for Home Affairs v Omar [2019] 373 ALR 569, [34]-[44].
[17] See: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
The applicant did not raise the issue of non-refoulement in specific terms, but explicitly raised concerns that may be relevant to a non-refoulement claim. He said that he was concerned about political developments in Hong Kong. His long-term residence in Australia had imbued him with liberal democratic values which conflicted with recent political developments in Hong Kong.[18] He referred to the Communist Party in Beijing as the source of his anxiety about living in Hong Kong. He referred to his use of social media as potentially problematic.[19] He feared that, if returned, he might be targeted by governmental agencies. He was also concerned that he might be swept up in violence between protestors and those sympathetic to the government.
[18] Transcript, 15 October 2020, p 34.
[19] Transcript, 15 October 2020, p 44.
The respondent accepted that the non-refoulement issue could arise for consideration even in the absence of a specific claim: see paragraph 14.1(3).
Perhaps because the issue was not articulated as a specific non-refoulement issue, neither party provided any evidence to the Tribunal relating to political developments in Hong Kong. However, I note that the Department of Foreign Affairs and Trade (DFAT) provides a Hong Kong Brief, [20] which states:
The National Security Law (NSL) for Hong Kong was passed unanimously by Beijing’s National People’s Congress (NPC) Standing Committee on 30 June 2020 and came into effect in Hong Kong on 1 July 2020.
The NSL establishes three new security institutions in Hong Kong and creates four new criminal offences: secession, subversion, terrorist activities, and collusion with a foreign country or external elements to endanger national security. It includes extensive and untested extra-territorial provisions, under which any person in any country could be held liable for NSL offences.
On 9 July [2020], the Prime Minister, Foreign Minister and Attorney-General expressed deep concern about China’s imposition of the NSL on Hong Kong and the law’s erosion of democratic principles that have underpinned the One Country, Two Systems framework. The Prime Minister announced Australia would: suspend our extradition agreement with Hong Kong; introduce new visa measures for graduates and skilled workers from Hong Kong who want to work and live in Australia; and update our travel advice for Hong Kong to reflect the increased risks under the NSL.
[20] ; accessed 21 October 2020.
The respondent informed the Tribunal that Country Information reports prepared by the DFAT referred to China but did not include Hong Kong.
I also note that the British Home Office provides information about the situation in Hong Kong, which may usefully be referred to in the present proceedings:[21]
[21] Country Policy and Information Note: China: Hong Kong protests (Version 1.0) February 2020< Accessed 21 October 2020.
1.1 Basis of claim
1.1.1 Fear of persecution by the state or risk of serious harm due to taking part, or being perceived to have taken part, in anti-government protests; …
b. Context
2.4.3 In June 2019, the Hong Kong Special Administrative Region (SAR) Government proposed amending the law to allow extradition to China… While the bill did not go through, the proposals sparked a large protest movement. The protests were initially peaceful, but as they continued, a violent strand emerged…
2.4.4 As events continued, some radical protesters vandalised train stations, shops and restaurants, built barricades and road blocks and threw bricks and petrol bombs at police. The police have responded to the disorder by using teargas, pepper spray, rubber bullets, bean bag rounds and water cannons, with live ammunition being used on more than one occasion…
c. Involvement in the protest(s)
2.4.6 Where a person was (or was perceived to be) involved in the protests, they are unlikely to be able to establish a well -founded fear of persecution.
2.4.7 Over 4000 people have been arrested since protests began with the vast majority being arrested while taking part in demonstrations…
2.4.8 …the objective country evidence does not suggest that the Hong Kong authorities are actively targeting those who may have been involved in the protests or subjecting them to treatment which is sufficiently serious by its nature and repetition to constitute persecution or serious harm…
With respect to the security situation generally, the Home Office Report states:
d. Security situation and Article 15(c) of the Qualification Directive
2.4.15 In order to qualify under Article 15(c) of the Qualification Directive as transposed in paragraph 339C and 339CA (iv) of the Immigration Rules, substantial grounds need to be shown for believing that the person concerned, if returned to Hong Kong, would face a real risk of suffering serious harm by virtue of a serious and individual threat to their life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
…
2.4.18 Whilst there have been violent confrontations between police and protestors, it is unlikely that the protestors would be considered to form ‘one or more armed groups’ or, more broadly, the situation meets the definition of an ‘internal armed conflict’.
2.4.19 More fundamentally, the levels of violence (deaths and serious injuries) – there have been 2 deaths and a very small percentage of protesters have suffered serious injuries as a result of the demonstrations – cannot be said to be at “such a high level” that there are “substantial grounds for believing that the person (civilian) concerned, if returned to Hong Kong, would face a real risk of serious harm by virtue of a serious and individual threat to their life or person solely on account of their presence…
I accept that the Tribunal must give active consideration to whether there is a real risk or a real chance of the claimed harm occurring. There is no evidence that the applicant has participated in, or provided active encouragement to, the protest movement in Hong Kong, although I accept that he might be circumspect about revealing such information if it existed. There is no evidence that non-political returnees to Hong Kong have been singled out in this way, although one might expect that those who have committed offences against Hong Kong law will be charged if they return, whether voluntarily or by way of extradition.
On the sparse evidence available to the Tribunal, I find that there is little, if any, prospect that the applicant will be persecuted by reason of his antipathy to the Communist Party of the Peoples’ Republic of China, or indeed, the present administration in Hong Kong.
As to being swept up in the present unrest, it is reasonable to assume that there are measures available to the applicant to avoid areas of conflict. It is extremely unlikely that if returned he will become homeless, given his educational and financial resources, and the support of his parents, who live in Hong Kong. I note his evidence that his parent’s ‘always care about me’.[22] There is therefore no reason to believe that he would be unable to avoid areas of conflict, or find shelter if he needed it.
[22] Transcript, 15 October 2020, p 42.
My general impression is that the applicant was more concerned about his estrangement from his brother, and his capacity to make his way financially and in career terms were he to be returned to Hong Kong. These matters will be considered below under the separate heading of extent of impediments if removed.
I find that the issue of non-refoulement is neutral in this case.
b) OC2: Strength, nature and duration of ties
The applicant arrived in Australia as an 18 year old and has worked hard to improve his educational qualifications.
On 9 September 2019, the applicant was interviewed by a psychologist for the purpose of the sentencing hearing. The report was tendered as part of the G documents.[23] It is said to be based on the applicant’s self-reporting unless otherwise stated. By way of background, the report states:
He completed Year 11 equivalent [in Hong Kong] and then travelled to Australia on a student visa. He spent six months studying English at Taylors College, then a further six months completing a pre-tertiary foundations program before commencing a diploma in accounting at Sydney International Business College in 2006. He completed his third year at Macquarie University, graduating in 2009. He spent one year working part time in Hong Kong before returning to Sydney and undertaking a Masters of Business Management at University of Technology Sydney, completing this in 2011. Mr Tsang has undertaken further studies throughout the years, including diplomas in finance and economics.[24]
[23] G8, 118.
[24] See Psychological Assessment Report, dated 7 February 2020, G9, 120, para 6.
The Report also notes that he has been reliant on his parents in Hong Kong for much of his time in Australia. The psychological report notes:
Mr Tsang described a disjointed employment history relative to his education achievements. He has mostly relied on family. He has worked as an English teacher in Hong Kong in his early twenties, as a barman in Sydney in his mid-twenties, as a transcriber, and customer service worker in a mobile phone dealership. He operated an online clothing store. He was a stakeholder in a club promotions company between 2009 and 2014. There has been a lack of cohesion and direction in his employment choices. He reported no clearly formed career plans for the future, with uncertainty regarding the likelihood of deportation in response to the current matters. He is not an Australian citizen. He expressed concern regarding the prospect of return to Hong Kong, particularly in light of increasing civil unrest in that region. Mr Tsang holds gaol employment as a clerk in custody.[25]
[25] G9, 120, para 7.
I agree that his employment record is somewhat disjointed relative to his educational achievements. Some allowance must however be made for the challenges of resettlement in a new country, especially for those whose first language is not English. These adjustment difficulties should not be underestimated. Considering that he came to Australia at 18 years of age without any local social or family support, his achievements are not without merit.
He and Ms Siying Liu married in November 2016. They had known each other for a few years and dated for about three months before getting married. The nature and quality of the marriage is relevant to assessing the degree of support the applicant may receive if released into the community.
The applicant provided statutory declarations from three women, and two gave evidence to the Tribunal.
(a)Ms Kit Le Wong gave evidence to the Tribunal. She stated that she had offered the applicant a job as an accountant, although the respondent cast doubt on the soundness of the appointment given the applicant’s lack of practical experience as an accountant, and indeed, the company’s capacity to support his salary. It is fair to say that the business has a small turnover and will struggle to afford to pay his salary on the present turnover. Ms Wong hoped that the applicant would help to grow the firm. She emphasised that she thought of him as a brother. No doubt her motivations were partly altruistic.
(b)Ms Dania Xiao, Australian born, gave evidence to the Tribunal. She said that she had been friends with the applicant for more than ten years. They had lived together as flat mates and he had supported her through a relationship breakdown. She described the applicant and his wife as a ‘happy couple’. She had attended their wedding and taken the applicant to a tattooist to have his wife’s name inked on him. She had also taken his wife to prison in 2018 to visit the applicant when he was arrested. She said she would be absolutely crushed if he was deported.[26]
(c)I also note the written declaration of support provided by Ms Zhe Yang. Ms Yang is the person identified by the sentencing judge as the applicant’s ‘girlfriend’.[27] Unfortunately, the Tribunal does not have access to the applicant’s affidavit before the judge, but it would appear that the judge’s comments are based on what was contained therein. Ms Yang’s statutory declaration is to the effect that she and the applicant were supportive friends during a period when each was experiencing marital difficulties. She refers in her statutory declaration to the difficulties she was experiencing in her marriage and the fact that the applicant was able to give her advice as to how to relate better to her husband.
[26] Undated letter of support from Ms Dania Xiao.
[27] District Court proceedings, 7 February 2020. Member’s File, tab 4. See transcript, p 9.
A common thread running through the statutory declarations provided by Ms Wong, Ms Xiao, and Ms Yang, is the moral support and mentorship the applicant has provided to each of them in respect of relationship difficulties. This was somewhat surprising given the difficulties encountered by the applicant in his own marriage.
The respondent conceded that the applicant had strong support from his friends and described their evidence as ‘endearing’. [28]
[28] Transcript, 16 October 2020, p 202.
I note the following passages from the psychologist report referred to above:
9. Mr Tsang reported several long term intimate partner relationships during his life, persisting for periods of up to three years. He married in October 2016 and had hoped to start a family. He said that his partner cheated on him and they separated in November 2017. He said that he had been profoundly upset by this and had only told a few key friends. He had not told his family. He felt “loss of face”. He remains separated but not divorced. He did subsequently commence another relationship in 2018 but said that over the past six months his partner had ceased visiting and he is resigned to think that the relationship is now platonic.
…
13…He did report a period of very low mood and dysphoria over a period of months following his marriage separation in late 2017, spilling into 2018. He reported a period of social avoidance and denial, secluding himself in his home, keeping his separation secret from his family, being unable to sleep at night and sleeping through the day. He felt humiliated and that his life was unsalvageable. He said that this persisted for several months. His closest friends knew of his troubles and encouraged him to get out of the house. He took their advice but did not seek the support of his friends, instead going out to karaoke bars several nights per week and drinking to intoxication. He said: “I couldn’t think positively, only negatively”. I am unable to reach a retrospective diagnosis of mood disorder but it would seem likely that Mr Tsang experienced a period of Adjustment Disorder with depressed mood in response to the grief of his marriage failure.[29]
[29] G9, 121 and 123.
In evidence to the Tribunal, the applicant said that this evaluation arose as a result of some linguistic confusion between him and the psychologist.[30] He did not think that his wife had cheated on him. He did not seek out or have another partner after his wife left. He still considered himself to be married. He had various friends and one very good female friend.
[30] Transcript, 15 October 2020, p 73.
Ms Liu also denied having other partners in 2018. She said she went to live with her mother in Chatswood at the end of 2017. She described this as ‘hiding’.[31] However, she continued to visit the applicant from time to time at his apartment. She and her mother moved to Melbourne in 2018 after he was arrested. She has remained in Melbourne since. She disavowed any notion that she had lost a connection with her husband. She said that they had never intended to permanently separate, but merely to cool off for a while. This was also the applicant’s evidence.
[31] Transcript, 15 October 2020, p 111.
In April 2018, she received a gift of $10,000 from the applicant, together with an expensive Chanel handbag worth $7,500 and some flowers. He said he gave her these things because he wanted her back.[32] She gave evidence to the Tribunal that she was hoping to get back together when he was released. In her statutory declaration to the Tribunal she said that they planned to have a baby if he is not removed from Australia.[33]
[32] Transcript, 15 October 2020, p 61.
[33] Statutory Declaration, 18 September 2020.
I note that the applicant applied for the partner visa on 5 May 2017. On 11 April 2018, the Department sought further information about his circumstances. On 19 April 2018, the applicant transferred $10,000 to his wife.[34] The visa was granted on 26 April 2018. The applicant denied that there was a connection between the payment of $10,000 and his application for a partner visa.[35] The applicant described the $10,000 as a contribution to his wife’s living expenses, given that she was living apart from him.
[34] Transcript, 15 October 2020, p 68, 81.
[35] Transcript, 15 October 2020, p 80.
I note that the marriage was celebrated in Sydney, Hong Kong and in mainland China. There were three receptions in all. It would be a long bow to draw a negative inference about the veracity of the marriage, but there is evidence to suggest that it was neither tranquil nor stable nor particularly supportive of either party. It hardly provided ‘a bastion against all misfortune’. I note that Ms Liu had gone to the police with complaints about the applicant in the very early days of the marriage, although she subsequently downplayed her concerns.
At no point did the respondent contend that the marriage was a sham. The respondent submitted that it counts against the applicant that he did not inform the Department in 2018 that he and Ms Liu had separated. The applicant’s response was essentially that they had not separated in any permanent sense. They were having some time out. This evidence was consistent with that given by Ms Liu. He did not think he was under any obligation to inform the Department about some short time relationship issues.
The evidence before the Tribunal suggests that the applicant and his wife lived together as a married couple for a very short period, and I do not mean to be unkind in saying that they do not appear to have enjoyed a tranquil marriage. I have commented elsewhere that marriages are private affairs and inherently opaque to those observing from the outside.[36] I am therefore reluctant to doubt the genuineness of their relationship.
[36] “It is the essence of marriage that it is private and apart from the rest of society. Its ‘selfishness’ or ‘exclusiveness’ is not its undertone but its heart and soul” Mount, F (1982) The subversive Family: An alternative History or Love and Marriage , London, Cape, at 188, quoted in Wilson K and Ridler A, “Marriage and Literature”, British Journal of Social Work (1989) 19, 111; referred to in Xanh and Secretary, Department of Social Services (Social services second review) [2019] AATA 5451, fn 1.

Regrettably, I do not think that the applicant and Ms Liu have been entirely frank with the Tribunal about the nature of their separation. There is reference in the prison records to a note made on 9 April 2019 that he received regular visits from a ‘partner’ throughout 2019.[37] At this time Ms Liu was in Melbourne. Coupled with the psychologist note that his partner no longer visited and he was reconciled to the relationship being platonic, one is left with a sense that there was indeed someone special other than Ms Liu in the applicant’s life. He admitted that he was surprised by Ms Liu’s visit to him in prison in 2018.[38] She confirmed that she visited him in prison on a couple of occasions in 2018. But then she left for Melbourne. They spoke on the phone about two or three times a week. She said that she had contacted him soon after his arrest.
[37] G9, 140.
[38] Transcript, 15 October 2020, p 83.
I also note that according to the District Court judge who sentenced the applicant (a comment made in the subsequent confiscation proceedings):
The relationship between the defendant and his wife ended in December 2017, and they separated in January the following year. He then met Ms Yang, and she became his girlfriend shortly after that.[39]
[39] District Court proceedings, 7 February 2020. Member’s File, tab 4. See transcript, p 9. The learned judge refers to the applicant affidavit (para 23 et seq) but unfortunately this was not provided to the Tribunal.
The Tribunal is not required to form a precise judgment about these essentially private matters. It is understandable that on the part of the applicant and Ms Liu, embarrassment, shame and saving face and a perfectly understandable sense of privacy, may have some role to play. The respondent has suggested that the Tribunal is required to consider whether the applicant failed to disclose a material change of circumstance that was relevant to his application for a partner visa. On the basis of the evidence before the Tribunal, I do not believe that it would be fair to draw such a conclusion.
Ms Liu gave evidence that she wanted to resume cohabitation with her husband but did not want to live in Hong Kong. She was a citizen of China and did not speak Cantonese. She was not entitled to reside in Hong Kong. She did not think that she would be able to secure permanent residence there. In any event, she had no plans to go back to Hong Kong or China.[40] When pushed on the question she said that if he was deported it would be very difficult for her to go to Hong Kong. Her parents were divorced, and she was not close to her father. Her mother was a permanent resident of Australia. Before Covid she had a job selling garments.
[40] Transcript 15 October 2020, pp 104-5; 114-5.
The applicant gave evidence about his wife’s fragility and wanted to look after her. His distress at her situation was palpable, and I do not think that it was feigned. He hoped that his wife would return to Sydney when the border with Victoria reopened. He had a job offer. His previous extravagance had been curtailed by prison. His lifestyle would not be lavish. He wanted to settle down and look after his wife. He had reasonable savings, including the money that had been confiscated by the police, most of which had been returned to him.
Given the length of time spent in Australia as an adult, his marriage to Ms Liu, and his educational achievements since coming here as an 18 year old, I consider that his ties to the Australian community are substantial.
This consideration weighs in favour of revocation of the mandatory cancellation decision.
c) OC3: Impact on Australian business interests
There is no evidence of any impact on Australian business interests that would significantly compromise the delivery of a major project or delivery of an important service in Australia. This factor is neutral.
d) OC4: Impact on victims
There is no evidence before the Tribunal relating to the impact on any particular individual. This factor is neutral.
e) OC5: Extent of impediments if removed
This consideration relates to the extent of any impediments that the applicant may face if removed to Hong Kong, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Hong Kong), taking into account, his age and health, language or cultural barriers; and any social, medical and/or economic support available to him in Hong Kong.
The applicant contends that he will face serious impediments in establishing himself in Hong Kong, arising from a number of factors including:
(a)his wife’s lack of residence status in Hong Kong;
(b)a lack of accommodation in Hong Kong;
(c)a lack of employment opportunities in Hong Kong;
(d)anticipated difficulties securing employment as a deportee with a criminal record for drug supply;
(e)whether his qualifications would be recognised in Hong Kong;
(f)the unrest in Hong Kong and the potential to be caught up in violence; and
(g)a difficult relationship with his older brother.
There is no doubt that each of these factors is a significant issue of concern for the applicant. Each may constitute, to a greater or lesser degree, an impediment to re-establishing himself, in the sense envisaged by this consideration.
As to the financial resources available to him were he to be returned, the evidence is that he has a reasonable sum in savings and that this would buy him some time to find accommodation and employment. He is certainly much better off in this regard than other returnees. His educational background will no doubt be of considerable assistance in securing employment if removed.
As to whether his qualifications would be accepted in Hong Kong, it may be that some further study would be required, but the applicant has a strong track record in this regard, and there is no reason to believe that this particular hurdle could not be overcome.
It is not unlikely that he will face difficulties in securing employment due to his criminal record. This is a burden faced by all who seek to rebuild their lives after a period in prison, whether in Australia or overseas. Drugs offences are especially ‘sticky’. On the plus side, he is well qualified and highly motivated.
I also note that he told the judge during the confiscation hearing that he intended to return to Hong Kong at the completion of his sentence, and this was one of the reasons he sought the return of the confiscated funds. The judge said:
He indicated, this in the context of the hardship issue, that when he is released, he plans to reside in Hong Kong. He says he has no place to live and he will need to find somewhere, such as a hotel, as soon as he gets “off the plane”. He says he will have to ask people to lend him money. Although his parents (as I recall this from the sentencing proceeding last year) appeared to be somewhat supportive of him, in any event, he indicated that he would not stay with his parents as he had been away from them for some 16 years. Apparently, he has had a lot of disagreements with his older brother. He says he has no money to fly back to Hong Kong.[41]
[41] District Court proceedings, 7 February 2020. Member’s File, tab 4. See transcript, p 10.
It would not be fair to read this as an attempt by the applicant to manipulate the outcome of the confiscation proceedings in his favour. It makes perfect sense to prepare for the possibility of deportation.
A compelling issue relates to Ms Liu. She presented as a highly vulnerable young woman. She appears to be devoted to the applicant, despite a somewhat turbulent relationship. The marriage ran into trouble very early, and this may have had something to do with entanglements with other parties. These difficulties, which many couples and newly-weds grapple with, were entrenched by the applicant’s arrest, Ms Liu’s departure for Melbourne, and the subsequent border closure between Victoria and New South Wales.
There is some uncertainty as to whether Ms Liu will accompany her husband to Hong Kong if he is removed, or be willing to accompany him, and whether she is permitted to reside there on a permanent basis. Resolving the marital and logistical difficulties will be a clear impediment to be faced by the applicant if removed to Hong Kong. In the short term, those difficulties will be compounded by the present border closures in Australia and the ban on international travel. There is a real danger that the marriage may be smothered by the tyranny of distance.
Regarding his brother, the applicant stated that his brother had threatened him with a knife when they were still living under their parent’s roof, and before he came to Australia.[42] He said that this incident was one reason why his parents supported and encouraged his move to Australia. The respondent suggested that this had all happened a long time ago, and there is no evidence of ongoing animus on the part of his brother. I am inclined to agree that this is not a factor that should weigh heavily on the Tribunal.
[42] Transcript, 15 October 2020, p 40.
I find that the applicant may face some impediments in establishing himself if removed, and that this consideration weighs in his favour. Given his age, state of health, cultural familiarity with the customs and language of Hong Kong, and his educational and financial resources, and the support of his parents, this consideration cannot be said to weigh heavily in his favour. I find that it weighs lightly in favour of revocation.
WEIGHING THE FACTORS
The critical question to be finally decided is whether ‘there is another reason [i.e. other than the applicant passing the character test] why the original decision should be revoked’.
The primary considerations are as follows:
(a)PC1: Protection of the Australian community;
(b)PC2: The best interests of mind children in Australia;
(c)PC3: Expectations of the Australian Community;
Two of the primary considerations weigh in favour of non-revocation. PC1 weighs moderately against revocation; and PC3 weights firmly against revocation. PC2 is neutral.
The ‘other’ considerations are as follows:
(a)OC1: International non-refoulement obligations;
(b)OC2: Strength, nature and duration of ties;
(c)OC3: Impact on Australian business interests;
(d)OC4: Impact on victims;
(e)OC5: Extent of impediments if removed.
Two of the ‘other’ considerations (OC2 and OC5) weigh in favour of revocation. OC2 weighs heavily in favour of revocation and OC5 weighs lightly in favour of revocation.
Three of the ‘other’ considerations are neutral: OC1; OC3 and OC4.
It is inappropriate to proceed simply on the basis that ‘primary’ considerations outweigh the ‘other’ considerations. They generally do, but that is not a universal rule. It depends on the individual weighting assigned, and some intuitive synthesis of all of the relevant factors in reaching a final conclusion. This is always a difficult task, especially where, as here, the weightings are finely balanced.
The applicant was convicted of a serious drug offence and sentenced to a substantial period of imprisonment, three years and four months. There are undoubtedly mitigating, and subjective factors involved in this offending, as well as the fact that the instances of offending occurred within a narrow time span. While he was not a ringleader in the offending, he was prepared to play a crucial role.
It is the policy of the Australian government that the Australian community is entitled to be, and expects to be, protected from this sort of activity. Drug supply offences invariably attract long prison sentences with all the associated hardships. The flow on effect relating to non-citizens may be regarded as harsh, but they are justified by reference to the protection and expectations of the Australian community. It is the duty of the Tribunal to faithfully and fairly execute the Australian government’s policy as encapsulated in Direction No. 79.
My conclusion, taking the most favourable view possible of the countervailing ‘other’ considerations, is that they are simply insufficient in combination, to outweigh the primary considerations which fall against him.
Therefore, taking all factors into account, I find that the applicant fails the character test and that there is not ‘another reason’ why the mandatory cancellation decision should be revoked.
I therefore affirm the reviewable decision.

I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

......[sgd]..................................................................
Associate
Dated: 29 October 2020

Dates of hearing: 15 and 16 October 2020

Solicitors for the Applicant: Ms P Zhang, Accuro Maxwell

Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor

[2020] AATA 4319

29 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Standing

Dates of hearing:	15 and 16 October 2020
Solicitors for the Applicant:	Ms P Zhang, Accuro Maxwell
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor