Wang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2357
•20 June 2024
Wang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2357 (20 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/2162
Re:Li Wang
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Mr S Evans, Member
Date of decision: 20 June 2024
Date of written reasons: 3 July 2024
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the Respondent dated 9 April 2024 refusing to revoke the cancellation of the Applicant’s Skilled Independent (Class VB) (Subclass 885) visa under section 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
….........................[sgd].......................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – Applicant citizen of China – visa mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) – substantial criminal record – supply a prohibited drug – review of decision to refuse to revoke mandatory cancellation under section 501CA(4) – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468 FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
3 JULY 2024
Mr S Evans, Member
INTRODUCTION
The applicant, Li Wang, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Skilled Independent (Class VB) (Subclass 855) visa (the visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]
[1] G-Documents, G4-G5, p.19-35.
Mr Wang was born in China in April 1984 and is a citizen of that country. On 16 April 2004, he arrived in Australia age 19 and has resided in Australia since.[2]
[2] Applicant’s Statutory Declaration dated 14 June 2024 at [1]; Applicant’s Statement of Facts, Issues and Contentions (‘A SOFIC’) 13 June 2024 at [3]-[4]; G14, p.98.
On 7 July 2020, Mr Wang’s visa was cancelled (the original decision) on the basis that he did not pass the character test as he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act, having been sentenced to a term of imprisonment of 12 months or more. Mr Wang was serving a term of imprisonment of 13 years and six months at that time, he also failed the character test by operation of s501(7)(c) of the Act.[3]
[3] G8, p.66-72; A SOFIC at [7]; Respondent’s Statement of Facts, Issues and Contentions (‘R SOFIC’) dated 6 June 2024 at [11].
Mr Wang was invited to make representations to the Minister about revoking the original decision on 7 July 2020, which he did on 28 July 2020.[4] On 19 February 2021, he was invited to make further representations concerning the receipt of further information.[5]
[4] G8, p.66-72; G10-G11, p.74-92.
[5] G33, p.122-124.
On 23 August 2023, the Court of Criminal Appeal quashed Mr Wang’s sentence for the 2017 conviction and imposed a sentence of 11 years.[6] On 9 April 2024, the delegate of the Minister decided under s 501CA(4) of the Act not to revoke the original decision (the reviewable decision).[7]
[6] G6, p.37; Respondent’s Tender Bundle (‘RTB’), S47, p.292-308.
[7] G4-G5, p.19-35.
On 10 April 2024, Mr Wang applied to the Administrative Appeals Tribunal (AAT) for review of the decision not to revoke the mandatory cancellation of his visa.[8] The matter was heard over two days on 19 and 20 June 2024. Mr Wang requested that his application be determined under the existing Direction 99, when Direction 110 was to commence on 21 June 2024.
[8] G2, p.4-12.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[9]
[9] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Wang’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not in dispute that Mr Wang does not pass the character test by operation of s 501(6)(a) and s 501(7)(c) of the Act.[10] As Mr Wang does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
[10] A SOFIC at [14].
Mr Wang’s evidence
Mr Wang gave evidence at the hearing into his application and provided a statutory declaration dated 14 June 2024.[11] The following account is based on his evidence.
[11] Applicant’s Statutory Declaration dated 14 June 2024.
Upon arriving in Australia, Mr Wang studied English before completing a Diploma of Business. He transferred to a Bachelor of Business which he did not complete. He then decided to change his career and studied a Certificate III in Hair Dressing. He worked in a salon from 2010 until he was arrested in October 2011.[12] After being released from custody in 2012, Mr Wang worked as a tour guide for Chinese tourists. He then studied a Certificate III in real estate and sold real estate ‘off the plan’ from 2013 until 2015.[13]
[12] Ibid at [7]-[15].
[13] Ibid.
Mr Wang began using illicit drugs recreationally when he was 21 years old. When he was 26 years-old he began using cocaine, which led to his using methylamphetamines or ‘ice’. He said that using ice made him paranoid.[14]
[14] Ibid, [16]-[18].
Mr Wang was in a relationship with a woman who he planned to marry, but the relationship ended in 2015 after he was arrested. Mr Wang laments the loss of a ‘golden period’ in his life on account of his criminal offending. He compares himself unfavourably to friends who are married and live stable lives. Mr Wang has now learnt to cherish his life and will not re-offend as he wishes to lead a ‘normal life’. He has not used drugs in over 10 years, which is supported by urine tests undertaken while in prison.[15]
[15] Ibid, [11]-[18]; RTB, S39, p.315-362.
Mr Wang is ashamed of his criminal record and of supplying drugs which he now recognises ruin lives and kill people. Mr Wang found it hard to face his mother both times she visited him in prison.
Since his arrival in Australia, Mr Wang has maintained few ties to China. Beyond his mother and uncle, he has no family in China. He is not close to his uncle, and last had contact with him in 2014 when he visited his mother in China. Mr Wang’s mother is nearly 70 years old. She owns her own home, but her only source of income is a retirement fund, from which she receives approximately $500 (AUD) each month. Mr Wang’s mother worked hard to send him to study in Australia. She would be unable to provide financial assistance to Mr Wang should he return to China.
Mr Wang returned to China on 7 occasions since arriving in Australia, usually staying for approximately one month.[16]
[16] G36, p.130-131; Applicant’s Statutory Declaration 14 June 2024 at [15].
Mr Wang has established himself in Australia and integrated into the Australian way of life. Mr Wang says he has very close friends who support him and will offer practical assistance should he remain in Australia. His friends in Australia are now his family. Having worked in various fields, he is confident he has the necessary skills to secure employment should he be returned to the community.
Character references
Zeng Xian Qi has provided a statement and gave evidence at the hearing.[17] He said that he has known Mr Wang for 12 years after they met through friends. He is prepared to offer Mr Wang accommodation should he need a place to stay after he is released from immigration detention. He told me he was also prepared to help Mr Wang get a job with him working in the construction industry.
[17] Statement of Zeng Xian Qi, Undated, filed 14 May 2024.
Mr Xian Qi found out through a friend that Mr Wang had been arrested. He confirmed not having spoken to Mr Wang since he was first imprisoned in December 2011.
Kwok Fu Chau has known Mr Wang for 16 years.[18] Should Mr Wang’s visa be returned, Mr Fu Chau is prepared to provide him accommodation for as long he needs it. He can also help Mr Wang obtain employment as a real estate agent. He has not seen Mr Wang for 10 years but says he says they communicated through a friend.
[18] Statement of Kwok Fu Chau, Undated, filed 14 May 2024.
Feng Ye met Mr Wang over 10 years ago when they were colleagues. He writes that Mr Wang has his full support and exhibits ‘honesty, integrity and dedication’ to all aspects of his life and work.[19]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
[19] Statement of Feng Ye, Undated, filed 14 May 2024.
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) of the Direction sets out factors that the Tribunal must have regard to in considering the nature and seriousness of an applicant’s criminal offending or other conduct.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction provides that in considering the nature and seriousness of Mr Wang’s criminal offending regard must be had to the sentence imposed by the courts for a crime or crimes.
Mr Wang’s offending
Mr Wang’s offending history is set out in an Australian Criminal History Check report of 15 December 2023.[20]
[20] G6, p.36-39.
The December 2011 conviction
On 21 December 2011, Mr Wang was convicted by the Downing Centre Local Court of dealing with property suspected proceeds of crime and sentenced to a term of imprisonment of 12 months with a non-parole period of seven months.[21]
[21] G7, p.56.
The circumstances of the offending are set out in the statement of facts presented to the court. It is recorded that after paying $6,000 cash for a one-way trip on the Indian Pacific, Mr Wang and his co-offender boarded the train:
The porters offered to help load the luggage of [Mr Wang] and co-accused, but they adamantly declined. Each accused was dragging a large suitcase on wheels and wearing a backpack. The two suitcases were black plastic cases with padlocks and they appeared to be heavy to move. [Mr Wang] and co-accused wheeled their bags when they could. Once onboard, [Mr Wang] and co-accused entered their cabin. The train departed and arrived in Adelaide. Upon arrival at the station, the train manager informed Safety and Assurance of the suspicious behaviour of the two passengers, who had not left their sleeper cabin for the whole trip from Perth to Adelaide, ordering room service for meals and wearing the same clothes throughout the three-day trip.
….
At about 11 .30am on Saturday 12 March 2011, the Indian Pacific Train arrived at Central Station in Sydney and was met by police officers from City Central Commuter Crime. Police searched the crowd for the two males with large black suitcases fitting the description given by Safety and Assurance officers….
[Mr Wang] and co-accused were videotaped by CCTV cameras dragging their suitcases off the train at Central Station. [Redacted] asked both accused if he could search their bags, and they agreed. [Redacted] first opened the co-accused … suitcase and saw a large amount of currency notes sealed inside plastic bags. Then, using a key found in Wang's shorts pocket, [Redacted] opened the accused's suitcase, in which he located more large sums of cash sealed inside plastic vacuum bags. Most of the denominations were in $100 notes and $50 notes. The plastic bags also contained musty-smelling dirt between the currency notes. The total sum of cash was later counted and found to be $2,517,400.00. In addition , the accused Wang Li also had a total of $6,945.25 inside his backpack.
[Mr Wang] and the co-accused were placed in handcuffs and then conveyed to City Central Police Station and entered into custody. The accused and co-accused both sought legal advice and Interpreters. On legal advice, both offenders declined to participate in electronically recorded interviews...[22]
[22] RTB, S6, p.21-22.
The 2017 convictions
On 23 June 2017, Mr Wang was sentenced in the District Court of New South Wales of supply a prohibited drug >= large commercial quantity and sentenced to an aggregate term of 13 years and six months imprisonment for supplying 31.64 grams of methylamphetamine in October 2014.[23] That sentence was quashed on appeal to the Court of Criminal Appeal and Mr Wang was sentenced to 11 years in prison for the offending.[24]
[23] G7, p.40-65.
[24] RTB, S47, p.292-308.
The details of the offending to which the 2017 convictions relate are set out in the sentencing remarks of Judge King in the District Court of New South Wales.[25]
[25] G7, p.40-65
In summary, on 30 October 2014, police executed a search warrant at a suspect’s home where they located methylamphetamine, cash, resealable plastic bags, electronic scales, and keys to another unit in the same complex. Police searched the unit to which the keys belonged, and located methylamphetamine, paraphernalia for smoking prohibited drugs, resealable plastic bags, electronic scales, and another set of keys for a third unit in the same complex. While police were at the second unit, Mr Wang got out of an elevator and walked past asking ‘what’s going on?’ When police asked Mr Wang why he was there, he indicated that he was on the wrong floor of the building and that he was from another unit, which was the same unit to which the second set of keys belonged.[26]
[26] Ibid; p.41.
Mr Wang was arrested. Police searched his unit and located 31.64 grams of methylamphetamine, more drugs including 1.89 grams of methylamphetamine, and items including electronic scales and $94,120 in cash. Mr Wang was charged with supply a prohibited drug and was released from custody on 31 October 2014 on bail.[27]
[27] Ibid, p.45.
In December 2014, State Crime Command and the Organised Crime Squad began an investigation into Mr Wang and his involvement in the supply of large quantities of drugs. In March and April 2015 Mr Wang supplied an undercover operative a total of 1,497 grams of methylamphetamine.[28] On 14 May 2015, police monitored Mr Wang’s involvement in the supply of a prohibited drug equal to, or more than, a large commercial quantity. Following a co-ordinated effort involving a number of co-offenders, an undercover operative was handed two brown bags containing 997.2 grams and 999.7 grams of methylamphetamine, totalling 1,996.9 grams, almost twice the threshold of what qualifies as a large commercial quantity.[29]
[28] Ibid, p.46-53.
[29] Ibid.
Judge King considered the seriousness of Mr Wang’s offending, stating:
“On each occasion, whatever be his profit or costs, it is clear that the offender was involved in a significant supply of a prohibited drug which has become notorious in recent years for the adverse effects that it has on individual users and the adverse effect that that inevitably has on the community as a result of the drug users.[30]
[30] Ibid, p.54.
In sentencing Mr Wang, the court took into account Form 1 matters being Knowingly deal with proceeds of crime and supply prohibited drug > indictable quantity (not cannabis) and knowingly participate in criminal group assist crime.[31]
[31] Ibid, p.40-65.
In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs the Federal Court held that the offending (and requisite guilty pleas) taken into account on Form 1 are not to be taken to be conviction for any purpose.[32] As such, the Tribunal cannot have regard to an offence which, as a result of the statutory provisions, Mr Wang is taken never to have been convicted of. The Form 1 offences have not been taken into account for the purposes of this decision.
[32] [2024] FCA 468.
Having regard to the Direction, I find Mr Wang’s offending conduct to be significant and serious. He has been sentenced to two terms of imprisonment – being 12 months of imprisonment for offences in 2011, and 11 years imprisonment for the 2017 conviction.[33] The seriousness of his offending is reflected in the sentences imposed upon him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the seriousness of the offences involved.
[33] G6, p.36-39.
Mr Wang migrated to Australia in 2004 and commenced offending in 2011.[34] Having regard to the nature of his offending and the sentences received, I find there is a trend of increasing seriousness. The cumulative effect of his offending is that he has burdened the criminal justice system and corrective services. I note also that offences involving drugs are considered serious and cause great harm to the Australian community. The seriousness of Mr Wang’s offending is heightened by his having committed further offences while he was released on parole in 2015.
[34] Ibid; G10, p.76.
The nature of future harm
It is not in dispute that should Mr Wang offend in a similar manner in future the harm to the Australian community would be serious. The devastating harm caused to the community through the supply of methylamphetamine was acknowledged by Judge King in his sentencing remarks where he observed:
Methylamphetamine in recent years has penetrated all levels of society and all geographic areas of New South Wales, whether it be cities, towns or country villages. There are now an extensive number of matters that come before the District Court whenever it does circuits in country areas that have some relationship to the use or supply of methylamphetamine. It is well known that it can cause drug-induced psychosis and paranoia, and it is well known that users who are adversely affected in that manner are known to engage in violence for no ostensibly good reason, even without provocation. The drug has become a scourge on our community.[35]
[35] G7, p.54.
In considering the need to protection the Australian community from harm, I 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 for any harm increases. I consider that if he were to re-offend in a similar manner, there is a real risk of significant harm to the Australian community.
The likelihood of further criminal or other serious conduct
Mr Wang concedes the seriousness of his offending but does not consider himself a seasoned criminal. He contends that there is a low risk of him engaging in any further criminal conduct.
Regarding the 2011 conviction, Mr Wang said that he was moving the money for an acquaintance who was going to pay him $10,000.[36] He told me that he was aware he needed to bring something back with him, did not know he was involved in a criminal enterprise and that his main motivation was a free vacation in Perth. I do not consider this explanation credible in light of the circumstances outlined in paragraph [37] of these reasons.
[36] Applicant’s Statutory Declaration dated 14 June 2024 at [10].
Mr Wang acknowledges the harm caused to the community by his offending, but also identifies himself as a victim in relation to the 2017 conviction. He wrote in his application for leave to appeal the sentence that his ‘moral culpability was reduced as a result of the involvement of a police informant’.[37] In a personal circumstances form dated 17 July 2020 Mr Wang claimed to be a ‘scapegoat’.[38] A pre-release report prepared by NSW Corrections on 28 September 2023 (the pre-release report) records that Mr Wang attempted to minimise his offending behaviour:
Mr Wang was convicted of the offence deal with property suspected of proceeds of crime in 2011 and received 12 months imprisonment, with a non-parole period of seven months for his offending behaviour. He was released on parole in July 2012. In October 2014, Mr Wang was arrested and charged with supply of a prohibited drug. It is noted that two of the current offences were committed while Mr Wang was on bail.
Mr Wang did not dispute the agreed facts as presented; however, attempted to minimise his offending behaviour through stating he was "set up" by police, who used an undercover officer to engage Mr Wang. Mr Wang denied he was involved in the supply of illicit drugs prior to being approached by the undercover officer and reported he believed he was targeted due to being "vulnerable". He stated it is part of Chinese culture to help friends, regardless of what is asked, and he was merely acting in line with his beliefs when he agreed to supply methylamphetamine.
Mr Wang reported his belief that the undercover police officer who engaged him in the supply of illicit drugs is still engaging in illegal activity in the community. It is evident Mr Wang does not appear to understand the concept of an undercover police operation. He was adamant in his belief that the undercover officer had not been punished for his crimes, and that it was unfair that he is now serving a custodial sentence for the offending behaviour. Mr Wang stated he believes he is the true victim in this matter, as the undercover police officer approached him, which resulted in Mr Wang becoming involved in a situation he would have otherwise avoided.[39]
[37] RTB, S37, p.171-174.
[38] G11, p.78-92.
[39] RTB, S43, p.224.
At the hearing Mr Wang explained that the police informant had asked him to provide the drugs that led to his conviction. He acknowledged having made a mistake but argued he had been asked to commit the offences, which he indicated would not have occurred had he not been asked to do so.
The pre-release report prepared by NSW Corrections assessed Mr Wang as at Medium-Low risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).[40] The report observed that Mr Wang’s offending behaviour was primarily motivated by social factors and financial gain.[41] Mr Wang contends that he will be supervised on parole until 2026 should his visa be returned which further reduces the risk that he may re-offend. He no longer has contact with the people who were the social influences identified as being part of the reason for his offending. His drug use disorder, also a factor in his offending, is now in remission.
[40] Ibid, p.228.
[41] Ibid, p.229.
The pre-release report notes that Mr Wang displayed a positive work ethic during his incarceration and was consistently considered to have been reliable and of performing his duties to a high standard. The report acknowledged that Mr Wang was released on parole in 2012 and was assessed a low risk of re-offending but the supervision was suspended.[42]
[42] Ibid, p.226.
Mr Wang has been imprisoned since May 2015 and was transferred to immigration detention in October 2023.[43] His long period of incarceration has provided an opportunity to reflect on his offending and the life he has missed out on by being imprisoned when he was 31 years old. Mr Wang submits that on reflection, he received just $30,000 in exchange for 8 years of his life in prison. He has learnt that his offending provided a very poor return and claims it would be illogical for him to re-enter the drug trade.
[43] A SOFIC at [7]; [12].
In an undated submission Mr Wang states that when the original decision was made in 2020, he had not undertaken formal rehabilitation programs.[44] The pre-release report states he was ineligible to engage in programs to address his offending behaviour while in custody ‘due to his low risk rating’.[45]
[44] G13, p.94-95.
[45] RTB, S43, p.226.
While incarcerated Mr Wang was able to participate in education and training programs and completed:
• Vocational Training Program in Clothing and Production in December 2018.
• Certificate II in Food Safety Practice in October 2019.
• Certificate II in Foundational Skills Training in December 2019.• Chemical Handling Certification in December 2022.[46][46] Ibid.
Mr Wang continued his rehabilitation following his transfer to immigration detention. Courses taken relevantly include Critical Thinking, Depression Management, Drug and Alcohol Abuse 101, Emotional Healing 101, Anxiety Therapy 101 and Anger Management Techniques. IHMS records confirm his participation in SMART Recovery group education while in detention.[47]
[47] G19-G32, p.109-121; RTB, S49, p.315-362.
Mr Wang has actively pursued opportunities for formal rehabilitation and served a significant term of imprisonment with only minor infractions, he is reported to have engaged positively with work opportunities and has engaged in rehabilitation programs when available. There is no evidence of him having continued contact with negative social influences and his claim that he no longer uses illicit substances is accepted. However, I also take into account that he has downplayed the seriousness of his offending and that he re-offended while he had been released on bail. Overall, the evidence leads me to conclude there is a medium to low risk of Mr Wang re-offending.
Protection of the Australian community - Conclusion
Mr Wang’s offending record is serious and further offending would cause significant harm to the Australian community. Having found there is a medium to low risk of re-offending, this consideration is afforded significant weight strongly in favour of not revoking the visa cancellation.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.
As there is no evidence of conduct that might constitute family violence, this consideration is afforded neutral weight.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
I am required to consider the impact of the decision on an applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that consideration weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
Mr Wang has resided in Australia since April 2004 when he was 19 years old.[48] Although he completed his secondary education in Australia, Mr Wang’s formative years were spent in China. He is currently 40 years of age and has spent almost his entire adult life in Australia. However, I note he was incarcerated for nine years.[49]
[48] G36, p.131; A SOFIC at [30].
[49] Applicant’s Statutory Declaration dated 14 June 2024 at [19].
Mr Wang says that his strongest ties to Australia are his friends, and his friendship group has become an extended family support base. Evidence from Zeng Xian Qi, Kwok Fu Chau and Feng Ye indicates they are prepared to offer practical support to Mr Wang. Feng Ye did not provide evidence at the hearing, but neither Mr Fu Chau nor Mr Xian Qi had any direct contact with Mr Wang while he was imprisoned. Both have resumed phone contact since Mr Wang was released from prison and placed in detention.
Mr Wang made a limited positive contribution to the Australian community through his paid employment and study, which weighs in his favour. However, he concedes his ties to the community are limited, in part because of his extended period in prison.
The strength and nature of Mr Wang’s friendships, and his contribution to the community while employed and studying, support this primary consideration being afforded some weight in favour of revocation.
PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN AFFECTED BY THE DECISION
Direction 99 requires the Tribunal to make a determination about whether refusal to grant the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
Mr Wang does not contend that any minor children would be affected by the decision to cancel his visa. This consideration is afforded neutral weight.
PRIMARY CONSIDERATION 5 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration.[50] That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[50] [2019] FCAFC 185, [75].
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I am satisfied that the seriousness of Mr Wang’s offending is such that the community as a norm would expect that his visa be cancelled.
Having regard to the provisions of Direction 99 and Mr Wang’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the visa.
OTHER RELEVANT CONSIDERATIONS
Other consideration A - Legal consequences of the decision
I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. Paragraph 9.1.2 of the Direction is concerned with claims which may give rise to international non-refoulement obligations in respect to a non-citizen who is not the subject of a protection finding.
Mr Wang is not a person covered by a protection finding. He claims that if he is returned to China, he may face prosecution ‘again’ for crimes he has committed in Australia. In an email of 28 March 2024 Mr Wang stated that he fears ‘double jeopardy’ and the risk of ‘capital punishment’.[51] In his 14 June 2024 statement, he says he is scared that if he is made to return to China there is a ‘good chance’ he will be ‘arrested and put into jail’.[52] He says that China does not tolerate criminals and particularly those convicted of drug related offending.
[51] G13, p.96.
[52] Applicant’s Statutory Declaration 14 June 2024 at [29].
Mr Wang’s fears are contrary to the observation in the pre-release report prepared by NSW Corrections which states he intended ‘to return to China on his release and spend time with his mother and family and work in his cousin’s e-commerce business’.[53] Mr Wang explained it is his understanding that should he return to China voluntarily, Chinese authorities would not be aware of his criminal record. However, should he be deported, Chinese authorities would conduct a background check and be made aware of his crimes. Mr Wang also explained at the hearing that he had not considered applying for protection until he was transferred to immigration detention and found out that he may be detained or arrested should he return to China.
[53] RTB, S43, p.223.
Mr Wang submits that I should assess the risk of harm and hardship that he may face if he is removed to China, taking into account that an application for a Protection Visa would likely be unsuccessful owing to his criminal record. He would also remain in immigration detention while a Protection Visa application is assessed, or the Minister considers the exercise of personal discretion in his favour.
Mr Wang has not applied for a protection visa. Should he do so, he would likely spend considerable time in immigration detention while the application is considered. Mr Wang has identified articles of Chinese Criminal Law which he contends substantiate his fears of criminal prosecution should he return to China.
Mr Wang may be subject to the risks he has detailed, and if made out they may result in Australia owing non-refoulement obligations to him. However, the information before the Tribunal to substantiate his stated concerns is insufficient to determine whether non-refoulment obligations may be owed to him, but on the present information it appears he is not.
Mr Wang has not made an application for a protection visa but is able to do so if he chooses. Having regard to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1), the appropriate course of action is to allow Mr Wang’s claims to be more fully assessed in a protection visa assessment.[54]
[54] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ.
For these reasons, the legal consequences of the decision are afforded neutral weight.
Other consideration B - Extent of Impediments if removed
I am required to consider the extent of any impediments that Mr Wang may face if removed from Australia in establishing himself and maintaining basic living standards in China, in the context of what is generally available to other citizens of that country.
Mr Wang concedes that he would not face any cultural or language barriers should he return to China. Mr Wang believes that to secure employment in China he needs to be young, to have local experience and a local network. Considering his age and that he has not lived in China for 20 years, he fears he would experience extreme difficulty obtaining employment. He contends his difficulties finding suitable employment would be exacerbated by his lack of savings and not having access to a support network. He would also not be able to rely on social security in China.
Mr Wang had expressed an intention to return to China as stated in the pre-release report which recorded:
Mr Wang reported that he intends to return to China on release and spend time with his mother and family. He plans to work in his cousin's e-commerce business. Mr Wang advised that if his visa was to be reinstated, he would return to Australia at a later date with his mother and rent a property for them to reside in together. He reported he has the ongoing support of his mother and family in China; however, does not speak with them frequently due to the high cost of international phone calls.[55]
[55] RTB, ST43, p.223.
At the hearing Mr Wang confirmed he had intended to return to China but explained that the Chinese economy had slowed significantly and there was very high unemployment. When asked about his stated intention to work at his cousin’s e-commerce business, Mr Wang explained that his mother had told him that the business was not doing well, and his cousin planned to sell it.
Mr Wang had stated in his application for leave to appeal his 2017 conviction that his family still supported him and sent him money from overseas.[56] However, he told me that his mother is now reliant on a small pension and would be unable to provide him any financial assistance should he return to China.
[56] RTB, S37, p.173
I accept that Mr Wang would have some difficulty re-establishing himself in China having left that country in 2004. Mr Wang is a relatively young man, and he contends his drug use is no longer a relevant consideration. I note a psychological assessment prepared by Dr John Jacmon in October 2011 confirmed a diagnosis of mixed anxiety depressive disorder.[57] The sentencing remarks for the 2017 conviction state that Mr Wang met the criteria for a substance use disorder in remission and continued to fit a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The more recent evidence does not indicate Mr Wang’s mental and general health is a significant concern should he return to China.
[57] RTB, S8, p.25.
Overall, the impediments Mr Wang would face in China are afforded moderate weight in favour of revocation.
CONCLUSION
Having considered the specific circumstances relating to Mr Wang, I am required to weigh-up the considerations to determine whether there is another reason to revoke the decision to cancel his visa.
Mr Wang’s offending was serious and there is a real risk he may re-offend, and the primary consideration of the protection of the Australian community weighs in favour of not revoking the cancellation decision and is afforded considerable weight. The primary consideration of the expectations of the Australian community also weighs strongly in favour of not revoking the cancellation of Mr Wang’s visa. The primary considerations of the best interests of minor children and family violence weigh neutrally.
Mr Wang’s ties to the Australian community weigh in favour of revocation. However, he has no family in Australia and his contribution prior to his imprisonment is limited. This factor is afforded low weight in favour of revocation. Mr Wang would be expected to face some practical difficulties upon his return to China, and the impediments to return weigh in favour of revocation. The legal consequences of this decision weigh neutrally.
On balance, I find the correct and preferable decision is to affirm the reviewable decision.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the Respondent dated 9 April 2024 refusing to revoke the cancellation of the Applicant’s Skilled Independent (Class VB) (Subclass 885) visa under section 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 94 (ninety - four) paragraphs are a true copy of the reasons for the decision herein of Member S Evans.
.............................[sgd].........................................
Associate
Dated: 3 July 2024
Date(s) of hearing: 19 & 20 June 2024 Advocate for the Applicant: Ms M. Mamator, SouthWest Migration and Legal Services
Solicitors for the Respondent: Ms S. Sangha, Mills Oakley
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