VZSJ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 129

VZSJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 129 (24 February 2025)
Applicant/s:  VZSJ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2022/2946

Tribunal:Deputy President Burford
General Member Papalia

Place:Perth
Date:24 February 2025

Decision:The decision of the delegate of the Minister dated 1 April 2022, not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (permanent) visa under s 501CA(4) of the Migration Act, is affirmed

………[SGD]……………………………………..
Deputy President
…………[SGD]………………………………….
General Member
CATCHWORDS
MIGRATION – visa cancellation – resident return visa – Mandatory cancellation under s 501(3A) of Migration Act 1958 – Where applicant does not pass the character test – Money laundering – family violence – traffic offending – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – Family violence – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – Applicant is a 47 year old citizen of China – Reviewable Decision affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Replacement Explanatory Memorandum, Anti-Money Laundering and Counter-Terrorism Financing Bill 2006 (Cth)
Migration Act 1958 (Cth)
CASES
ASF17 v The Commonwealth (2024) 98 ALJR 782
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hall v Western Australia [2018] WASCA 151
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461
Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 280 ALR 621
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs (2023) 97 ALJR 1005-1018
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Tuite v Administrative Appeals Tribunal [1993] FCA 113; (1993) 40 FCR 483
VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China (Report, 27 December 2024)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
NSW Government, ‘Drink and drug driving penalties’, NSW Government (Web Page), Drink driving offences and PCA offences < align="center">Statement of Reasons
THE APPLICATION

The Applicant is a 47-year-old Chinese national,[1] who first arrived in Australia on 1 December 1998, at the age of 21, on a Class UC Subclass 457 Temporary Work (Skilled) visa.[2] He was subsequently granted a series of visas,[3] culminating in a Class BB Subclass 155 Five Year Resident Return (permanent) visa (Resident Return Visa) on 29 March 2012.[4]
[1] Exhibit R1, pp 445, 472.
[2] Exhibit R1, p 855.
[3] See Exhibit R1, pp 851-55.
[4] Exhibit R1, p 1743.
The Applicant has a degree in International Business and English from Shanghai University[5] and a Graduate Diploma of Information Technology from the University of Ballarat.[6] He came to Australia to study English and eventually opened several businesses in Sydney, including a ‘mobile telephone shop’ and a karaoke bar.[7]
[5] Exhibit R1, p 434.
[6] Exhibit R1, p 436.
[7] ASFIC, [25]-[26]. See also Exhibit R1, pp 479-87.
The Applicant travelled extensively to and from Australia between August 2001 and April 2002, and February 2005 and August 2015.[8] He has a criminal history in Australia spanning between August 2000 and May 2019.[9] His full criminal history is set out at Annexure A.
[8] Exhibit R1, pp 851-55.
[9] Exhibit R1, pp 1836-42. See also Exhibit R1, pp 49-51.
On 21 November 2019, the Applicant was sentenced by the Downing Centre District Court in New South Wales to a total effective sentence of 30 months’ imprisonment[10] for a series of offences against both New South Wales and Commonwealth laws.[11]
[10] Exhibit R1, pp 49-50, 73.
[11] Exhibit R1, pp 49-50, 54, 80-3.
This sentence of imprisonment gave rise to the cancellation of the Applicant’s Resident Return Visa by a delegate of the Respondent (Minister) on 17 January 2020, under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (Cancellation Decision).[12]
[12] Exhibit R1, p 1743.
The Applicant was notified of the Cancellation Decision by registered post to the Glen Innes Correctional Centre and was invited to make representations to the Minister about revocation.[13] He signed for receipt of the notification on 28 January 2020,[14] and sought revocation within the required time.[15]
[13] See Exhibit R1, pp 90, 1743-49.
[14] Exhibit R1, p 90.
[15] Exhibit R1, pp 85-110.
On 1 April 2022, a delegate of the Minister refused to revoke the Cancellation Decision under s 501CA of the Migration Act (Reviewable Decision).[16] The Applicant was notified of the Reviewable Decision by email on 4 April 2022.[17]
[16] Exhibit R1, p 23.
[17] Exhibit R1, p 16.
The Applicant applied to the Administrative Appeals Tribunal[18] (Tribunal) on 10 April 2022 for review of the Reviewable Decision.[19]
[18] As it was then known. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[19] Exhibit R1, p 10.
On 14 October 2024, the Administrative Review Tribunal replaced the Administrative Appeals Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Transitional Act), applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not completed by the Administrative Appeals Tribunal.
There are two previous decisions of the Tribunal (differently constituted) on the application. The first decision[20] was quashed by orders made by the Federal Court (Lee J) on 8 March 2023, on the basis that the Tribunal had denied the Applicant procedural fairness because of an incorrect application of the 2-day rule contained in s 500(6H) of the Migration Act.[21] The second decision[22] was quashed by orders made by the Federal Court (Stewart J) on 9 January 2024, on the basis that the previously constituted Tribunal had failed to consider the known views of relevant minor children affected by the decision when considering their best interests, as required by the prevailing Ministerial Direction.[23] As discussed with the Applicant at the hearing, material before the Tribunal when it made the first and second decisions was before this Tribunal in the remittal bundle. This included the transcript of the second hearing but not the first.[24] The Tribunal has had regard to this material.
[20] Exhibit R1, pp 2257-300.
[21] Exhibit R1, pp 1876-78.
[22] See Exhibit R1, pp 2509-46.
[23] Exhibit R1, pp 2547-49.
[24] Exhibit R1, pp 2383-508.
This Tribunal must now finalise the review in a manner it thinks is efficient and fair.[25]
[25] Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential Act No 1) s 3, sch 16, pt 24(2).
We are required to identify what, precisely, has been remitted by the Federal Court. As the Federal Court has not expressly limited nor qualified the remittal order, the entire case has been remitted.[26]
[26] Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 280 ALR 621, [37]-[38].
For the reasons set out below, the Tribunal has determined that the correct decision is to affirm the Reviewable Decision.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the Reviewable Decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[27]
[27] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140].
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is ‘another reason’ why the cancellation decision should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs,[28] the majority of the High Court described
[28] [2022] HCA 17; (2022) 275 CLR 582 (M1/2021)
[29] M1/2021, [22].
[30] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594, [6].
s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation decision should be revoked.[29] The majority held in the same paragraph that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[30]
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must now comply with Direction no. 110 given by the Minister under s 499(1) of the Migration Act (Direction).[31] The Direction commenced on 21 June the 2024.[32] Former Directions No. 90 and no. 99 applied before the previously constituted Tribunals, respectively, however each have now been revoked. Submissions and evidence on the current review related to the considerations under Direction no 110. Ultimately, and whilst applying the prevailing Direction, regard must be had to ‘probative material and evidence in [the] individual case’ in determining whether there is ‘another reason’ why the Cancellation Decision should be revoked.[33]
[31] Direction, cl 5.1(4); Migration Act s 499(2A).
[32] Direction, cl 2.
[33] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461, [78] (Dowsett J). See also Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528, [34]-[37]; Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26.
Informed by the principles set out in cl 5.2 of the Direction, the Tribunal ‘must take into account the considerations identified in [cls] 8 and 9’ (to the extent they are relevant in the particular case) in deciding the application.[34]
[34] Direction, cl 6.
THE HEARING AND THE EVIDENCE
The parties appeared before the Tribunal from the Sydney Registry, by audio-visual means to the Perth Registry, on 28 and 29 October 2024. The Applicant was represented by Ms Mamarot of South West Migration and Legal Services, and was assisted by a Cantonese interpreter (also in Sydney). The Minister was represented by Mr Cleary of counsel instructed by Mr Fyfe of Minster Ellison.
The following documents were tendered in evidence and marked as exhibits:
(a)Applicant’s Bundle of Documents, comprising pages 1-212 filed 24 July 2024 (Exhibit A1);
(b)Gambling counselling letter dated 19 August 2019 (Exhibit A2);
(c)Letter from Crane Road Medical Centre dated 17 September 2024 (Exhibit A3);
(d)Report prepared by Mr Tim Watson-Munro dated 9 September 2024 (with an associated curriculum vitae) (Exhibit A4);
(e)Remittal Bundle, comprising 5 volumes and 1 to 2,549 pages (Exhibit R1); and
(f)Respondent’s Supplementary Documents, labelled S1 to S3 (Exhibit R2).
The parties each filed a Statements of Facts, Issues and Contentions dated 24 July 2024 (ASFIC) and 2 September 2024 (RSFIC), respectively. They also filed legal submissions,[35] at the Tribunal’s request, regarding the concession initially made by the Minister that the Tribunal was prohibited from considering the fact that the Downing Centre District Court had taken into account five federal offences in sentencing the Applicant for the two offences on the indictment presented in that Court under s 16BA(2) of the Crimes Act 1914 (Cth) (Crimes Act 1914).[36] In written submissions on this issue, the parties agreed[37] that this concession should not be accepted and that the Tribunal could consider the fact that the Applicant was charged with, and admitted his guilt for, an additional five counts of breaching s 136 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) when he opened accounts with each reporting entity between 11 May 2016 and 28 July 2016 in the Australian Capital Territory, New South Wales, and Western Australia, and provided those entities with his false persona (Charges 2016/000359374-12 to 2016/000359374-16).[38]
[35] Respondent’s submissions dated 20 September 2024 (RS) and Applicant’s submissions dated 15 October 2024 (AS).
[36] Exhibit R1, pp 50, 54. See Tuite v Administrative Appeals Tribunal [1993] FCA 113; (1993) 40 FCR 483, [18], [21], [31].
[37] See RS [20], [40] and AS [27].
[38] Exhibit R1, pp 57-61, 75-8, 81, 1839-40.
The Tribunal agrees with the parties’ joint position on this point. Further, it notes that s 501M of the Migration Act now provides that such criminal history information may be used in respect of the exercise of a power under the Migration Act, and despite any other law of the Commonwealth to the contrary.
APPLICANT’S CONDUCT AND OFFENDING
Financial crimes
On 9 March 2016, the Applicant was arrested by the Queensland Police at the Treasury Casino in Brisbane and charged with obtaining casino chips, to the value of $390, by fraud.[39] The Applicant gave the Queensland Police a false identity and he was dealt with in that persona, including being convicted of ‘cheating by fraudulent act, practice or scheme’ in his absence on 22 April 2016, for which he received a $500 fine.[40]
[39] Exhibit R2, p 2; Exhibit R1, p 79 [27].
[40] Exhibit R2, p 3; Exhibit R1, p 79 [27].
The Applicant subsequently came to the attention of the Australian Federal Police who, in November 2016, executed search warrants at his home address, and that of his parents, in New South Wales.[41] This AFP investigation revealed that the Applicant had been using at least two identities:
(a)the one in which he had been granted permission to enter and remain in Australia and for which he had registered the birth of three children in Australia;[42] and
(b)another identity with a different date of birth and name (but also contained in a separate passport issued by China), which he had been using with various financial reporting entities throughout 2016 without disclosing his other identity.[43]
[41] Exhibit R1, p 78 [23].
[42] Exhibit R1, p 78 [21].
[43] Exhibit R1, p 78 [20], [24(a)].
The Applicant was charged on indictment presented in the Downing Centre District Court with:
(a)one count of having dealt with just under $1.5 million between 4 January 2016 and 22 November 2016 in the false identity, contrary to 193D(1) of the Crimes Act 1900 (NSW);[44] and
(b)another count of giving false or misleading information to the Star Casino on 4 January 2016 by opening an account with that entity in the false identity, contrary to s 136(1) of the AML/CTF Act.[45]
[44] Exhibit R1, pp 76-7 [11]-[19].
[45] Exhibit R1, pp 77-8 [20]-[21].
As noted above, the Applicant was also charged with an additional five counts of breaching s 136(1) of the AML/CTF Act in respect of opening accounts with other reporting entities on various dates in 2016. These additional offences were ‘taken into account’ when sentencing the Applicant for the offences on the indictment, pursuant to the procedure found in s 16BA of the Crimes Act 1914.[46] The Applicant was in state custody on remand for 71 days[47] before being released on bail. He committed domestic violence offences whilst on bail in May 2019 (discussed below).[48]
[46] Exhibit R1, pp 50, 54, 58-61. See also Exhibit R1, p 77.
[47] Exhibit R1, p 73.
[48] See for example, Exhibit R1, pp 53, 62.
On 21 November 2019, the Applicant was sentenced to a total effective sentence of 30 months’ imprisonment by the Downing Centre District Court. The sentencing judge remarked that:[49]
[t]here is no doubt at all that money laundering is a serious criminal activity but it is difficult to discern in this case what the amount of money really was that he was actually transacting. The period is easy enough to determine but the use of the money is veiled and undetermined.
[49] Exhibit R1, p 69.
His Honour accepted the Applicant’s explanation that he had been using the false identity to ‘get around banning’ orders between casinos and that he was gambling to pay off considerable debts.[50] In terms of the Commonwealth offences, the sentencing judge observed that:[51]
[t]he inexorable logic of s 138(6) [sic] of the Anti-Money Laundering Legislation is that a person who uses a false name and fails to tell the institutions, the reporting institutions of that false name, in themselves commits an offence which can be described as an instrument of crime.
In this case, the evil contemplated by the Act requires a particular focus not on the amorphous nature of the gambling transactions or the banking transactions but more on the forex, that is, the foreign exchange transactions. Ostensibly what the offender was doing was transferring funds out of Australia in a false name, no doubt that is one of the things that is directly contemplated as being an offence under the Act.
[50] Exhibit R1, pp 63, 65, 67, 69.
[51] Exhibit R1, pp 70-1.

His Honour rejected the Applicant’s explanation for the foreign transfers, however the Court accepted that the domestic transactions were at the lower end of the spectrum of seriousness for cases of this kind because of their indeterminate value and because they appeared to be due to the Applicant’s problematic gambling.[52]
[52] Exhibit R1, p 71. See Exhibit R1, pp 1802-6 for the list of dealings, including the foreign transfers.
Family violence
On 29 May 2019, the Applicant assaulted his then partner, Ms W, by striking her with his fist, three times to the left arm below the shoulder (common assault).[53] The Applicant then told Ms W that he wanted to kill himself. After she called emergency services, the Applicant grabbed a large kitchen knife which he then used to attempt to cut his wrists (intimidate to cause fear of physical or mental harm).[54] The following day, the Applicant was convicted of both the assault and the intimidation offences in the Parramatta Local Court, having entered guilty pleas to both charges.[55] He was released on a Community Release Order of 12 months’ duration.[56] Additionally, the Court imposed an apprehended domestic violence order on the Applicant, of two years’ duration.[57] Magistrate Keady remarked that the Applicant’s children would have heard the domestic violence and would have been affected by the incident, notwithstanding that they did not witness it.[58] His Honour noted that the intimidation was ‘rather unusual’ because it was a threat to the Applicant himself, rather than to the complainant; however this may have been an attempt to make Ms W feel a sense of guilt.[59]
[53] Exhibit R1, p 1856
[54] Exhibit R1, p 1857.
[55] Exhibit R1, p 52.
[56] Exhibit R1, pp 51, 53.
[57] Exhibit R1, p 53.
[58] Exhibit R1, p 52
[59] Exhibit R1, p 52.
The Applicant initially denied committing these offences in representations made to the delegate.[60] He claimed to have pleaded guilty on the advice of counsel and that, if he had known the seriousness of the charges for his migration status, he would not have admitted his guilt.[61] The Applicant told the previously constituted Tribunal in July 2023 that he was suicidal in May 2019 and that he struck his partner because he wanted to kill himself.[62] He told this Tribunal that he initially denied the offending because it was an argument, and that he had formed the view, based on his prior Tribunal hearings and outcomes, that there was ‘no point [in] explanation’.[63] He said that he did not, in fact, punch Ms W, rather it was a push.[64] Ms W has previously sworn a statutory declaration in February 2020, to the effect that the Applicant pushed her during an argument that she started.[65]
[60] Exhibit R1, p 216 [3].
[61] Exhibit R1, pp 216-7 [4].
[62] Exhibit R1, p 2402
[63] Transcript, p 61.
[64] Transcript, p 62-3.
[65] Exhibit R1, p 572 [5]. See also Exhibit R1, pp 579-80, 1807.
A plea of guilty only involves an acceptance of the essential elements of the offence.[66] If the facts are admitted, or determined on a trial of the issues, they provide the basis upon which the offender is to be sentenced.[67]
[66] See Hall v Western Australia [2018] WASCA 151 (Hall), [13].
[67] See Hall, [14].
The overwhelming weight of authority is that, where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind neither the conviction nor sentence.[68] With respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction nor sentence, nor the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the Applicant where they seek to challenge the facts upon which those convictions are based.[69]
[68] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali), [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 (HZCP), [63], [68], [71], [76]-[79] (McKerracher J), with whom Colvin J agreed at [179]; see also [181]-[196] (Colvin J).
[69] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [78]; Ali, [43].
While the Applicant provided an alternate account of the offences and claimed to have pleaded guilty on advice of counsel and due to not understanding the significance of doing so, he offered limited evidence in support of his contested versions of events which might discharge the ‘heavy onus’, which he bears, to convince the Tribunal to adopt an alternate version or characterisation of the facts of the offences for which he was convicted by a court. While he offered some evidence from his ex-wife, the victim, in support of his account, the Tribunal did not accept this was sufficient to discharge the Applicant’s ‘heavy onus’. Having regard to the offences and to the authorities, the Tribunal considers it appropriate to accept the facts found by Magistrate Keady and the evidence of factual circumstances in contemporaneous official records, including the Statement of Material Facts.
In our view, the Applicant has not discharged his ‘heavy onus’ to challenge the facts upon which he was convicted and sentenced for this offending, notwithstanding that his conviction and sentence followed a plea of guilty and the victim has given subsequent statements supporting the Applicant’s version of events.[70] The Tribunal is not satisfied on the Applicant’s evidence that there is any basis for going behind the conviction, or to reject the facts as found by the Sentencing Judge.
[70] See Ali, [43].
Traffic offences
The Applicant committed his first offence in Australia 18 months after his arrival, on 19 August 2000, by driving with ‘middle range PCA’.[71] That is, he was driving with a blood alcohol content above 0.08 g and less than 0.15 g.[72]
[71] Exhibit R1, pp 51, 1836; Transcript, pp 20, 75.
[72] NSW Government, ‘Drink and drug driving penalties’, NSW Government (Web Page), Drink driving offences and PCA offences <
The Applicant’s full traffic history, which spans 19 August 2000 to 15 March 2018, is set out within Annexure A, and includes 13 traffic related offences. This is an offending history which saw the Applicant declared a habitual offender and resulted in significant periods of disqualification from driving.
Failure to lodge tax returns
The Applicant did not lodge a personal tax return between 2009 and 2016.[73]
CONSIDERATION
[73] Exhibit R1, p 76 [9]
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501(6) of the Migration Act.[74]
[74] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40]. See also Direction, cl 5.1(3); Annexure A.
Failure to pass the character test arises as a matter of law.[75] The character test is relevantly defined in s 501(6)(a) of the Migration Act as when ‘the person has a substantial criminal record (as defined by subsection (7))’. This, in turn, includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’.[76]
[75] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, [63].
[76] Migration Act s 501(7)(c).
As noted above, the Applicant was sentenced to 30 months’ imprisonment on 21 November 2019.[77]
[77] See [4] above. See also Exhibit R1, pp 49-51; Annexure A.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.
Is there another reason?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant and any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in the Direction can be found in cl 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
Protection of the Australian community
The Tribunal is required to consider the protection of the Australian community from criminal or other serious conduct.[78] Clause 8.1(1) directs the Tribunal to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and that the Tribunal should:[79]
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.
Nature and seriousness of conduct
[78] Direction, cl 8.1(1).
[79] Direction, cl 8.1(1).
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[80] In doing so, cl 8.1.1(1)(a) of the Direction provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously by the Australian Government and the Australian community’. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’.[81] The Tribunal notes that whilst the Direction expressly provides categories of conduct that is to be considered ‘very serious’ or ‘serious’,[82] it does not limit the range of conduct that may be so regarded, and the Tribunal must also consider the other factors identified in cls 8.1.1(1)(c)-(i) in determining the seriousness of the Applicant’s conduct more broadly.
[80] Direction, cl 8.1(2)(a).
[81] Direction, cl 8.1.1(1)(b).
[82] See Minister for Home Affairs v Stowers [2020] FCA 407, [45]; BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14, [102]-[103], [107], [188]-[193].
The Applicant conceded that his offending was to be regarded as very serious.[83] However, he submitted that he had a ‘very low risk’ of re-offending.[84]
[83] ASFIC, [63].
[84] ASFIC, [83].
The Minister submitted that the Applicant’s offending should be regarded as very serious because it includes offences that were punished by imprisonment,[85] has been relatively frequent,[86] includes domestic violence offences,[87] and there are some instances of dishonesty to the Minister’s Department.[88]
[85] See RSFIC, [30].
[86] See RSFIC, [32]; Exhibit R1, pp 49-51.
[87] RSFIC, [33].
[88] RSFIC, [36]-[37].
The Applicant’s conduct and offending is detailed above.[89]
[89] See [22]-[36] above.
The Applicant’s conduct and offending to date includes domestic violence, constituted by physical acts of violence and intimidation. Applying the Direction, such offending is viewed ‘very seriously by the Australian Government and the Australian community’.[90] While the Applicant sought to challenge the recorded details of those offences, the Tribunal does not accept there is any reasonable basis to go behind the facts of those convictions.[91] The Applicant assaulted and intimidated his partner in their home while his children were in the home. The Tribunal considers that offending to be very serious.
[90] Direction, cls 8.1.1(1)(a)(ii)-(iii).
[91] See [29]-[33] above.
The Applicant’s offending history also includes serious financial crime, over an almost 12-month period, with multiple discrete acts of dishonesty committed over that period and in multiple states. Those dishonesty offences were directed towards evading authorities. As noted by the sentencing judge, ‘money laundering is a serious criminal activity’.[92] In the Tribunal’s view, this is the case notwithstanding that the exact nature and amounts of money transacted was unclear. Those acts were deliberate, repeated and undertaken for a specific purpose of avoiding regulatory scrutiny. While there is no identified victim of such offending, the Tribunal considers such offending to be very serious, reflected in the imposition of a custodial sentence of some duration for the offences.
[92] Exhibit R1, p 69.
The Applicant’s history indicates that he has frequently appeared before the courts for a range of offences over an extended period. The Tribunal considers the frequent nature of that offending, and the cumulative impact of such offending on the justice system, to contribute to the overall assessment of the Applicant’s conduct and offending as very serious.
The Applicant contended, by way of mitigation, that the financial offending was due to a gambling addiction and not a reflection of his attitude towards Australian laws. Depression and a gambling addiction were also offered as stressors giving rise to the family violence offending. While the Tribunal accepts the Applicant’s documented gambling addiction may be an explanation of his financial offending, and that the Sentencing Judge placed that offending at the lower end of the scale of seriousness for offending of that kind, the Tribunal does not accept that it lessens the assessment of the Applicant’s conduct and offending as very serious. This is particularly so with respect to the family violence offending. The Tribunal does not accept that circumstances of financial stress lessen the seriousness of violence committed against a family member in their home.
Importantly, the Applicant’s disregard for Australian laws is demonstrated in his offending history which goes beyond conduct and offending in relation to which gambling addiction could be said to have been an underlying factor. This includes a long history of traffic offences.
In addition, the Applicant did not comply with federal law when he failed to lodge an income tax return between 2009 and 2016. He also falsely declared on incoming passenger cards in November 2014, May 2015 and August 2015 that he did not have a criminal record.[93] While those offences might individually be considered to be at the lower end of the spectrum of seriousness, against the background of the Applicant’s offending, including the Applicant’s traffic record, which spans from 2000 to 2018, such conduct suggests a preparedness to use dishonesty to achieve his objectives and a lack of respect Australian law. Such conduct is serious.
[93] Exhibit R1, pp 848-50; Transcript, p 118. See also Direction, cl 8.1.1(1)(g).
The Tribunal considers that the nature and seriousness of the Applicant’s conduct to date to be very serious.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[94] There is no statutory constraint on the way that risk is assessed by the Tribunal, other than that there must be a rational and probative basis for the assessment.[95]
Nature of harm
[94] Direction, cls 8.1.2(2)(a)-(b).
[95] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community, should he re-offend.[96]
[96] Direction, cl 8.1.2(2)(a).
The Applicant contended that:[97]
88Anti-money laundering and counter-terrorism / financing legislation is in place to protect the Australian community from the dangers that flow from such criminality. Similarly, families must not be made to live in fear of violence, nor should individuals be placed at risk by habitual offending road users. The Australian community would be intolerant of the applicant were he to engage in further criminal or other serious conduct.
89If the applicant were to reoffend, it could cause emotional, financial, and psychological harm to the Australian community.
[97] ASFIC, pp 20-1 [88]-[89].
The Minister contended that:[98]
Should the applicant again engage in further acts of dealing with property that subsequently becomes an instrument of crime or false or misleading information, any future offending of a similar nature would have the potential to cause psychological and financial harm to members of the Australian community.[99] Further, in the event the applicant engages in further acts of domestic violence, or traffic offences, further offending of a similar nature would have the potential to cause physical, psychological and financial harm to members of the Australian community.[100]
[98] RSFIC, p 8 [39].
[99] Direction, cl 8.1.2(2)(a).
[100] Direction, cl 8.1.2(2)(a).
The Tribunal generally agrees with these submissions.
There is a close connection between organised crime and money laundering. In this case, the Applicant’s use of the money was, in the words of the sentencing judge, ‘veiled and undetermined’.[101] As noted by the sentencing judge, money laundering activities are ‘an instrument of crime’.[102] As a matter of fact, the Applicant was gambling large sums of money, putting money into and out of various accounts. He was also sending money to, and to a lesser extent, receiving money from, China. He did all of this using a false persona.
[101] Exhibit R1, p 69.
[102] Exhibit R1, p 69.
Section 136 of the AML/CTF Act was introduced into Australia’s financial transaction regulatory regime in late 2006, with a series of other ‘first tranche’ reforms seeking to implement Australia’s international obligations and the recommendations of the
inter-governmental Financial Action Taskforce on Money Laundering.[103] As the Explanatory Memorandum to the AML/CTF Bill notes:[104]
[t]he very nature of money laundering means that there is very little reliable data on the extent and impact of the crime. Unlike burglary, theft or assault, the crime of money laundering is not visible – there are no immediate victims to report the crime. Without reports or prosecutions, the magnitude of the problem can only be estimated.
[103] See Replacement Explanatory Memorandum, Anti-Money Laundering and Counter-Terrorism Financing Bill 2006 (Cth) (Explanatory Memorandum), p 1.
[104] Explanatory Memorandum, p 12.
The Applicant’s financial crimes have also deprived the Commonwealth of tax revenue.[105] Similar offending would have similar consequences.
[105] See Exhibit R1, p 76 [9].
In RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, McKerracher J noted:[106]
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
[106] [2021] FCA 266, [48], cited with approval in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762, [43]-[45] (Colvin J).

While the harm caused by the Applicant’s financial crimes is not directly identifiable, or had no apparent or identifiable victim, that does not diminish the serious harm which may flow from the offending, harm which the offences are designed to protect the community against. The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to commit further financial would be serious.
Acts of domestic violence are well-known to have negative effects on those who experience and witness them. Those effects are not restricted to physical injury or psychological harm, nor are they restricted to the immediate victims. The Tribunal considers such harm is very serious.
The Applicant also has a history of traffic convictions spanning a significant time period. The irresponsible use of a motor vehicle, including driving under the influence of alcohol or without seatbelts fastened, has the potential for serious consequences to occur. This conduct puts the safety of road users at risk. Such harm is serious.
The Tribunal considers the harm which would likely be caused were the Applicant to commit further financial, domestic violence, or traffic offences to be very serious.
Likelihood of re-offending
With respect to the likelihood of engaging in further criminal or other serious conduct, the Applicant submitted that his risk of re-offending is low.[107] This was based on the Applicant’s abstinence from gambling since around 2017, the ‘disincentive to gamble’[108] posed by the prospect of further visa cancellation, and the various risk assessments before the Tribunal.[109]
[107] ASFIC, p 21 [83]; Transcript, p 119.
[108] Transcript, p 119.
[109] Transcript, pp 118-9; Exhibit R1, pp 247-72, 312-6, 2204-15; Exhibit A4. See also Exhibit A1, pp 208-10.
The Minister submitted that there was more than a low risk of re-offending because, on the basis of the expert evidence before the Tribunal, the Applicant needed to engage in individual psychological counselling upon his release.[110] This risk was said to be unacceptable because the Applicant did not acknowledge, nor have a plan in place to deal with, ‘his pathological gambling through professional assistance’, and because if he is released into the community he may be faced with the prospect of having outstanding debts that need to be repaid.[111]
[110] Transcript, pp 141-2.
[111] Transcript, p 144
In March 2019, the Applicant was assessed by a forensic psychologist, Mr Jason Borkowski, who had been briefed by his solicitor for the purposes of the sentencing hearing in the Downing Centre District Court.[112] Mr Borkowski considered that the Applicant met the diagnostic criteria for Gambling Disorder, Severe, Persistent; and Major Depressive Disorder.[113] He considered that these disorders were present at the time of the money laundering offences and that there was a relationship between the disorders and his offending.[114] Mr Borkowski thought that these disorders were able to be effectively managed through combined Cognitive-Behavioural Therapy (CBT) and psychosocial intervention.[115] He considered that the risk of future offending of this kind would be reduced should the Applicant have access to, and engage in, psychological intervention, attendance at Gamblers Anonymous meetings, opportunities for employment or vocational training, and access to prosocial supports.[116]
[112] Exhibit R1, pp 258-69.
[113] Exhibit R1, p 264.
[114] Exhibit R1, pp 264-5.
[115] Exhibit R1, p 265.
[116] Exhibit R1, pp 265-6.
In June 2019, Corrective Services NSW assessed the Applicant for the purposes of sentencing for the money laundering offences.[117] They noted that the Applicant had been ‘assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’ actuarial tool.[118]
[117] See Exhibit R1, pp 312-6.
[118] Exhibit R1, p 314.
During June and August 2019, the Applicant attended six counselling sessions with a Catholic Care Gambling Help Counsellor, Mr Mi.[119] Mr Mi thought that the Applicant would benefit from ‘ongoing therapeutic counselling targeting his gambling addiction’.[120]
[119] Exhibit A2.
[120] Exhibit A2.
During this same period, the Applicant also attended three sessions with a psychologist, Ms Amy Ng, on referral from his general practitioner under a Mental Health Care Plan.[121] Ms Ng reached a similar conclusion to Mr Borkowski regarding the Applicant’s disorders.[122] She noted that the Applicant had undergone some therapy with her over the three sessions and ‘highly recommended’ that the Applicant:[123]
1To be referred to a psychiatrist and attend monthly consultations for medication management.
2To be referred to rehabilitation for his gambling addiction.
3To be referred to family counselling to assist with improving his relationship with his partner to co-parent his young children and strengthening social support.
4To be [sic] continue to attend gambling counselling.
5To continue to attend individual psychological consultation on a weekly basis to learn coping skills to treat his gambling addiction.
[121] Exhibit R1, pp 270-2.
[122] Exhibit R1, p 271.
[123] Exhibit R1, p 272.
The sentencing judge in November 2019 considered that the Applicant had ‘relatively good’ prospects of rehabilitation,[124] including based on the assessments made by Mr Borkowski and Mr Mi, and the indication given that the Applicant had been seeing Ms Ng and accessed a gambling helpline.[125]
[124] Exhibit R1, p 63.
[125] Exhibit R1, p 63.
In April 2020, the Applicant was assessed by a clinical psychologist, Ms Sharon Dawson, who had been briefed by his solicitor for the purposes of supporting his representations seeking revocation of the Cancellation Decision.[126] Ms Dawson considered that the Applicant ‘poses little risk of recidivism or likelihood of other serious misconduct’.[127] This was because the Applicant had ‘undergone some treatment for his gambling addiction’ and had abstained from gambling since being in custody.[128] She considered that the addiction was the underlying reason for the offending.[129]
[126] Exhibit R1, pp 247-57.
[127] Exhibit R1, p 247.
[128] Exhibit R1, p 247.
[129] Exhibit R1, pp 248 [50], 250 [155].
In May 2023, the Applicant was assessed by clinical and forensic psychologist, Dr Emily Kwok, who had been briefed by his solicitor for the purposes of this proceeding.[130] Dr Kwok notes that the Applicant reported that he did not see any psychologists in prison, and that when he was taken into immigration detention in 2021 he attended some mental health sessions with a nurse.[131] Dr Kwok considered that the Applicant suffered from Adjustment Disorder with depressed mood.[132] His symptoms associated with this diagnosis were ‘likely to reduce by removing him from detention and by permitting him to remain in Australia’.[133] Dr Kwok considered that the Applicant should ‘seek psychological/counselling support for at least the first six months to assist with emotional regulation, relapse prevention, reintegration, and establishing a prosocial lifestyle’.[134] She considered that the Applicant’s previous depressive symptoms may have contributed to the domestic violence incident in March 2019.[135] Dr Kwok noted that the Applicant’s pathological gambling was the main contributor to his previous financial offending.[136] Based on the risk and protective factors, Dr Kwok thought that the Applicant had a low risk of re-offending.[137] In terms of future domestic violence, the Applicant was assessed against the Ontario Domestic Assault Risk Assessment tool (ODARA). He was in Risk Category 3, where approximately ‘22% of individuals… commit another assault against their partner’ which is reported to the authorities ‘within an average of about five years’.[138] Dr Kwok considered that the Applicant had a low risk of committing further acts of domestic violence on the condition that he abstain from gambling and ‘engage with a psychologist/counsellor in the community for at least 6 months’.[139]
[130] Exhibit R1, pp 2204-15.
[131] Exhibit R1, pp 2206-7 [20].
[132] Exhibit R1, p 2210 [49].
[133] Exhibit R1, p 2211 [53].
[134] Exhibit R1, p 2211 [54].
[135] Exhibit R1, p 2212 [64].
[136] Exhibit R1, p 2212 [67].
[137] Exhibit R1, p 2213 [67].
[138] Exhibit R1, p 2213 [67].
[139] Exhibit R1, pp 2213-4 [67].
Dr Kwok gave oral evidence before the second Tribunal on 27 July 2023.[140] She confirmed that her view was that the Applicant suffered from an adjustment disorder rather than depression.[141] In cross-examination, Dr Kwok testified to her understanding that financial stresses had been a trigger for the applicant’s problematic gambling.[142] When asked to expand upon her opinion about the likelihood of relapse into gambling, Dr Kwok testified that:[143]
If VZSJ does not have support in the community, and by support I would also include in addition to family support, counselling support, psychological support to help him manage stressors, to support him in problem solving, then he would be at risk of returning to his previous behaviours. If he, however, does have the two supports that I mentioned, the family support and also psychosocial therapeutic support, then the risk would be much lower. VZSJ did express insight into the problems with his gambling, he does recognise now, the consequences of chasing his losses, he has had some intervention through smart recovery group, and so he has more knowledge today then he did in 2014, 2015, when his gambling was at the most problematic. And so, in brief, to answer your question, I recommend every six months, but with that his risk would be low.
[140] See Exhibit R1, pp 2415-23
[141] Exhibit R1, p 2416.
[142] Exhibit R1, p 2419.
[143] Exhibit R1, p 2419.
Dr Kwok was asked to explain why she considered that the Applicant needed further individual psychological counselling despite his participation in SMART Recovery group sessions in immigration detention, and said:[144]
I’m recommending this further treatment as affective precaution, because he has been entrusted in the community. And so – and it’s not just for the gambling risk now, it would also be the readjustment as a person who has been in detention for a significant period of time returning to the community, it can also be stressful based on just a natural readjustment that’s required to help him reintegrate. And so I’m recommending the treatment for gambling being one thing, readjustment and reintegration also being the purpose of treatment as well.
[144] Exhibit R1, p 2420.
Dr Kwok thought that the Applicant should have at least fortnightly counselling sessions with a psychologist, and that there would be a higher risk of relapse if he does not have that treatment.[145]
[145] Exhibit R1, pp 2420-1.
Between 2 July 2023 and 13 May 2024, the Applicant attended nine telehealth sessions and 15 face-to-face sessions with a psychologist, Ms Jianqiu Xu.[146] Five of the telehealth sessions were ‘couple sessions’ with his former partner, Ms W.[147] Ms Xu produced a progress report dated 20 June 2024,[148] where she concluded that:[149]
In my professional opinion, [VZSJ] has a favourable prognosis for recovery if he continues to attend regular psychological counselling and receives support from his family. With ongoing therapy and a strong support system, he will be better equipped to make positive choices, better integrate into the community, thereby reducing the likelihood of engaging in gambling behaviour or domestic violence in the future.
It is also important to note that [VSZJ] has shown genuine remorse for his actions and has learned a significant lesson during his stay in prison and the detention centre. This has greatly reduced the likelihood of a repeat offense [sic].
According to [VZSJ]’s current assessment, he has a low risk of relapse into gambling and a low risk of reoffending in terms of domestic violence.
[146] Exhibit A1, p 208.
[147] Exhibit A1, p 208.
[148] Exhibit A1, pp 208-10.
[149] Exhibit A1, pp 209-10.
In August 2024, the Applicant was assessed by a consultant psychologist, Mr Tim Watson-Munro, who was briefed by his solicitor for the purposes of this proceeding.[150] He considered that:[151]
[a]rising from his maturation and insight, in addition to protective factors referable to his family, his expressions of remorse, an absence of substance use, his gambling addiction now being in remission, his desire to support his family and re-enter the workforce, I believe the risk of [VZSJ] reoffending is trending towards low.
[150] Exhibit A4.
[151] Exhibit A4, p 18.
Mr Watson-Munro gave oral evidence to the Tribunal on 29 October 2024. In chief examination, he testified that he reached the view that the Applicant’s gambling addiction was in remission because the Applicant had ceased gambling for a considerable period of time.[152] However, this did not mean that the Applicant was ‘cured’.[153]
[152] Transcript, p 95.
[153] Transcript, p 95.
In cross-examination, Mr Watson-Munro testified that his view is that the Applicant would benefit from continuing psychological treatment, starting at weekly treatment, to deal with his readjustment into the community and that this should also involve his former partner, Ms W.[154] He also thought that the Applicant should abstain from drug and alcohol use.[155] When asked to comment on the effectiveness of the Applicant’s participation in SMART Recovery in immigration detention, he said that:[156]
[MR WATSON-MUNRO:] Well, I think it’s a good start. I think it’s a useful thing for an individual to do. It’s better than not doing it, but I think the great powers in treatment for this man is cognitive behaviour therapy, psychosocial support, motivational psychotherapy, and so on. So the great benefit for him will be if he undertakes that type of treatment.
[COUNSEL:] Dr Kwok suggests in her evidence that initially at least a fortnightly session with a psychologist involving cognitive behaviour therapy would be one way of dealing with VZSJ’s psychological diagnosis; do you agree with that?
[MR WATSON-MUNRO:] Well, I do, although I think I said in response to your question, I think initially in the community it should be weekly, and subject to progress or otherwise, the frequency can then be reviewed.
[COUNSEL:] And how long do you say in your opinion that that treatment should be ongoing?
[MR WATSON-MUNRO:] It’s a good question again, with respect. It’s ha[r]d to say. Given his history, given the intense nature of his gambling, given the prior risk factors that we’ve described (indistinct) depression and anxiety, financial pressure, notwithstanding the progress he has made since that time in terms of custodial detainment at immigration detention, confinement, I would think that he would need treatment for a minimum of 12 to 18 months to be determined ultimately by the treating psychologist.
[154] Transcript, p 98
[155] Transcript, p 102.
[156] Transcript, p 99.
When asked by the Tribunal to comment on the Applicant’s maturation and insight, Mr Watson-Munro indicated that he was surprised that the Applicant had denied committing the domestic violence offences.[157] He agreed that the Applicant’s criminal record demonstrated a disregard for authority and that the Applicant seemed to be fixated on his gambling addiction as the reason for all of his problems.[158] Mr Watson-Munro thought that the Applicant had outstanding treatment needs and that the Applicant had some insight into this fact.[159] He pointed out that a therapist would highlight the reality of the situation to the Applicant and why he required ongoing treatment.[160]
[157] Transcript, p 104.
[158] Transcript, p 105.
[159] Transcript, p 106.
[160] Transcript, p 106.
The Applicant provided the Tribunal with his clinical records from the immigration detention health services provider.[161] These records demonstrate that he has been engaging in the SMART Recovery group sessions on a regular basis,[162] as well as attending mental health consultations with a psychologist, most recently in March and April 2024.[163]
[161] Exhibit A1, pp 2-195.
[162] See Exhibit A1, pp 3, 5-7, 11, 14-7.
[163] See for example Exhibit A1, pp 4, 10.
The Applicant also completed a few online courses in June 2024, including in anger management and understanding addictions.[164]
[164] Exhibit A1, pp 199-206.
The Applicant put himself on the National Self-Exclusion Register (Bet Stop) in June 2024.[165] In cross-examination, he testified that he registered himself in his visa name.[166] He accepted that this self-exclusion only applied to online gambling and would not prevent him from gambling in the future using a false persona.[167]
[165] Exhibit A1, pp 197-8.
[166] Transcript, pp 36-7.
[167] Transcript, pp 36-7.
The Applicant testified on multiple occasions during the hearing that he now realised he could never win from gambling and that this was why he had given gambling up.[168] He told the Tribunal that he believed his ‘gambling addiction definitely gone already’ and that he did not think his previous gambling had been uncontrollable.[169] He said that TikTok had taught him about why people gamble, the ‘gamble formula’, and ‘why you cannot win’.[170]
[168] See, for example Transcript, pp 15, 19, 49.
[169] Transcript, p 52.
[170] Transcript, p 53.
The Applicant gave inconsistent evidence or representations about his gambling history to various persons, including the Tribunal and the sentencing judge. At one stage during the Tribunal hearing, he sought to distinguish between recreational gambling and gambling.[171] He said that in the past he thought there was a difference, but now knows that there is not.[172] However, the way he raised this distinction, and some of his other evidence, revealed his limited insight into his addiction and offending. For example, the Applicant testified, when asked when he commenced different types of gambling:[173]
First of all, I’m very sure that I was not engaged in serious gambling in 2001. Whether I gambled for the first time in a casino in 2001, I really cannot remember. So the point is that I really am a little bit confused whether I should answer the question by when do I start – when did I start gambling, or I can – I cannot remember exactly the period that I started gambling. But for now, answering any kind of periods of starting gambling, it is not any concern for me because this all happened in the past. My idea is very simple. I don’t even want to go for recreational gambling now. The reason is that If I have to go gambling again, people will look at me.
They don’t believe I’m doing recreational, but rather, they say I will go back to gamble again. Considering about when I started gambling, I don’t mind saying that I started gambling 20 years ago. (Emphasis added.)
[171] Transcript, p 25.
[172] Transcript, p 25.
[173] Transcript, p 25.
Another example was his evidence about whether he committed the domestic violence offences for which he had been convicted in May 2019, where the Applicant testified that:[174]
Now, it doesn’t matter what happened or what I’m say or deny this. I’m totally understanding now this is serious now. This – why I’m here is – this [legal] process is – sometime I try say something too, but it cannot accept by – for the party, you know. I didn’t try to minimise or (indistinct) this, I just (indistinct) to tell the tribunal. Before, I’m thinking this theory – I tried to explain the issue – what happened that night. But now, I know that there is no point to explanation if – that’s what happened on the document. The most important is how I am understanding now. Now, my understanding is DV is very serious in Australia. It’s really – it’s totally different what I’m thinking. So I – from now, I am understanding it’s really important to do nothing in Australia, you know. Even the argument. So I didn’t say – I mean.
Regardless of how important, how trivial this matter to the tribunal, but I now realise that it’s something that has already happened. Regardless, it is critical or minimal issue, but the who thing is quite serious.
[174] Transcript, p 61.

The Applicant has an offer of employment from a Mr John Gill, the managing director of a business called Clever Building Solutions, dated 20 June 2024, to provide ‘product sourcing and business acquisition’.[175] Mr Gill indicates that ‘[h]e has already proven to be invaluable with his ability to speak directly with the Chinese market and has provided leads and contacts as well as assisting with communication.’[176] Mr Gill states that he has previously employed persons with difficult backgrounds and that he will not tolerate anything that will damage his business’ reputation.[177]
[175] Exhibit A1, p 207.
[176] Exhibit A1, p 207.
[177] Exhibit A1, p 207.
The Tribunal has concerns about the Applicant’s insight and remorse. The risk assessments discussed with expert witnesses at the hearing were dependent on the Applicant undertaking a program of ongoing rehabilitation or counselling as outlined above. As the Applicant is not under any probationary or other orders compelling him to undertake such rehabilitation, the achievement and maintenance of a low risk of re-offending are dependent upon the Applicant’s own commitment to rehabilitation.
Based upon the evidence before it, particularly the expert evidence summarised above, the Tribunal finds that the Applicant’s current risk of re-offending is trending to a low risk of
re-offending, both generally and also in terms of domestic violence. The Tribunal does not accept that there is no risk, or even a very low risk, he will re-offend.
Conclusion on the protection of the Australian community
Clause 8.1.2(1) of the Direction provides that the Tribunal ‘should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’, and that ‘some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’.
Domestic violence is conduct that crosses that threshold.[178] The Tribunal has found that the Applicant’s conduct to date, when considered globally, is very serious despite involving different kinds of offending and harm to the community. In these circumstances, the tolerance for future harm is low.
[178] See Direction, cl 5.2(8).
The Tribunal considers that there is a need to protect the community from the Applicant’s conduct and offending and therefore the risk of recidivism that is posed by him is unacceptable in the context of this consideration.
This primary consideration weighs against revocation and the Tribunal affords the consideration heavy weight in the Applicant’s circumstances.
Family violence committed by the Applicant
The Applicant’s convictions for ‘common assault (DV)-T2’ and ‘stalk/intimidate intend fear physical etc harm (DV)-T2’[179] are relevant to this primary consideration. There was no dispute that the offences against the Applicant’s former partner constituted family violence as contemplated by this part of the Direction. In the Tribunal’s view these offences were clear instances of family violence committed by the Applicant.
[179] See Exhibit R1, p 51.
The Tribunal is required to assess the seriousness of this family violence engaged in by the Applicant, noting that the Government has ‘serious concerns’ about permitting family violence perpetrators to remain in Australia, where those concerns are ‘proportionate to the seriousness’ of the conduct.[180]
[180] Direction, cl 8.2(1).
The family violence occurred on 29 May 2019.[181] It has not been repeated. The conduct included both physical violence and acts of coercion and control, constituted by the threat the Applicant made to harm himself.
[181] Exhibit R1, p 1856.
The victim, Ms W, has indicated she has forgiven the Applicant for the offending and that she does not have any safety concerns for herself nor for her children.[182]
[182] Exhibit R1, p 1952 [18], p 2480.
As summarised above, the Applicant participated in psychological counselling between 2023 and 2024 with Ms Xu,[183] including sessions addressing the Applicant’s relationship issues with his former partner, Ms W. He also completed an anger management course online on 12 June 2024.[184]
[183] Exhibit A1, p 208.
[184] Exhibit A1, p 201.
Dr Kwok thought the Applicant had a low risk of committing further acts of domestic violence on the condition that he abstain from gambling and engage with a psychologist/counsellor in the community for at least 6 months.[185] Mr Watson-Munro opined the need for ongoing counselling for gambling may be more lengthy – between 12 to 18 months.
[185] Exhibit R1, pp 2213-4.
The Applicant has limited insight and remorse regarding the family violence offences and their impact on his former partner (and potentially his children). He does understand that family violence, and the Government’s position on it, has had a serious impact on his chances of obtaining permission to remain in Australia. However, that is not the same as understanding the impact of this behaviour on the abused and those who witness it or are affected by it.
The family violence engaged in by the Applicant is moderately serious and the Government’s serious concerns apply to an according degree. This consideration weighs against revocation and the Tribunal affords the consideration moderate weight in this case.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider ‘any impact of the decision on the [Applicant’s] immediate family members in Australia’.[186] The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regarding to how long he has resided in Australia,[187] and ‘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’.[188]
Impact of Tribunal decision on immediate family in Australia
[186] Direction, cl 8.3(1).
[187] Direction, cl 8.3(2)(a).
[188] Direction, cl 8.3(2)(b).
The Applicant provided the Tribunal with a table setting out his links to the Australian community.[189] These connections reside in New South Wales and include his parents, who are in their 70s, his sister, former partners (and their relatives), and his children (including step-children).[190]
[189] Transcript, p 125; Exhibit R1, pp 1894-5.
[190] Exhibit R1, pp 1894-6.
The Applicant’s parents provided the Tribunal with a letter dated 29 May 2023, indicating their desire for the Applicant to be available to accompany them to medical appointments and to act as an interpreter.[191] They consider that returning the Applicant to China would be ‘inhumane’ and that they should not be forced to travel to see their son.[192] In that letter, they indicate that they care for the Applicant’s six-year-old son (Master J) two or three days a week because the child’s mother suffers from mental health issues.[193] They make no mention of caring for this child’s older sister (the Applicant’s 15-year-old step-daughter, Miss I).
[191] Exhibit R1, pp 1888-9.
[192] Exhibit R1, p 1888 [2].
[193] Exhibit R1, p 1888 [3].
The Applicant’s father also gave oral evidence to the Tribunal on 28 October 2024.[194] He testified that his daughter (the Applicant’s sister) had been helping him attend medical appointments whilst the Applicant has been in prison or immigration detention.[195] He indicated that Chinese tradition required that his son was responsible for looking after him, and the Applicant’s mother, and that it was not the responsibility of the Applicant’s sister.[196] He also averted to English language difficulties and how they may be alleviated by the Applicant’s presence.[197] The Applicant’s father thought that returning the Applicant to China would put ‘very huge pressure’ on the rest of his Australian family.[198]
[194] See Transcript, pp 81-9.
[195] Transcript, p 83.
[196] Transcript, pp 83-4. See also Exhibit R1, p 1813 where the mother indicates that she has diabetes and severe insomnia and ‘needs’ her son to look after her.
[197] Transcript, p 84.
[198] Transcript, p 84.
The Tribunal notes that the Applicant has an adult son, Mr C, who is 19-years-old. He provided the delegate with a letter in support in December 2020, asking that his father’s visa not be cancelled.[199] He provided a further statement in July 2023.[200]
[199] Exhibit R1, p 531.
[200] Exhibit R1, pp 2217-8.
The Applicant’s daughter, Miss A, aged 15, provided the previously constituted Tribunal with a statement dated 13 July 2023 and historical photographs of the Applicant with his children.[201] Like her older brother, she wants her father’s visa to be restored. In the letter Miss A identifies her desire to have her father physically present in her life while she continues to develop into a young adult.[202]
[201] Exhibit R1, pp 2002-23.
[202] Exhibit R1, p 2002.
The Applicant’s ex-wife provided the delegate with letters dated 10 February 2020 and 24 May 2020 indicating that she was sure that her children would be upset and suffer mental distress from the continued absence of their father.[203] She also stated that the Applicant had not made regular financial contributions to support their children, but would do so occasionally on request, including a sizeable payment in 2019.[204]
[203] Exhibit R1, pp 600-1.
[204] Exhibit R1, p 602.
Ms W gave evidence before the previously constituted Tribunal on 28 July 2023.[205] She testified that the Applicant’s step-daughter, Miss I, had no contact with her biological father and that she treated the Applicant as her father.[206] Her children have a close relationship with the Applicant’s other children, Master C and Miss A.[207]
[205] Exhibit R1, pp 2474-88.
[206] Exhibit R1, p 2477.
[207] Exhibit R1, p 2478.
Miss I testified before the Tribunal on 28 October 2024.[208] She spoke about how she loves and misses the Applicant, has been undertaking additional caring roles for her younger brother, Master J, because of her mother’s mental health, and how the Applicant’s absence has affected her (and her brother) and placed a further burden upon their grandparents.[209]
[208] Transcript, pp 109-11. See also Exhibit R1, pp 532-6, 1953-4.
[209] Transcript, pp 110-1.
Ms W’s statement dated 4 July 2023,[210] and her evidence on 28 July 2023, generally confirmed Miss I’s evidence. It also raises a number of specific health issues and indicates how their family unit would benefit from the Applicant being in their lives, including financially, allowing him to act as a father to their children, and for their son to discuss sensitive health issues with him.[211] The delegate was provided with GP referrals made in July 2021 regarding the Applicant’s youngest son, Master J, for delayed speech and impulsive behaviour.[212] They were also provided with a journal article on the ‘Father’s Roles in the Care and Development of Their Children’.[213]
[210] Exhibit R1, pp 1950-2.
[211] Exhibit R1, pp 1950-2.
[212] Exhibit R1, pp 552-3.
[213] Exhibit R1, pp 554-71.
The Tribunal was provided with a picture drawn by Master J, where he depicts his mother, sister and the Applicant and writes ‘come [home] daddy’.[214] The Tribunal was also provided with a series of translated WeChat conversations between the Applicant, his children, and his ex-partners.[215]
[214] Exhibit R1, p 1955.
[215] See Exhibit R1, pp 2035-136.
The Applicant’s sister provided the previously constituted Tribunal with a written letter dated 28 May 2023.[216] In this letter she confirmed her father’s evidence about providing them with support to attend medical appointments, and how they wanted the Applicant to be available to them for this purpose.[217] She averted to the impact of the Applicant’s absence on his children and her view that he has rehabilitated.[218]
[216] Exhibit R1, pp 1891-3.
[217] Exhibit R1, p 1892.
[218] Exhibit R1, pp 1892-3.
The Applicant’s brother-in-law provided a statement dated 18 July 2023, where he indicates that he has a close relationship with the Applicant and had worked with him in the karaoke business.[219] He notes that his son, Nephew J, aged 14, will be ‘adversely impacted in an emotional sense if his uncle is deported… [including being] denied the opportunity to develop a sustainable close relationship with [his] uncle’.[220]
[219] Exhibit R1, pp 2033-4.
[220] Exhibit R1, p 2033 [11], [12].
The Tribunal finds that the Applicant’s immediate family in Australia, including his parents, sister (and her family), children, ex-wife, and ex-partner, will be significantly affected by an adverse decision in this matter. The Applicant has been physically removed from his Australian family since mid-to-late 2019. His family have felt that absence and other family members have had to pick up the burden of supporting each other with limited financial or physical assistance from the Applicant. His children had not seen him in person until the various Tribunal hearings. They clearly miss their father and the Applicant’s ex-partner has also been incidentally affected by his absence.[221]
Strength, nature and duration of any other ties
[221] See Exhibit A3.
The Applicant indicated, in the table he provided to the Tribunal setting out his links to the Australian community, 10 friends who reside in New South Wales.
The Applicant migrated to Australia as an adult in December 1998. His immediate family subsequently established themselves here, and the Applicant completed further studies[222] and started several businesses.[223]
[222] See Exhibit R1, p 436.
[223] See Transcript, p 125; Exhibit R1, pp 1897-8.
The Applicant’s brother-in-law, who was also a former business partner between 2005-2010, provided the previously constituted Tribunal with two references, including an offer of employment in his construction business, dated 30 May 2023[224] and 18 July 2023.[225]
[224] Exhibit R1, p 1900.
[225] Exhibit R1, pp 2033-4.
Similarly, a friend from immigration detention (who has since been granted a visa), also provided the Applicant a reference and potential employment opportunity.[226]
[226] Exhibit R1, p 2216.
The Applicant’s sister also indicates in her letter dated 28 May 2023 that the Applicant had been interviewed about his business success on Chinese TV and that he was ‘an example to youth entrepreneurship in our community’.[227]
[227] Exhibit R1, p 1891.
As previously noted, the Applicant provided the Tribunal with another reference and job offer from Mr Gill dated 20 June 2024.[228] Mr Gill indicates that:
I was initially introduced to [VZSJ] through one of his friends that knew I needed someone that can assist with issues I was having with importing product. Since then he has been invaluable.
…
We have offered employment to [VZSJ] in a product sourcing and business acquisition role. He has already proven to be invaluable with his ability to speak directly with the Chinese market and has provided leads and contacts as well as assisting with communication. His assistance and contacts obtained when he worked in construction previously, has enabled us to tap into markets that were previously not available.
He has also helped us with sourcing products from China at a better quality and price than we have ever been able to get reliably before.
[228] Applicant’s bundle, p 207.
The Applicant’s movement records demonstrate that he travelled extensively to/from China between August 2001 and April 2002, and between February 2005 and August 2015.[229]
[229] Exhibit R1, pp 851-5. But cf Transcript, p 68.
The Applicant’s counsel accepted that the reference letter from Mr Gill and the Applicant’s extensive travel to/from China prior to August 2015 demonstrated that the Applicant retained links in China and that it was not the case that he had no contact with his country of former habitual residence.[230] However, it was submitted that these ties are minimal when compared with those ties that the Applicant has in Australia.[231]
[230] Transcript, pp 29, 126.
[231] Transcript, p 127.
Counsel conceded that the Tribunal may give less weight to the Applicant’s ties to the Australian community in circumstances where he began offending less than two years after arriving in Australia.[232] However, it was submitted that the Tribunal should give weight to the fact that the Applicant had spent a considerable period of time in Australia and has contributed positively through employment and his social ties to the Chinese-Australian community, notwithstanding that he did not lodge an income tax return for almost a decade, during his ‘chronic gambling period’.[233]
[232] Transcript, p 128.
[233] Transcript, p 128.
The Minister’s counsel noted that it was accepted that the Applicant had familial ties in Australia for which he is responsible.[234] It was submitted that there was limited evidence before the Tribunal about the Applicant’s relationships with people beyond his immediate family, and that the Tribunal should give less weight to the Applicant’s Australian ties in circumstances where he commenced offending ‘pretty shortly after he arrived’.[235] Counsel identified that it was ‘interesting’[236] that the Applicant had had very limited contact with his immediate family since his imprisonment in 2019, that the evidence before the Tribunal about the Applicant’s father’s health did not demonstrate that he required daily care or assistance from the Applicant, and that the evidence was further unclear as to where the Applicant would ultimately live, including whether his children or step-children would live with him.[237]
[234] Transcript, pp 145-6.
[235] Transcript, p 146.
[236] Transcript, p 146.
[237] Transcript, p 146.
The Tribunal finds that the Applicant has familial and social ties to the Australian-Chinese community in Sydney, and that he has generally contributed positively to that community since emigrating in 1998. It reduces the weight that it would ordinarily give to those ties because of the Applicant’s extensive offending commencing within a relatively short period of his arrival and spanning a significant period of his time in the community. The Applicant’s positive contribution to the Australian community is also marred by the Applicant’s conduct, including the Applicant’s failure to lodge an income tax return since 2009.
The Tribunal ultimately gives this primary consideration moderate weight in favour of revocation.
Best interests of minor children in Australia affected by the decision
The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision. Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[238]
[238] Direction, cl 8.4(3).
There are four relevant minor children:
(a)the Applicant’s 15-year-old daughter, Miss A;
(b)the Applicant’s 15-year-old step-daughter, Miss I;
(c)the Applicant’s 14-year-old nephew, Nephew J; and
(d)the Applicant’s 7-year-old son, Master J.
The Tribunal has already referred to their known views in the context of its consideration of the impact of a decision on the Applicant’s family. It acknowledges that both Miss A and Miss I have expressed the view that their best interests would be served by the Applicant remaining in Australia. Given their relative age and maturity the Tribunal places weight on those views. The Tribunal also accepts the Applicant’s son has a relationship with him and wants him to remain in Australia. Nephew J’s views were not known but his father provided evidence that his best interest would be that the Applicant remains in Australia.

Submissions proceeded on the basis that the best interests of the Applicant’s children and step-daughter were generally aligned. The Tribunal has adopted this approach, noting where differences in the interests of the children are identified they have been separately considered.
There is a parental relationship for Miss A, Miss I, and Master J. The Minister appropriately conceded that these were relationships of some duration, save for the Applicant having been imprisoned or held in immigration detention since 2019 (when Master J was 2).[239] Counsel observed in closing submissions that it could not be said that the Applicant had much involvement in his children’s lives between 2015-2017, when he was, on his own evidence, gambling on a full-time basis in multiple locations.[240] The Tribunal agrees with that observation. Nevertheless, the Tribunal considers that each of the Applicant’s children would benefit from the Applicant playing a more active role in their lives than he has done for the last decade, which can generally be described as only remote contact. There is obviously more time for the Applicant to play a meaningful role in the upbringing of Master J than there is in respect of Miss A and Miss I, who are in their mid-teens.
[239] Transcript, p 147.
[240] Transcript, p 147.
The Tribunal notes that Magistrate Keady raised concerns that both Miss I and Master J may have been affected by the Applicant’s domestic violence in May 2019.[241] However, the Tribunal is prepared to accept that both children want their father back in their lives and that their mother has indicated that she has no safety concerns in this respect. There is evidence before the Tribunal to the effect that Ms W is struggling to fulfill the parental role for these children and that the children would benefit from additional parental support from their father (rather than reliance on their grandparents).
[241] Exhibit R1, p 52.
The Tribunal considers that it would be in each of the Applicant’s children’s best interests that the Cancellation Decision be revoked. There is little real difference between the interests of Miss A and Miss I, given their similar age and circumstances. However, the Tribunal notes Master J’s youth and his identified personal health issues. The Tribunal accepts that his best interests are more pressing than his sisters’ need for their father to be physically in their lives. The best interests of each of the children weighs in favour of revocation. Collectively, the best interests of the Applicant’s minor children weigh moderately to heavily in favour of revocation.
The Applicant has an uncle relationship with nephew J and there is evidence of his parents playing a parental role for him. Nephew J’s father has indicated that removing the Applicant may prevent them from developing a more meaningful relationship. There is no evidence that this child has been, or is at risk of being, subject or exposed to domestic violence, abuse, or neglect perpetrated by the Applicant. The Tribunal finds that revocation would be in Nephew J’s best interests but gives this less weight having regard to the limited nature of their relationship to date. Overall, those interests do not meaningfully affect the Tribunal’s consideration of this primary consideration.
Collectively, the Tribunal considers the best interests of the minor children affected by the decision weighs heavily in favour of revocation.
Expectations of the Australian community
The fifth primary consideration is a ‘kind of deeming provision’ which requires the Tribunal to consider the Minister’s articulation of community expectations.[242] Clause 8.5(1) of the Direction relevantly provides that
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… remain in Australia.
[242] Direction, cl 8.5(4); YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].
Clause 8.5(2) then adds to that ‘norm’ and indicates that non-revocation may be ‘appropriate’ in a particular case ‘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’. It specifies commission of serious crimes against women, including crimes of a violent or sexual nature, as character concerns that attract this expectation.[243] The Direction also specifies that these articulated expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[244]
[243] Direction, cl 8.5(2)(c).
[244] Direction, cl 8.5(3).
The Applicant has not obeyed Australian laws whilst he has been in Australia. Relevantly, he engaged in acts of family violence against his former partner. These acts, and the very serious nature of his conduct to date, mean that the Australian community would expect that he should not continue to hold a visa.[245]
[245] See Direction, cls 8.5(2)(a), 8.5(2)(c).
The Applicant conceded that this primary consideration would weigh against revocation but submitted that the Tribunal should moderate the weight that it attributes to the deemed expectations on account of the Applicant’s circumstances, including his rehabilitation efforts and the strength, nature, and duration of his ties to the community.[246]
[246] See ASFIC, [145].
The Minister submitted that significant weight should be afforded to this consideration, having regard to the nature of the Applicant’s conduct to date.[247]
[247] RSFIC, [63].
The Tribunal considers the expectations of the Australian community weigh against revocation. In determining the weight to be afforded to this consideration in the Applicant’s case, the Tribunal is guided by the principles articulated at cl 5.2 of the Direction. Specifically:
(a)remaining in Australia is ‘a privilege… confer[red] 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’;[248]
(b)the safety of the Australian community is the Government’s ‘highest priority’;[249]
(c)the Government considers that the Australian community would expect that non-citizens that have engaged in serious conduct should be required to ‘forfeit the privilege of staying in Australia’;[250]
(d)the Applicant emigrated to Australia as an adult, and despite multiple trips to/from China since then, the Australian community might afford him some tolerance in circumstances where he has lived here for over 25 years;[251]
(e)whilst the Tribunal must consider the Applicant’s particular circumstances, the nature of some conduct, ‘or the harm that would be caused if [it] were to be repeated, may be so serious that even strong countervailing considerations’ in favour of revocation ‘may be insufficient to justify… revoking a mandatory cancellation’;[252]
(f)‘the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify… revoking a mandatory cancellation’ including where there is evidence before the Tribunal that suggests the Applicant ‘does not pose a measureable [sic] risk of causing physical harm’.[253]
[248] Direction, cl 5.2(1).
[249] Direction, cl 5.2(2).
[250] Direction, cls 5.2(3)-(4).
[251] Direction, cl 5.2(6).
[252] Direction, cl 5.2(7).
[253] Direction, cls 5.2(8), 8.5(2).
The Tribunal finds, having regard to those principles and to circumstances of the Applicant’s case, this primary consideration weighs moderately against revocation.
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[254] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision to affirm the reviewable decision under s 105 of the Administrative Review Tribunal Act 2024 (Cth)).
[254] Direction, cl 9.1(1)(a). See also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, [3], [9]-[10] (Allsop CJ and Katzmann J); Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146, [84], [88] (Kenny, Flick and Griffiths JJ).
There are three major consequences of visa refusal or cancellation under s 501 of the Migration Act and related provisions:
(a)a prohibition on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[255]
(b)refusal/cancellation of other visa applications/visas under s 501F; and
(c)periods of exclusion and special return criteria (SRC) may apply under s 503 and SRC 5001 and 5002 in sch 5 to the Migration Regulations 1994 (Cth) (‘Migration Regulations’). This includes permanent exclusion where SRC 5001 applies, unless the Minister acts personally to grant a permanent visa to the person.
[255] See also Migration Act, s 46(1)(d).
The Applicant initially contended that the Tribunal should find that Australia’s non-refoulement obligations were engaged with respect to returning him to China on the basis that he was at risk of harm from organised criminals in China with whom he had borrowed money. Additionally, he said would be at risk of double jeopardy for his money laundering and potential prosecution in respect of him separately obtaining and using a fraudulent Chinese passport in association with that money laundering.[256]
[256] See ASFIC, pp 28-30. See also Transcript, pp 129-32.
However, his counsel conceded in closing submissions that it would be appropriate for the Tribunal to defer consideration of those protection claims.[257] Additionally, the Applicant has previously testified he would apply for a protection visa if he was not successful in seeking revocation.[258]
[257] Transcript, p 131.
[258] Exhibit R1, p 2451.
When the Applicant’s resident return visa was cancelled in 2020, he became an ‘unlawful non-citizen’.[259] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[260] Due to that status, and the fact that he is an alien for constitutional purposes), the Applicant was liable to be detained under s 189(1) of the Migration Act. That occurred in 2021, when he was released from prison.
[259] Migration Act, s 15.
[260] Migration Act, ss 13-14.
Relevantly, the Applicant is required to be detained until he is either removed from Australia under s 198 of the Migration Act, or he is granted a visa, including having his original visa restored to him under s 501CA(4).[261]
[261] Migration Act, ss 196(1)(a), 196(1)(c), 196(4)-(5); see also Migration Act, s 501C(7).
The Migration Act would not authorise the Applicant’s continuing detention for the purposes of his removal if and for so long as there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.[262]
[262] NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs (2023) 97 ALJR 1005-1018, [55]; ASF17 v The Commonwealth (2024) 98 ALJR 782, 784-5 [1], 788-9 [31]-[32].
The only basis upon which the statutory obligation to remove the Applicant under s 198 of the Migration Act would be stayed would be if the Applicant made a valid application for a protection visa.[263] The Applicant would then be required to be detained until either he has been granted that visa or his application has been finally determined. Refusal of that application on a final basis would re-enliven the obligation to remove, as would a separate request in writing made by the Applicant himself under s 198(1).
[263] Migration Act, s 198(5A).
The duty to remove an unlawful non-citizen under s 198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[264] However, that provision does not require nor authorise a non-citizen’s removal to a country if, during the course of a protection visa application, there has been a protection finding made for the person with respect to the country.[265]
[264] Migration Act, s 197C(2).
[265] Migration Act, s 197C(3).
The criteria for a protection visa are found within s 36 of the Migration Act and sch 2 to the Migration Regulations. In considering whether to grant or refuse a protection visa, the Minister must first give consideration to Australia’s protection obligations and make a finding whether the applicant satisfies either s 36(2)(a) or s 36(2)(aa) of the Migration Act with respect to a country.[266]
[266] Migration Act, s 36A(2).
Having considered the representations made by the Applicant and the submissions at the hearing, the Tribunal does not consider it appropriate at this stage to express a view on whether the Applicant’s circumstances engage Australia’s protection obligations. Limited evidence was offered to support the Applicant’s claims to be at risk of serious or significant harm from organised crime or the authorities on return to China and a protection visa application process will provide the Applicant with an opportunity to have those claims fully articulated and considered. The Tribunal considers it is appropriate to defer consideration of those claims on that basis.
The Tribunal accepts that the process for potential consideration of Australia’s protection obligations through a protection visa application would likely increase the length of the Applicant’s immigration detention, including potential consideration of whether the Applicant would fall foul of the character provisions found in ss 36(1C) and 36(2C)(b)(ii) of the Migration Act, and also discretionary refusal under s 501(1). The Tribunal also acknowledges that those provisions and the Tribunal’s reasoning in this proceeding considerably reduces the prospect of the Applicant being granted a protection visa even if there were a protection finding made.
Whether the Applicant could be removed to another country in the reasonably foreseeable future would be a matter for assessment by the Minister’s Department at the time in which his detention is for that purpose. Noting the constitutional limits on immigration detention referred to above, the Minister may need to give separate consideration to granting the Applicant another visa, whether with or without conditions, once any protection finding is made. The Tribunal does not have the power to restore the Applicant’s visa with conditions, or even to grant him another one.
The Applicant has been in either state custody or immigration detention since 2019. The Tribunal accepts that this has been hard for the Applicant and his family. For the above reasons, the Applicant would likely be subject to further detention whilst consideration is given to whether he should be granted a protection visa if he was not successful in this application. There is no set timeframe for processing an onshore protection visa, nor is there one for ministerial intervention. The Tribunal gives the legal consequences of its decision weight in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to China,[267]
in establishing [himself] and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the [Applicant’s] age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to [him] in that country.
[267] Direction, cl 9.2(1).
The applicant is 47-years-old. He is generally in good health, but suffers from hypercholesterolemia, for which he is medicated.[268] He has a serious gambling addiction which is in remission but requires further psychological counselling. He has also historically suffered from either adjustment disorder with depressed mood, or depression.
[268] See for example Exhibit A1, pp 2, 104.
It was appropriately conceded that the Applicant would not face any substantial language or cultural barriers if removed to China.[269] However, it was submitted that he would have limited social support in China given that his immediate family are all in Australia.[270]
[269] Transcript, p 133; ASFIC, [130(c)].
[270] Transcript, p 133; ASFIC, [130(e)].
The Applicant identified that there would be limited medical and economic support available to him in China,[271] and that he may face age-based discrimination in obtaining employment.[272]
[271] Transcript, p 133; ASFIC, [130(f)], [132], [133].
[272] See Transcript, p 133.
The Tribunal notes that the Applicant has tertiary education qualifications from Australia and China,[273] and previous work experience in multiple fields.
[273] See Exhibit R1, pp 433-6.
The Minister referred the Tribunal to the Department of Foreign Affairs and Trade Country Information Report for China dated December 2021. This was updated in December 2024, but for present purposes the 2024 report is relevantly identical to the 2021 report. The parties were invited to provide the Tribunal with any submissions on the 2024 report but did not make any. The authors observe that China provides official welfare ‘through its social security system, which includes pension, medical [and] unemployment… benefits’.[274] However, the adequacy of these social services varies across the country.[275] There is also considerable youth unemployment in China, which has caused migration and a trend of university graduates having to ‘settle for lower-skilled employment’.[276]
[274] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China (Report, 27 December 2024) (DFAT Report), 9 [2.13].
[275] DFAT Report, 9 [2.13]-[2.14].
[276] DFAT Report, 10 [2.19]-[2.20].
Dr Kwok indicated in her July 2023 report that psychological treatment for the Applicant is available in China, but that there is a shortage of mental health professionals in China to meet demand.[277] This would seem to accord with the DFAT Report,[278] and the Tribunal accepts that evidence despite the absence of Dr Kwok having documented expertise in this respect.
[277] See Exhibit R1, p 2215.
[278] See DFAT Report, 14 [2.43].
The Applicant thought that he could eventually adjust to life back in China but considered that employment would be his biggest obstacle in establishing himself and maintaining basic living standards (save for any issues arising from his protection claims, if accepted).[279]
[279] Transcript, p 17.
The Tribunal accepts that the Applicant would be separated from his family and social circle if removed to China and that this would be hard for him. It also accepts that the social, medical, and economic support available to him in China is less than what would be available to him in Australia, though not such as it would prevent him from establishing himself and maintaining basic living standards in China.
For the above reasons, the Tribunal gives the likely impediments that would be occasioned by his removal to China slight weight in favour of revocation.
Impact on Australian business interests
There is no evidence of any meaningful impact of the Tribunal’s decision on an Australian business interest, especially one which would significantly ‘compromise the delivery’ of a major project or important service in Australia.[280]
[280] Direction, cl 9.3(1).
The Applicant’s counsel conceded in closing submissions that whilst Mr Gill had indicated that his business had benefited from the Applicant’s involvement, there was no evidence that there would be any real impact on this business because of the Tribunal finding against revocation.[281]
[281] Transcript, p 134.

The same could be said for the job offer from the Applicant’s friend he met in immigration detention.[282]
[282] Exhibit R1, p 2216.
For those reasons, the Tribunal finds that this consideration weighs neither for nor against revocation in the Applicant’s circumstances and should be given neutral weight.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory Cancellation Decision should be revoked.[283]
[283] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].
Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) ‘is generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant primary considerations ‘should generally be given greater weight than the other considerations’. This guidance is consistent with the principle articulated at cl 5.2(2) of the Direction, that ‘the safety of the Australian Community is the highest priority of the Australian Government’. The Tribunal notes that this guidance does not mean that the other considerations are secondary to the primary considerations, nor that they should always be given less weight.[284]
[284] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545.
The Tribunal has considered the relevant considerations in this matter and determined that there is not ‘another reason’ to revoke the Cancellation Decision. In the Tribunal’s ultimate assessment, those factors which weigh in favour of revocation, being the strength, nature and duration of ties, best interests of relevant minor children, the legal consequences of the decision, and the extent of impediments if removed, while carrying some force, are outweighed by those weighing against revocation, particularly the protection of the Australian community, family violence, and the expectations of the Australian community.
In summary, having regard to the relevant primary and other considerations in the Direction and the Applicant’s representations, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. Therefore, the correct decision is to affirm the decision under review.
DECISION
The decision of the delegate of the Minister dated 1 April 2022, not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (permanent) visa under s 501CA(4) of the Migration Act, is affirmed.

I certify that the preceding 182 (one hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Burford and General Member Papalia.

.......[SGD].................................................................
Associate
Dated: 24 February 2025

Date of hearing: 28 and 29 October 2024

Representative for the Applicant: Ms Marta Mamarot, South West Migration and Legal Services

Counsel for the Respondent:
Mr Mark Cleary

Solicitor for the Respondent: Mr Fyfe, Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA

Conviction Date Court Offence Jurisdiction Offence Date(s) Court Result

21 November 2019 Downing Centre District Court Dealing with property that subsequently becomes an instrument of crime NSW 4 January 2016 – 22 November 2016 2 years’ imprisonment

Give false or misleading information to a reporting entity Cth 4 January 2016
12 months’ imprisonment

Give false or misleading information to a reporting entity (x 5) Cth 11 May 2016 – 28 July 2016 Taken into account on s 16BA schedule

TES: 30 months’ imprisonment

30 May 2019 Parramatta Local Court Stalk/intimidate intend fear physical etc harm (domestic)-T2 NSW 29 May 2019 Conditional release order: 12 months

Common assault (DV)-T2 NSW 29 May 2019 Conditional release order: 12 months

9 April 2018 Downing Centre Local Court Use light vehicle not comply with tyres standard NSW 12 February 2018 S10A conviction with no other penalty

Driver or rider state false name or home address NSW 12 February 2018 Fine: $330

Drive with 2 unrestrained passenger (16 yrs or older) NSW 12 February 2018 S10A conviction with no other penalty

Drive while licence cancelled – 1^st off NSW 12 February 2018
Fine: $770

Disqualification – driver: 6 months

Driver or ride state false name or home address NSW 15 March 2018 Fine: $330

Never licenced person drive vehible on road – first offence NSW 15 March 2018 Fine: $660

22 April 2016 Brisbane Magistrates Court Cheating by fraudulent act, practice or scheme QLD 9 March 2016 Fine: $500

3 April 2007 North Sydney Local Court Drive while disqualified from holding a licence NSW 30 January 2007
Community Service Order: 250 hours

Costs – court: $67

Disqualification: 2 years

Disqualification (habitual offender): 5 years

9 March 2006 Downing Centre Local Court Drive while disqualified from holding a licence NSW 4 November 2005
Community Service Order: 150 hours

Costs – court: $67

Disqualification: 2 years

Disqualification (habitual offender): 2 years

Use unregistered vehicle on road or road related area NSW 4 November 2005
Fine: $250

Costs – court: $65

0 Drive uninsured vehicle NSW 4 November 2005
Fine: $250

Costs – court: $65

25 September 2003 Sutherland Local Court Drive while disqualified from holding a licence NSW 28 August 2003
Fine: $800

Costs – court: $61

Disqualification (habitual offender): 2 years

S9 bond: 2 years

14 May 2003 Balmain Local Court Drive with low range PCA NSW 23 April 2003
Fine: $1,500

Costs – court: $56

Disqualification: 12 months

11 September 2000 Burwood Local Court Drive with middle range PCA NSW 19 August 2000
Fine: $750

Costs – court: $56

Disqualification: 12 months

Date of hearing:	28 and 29 October 2024
Representative for the Applicant:	Ms Marta Mamarot, South West Migration and Legal Services
Counsel for the Respondent:	Mr Mark Cleary
Solicitor for the Respondent:	Mr Fyfe, Minter Ellison

Conviction Date	Court	Offence	Jurisdiction	Offence Date(s)	Court Result
21 November 2019	Downing Centre District Court	Dealing with property that subsequently becomes an instrument of crime	NSW	4 January 2016 – 22 November 2016	2 years’ imprisonment
Give false or misleading information to a reporting entity	Cth	4 January 2016	12 months’ imprisonment
Give false or misleading information to a reporting entity (x 5)	Cth	11 May 2016 – 28 July 2016	Taken into account on s 16BA schedule
TES: 30 months’ imprisonment
30 May 2019	Parramatta Local Court	Stalk/intimidate intend fear physical etc harm (domestic)-T2	NSW	29 May 2019	Conditional release order: 12 months
Common assault (DV)-T2	NSW	29 May 2019	Conditional release order: 12 months
9 April 2018	Downing Centre Local Court	Use light vehicle not comply with tyres standard	NSW	12 February 2018	S10A conviction with no other penalty
Driver or rider state false name or home address	NSW	12 February 2018	Fine: $330
Drive with 2 unrestrained passenger (16 yrs or older)	NSW	12 February 2018	S10A conviction with no other penalty
Drive while licence cancelled – 1^st off	NSW	12 February 2018	Fine: $770 Disqualification – driver: 6 months
Driver or ride state false name or home address	NSW	15 March 2018	Fine: $330
Never licenced person drive vehible on road – first offence	NSW	15 March 2018	Fine: $660
22 April 2016	Brisbane Magistrates Court	Cheating by fraudulent act, practice or scheme	QLD	9 March 2016	Fine: $500
3 April 2007	North Sydney Local Court	Drive while disqualified from holding a licence	NSW	30 January 2007	Community Service Order: 250 hours Costs – court: $67 Disqualification: 2 years Disqualification (habitual offender): 5 years
9 March 2006	Downing Centre Local Court	Drive while disqualified from holding a licence	NSW	4 November 2005	Community Service Order: 150 hours Costs – court: $67 Disqualification: 2 years Disqualification (habitual offender): 2 years
Use unregistered vehicle on road or road related area	NSW	4 November 2005	Fine: $250 Costs – court: $65
0	Drive uninsured vehicle	NSW	4 November 2005	Fine: $250 Costs – court: $65
25 September 2003	Sutherland Local Court	Drive while disqualified from holding a licence	NSW	28 August 2003	Fine: $800 Costs – court: $61 Disqualification (habitual offender): 2 years S9 bond: 2 years
14 May 2003	Balmain Local Court	Drive with low range PCA	NSW	23 April 2003	Fine: $1,500 Costs – court: $56 Disqualification: 12 months
11 September 2000	Burwood Local Court	Drive with middle range PCA	NSW	19 August 2000	Fine: $750 Costs – court: $56 Disqualification: 12 months