Wong and Minister for Immigration and Citizenship
[2011] AATA 471
•6 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 471
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1411
GENERAL ADMINISTRATIVE DIVISION ) Re Wei Zheng Wong Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date6 July 2011
PlaceSydney
Decision The decision under review is set aside, and a decision substituted that the applicant’s visa not be cancelled. .........................[sgd].....................
Senior Member A K Britton
CATCHWORDS
MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – decision under review set aside
Migration Act 1959 (Cth) – ss 499, 501
Direction [no. 41] – Visa refusal and cancellation under s 501
Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91
Regina v Wei Zheng Wong (Unreported, District Court of New South Wales, Judge Sides, 18 August 2009)
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194
REASONS FOR DECISION
Senior Member A K Britton 1. Within six months of arriving in Australia, Malaysian citizen, Mr Wei Zheng Wong, who was then 20 years of age, became involved in criminal activity. He was subsequently convicted for the offence of “Cultivate a commercial quantity of a prohibited plant” and sentenced to 45 months imprisonment (21 months non-parole). He was released at the end of the non-parole period and taken into immigration detention, where he remains today awaiting the outcome of these proceedings.
2. The Minister for Immigration and Citizenship has decided to cancel Mr Wong’s Australian visa. He has applied to the Administrative Appeals Tribunal for review of that decision.
POWER TO CANCEL MR WONG’S VISA
3. Mr Wong does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
4. Mr Wong lived in Malaysia with his mother, Mrs Soke Buay Chua, until he was 12 years of age, when he moved to Hong Kong. On his account, his mother sent him to Hong Kong to attend secondary school because she believed he would benefit if he completed his education in Mandarin and Cantonese, rather than Bahasa Malaysia, the “official” language of Malaysia. While in Hong Kong, Mr Wong lived with his father and step-mother. He claimed that he was neglected by his father who spent most of his time attending to business in mainland China and mistreated by his step–mother who he believed resented having to take on the responsibility for his care. Mrs Chua testified that throughout the period he lived with his father in Hong Kong, her son often told her that he was lonely and saddened by what he saw as his father’s neglect. In 2000, Mrs Chua emigrated to Australia with her new partner whom she later married. Mr Wong lived apart from his mother until he moved to Australia in 2007. Throughout the seven years they lived apart Mr Wong and his mother kept regular contact by phone.
5. For the first six months he spent in Australia, Mr Wong lived with his mother, step-father and their three children in a small town house. On his account, he left because he believed he was contributing to the deterioration of the relationship between his mother and step-father, who later separated. Mr Wong moved from the family home to a house owned by a friend, who according to Mr Wong had offered him free accommodation in exchange for assistance in cultivating cannabis plants grown at the property. In May 2008, Mr Wong was arrested. He was released on bail the following month. He commenced his 21 months term of imprisonment in July 2009.
THE EXERCISE OF THE POWER TO CANCEL MR WONG’S VISA
6. “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”), issued by the Minister under s 499 of the Act must be applied by all decision-makers, including the Tribunal, exercising the power to cancel a visa under s 501 of the Act.
7. The Direction instructs that due consideration is to be given to the Government’s objectives as set out in the preamble to the Direction:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
8. The Direction lists a number of “primary” and “other” considerations that must be taken into account by the decision-maker, and instructs that “other considerations” — namely those listed at cl 11 — should generally be given less weight than primary considerations: cl 11(2).
9.The primary considerations are set out in cl 10(1) of the Direction:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
PRIMARY CONSIDERATIONS
(A) Protection of the Australian community
10. Factors relevant to the assessment of the risk of harm to the community of Mr Wong’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.
(i) Seriousness and nature of the conduct
11. The Direction sets out at cl 10.1.1(1) a number of factors that must be taken into account in assessing the seriousness and nature of the offending conduct: The Direction lists the production of commercial quantities of illicit drugs as an example of offences considered “serious”.
12. Clause 10.1.1(3) of the Direction states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
13. Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
14. On arrest, at the property where the cannabis plants were found, Mr Wong told police that he had only stayed overnight and someone else lived at the property. On searching the house, the police found 255 plants of various sizes, spread over five rooms. The rooms were elaborately set up with artificial lighting, exhaust fans and a watering system. Later, on interview, Mr Wong admitted to having lied about not living at the property and playing no role in the care of the plants. He claimed however that his role was limited to watering plants in one room.
15. On sentencing, Justice Sides of the NSW District Court (Regina v Wei Zheng Wong (Unreported, District Court of New South Wales, Judge Sides, 18 August 2009) at p 6-7) remarked:
There is no evidence that the Offender planted any of the plants or was to share in the proceeds of the sale of the harvest. His reward was rent free accommodation which allowed him to save for his wedding.
The number of plants here exceeded the large commercial quantity by 27.5%. Unlike the commercial quantity there is no upper limit to the large commercial quantity. As noted earlier the Offender’s role was not limited to the significant but passive role of guarding the plants. It went well beyond that. Hence he must have been aware that not all the plants were the same size and therefore that the venture was an ongoing one.
The court notes that he told the police he was intending to stay at the house until August. Hence his involvement was over many months and not limited to one criminal act. It is clear that he was aware what he was doing was wrong. He must have appreciated at the time that he was participating in organised criminal activity and that his involvement would make it more likely that others higher up in the hierarchy would avoid detection. The Court notes his claim that he could not name them. In the Court’s view his involvement was relatively substantial and motivated by greed rather than need.
16. As agreed by the parties the offence for which Mr Wong was convicted constitutes a serious offence for the purpose of the Direction. Any difference between them is one of degree. The Minister characterises the offence as “very serious”; Mr Wong contends that while unarguably serious, the offence did not involve violence or the threat of violence, or involve “vulnerable persons” — crimes described by the Direction as “especially abhorrent to the whole community”: cl 10.1.1.
17. The subject offence is plainly a serious offence as reflected in the fact that it carries a maximum sentence of 20 years imprisonment. Mr Wong’s involvement was not a momentary aberration but occurred over a period of some six months. He was aware at all times that he was involved in criminal activity. I do not accept, as I understand to be suggested for Mr Wong, that his dysfunctional family and diagnosed conditions of depression and anxiety, constitute “mitigating factors” in this case.
18. While a serious offence potentially causing serious harm to a large number of victims and their families, I agree with His Honour’s description of the offence as falling “below the middle of the range” for the type of serious offence for which Mr Wong was convicted.
(ii) Risk that the conduct might be repeated
Total criminal history and previous general conduct
19. As noted the subject offence is the sole offence for which Mr Wong has been convicted. There is no evidence of Mr Wong being involved in any other aberrant conduct before or after the subject offence.
Clause 10.1.2(2) factors
20. (a) Recent history of re-offending: The subject offence was committed three years ago.
21.(b) Evidence of rehabilitation: On sentencing, Sides DCJ remarked:
As best one can in the circumstances the Court has assessed his prospects of rehabilitation and not reoffending as reasonable.
22. Mr Wong testified that while in prison he stayed out of trouble and was not charged with any offence. While unsupported, that claim is consistent with the decision to release Mr Wong on parole at the earliest possible date. He also claims that he worked in the prison’s metal shop and gained an Engineering Certificate II and a forklift licence. In addition, while in prison he took language courses in an effort to improve his English.
23. In a report prepared in April 2009, psychologist Dr John Jacmon wrote that in his opinion Mr Wong was suffering from clinically significant anxiety and depression. He thought that these conditions markedly impaired Mr Wong’s daily functioning. He recommended that Mr Wong undergo counselling and cognitive behaviour therapy. In Dr Jacmon’s opinion this would significantly reduce the risk of Mr Wong reoffending.
24. Since Dr Jacmon’s report was prepared Mr Wong has not been reassessed or undergone counselling or any other form of psychological treatment.
25. Dr Jacmon recorded that Mr Wong had expressed remorse for offending and the distress it had caused his family, especially his mother. Mr Wong testified that while in prison he had the opportunity to see first-hand the way drugs could damage people’s lives and felt deep remorse for his contribution to the problem. His mother testified that Mr Wong told her he was remorseful and felt deep shame for his conduct.
26. His Honour Judge Sides noted that Mr Wong had a sound work history including working as a delivery driver throughout the entire period he was on bail. He also noted that Mr Wong does not abuse alcohol or drugs or have a gambling habit. Mr Wong’s step-father, who had employed Mr Wong while he was on bail, provided a statement to the Tribunal guaranteeing employment to his step-son if he was permitted to stay in Australia. He said that he found Mr Wong to be honest and hardworking and enjoyed an excellent reputation amongst his customers.
27. (c) Evidence of breaching judicial orders etc: There is no evidence of Mr Wong breaching these types of orders. Mr Wong was on bail for 13 months and fully complied with all conditions of his bail.
Protection of the Australian community: Findings and conclusions
28. The primary consideration of the protection of the Australian community requires consideration to be given to both the seriousness of the subject conduct and the risk that it might be repeated. The Tribunal’s task “is one of ‘assessing any risk of re-offending’ having regard to the ‘highly relevant’ and ‘particularly relevant’ factors set out in subcll (1) and (2) of cl 10.1.2”: Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362 at 372-373.
29. It is always difficult to determine whether a person resisting deportation is genuinely remorseful for their actions as their evidence is plainly not independent. I am satisfied that in this case Mr Wong’s claim of feeling remorse and deep shame because of the dishonour he has brought on his family is genuine. I also accept that he believes he is responsible for his mother’s fragile mental state and is committed to providing her and his siblings with support. These factors will in my opinion act as a powerful deterrent against future offending. Mr Wong’s unblemished record while on bail and in prison and his efforts to educate himself are consistent with his self-report that he is determined not to reoffend. He has the benefit of secure accommodation and employment if he remains in Australia and this will further reduce any risk of re-offending.
30. It is unfortunate that Mr Wong did not undertake counselling as recommended by Dr Jacmon. Had he done so it would have further decreased his risk of reoffending. Nonetheless as I read his report, Dr Jacoman’s recommendation was aimed at assisting Mr Wong to deal with his depression and anxiety, rather than to gain insight into his offending conduct or to address some inherent criminogenic tendency. While there is no expert evidence before me other than the report of Dr Jacmon, it seems to me unlikely that Mr Wong’s anxiety and depression, has worsened, if indeed he continues to suffer from those conditions. His work record and attainment of educational qualifications while in prison is not suggestive of impaired functional capacity bought about by psychological condition.
31. For these reasons I have concluded that the risk that Mr Wong might reoffend is low.
(B) Age when Mr Wong began living in Australia
32. Mr Wong was not a minor when he started living in Australia. He was 20 years of age. While in my opinion this consideration weighs against him, but given his relative youth, only to a small extent.
(C) Length of time resident in Australia
33. Under the Direction, “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: cl 10.3(1).
34. Mr Wong arrived in Australia in June 2007 and began offending six months later. In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396, Rares J commented:
[T]here does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, commonsense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act. I reject the first round of review.
35. His Honour’s comments are apposite in this case. The extremely short period Mr Wong was resident in Australia before his offending conduct commenced in my opinion weighs heavily against Mr Wong.
(D) Best interests of the child
36. Under the Direction the best interests of any child who is under the age of 18 must be taken into account. Clause 10.4.1(5) lists a number of factors that must be considered in assessing a child’s best interests. Before addressing these factors it is necessary to sketch in some details about Mr Wong’s family.
37. Mr Wong has five siblings aged 20, 17, 10, 8 and 6. All but the eldest attend school. All live with their mother. The interests of Mr Wong’s 20-year-old sister is irrelevant to this consideration.
38. Each of Mr Wong’s three step–siblings were born in Australia and are Australian citizens. In mid-2008 while Mr Wong was on bail, the family was joined by his two eldest siblings who share the same father as Mr Wong. They had been living with their maternal grandmother in Malaysia after Mrs Chua moved to Australia in 2000. Prior to moving to Australia, Mr Wong had not lived with any of his siblings, apart from four weeks in 2003 when he and two eldest siblings visited their mother in Sydney.
39. The evidence makes plain that Mr Wong has a limited relationship with his siblings. He has lived with his three younger siblings for about six months on arrival in Australia and during the 13 month period he was on bail and with his 17 year old brother for only six months. He has not played any parental role in respect of his siblings; and, nor is it suggested that he would if he were to remain in Australia. The children will not accompany Mr Wong if he returns to Malaysia.
40. Mr Wong’s 17-year-old brother provided a statement to the Tribunal to the effect that Mr Wong was like a father to him in the brief period they lived together after his arrival in Australia. His brother has expressed the wish that Mr Wong be permitted to stay in Australia so that “we can have a warm family again”. The wishes of the younger children are unknown.
41. It is not suggested that any of Mr Wong’s siblings would suffer any emotional harm if he were to return to Malaysia.
Best interests of the child: Conclusion
42. The primary consideration of “the best interests of the child” is not confined to the children of the applicant, or any child with whom the applicant is in a locus parentis relationship. Nonetheless it is plain from the factors listed in cl 10.4.1(5) that the focus of the provision is the interests of any relevant child that relate to their care and support; not their interests at large.
43. Mr Wong has a limited relationship with the four siblings relevant to this consideration. I accept that as claimed he is genuinely committed to taking on the role he claims is expected of the eldest son within Chinese society , namely taking responsibility for the family in the absence of his father. In my opinion all four children, especially the younger three, would benefit if Mr Wong were to remain in Australia, not because of any parental-type role he might fulfil but because they would benefit indirectly from the support provided to his mother which would assist her discharge her parenting responsibilities.
44. While this consideration favours Mr Wong, given the limited role he has played in the lives of his siblings to date it favours him only to a small extent.
OTHER CONSIDERATIONS
45. The Direction lists a number of “other considerations” that must be taken into account, if relevant. They should generally be given less weight than the four primary considerations: cl 11(2).
Family and other ties
46. The only members of Mr Wong’s family who live in Australia are his mother and five siblings.
Age and health
47.Mr Wong is young and in good health.
Links to Malaysia
48. In a statement prepared for these proceedings Mr Wong claimed that no members of his family remained living in Malaysia. In oral evidence, he admitted that an uncle, his mother’s brother, lived between Malaysia and Singapore. Mr Wong claimed not to know where in Malaysia his uncle lived.
49. Mrs Chua, confirmed that her brother works and lives in both in Malaysia and Singapore, but advised that his wife and daughter live solely in Malaysia. She claims that she has a good relationship with her brother but in recent years they have had limited contact due to the demands of his work. Mrs Chua told the Tribunal that she also has another sister-in-law — the widow of her youngest brother — who lives in Malaysia with her three children. In addition, Mrs Chua has a number of relatives of her parents’ age and a couple of friends in Malaysia, but claims her contact with them is limited. She claimed that it was “most unlikely” that any family member or friend would provide support to her son if he were to return to Malaysia. She conceded that she had not taken steps to enquire whether her friends or family would be prepared to offer her son support, if he were to be deported to Malaysia.
50. Mr Wong’s maternal grandmother and aunt live in Hong Kong. He claims that he has not enquired as to whether he would be able to live and work in Hong Kong or mainland China where his father now lives. Mr Wong is estranged from his father and has had no contact with him for the past three years.
51. Mr Wong has not lived in Malaysia for over ten years. His ties with Malaysia are limited. He has significant family ties within Australia. This factor weighs in Mr Wong’s favour.
Hardship likely to be experienced by Mrs Chua
52. Tendered in these proceedings was a report prepared by psychologist Mr Tim Watson-Munro who interviewed Mrs Chua in June 2011 and also gave oral evidence. Mr Watson-Munro was of the opinion that Mrs Chua suffers from a severe anxiety disorder and has been “psychologically vulnerable” for a number of years against the backdrop of two failed marriages and her decision to emigrate to Australia without her three children. He took a history of Mrs Chua experiencing “extreme guilt” at her decision to leave her son. He noted that on interview she impressed as a tearful, anxious and agitated woman who reported on-going sleep disturbances, severe depression, irritability and low self-esteem. He recommended that, as a matter of some urgency, she come under the care of a psychiatrist, especially given the evidence of suicidal ideation. He was of the opinion that Mrs Chua’s condition would be “severely aggravated” if her son were to be deported and given her psychological vulnerability, there was a risk of self-harm.
53. Mrs Chua testified that for a long period she has been of the opinion that she erred in sending her son to Hong Kong to finish his schooling and in emigrating to Australia. She described herself as an “incompetent mother”. Mrs Chua visited her son on a regular basis throughout his incarceration. Both testified that they became closer during this period and provided each other with emotional support.
54. Mrs Chua is now separated from her second husband and lives alone with her five children. She has custody of the three children from that marriage and is solely responsible for their care. She also cares for her 20-year-old daughter and 17-year-old son who are financially dependent on her. She is not in paid employment and is in receipt of Centrelink benefits. She receives some financial support from her former husband.
55. Mrs Chua testified that due to the large number of children in her care and the expense involved, it is unlikely that she would be in a position to visit Mr Wong, in Malaysia on a regular basis, if at all.
56. I accept Dr Watson-Munro’s opinion that Mrs Chua’s mental state would further deteriorate and that she would be at material risk of self-harm if her son were to be deported.
Hardship likely to be experience by Mr Wong’s siblings
57. Mr Wong’s siblings would suffer hardship if their mother’s psychological condition were to deteriorate, especially if this resulted in her being unable to continue to provide an appropriate level of care and support.
Hardship likely to be experienced by Mr Wong
58. In my opinion, Mr Wong is likely to suffer significant hardship if he were to be deported. He has not lived in Malaysia since he was 12 years of age; is estranged from his father — whom in any event lives in China — and for over a decade has had no meaningful contact with anyone who now lives in Malaysia. It is uncertain whether he would be able to turn to any member of his family living in Malaysia for support.
Language
59. Mr Wong’s first language is Cantonese. He also speaks some English, Mandarin and Bahasa Malaysia. He claims that Bahasa Malaysia was not spoken at home or school and his grasp of the language is limited.
60. Mr Wong challenges the comment made by the Minister’s delegate in his report dated 4 April 2011 that his inability to speak Bahasa will not jeopardise his ability to obtain employment. He concedes that other languages in which he is fluent are widely spoken throughout Malaysia, but contends that Bahasa is the official language and as such, an employer is likely to give preference to a person who is proficient in Bahasa.
61. In my view any disadvantage Mr Wong would suffer as a result of not being fluent in Bahasa Malaysia would be minimal.
Level of education
62. Mr Wong attended secondary in Hong Kong but did not complete Year 12. The vocational and language courses undertaken while in prison may assist him make a more positive contribution to the Australian community than he was capable of making prior to his incarceration.
Notification of possible deportation
63. Mr Wong was not notified that his criminal conduct might result in his visa being revoked prior to the decision the subject of this review.
Other Considerations: Findings and Conclusions
64. Of the “other considerations”, the hardship likely to be experienced by Mrs Chua and her children if Mr Wong were to be deported, are the most significant. The expert evidence is that Mrs Chua’s vulnerable psychological state is likely to deteriorate if her son were to be deported. If that occurred there is a risk that her ability to continue to care for her large family may be compromised.
65. Mr Wong would also suffer hardship if he were to return to Malaysia. While I think it unlikely that as claimed he would receive no support from his remaining family in Malaysia, he would nonetheless return to a country where he has not lived since he was a child and has no real links. He would also suffer the emotional hardship of again being separated from his mother — the only adult in his life with whom he has apparently formed any real attachment.
66. These factors weigh in Mr Wong’s favour. The balance of the “other considerations” are either irrelevant or of no particular significance.
DECISION
67. In deciding whether to exercise the discretionary power to cancel Mr Wong’s visa, I must take into account the four primary considerations and any relevant “other considerations” and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.
68. The short period of time that Mr Wong resided in Australia before engaging in criminal conduct, together with the fact that he was an adult when he arrived in Australia, weighs heavily against him.
69. The considerations in this matter are finely balanced. I have decided however that the balance tips slightly in Mr Wong’s favour given his low risk of reoffending, the significant hardship his mother will probably suffer given her vulnerable psychiatric state if he were to be deported and the risk that this might jeopardise her ability to properly care for her children, especially the younger three who are of a tender age and Australian citizens. In deciding that the power to cancel Mr Wong’s visa should not be exercised in this case, I have borne in mind, as instructed by the Direction, that “other considerations” are generally to be given less weight that the four primary considerations.
70. Mr Wong should be mindful that any further contravention of Australia law will almost inevitably result in deportation.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: .................................[sgd]...............................................
Associate to Senior Member BrittonDate of Hearing 16 June 2011
Date of Decision 6 July 2011
Solicitor for the Applicant Mr L Ting, Gregory J Goold Solicitors
Solicitor for the Respondent Mr T Eteuati, Clayton Utz
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