Wang and Minister for Immigration and Border Protection (Migration)

Wang and Minister for Immigration and Border Protection (Migration) [2017] AATA 1212 (2 August 2017)
Division:GENERAL DIVISION
File Number(s): 2017/2885
Re:Jian Wang
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:2 August 2017
Place:Sydney

The reviewable decision made 12 May 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of Mr Wang’s resident visa, is affirmed.
.....................................[sgd]...................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – visa – cancellation – character test – substantial criminal record – dealing in proceeds of crime – credit card fraud – protection of the Australian community – expectations of the Australian community – strength nature and duration of ties to Australia – impact on family in Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
2 August 2017
A. INTRODUCTION

Mr Wang is a citizen of the People’s Republic of China. He first entered Australia as the holder of a student visa in April 1990 and has resided here continuously since, with the exception of approximately 11 months in 1999. In 1994 he was granted a Five Year Resident Return visa which he held until it was cancelled on 24 June 2016.
On 5 August 2010 Mr Wang was sentenced to 10 years in prison in respect of the offence of dealing in the proceeds of crime.
On 24 June 2016 a delegate of the Minister for Immigration and Border Protection cancelled Mr Wang’s visa (“the cancellation decision”).[1] The delegate was satisfied Mr Wang did not pass the character test set out in the Migration Act 1958 (Cth) and that he was serving a term of imprisonment on a full-time basis in a custodial institution.[2]
[1] Exhibit R1 p.122.
[2] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.
Mr Wang was released on parole on 16 July 2016.[3] He was taken into immigration detention immediately on his release and has remained in detention since.
[3] Exhibit R1 p.101.
In accordance with the procedure set out in the Act, Mr Wang made representations to the Minister seeking a revocation of the cancellation decision. On 12 May 2017 a Minister’s delegate decided not to revoke the cancellation decision.[4] This decision, referred to as “the reviewable decision”, is the subject of this application for review.
[4] Exhibit R1 p.8.
For the reasons which follow the reviewable decision will be affirmed.
B. FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr Wang.
Mr Wang was born in 1966 and is now 51 years old. He holds the degree of Bachelor of Engineering (Electrical Instruments) from a Chinese university.
Following his graduation Mr Wang was employed in China in the engineering industry until he came to Australia in 1990. He was then aged 24 years. As he was unable to find employment in Australia in engineering (by reason of his limited skills in English) he worked as a cook. From 2000 he also worked as a freelancer in the casino industry in Macau, China.
Mr Wang married Ms Shen in 1997 in China. Their only child, a daughter, was born in China in 1998. Ms Shen joined Mr Wang in Australia in 2000. Their daughter joined them in 2002. Ms Shen and their daughter, Ms Wang, are Australian citizens.
Mr Wang’s criminal record
A National Police Certificate issued in respect of Mr Wang[5] shows that he has been convicted of the following offences in Australia:
·1991    Found in gaming house
·2003    Driving with low range prescribed concentration of alcohol
·2005    Importing tier 2 goods and making a false instrument (these charges related to credit card fraud)
·2010    recklessly dealing in proceeds of crime in excess of $1,000,000 (this charge related to money laundering activity which occurred in December 2003).
[5] Exhibit R1 p.19.
Offences relating to credit card fraud
In 2004 Mr Wang was involved with others in a scheme whereby incomplete counterfeit credit cards were imported into Australia. Once the cards were received, Mr Wang arranged for another person to imprint the cards with false information and to attach magnetic strips. The information used to complete the cards was purchased by Mr Wang from overseas. The cards were then used to fraudulently obtain goods and services.
In June 2004 a person carrying over 2000 counterfeit cards was detained at Sydney Airport and the cards confiscated. Mr Wang expected to receive 800 of these cards.
In his Sentencing Remarks in the District Court of New South Wales in July 2005 Judge Berman said, in part:
The telephone calls [intercepted by police] also revealed the extent to which the offender [Mr Wang] was involved in the operation. It was he who provided the relevant information to [Ms X] for her to create the counterfeit credit cards. He was fully aware of the purpose to which the counterfeit credit cards were put, receiving reports of others who had been using them, and it was he who arranged for money to be remitted overseas as payment for him being provided with the relevant details, such as account numbers, to be encoded on the counterfeit credit cards.
[Ms X] was also deeply involved in the scheme but, and there are some exceptions, she largely received instructions from the offender… This is a case where a business of counterfeiting credit cards was being run and in assessing the appropriate sentence to be imposed on the offender it is necessary that I identify his role in that operation. The fact that he was responsible for remitting money overseas is relevant to that assessment…
In identifying the actual loss and the potential loss through the commission of these offences, the Crown tendered a statement of facts which reports that the average loss for each counterfeit credit card has been assessed at $4,000. That figure was not challenged by Mr Morrison [who appeared for Mr Wang]. The statement of facts also records that during the period of the first offence, between 300 and 400 counterfeit credit cards were made. If the average loss was in fact $4,000 per card it means that the offender’s criminal activities led to an actual loss of more than a million dollars. Of course it may well be that not all of those counterfeit credit cards were successfully used. Some may have been used only once in less than $4,000 worth of goods obtained. Some may have been used to obtain more than $4,000 worth of goods. It is impossible therefore to be accurate as to the extent of the loss involved in the first offence. One thing it is possible to say is however that the loss was substantial.
The potential loss which could have come about if the offender had been able to get his hands on the 800 credit cards imported by [Mr Z] is also highly significant. Even basing a calculation of the 800 cards the offender expected rather than the 2,250 [Mr Z] actually imported, the potential loss is something in the order of $3,200,000. Of course that is the potential loss and it is far from certain that all of the 800 cards would have been successfully used.
These figures demonstrate the seriousness of the offender’s conduct. Nor was this a case of isolated criminal activity. To the contrary there was a series of ongoing criminal acts, a circumstance which must be reflected in the sentence to be imposed.[6]
[6] Exhibit R2.
For the offence of making false instruments Mr Wang was sentenced to imprisonment for three years, commencing on 4 June 2004, the day on which he was taken into custody. For the offence of conspiring to import counterfeit credit cards he was sentenced to imprisonment for three years commencing on 4 December 2005, being 18 months after the sentence on the first count commenced. The effective sentence was for four and a half years with an effective non-parole period of three years.
Mr Wang was released on parole on 10 July 2007. On the same day he was granted bail in respect of the proceeds of crime charge.
Offence related to dealing with the proceeds of crime
In February 2010 Mr Wang was found guilty by jury verdict after trial of the following offence contrary to the provisions of the Criminal Code Act 1995:
Between about 1 December 2003 and about 6 January 2004 at Sydney in the State of New South Wales and elsewhere [dealing with] with money to the value of $1,000,000 or more which was the proceed of crime, being reckless as to the fact that the money was the proceeds of crime.[7]
[7] Exhibit R1 p.40.
In sentencing Mr Wang, Judge King SC in the District Court of New South Wales said, in part:
A fraud was perpetrated on the Commonwealth Superannuation Scheme (CSS) on 24 December 2003. …… Funds totalling AUD $150 million were sent to four different accounts around the world. Relevantly for [Mr Wang] …HKD175,624,839.38 (approximately AUD 30 million 582 thousand) was sent to an account held with HSBC in the name of Hong Kong Power Limited…
The money transferred to the account in the name of Hong Kong Power from the Commonwealth Superannuation Scheme was made available on board the vessel Omar III on 29 December 2003 for use in playing Baccarat …..
The balance left after gaming by [Mr Wang and five or six others] on the night of 29 December 2003 was approximately HKD 156 million (approximately AUD27.16 million). ….. The loss from gambling was therefore HKD 19,700,000 (approximately AUD 3.43 million at the exchange rate given …..)
By the time an attempt was made to redeem funds on the basis of the receipts the funds had been frozen and could not be accessed.
…..
It is important to note that the Crown case in respect of [Mr Wang] accepted that [he did not have] any involvement in or knowledge of the actions taken by others to carry out the fraud.[8]
[8] Exhibit R1 pp.40 ff.
Specifically in relation to Mr Wang’s role, Judge King said, in part:
This offender was involved in the obtaining of the account details for Hong Kong Power Limited.
…..
Wang was involved in liaising regularly with [others involved in the criminal activity]. The court is satisfied that much of that telephone contact was related to:
(i)     Finding the account details;
(ii)    Making arrangements with respect to boarding and gaming on the Omar III;
(iii)    The timing of the availability of the funds and the arrangements for dealing with them after they had been used to gamble.
Wang travel to Hong Kong on 23 December 2003 ….. While there he stayed at, among other places, the Hotel Lisboa, Macau, from 24 December 2003 to 1 January 2004 …..
……
Over the course of eight hours or so between 29 and 30 December 2003 Wang played Baccarat while seated with [another involved in the activity], who also played. The funds Wang used for that gaming were the funds that had been fraudulently transferred to the HK Power account from the Commonwealth Superannuation Scheme.
While in Hong Kong, Wang met with a number of people …… At least one of those meetings was to discuss what had gone wrong after it became apparent that the funds had been frozen and could not be accessed. [9]
[9] Exhibit R1 p.40 ff.
At the hearing of this application Mr Wang said that when he boarded the Omar III before he started gambling, he became suspicious as to the source of the funds. His suspicion was aroused because, contrary to normal practice, the owner of those funds was not present at the casino. I accept this evidence.
The Court was satisfied that the amount lost was AUD$3,430,500.[10]
[10] Exhibit R1 p.49.
Mr Wang was sentenced to imprisonment for 10 years with a non-parole period of six years and six months. The term of imprisonment commenced on 17 January 2010 to expire on 16 January 2020.[11] Mr Wang was released on parole on 16 July 2016. Immediately upon Mr Wang being released on parole he was taken into immigration detention where he has remained since.
[11] Exhibit R1 p.60.
Failure to pass the character test
It is not in dispute that, by reason of his criminal record, Mr Wang does not pass the “character test” set out in the Migration Act.
C. THE RELEVANT LEGISLATION
Subsection 501(3A) of the Migration Act 1958 (Cth) provides:
(3A)The Minister must cancel a visa that has been granted to a person if:
(b)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(c)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This mandatory cancellation decision is referred to later in the Act as “the original decision”.
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)The person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to cancel Mr Wang’s visa is provided by section 500.
D. DIRECTION NO.65
Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”
Under the heading General Guidance subparagraph (1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C, in order to determine whether the mandatory cancellation of Mr Wang’s visa will be revoked.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[12] Primary considerations should generally be given greater weight than the other considerations.[13]
[12] Direction 65, paragraphs 6.2(3) and 8(1).
[13] Direction 65, paragraph 8(4).
Paragraph 13(2) provides:
In deciding whether to revoke a mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
E. ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons. Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that Mr Wang has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether “there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked.”[14]
[14] Subparagraph 501CA(4)(b)(ii).

If I am satisfied that all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[15]
[15] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at para.31.
F. REASONING
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I note that I must have regard to matters set out in paragraph 13.1 being:
·…… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engage in other serious conduct.[16]
[16] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
The nature and seriousness of Mr Wang’s conduct to date
The conduct of Mr Wang in engaging in two separate bouts of criminal activity in 2003 and 2004 is very serious indeed. Judge King described the “objective seriousness” of the proceeds of crime offence, together with Mr Wang’s moral culpability, as “high”.[17] A very large amount of money was involved and despite most of the funds being recovered, Mr Wang’s activities contributed to a loss of some millions of dollars.
[17] Exhibit R1 pp.50 and 57.
Judge Berman said that the estimated loss caused by Mr Wang in his use of counterfeit credit cards, together with the potential loss had he been able to use all of the cards he sought to obtain, demonstrated the seriousness of his conduct.[18]
[18] Exhibit R2 p.5.
Further indication of the seriousness of the offences can be seen in the sentences imposed. In particular, in the proceeds of crime matter the maximum term of imprisonment was 12 years; Mr Wang was sentenced to imprisonment for 10 years.[19] Clearly the Court considered that the offence was in the upper range of seriousness.
[19] Exhibit R1 pp. 40 and 60.
I also take into account that when Mr Wang was being investigated in relation to the proceeds of crime offence he showed no remorse or contrition and continued to deny his guilt. Further, he did not provide assistance to law enforcement agencies in the investigation of the offence or any other offences. He continued to maintain his innocence “despite the verdicts in the circumstances of a strong Crown case.” [20]
[20] Exhibit R1 p.57
Mr Wang himself attributes his criminal conduct to greed rather than to any significant financial pressure. This adds to the seriousness of his conduct.
A further matter I have taken into consideration is that all three offences involved the organisation of a number of people as part of the criminal activity. In the case of the credit card fraud Mr Wang took an active role in organising others. In relation to the proceeds of crime, he was active in making arrangements for the attendance of himself and others at the Macau casino.
The risk to the Australian community should Mr Wang commit further offences or engage in other serious conduct
The Direction states that I “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.” [21]
[21] Paragraph 13.1.2(1).
There are also considerations to which regard must be had cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[22]
[22] Paragraph 13.1.2(2).
Consideration
Should Mr Wang engage in conduct similar to his past criminal activity in relation to the counterfeit credit cards, members of the community and the finance industry will suffer significant financial loss and inconvenience. This may contribute to a lack of confidence in the financial system itself. Although Mr Wang was not involved in the removal of the funds from the Commonwealth Superannuation Scheme, he actively took part in attempts to deal with a significant part of those funds with the aim of making recovery impossible. The security of superannuation funds in this country is a matter of great public importance.
Turning to the question of the likelihood of Mr Wang engaging in further criminal or other serious conduct I take into account Mr Wang’s evidence in this regard. He said that he recognises the seriousness of his conduct and takes responsibility for it. He is remorseful and is ashamed. He says that he now understands the serious ramifications of every crime to the Australian community and is fully aware of the physical, psychological and financial impact on his family. He is confident that he will not relapse into further criminal conduct.
Mr Wang says that he always complied with the rules within the Correctional Centre in which he was incarcerated and that he was always a compliant inmate. There is no evidence to suggest otherwise. I am satisfied that he did use his time in prison productively in that he improved his English skills and undertook study in a number of TAFE courses. He participated in community services and worked in the prison warehouse.
Mr Wang has been offered employment in Australia if he is released into the community.[23] This is a factor which may lessen the risk of his re-offending, albeit only slightly in view of Mr Wang’s contention that he was motivated to commit crimes by reason of greed.
[23] Exhibit R1 p.104.
Report of Mr Jones, Forensic Psychologist
Mr Wang’s confidence that he will not re-offend was supported by the evidence of Mr Jones.
Mr Jones assessed Mr Wang on 6 July 2017 for the purposes of this application. Mr Jones provided a report dated 12 July 2017 [24] and gave evidence.
[24] Exhibit A4.
In his report under the heading “Risk of Recidivism”, Mr Jones stated, in part:
The LSI-R is a quantitative survey of attributes of offenders and their situations, designed to provide a comprehensive risk/needs assessment that may assist in offender treatment planning, and assigning levels of freedom and supervision. The LSI-R is routinely used by Community Corrections Services when seeking to determine the individual’s suitability for inclusion in special programmes of non-custodial nature, and the probable level of supervision the individual will require.
The results of LSI-R indicate that Mr Wang is at low risk of re-offending.
The footnote to this quotation from Mr Jones’ report reads “The LSI-R risk of re-offending is defined as re-incarceration within one (1) [year], not ‘breaking the law’ within one (1) year.” [25]
[25] Exhibit a5 P.6.
Mr Jones also considered that protective factors, being “any characteristic of a person’s environment or situation which reduces the risk of future reoffending”, operate to lower the risk of Mr Wang’s re-offending. These include:
his current behavioural self-control; his empathic concern for others; structured use of leisure time; his reported remorse and contrition for his past offending; his attitude toward authority; his engagement in self education during his period of incarceration; his engagement in employment whilst in Corrective Services custody; his supportive family network; and the possible ongoing supervision and support by Community Corrections.[26]
[26] Exhibit A5 p.6.
In the opinion of Mr Jones, it will be in Mr Wang’s interest to obtain treatment to reduce the risk of recidivism that includes:
·Continuing English language proficiency and education skills;
·Vocational education and employment skill acquisition;
·Gambling counselling;
·Continuing monitoring by NSW Corrective Services (Community Corrections) personnel of Mr Wang’s non-custodial environment and support networks to limit destabilising influences, and to build effective support systems.[27]
[27] Exhibit A5 p.7.
The opinion of Mr Jones that Mr Wang’s risk of re-offending is low, must be given very careful consideration. Unfortunately, the decision to remove Mr Wang from detention in New South Wales to detention in Western Australia prior to the hearing of this application, required Mr Jones’ assessment of him to be carried out by telephone, not face-to-face.
As Mr Jones acknowledged, it cannot be said that there is no risk of Mr Wang re-offending. I also take into account that the LSI-R assesses the risk of Mr Wang being again incarcerated within one year, and not the risk of his re-offending. This is a significant limitation on the value of these results. In many cases more than one year will elapse between the commission of an offence and incarceration for that offence by reason of the judicial process involved. It was only after Mr Jones’ confirmation of the effect of the testing, that he stated that, based on his previous assessment of offenders, in his opinion it was extremely unlikely that Mr Wang would engage in conduct which would lead to further incarceration.
I have also taken into account that in the period in excess of 12 years since Mr Wang committed the offences relating to credit card fraud, he has spent the majority of his time in prison or in immigration detention. In all of that time he has only lived in the wider Australian community for a period of two years and seven months.[28] As well as being on parole during that time he was also on bail. This period was not a real test of Mr Wang’s resolve to comply with the standard of conduct expected by the Australian community.
[28] Mr Wang was released on parole in respect of the credit card fraud on 10 July 2007. At that time he was granted bail on the proceeds of crime charge until 23 February 2010.
Primary consideration 2: Best interests of minor children in Australia affected by the decision
There are no minor children in Australia affected by the decision.
Primary consideration 3: Expectations of the Australian community
Clause 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be strongly differing views as to whether Mr Wang should be permitted to remain in Australia. However, having regard to the degree of seriousness of the three offences, Mr Wang’s admission that they were primarily occasioned by his greed, the significant sums involved and the actual loss to individuals, businesses and Australian superannuation funds, I am of the view that the Australian community would expect that Mr Wang not be permitted to remain in Australia.
This conclusion is consistent with the provisions of clause 13.3 of the Direction. Mr Wang has failed to abide by Australian laws, on two occasions with serious consequences to other members of the Australian community. He has breached the trust which was placed in him when he was granted the visa which permitted him to permanently reside in this country.
Other considerations set out in the Direction
Clause 14 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
Australia does not have any non-refoulement obligations relevant to this application.
Strength, nature and duration of ties to Australia
Clause 14.2 provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
With the exception of the period of 11 months in 1999, Mr Wang has lived in Australia since April 1990. This is a considerable period, but its significance is reduced by the fact that he was incarcerated or otherwise detained for more than 10 years of that time. He does not benefit from having arrived as a young child as he came to Australia initially as a student aged 24 years. Further, his first offence, although relatively minor, occurred the year after he first arrived in this country.
Mr Wang worked for a number of years between 1990 and 2005 and in that time did make a positive contribution to the Australian community by way of the services he provided and the tax he paid on his income. On the other hand, he was a drain on the country’s resources during the time he has been held in prison and immigration detention.
There is no doubt that that should Mr Wang be required to leave Australia it will have serious consequences for Ms Shen and Ms Wang, both of whom are Australian citizens. Neither of them has other family members in Australia.
Ms Shen’s evidence
Ms Shen provided a statement dated 14 June 2017 and gave evidence. She impressed me as an honest witness and I accept her evidence.
When Mr Wang was first imprisoned, Ms Wang was only six years old and Ms Shen has had the primary responsibility of caring for her most of the time since. Ms Shen regards Australia as her home and wishes to continue to reside here. She believes that if Mr Wang is required to return to China it will be a disaster for the family as she says that she cannot leave her husband nor her only child. Should this eventuate the emotional and psychological impact on Ms Shen and Ms Wang will be permanent.
The evidence of Mr Jones
Mr Jones assessed Ms Shen on 26 June 2017. He provided a report dated 12 July 2017[29] and gave evidence.
[29] Exhibit A4.
Mr Jones reported in part:
When spoken to about the possibility of her husband being deported from Australia Ms Shen exhibited symptoms of anxiety and panic. It became evident Ms Shen is in conflict about her desire to remain united with her husband, whilst also remaining united with her daughter. In effect Ms Shen would be forced to choose between returning to China and abandoning her daughter in Australia, or remain in Australia and abandoning her husband in China. Ms Shen…hesitantly reports she would reside in Australia to care for her daughter and voiced her concern about her ability to emotionally and psychologically cope with the separation from her husband.[30]
[30] Exhibit A4 p.4.
Mr Jones diagnosed Ms Shen as suffering from Persistent Depressive Disorder, moderate severity, with anxious distress and Adjustment Disorder with anxious distress. In his opinion Ms Shen will experience “an exacerbation of her depressive disorder with the risk of her developing suicidal ideation”[31] should Mr Wang be unable to remain in Australia.
[31] Exhibit A4 p.6.
Mr Jones also assessed Ms Wang on 26 June 2017. He provided a report dated 14 July 2017.[32]
[32] Exhibit A3.
Mr Jones reported that Ms Wang stated that she and her father developed a very close and loving relationship and that he was actively involved in her life during the time he was not in prison or in detention; she has remained close to her father despite his having been physically absent for much of her life.
His report continues:
Ms Wang indicates that the action to revoke her father’s resident visa has causes [sic] her considerable emotional and psychological upset, as her [sic] removal from Australia is very likely to sever their relationship. When probed in this regard Ms Wang reports she does not speak Cantonese or Mandarin, is [sic] completed her first year of university studies and has not [sic] friends or bonds with China. Her bonds, friendships and “life” are anchored in Australia and would be unable to adjust and cope to living in China. Consequently she feels she would have to remain in Australia when her father was deported.
……
Of particular relevance is the very real possibility Ms Wang and her father may be separated for a relatively long if not permanent period of time. The period of separation will negatively impact upon Ms Wang’s tendency to make strong affectionate bonds and her ability to understand and manage the various forms of emotional distress (anxiety, depression) that unwilling separation and loss give rise.
I can indicate with reasonable certainty that separation from the father will result in Ms Wang experiencing a major depressive disorder. In such a circumstance she is less likely to engage with friends and peers, will experience difficulties in her tertiary studies and further lose enjoyment in the things she enjoys. The separation is also likely to have enduring emotional and psychological impact upon her that may only become through the ebullition of time.[33]
[33] Exhibit A3 pp.3 and 7.
Impact on Australian business interests
I am satisfied that a decision not to revoke the cancellation of Mr Wang's visa will not have a relevant impact on Australian business interests.
Impact on victims
I do not have sufficient evidence to assess the impact of Mr Wang’s behaviour on the victims of his criminal conduct, other than they suffered financial loss.
Extent of impediments Mr Wang may face if he is removed from Australia
Mr Wang says that should he return to China he will be unable to find employment and his life “will be precarious, if not destitute.” [34]He will not be covered by health insurance or a superannuation scheme. His mother and an older brother are living in Shanghai and he doubts that they will be able to provide him with support.
[34] Exhibit A1 para.40.
G. THE BALANCING EXERCISE
The nature and seriousness of Mr Wang’s conduct and the seriousness of the harm which would be caused to members of the community should Mr Wang re-offend, are very significant factors weighing against the revocation of the decision to cancel Mr Wang’s visa.
I have considered carefully Mr Jones’ reasons for his forming the opinion that the risk of Mr Wang re-offending is low. However, I have taken into account that the LSI-R survey relates to the likelihood of re-incarceration within 12 months, rather than the likelihood of re-offending over a longer period. Further, although there are a number of protective factors which make it less likely that Mr Wang will re-offend, the effectiveness of these factors is untested.

Mr Wang has spent most of the past 13 years in prison or in detention and has had relatively little time in the community to demonstrate that he has in fact learned from his experience. It is also of note that during his period of freedom between terms of imprisonment he was on parole and therefore subject to supervision. Whilst Mr Wang has taken advantage of courses offered to him in prison, he does not appear to have received any rehabilitative treatment to assist him to deal with the greed which he says caused him to offend in the past.
The primary considerations overwhelmingly favour non-revocation of the cancellation decision. A decision to this effect would be consistent with the principles of General Guidance in the Direction that “[b]eing able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.” [35]
[35] Paragraph 6.3.
Turning to consider the other considerations, the effect of Mr Wang being required to leave Australia on his immediate family is a matter which weighs heavily in favour of revoking the cancellation decision. I am satisfied that both Ms Shen and Ms Wang will suffer serious emotional stress and possibly mental illness if the cancellation decision is not revoked. I accept that it will be particularly difficult for Ms Shen as it appears that she would be required to choose between living with her husband and remaining in Australia with her daughter. However, her daughter is now an adult and Ms Shen has lived for many years without the physical presence of her husband.
I accept too that Ms Wang will suffer further hardship if her father is required to leave Australia. However she has endured such hardship for many years and has not met her father face-to-face since 2010. I take into account the view expressed by Mr Jones that damage to Ms Wang has already been caused by her father’s forced separation from her.
I give little weight to the impediments Mr Wang may face if he returns to China. It is unlikely that he will enjoy the same standard of living as he would enjoy if he remained in Australia. However his evidence as to the hardship he is likely to suffer in China is very limited.
On the other hand he is well educated, speaks the language of his home country and has skills in the engineering field, as a cook and as a freelancer in the casino industry to assist him to find employment. Mr Wang’s Movement Records[36] show that prior to his imprisonment he frequently travelled out of Australia. At least some of these trips were for the purpose of doing business in China. Mr Wei, who has offered Mr Wang employment in his business of exporting to China, refers to Mr Wang’s business skills and his understanding of the Chinese people.[37]
[36] Exhibit R1 p.89 ff.
[37] Exhibit R1 pp.104-105.
Considering all of the evidence I am not satisfied that there is a reason why the original decision should be revoked.
H. CONCLUSION
The reviewable decision made 12 May 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of Mr Wang’s resident visa, will be affirmed.

I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................................[sgd]...................................
Associate
Dated: 2 August 2017

Date(s) of hearing: 18 & 19 July 2017

Solicitors for the Applicant: R Turner, Turner Coulson Immigration Lawyers

Solicitors for the Respondent: Z He, Clayton Utz

[2017] AATA 1212

2 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Date(s) of hearing:	18 & 19 July 2017
Solicitors for the Applicant:	R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Z He, Clayton Utz