Wong and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 54
•25 January 2023
Wong and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 54 (25 January 2023)
Division:GENERAL DIVISION
File Number: 2022/9098
Re:Chong Leong Wong
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date:25 January 2023
Place:Melbourne
The Tribunal sets aside the decision dated 22 February 2022 to refuse the Applicant a Bridging E (Class WE) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Migration Act 1958 should not be exercised to refuse the visa.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – where applicant born in British Dependent Territory of Hong Kong so is citizen of People’s Republic of China – where applicant applied for Bridging E (Class WE) visa – where applicant refused visa under s 501 of Act by Minister’s delegate on basis not passing character test by virtue of being sentenced to prison sentence of 12 months or more and thereby having a ‘substantial criminal record’ – where applicant was sentenced for two offences with an aggregate sentence of 12 months – implications of Full Court decision in Pearson v Minister for Home Affairs – where basis of delegate’s reasoning has now gone away – task of Tribunal in such a case – questions for resolution – does applicant pass character test – if not should discretion be exercised to refuse visa – Commonwealth Customs offences – defrauding the revenue – period of offending – applicant does not pass character test – ministerial direction – risk of reoffending – are domestic animals members of the Australian community – additional consideration relating to applicant’s partner – effect on welfare of large number of domestic animals – nature of visa refused – tribunal satisfied discretion should not be exercised to refuse short-term visa – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 35, 42A
Migration Act 1958 (Cth), ss 186, 499, 500, 501, 501CA
Crimes Act 1914 (Cth), s 20ABCustoms Act 1901 (Cth), s 22BABAD
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Lam and Minister for Immigration and Multicultural Affairs; Re: [1999] AATA 56
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM9 [2022] FCAFC 21
Pearson v Minister for Home Affairs [2022] FCAFC 203
Pearson v Minister for Home Affairs (No 2) [2023] FCAFC 4
Pearson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2020] AATA 3527
Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825
Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22
Sio and Minister for Immigration, Citizenship and Multicultural Affairs; Re: [2023] AATA 9
XSHM and Minister for Immigration, Citizenship and Multicultural Affairs; Re: [2023] AATA 5Secondary Materials
Butterworths – Halsbury’s Laws of Australia, Vol 1(2) - Animals
Import of Dogs and Cats – Special Permit – Agriculture, Fisheries and Conservation Department of Hong Kong – (accessed 17 January 2023)Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
25 January 2023
The Applicant, Mr Chong Leong Wong, has asked the Tribunal to review a decision dated 22 February 2022 to refuse to grant him a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (‘the Act’).
HEARING
A hearing was held on 10 and 11 January 2023. The Applicant was represented by Ms Minjia Rao, a Migration Agent, of HECT Migration & Appeal Exports, with Ms Bonnie Chen. The Respondent was represented by Mr Keith Sypott of The Australian Government Solicitor, with Mr Stanley Mak. Mr Wong gave evidence and was cross-examined. Ms JZ, his de facto partner, also gave evidence. The Tribunal was assisted by a Mandarin language interpreter for both the witnesses.
The Tribunal had regard for an Amended Statement of Facts, Issues and Contentions of the Respondent, and two Statements of Facts of the Applicant. Other documents admitted into evidence are in the annexure to these reasons.
BACKGROUND
Mr Wong was born in 1991 and is a citizen of the People’s Republic of China (‘PRC’), having been born in the British Dependent Territory of Hong Kong, which from 1997 became the Hong Kong Special Administrative Region of the PRC. He first arrived in Australia in 2002 as the holder of a Class UD (Subclass 976) visa. He departed Australia but returned. He has substantively resided in Australia since November 2008 as the holder of successive student visas and bridging visas.
On 22 August 2018, Mr Wong appeared at the Local Court of New South Wales at Burwood and entered pleas of guilty to one charge of importing tobacco products with the intention to defraud the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) (‘the Customs Act’) and one charge of possession of and/or conveyance of tobacco products with intent to defraud, contrary to s 233BABAD(2) of the Customs Act. He was committed to be sentenced by the District Court of New South Wales. On 22 February 2019, the Applicant was convicted and sentenced by the District Court of the two offences.
The nature of the offending was that the Australian Border Force (‘ABF’) received information that a large number of identical packages from China were arriving in Australia, addressed to the Applicant, which the ABF believed contained cigarettes. Between June and July 2017, a number of packages were intercepted which were addressed to Mr Wong. The packages were found to contain 79,600 cigarette sticks. Between July and October 2017, other packages were intercepted, addressed to the Applicant. They were found to contain 46,600 cigarette sticks. On 10 August 2017, further information was received by the ABF that more packages were being addressed to Mr Wong at a second address.
On 19 September 2017, Mr Wong’s address was searched, and 130,400 cigarette sticks were located, together with a large number of duty assessments for the imported consignments. A total of $91,094.84 in Customs duty and $9,109.48 in GST was found to have been evaded. Mr Wong was also found to have imported 130,800 cigarette sticks from the PRC, evading a total of $91,373.37 in Customs duty and $9,137.25 in GST owed on those items. Therefore, a total of $200, 714.94 was evaded in Customs duty and GST (SGD, p 98).
Mr Wong was arrested and, as mentioned above, appeared before a Local Court. He pleaded guilty and was released on bail to appear for sentence in the District Court. On 22 February 2019, he was sentenced to an aggregate sentence of 12 months’ imprisonment for the two offences, to be served by way of an intensive correction order (‘ICO’) with 240 hours of community service.
On 25 June 2020, Mr Wong applied for a bridging visa. On 17 February 2021, a delegate of the Minister (the Respondent) notified the Applicant of an intention to consider refusal of the visa application under s 501(1) of the Act. Mr Wong was invited to make representations to the Department of Home Affairs (‘the Department’) as to why the visa application should not be refused. He provided submissions on 16 March 2021.
On 22 February 2022, a delegate of the Minister decided to refuse the visa application under s 501(1) of the Act. No action was taken by the Department to notify Mr Wong or his then legal representative of this decision. At the hearing, when this was raised by the Tribunal, Mr Sypott said he had not received instructions on the reason for this failure to advise the Applicant. The Applicant remained in the community without a visa.
On 3 November 2022, a group of ABF officers attended Mr Wong’s residence in the early hours of the morning. The Applicant was presented with a letter advising him that his visa application had been refused, attached to which was the decision record of 22 February 2022 (GD, p 99). He was taken into immigration detention. Ms JZ said that the ABF officers also gave her a search warrant and searched the residence. The reason for the search was not apparently explained to the Applicant nor to Ms JZ, and Mr Sypott said he had no information about the basis for the search.
The Applicant’s then legal representative was emailed a copy of the decision record refusing the visa by the Department late in the morning of 3 November 2022 (GD, p 98), after Mr Wong had been taken into detention from his residence.
On 6 November 2022, Mr Wong lodged an application with the Tribunal for review of the 22 February 2022 decision to refuse the visa.
Because of s 500(6L) of the Act, the Tribunal must make a decision within eighty-four days of a person being notified of a decision to refuse a visa; otherwise, by operation of law, the Tribunal is deemed to have affirmed the refusal decision. The eighty-fourth day in these proceedings was agreed to be 26 January 2023. As that day is a public holiday, the Tribunal advised that a decision would be made and advised to parties by 25 January 2023.
Implications of Pearson decision
On 22 December 2022, the Full Court of the Federal Court of Australia (Allsop CJ, Rangiah and Sarah Derrington JJ) delivered the judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’).
Ms Pearson is a New Zealand citizen living in Australia who had been convicted of 25 offences in New South Wales, including eight relating to supplying a prohibited drug. For these offences, she had been sentenced to an aggregate term of imprisonment for four years and two months, with a non-parole period of two years. Her visa was cancelled on the basis that she had been convicted of a term of imprisonment of 12 months or more, and a delegate of the Minister decided there was not another reason to revoke the mandatory cancellation.
The Tribunal affirmed the cancellation decision (Re: Pearson and Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3527). Ms Pearson sought review by the Federal Court. The Tribunal’s decision was affirmed, first by a single judge (Pearson v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCA 825) and then, on appeal, by the Full Court of the Federal Court (Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22). Ms Pearson then sought leave of the Full Court to appeal against the removal order and to introduce a new ground, not argued earlier, about the validity of the original visa cancellation.
The Full Court, in that hearing, granted leave and held that an aggregate sentence imposed by a court did not fall within the definition of “substantive criminal record” under ss 501(6)(a) and (7)(c) of the Act because such a sentence is not a term of imprisonment of 12 months or more (emphasis added).
On 24 January 2023, the Full Court published its orders in relation to the Pearson judgment (Pearson v Minister for Home Affairs (No 2) [2023] FCAFC 4). The Court quashed the original decision of the delegate to cancel Ms Pearson’s visa, and the subsequent Tribunal decision. The Court declared that the cancellation decision, the non-revocation decision and the Tribunal decision were affected by jurisdictional error and invalid by reason of the fact that the relevant decision-makers erred in being satisfied that Ms Pearson’s aggregate sentence of imprisonment resulted in her having a ‘substantial criminal record’ for the purposes of s 501(6)(a) of the Act by reason of s 501(7)(c) of the Act.
At this hearing, the Respondent submitted, as a result of the decision in Pearson, that the Tribunal cannot now find (as the delegate was satisfied in the reviewable decision) that Mr Wong did not pass the character test on the basis of his aggregate sentence constituting a ‘substantial criminal record’.
The Respondent contended that the Tribunal should determine whether the Applicant passes the character test on two bases: first, whether he is of good character under s 501(6)(c)(i) because of his past criminal conduct, and, second, his risk of engaging in criminal conduct in Australia under s 506(d)(i) of the Act.
The Respondent further submitted that the Tribunal was bound to follow an earlier decision of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (‘CPJ16’) wherein Rares J held that, in the absence of a “new fact” post-dating the delegate’s decision, the Tribunal’s consideration of the character test is limited only to the grounds considered by the delegate.
The Respondent submitted that the Full Court decision in Pearson falls within the exception identified in CPJ16 in that the delegate, having made the decision in February 2022, could not have been aware of the position now established whereby an aggregate sentence imposed by a Court on a non-citizen cannot satisfy s 501(7)(c) of the Act. The Minister submitted that this was in the nature of a “new fact” because, had this understanding of the law been known to the delegate, consideration of whether Mr Wong did not pass the character test would not have been limited to s 501(6)(a) of the Act. The Respondent therefore submitted it was permissible for the Tribunal to consider and apply other grounds of the character test as set out in other limbs of s 501(6); and submitted that the subsections relevant to considering Mr Wong’s character were ss 501(6)(c) and 501(6)(d) of the Act.
By way of analogy, the Respondent submitted that where a non-citizen has had a visa refused or cancelled because he or she has a ‘substantial criminal record’ because of a 12-month or more prison sentence, and in the course of making representations to the Department or an application to the Tribunal, the person’s sentence is reduced by a Court to a period below the 12-month threshold, the Tribunal has found that this change in circumstances has been found to constitute a “new fact” in the CPJ16 sense.
The Respondent, acting properly as a model litigant, acknowledged that the Minister’s amended position had been lodged with the Tribunal and communicated to the Applicant’s representative only the day before the substantive hearing and indicated he would support any request the Applicant might make to adjourn proceedings to consider the implications. This reiterated a written position which had been communicated to the Applicant’s representative the previous day. Ms Rao consulted with her client and told the Tribunal that the Applicant did not seek an adjournment and he was content for the matter to proceed.
Ms Rao further submitted that the Applicant’s position is, as a result of Pearson, that the Tribunal should consider whether Mr Wong was not of good character on the basis of s 501(6)(c)(i) of the Act – which she contended was not made out – and that the Tribunal should not go on to consider s 501(6)(d)(i) of the Act.
Subsections 501(6)(c)(i) and (d)(i) of the Act read:
For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
…
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; …
Consideration
The general approach, as set out in CPJ16, is that the Tribunal must review the decision before it, and the grounds of that decision. It is not generally permissible for the Respondent to seek to invoke new grounds in terms of a merits review of an administrative decision, because that would be procedurally unfair to an applicant and change the basis of the decision being reviewed. However, this is not the case where the Respondent is seeking to change the nature of the refusal case for some ‘strategic’ purpose, it is a case where a Full Court decision has had an effect on a matter which is on foot.
The facts before the Tribunal are as follows. The Applicant has been in immigration detention since November 2022. The visa he was seeking, and which was refused, is a category of short-term visa designed to allow persons to finalise their affairs in Australia and voluntarily return to their home country. If the Tribunal does not make a decision by 26 January 2023, the refusal decision (which all parties now agree was based on what is by Pearson established as a misapplication of the law), will, notwithstanding it is now wrongly founded, be affirmed by operation of s 500(6L)(c) of the Act. Under s 198(2) of the Act, the Applicant would then be liable for deportation as soon as practicable. For the Tribunal to allow that state of affairs to unfold is not desirable.
If the Tribunal sets aside the reviewable decision and remits the matter to the Department for further consideration in the wake of Pearson, the Applicant will remain in detention as a non-citizen without a valid visa while the matter is further considered. That is also not desirable, in the Tribunal’s mind, especially given the unexplained gap of some eight months between the decision to refuse the visa and the notification to the Applicant. The Tribunal is a ‘practical and pragmatic jurisdiction’ (see Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21, at [28]). As such, it should endeavour to find, if possible, that it has jurisdiction in order to provide certainty of outcome to a person seeking merits review of an administrative decision. Timeliness is especially important where an applicant is not at liberty.
Mr Wong is in the migration zone. He applied for a visa, and it was refused. The Tribunal distinguishes this from a case where a person may be seeking review of a decision not to revoke mandatory cancellation of a visa under s 501CA, where the original decision to cancel the visa has now gone away because of judgment in Pearson (and the orders now made on 23 January 2023).
The decision in Pearson was made on the cusp of the Christmas holiday break. In recent days, the Tribunal has so far taken two courses in finalising such applications where the applicants’ visas had originally been cancelled on the basis of aggregate sentences.
In Re:XSHM and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 5, Senior Member Cameron found that the Tribunal has no jurisdiction under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to consider whether there is another reason to revoke the mandatory cancellation of a visa when the “original decision” which gave the power to review (s 500(1)(ba)), i.e. the decision to cancel the person’s visa, has now been determined to have been wrong in law.
In Re: Sio and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 9 Member Webb dismissed a s 501CA matter, with the consent of both parties under s 42A(1) of the AAT Act.
In both of these cases, the applicants had been issued fresh visas and released from immigration detention.
Refusal of a visa is in a different category because the original decision to refuse under s 501(1) is amenable to review under s 500 in terms of whether the non-citizen passes the character test under s 501(6). In a case of refusal, the Tribunal’s task is not rendered nugatory, as it would be by the taking away of any utility for review when a non-citizen seeking to have a visa restored has already been issued with a fresh visa by the Minister.
Section 500(1)(b) of the Act provides that a person may seek review of a decision under s 501 subject to one exception not relevant in Mr Wong’s case. The Tribunal considers this confers on the Tribunal’s power to make a decision about the applicability of the whole of s 501 in this case, given that a supervening event which was unknown to the delegate – and unknowable – of the Full Court judgment in Pearson. I am satisfied that these special circumstances are not inconsistent with the reasoning in CPJ16.
I am further satisfied that it would be illogical for the Tribunal to be confined in conducting a de novo review to the stipulated terms of the delegate’s decision in a case where one part of that decision was based on an understanding of the law now declared to be incorrect. There is some relevance in the analogy suggested by the Respondent about how the Tribunal approaches cases where an applicant’s sentence being reduced on appeal below the 12-month threshold between cancellation of the visa owing to a ‘substantial criminal record’ and either a delegate’s decision or decision by the Tribunal. But the effect of Pearson is more than that because it relates to how the law should be applied in general in relation to the treatment of aggregate sentences, not related to the specific circumstances of an individual.
The questions for resolution
An objective set out in s 2A of the AAT Act is that the Tribunal should endeavour to carry out a review role in a way that is fair, just, and quick. Consistent with this objective, the Tribunal finds that the correct approach is for the Tribunal to address the primary question on which Mr Wong’s visa was refused, that is, under s 501(1): is this subsection enlivened on the basis that the Tribunal (standing in the Minister’s shoes) is not satisfied that Mr Wong passes the character test?
To decide whether Mr Wong does not pass the character test requires the Tribunal to consider all the provisions of s 501(6) because that subsection sets out the grounds on which a person does not pass the character test exhaustively, as is clear from the last sentence in the subsection: “Otherwise the person passes the character test.”
If the Tribunal finds Mr Wong does not pass the character test, then there is a second question: Should the discretion be exercised to refuse the visa?
In these special circumstances, this is a safer path to follow than considering competing arguments between the parties as to which particular parts of s 501(6) of the Act are relevant to Mr Wong’s circumstances.
Consideration: Does the Applicant pass the character test?
In March 2021, the then Minister issued a direction under s 499 of the Act relating to the refusal of visas under s 501 of the Act, Direction No. 90 (‘the Direction’). Decision-makers, including this Tribunal, must have regard to the contents of the Direction.
Annex A of the Direction relates to the application of the character test. Section 1(2) provides that persons who are being considered under s 501 of the Act must satisfy the decision-maker that they pass the character test set out in s 501(6) of the Act. Importantly, given the submissions of the parties, s 1(3) stipulates that a person need only be found to not pass one ground in s 501(6) of the Act, in order not to pass the character test.
In this case, as set out above, Mr Wong does not have a ‘substantial criminal record’ because he has not been sentenced to a term of imprisonment of 12 months or more (because he was given an aggregate sentence relating to two different offences). There is no evidence before the Tribunal that he has committed any immigration detention offences relevant to ss 501(6)(aa) and (ab).
There is no evidence before the Tribunal that the provisions of s 501(6)(b) (membership of, or association with, a group or organisation) are relevant. There is no evidence that s 501(6)(ba), which relates to people smuggling, trafficking in persons, crimes of genocide, crimes against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of international concern, is relevant.
There is also no submission before the Tribunal, or evidence, that the provisions of ss 501(6)(d)(ii),(iii),(iv), or (v) of the Act are engaged in this matter. The Tribunal accepts the submission of Ms Rao that Mr Wong has not been convicted of any offence in Australia or abroad relating to sexually based offences involving a child. There was no submission from either party that Mr Wong has any foreign convictions which might invoke s 501(6)(f) of the Act. In addition, the Respondent did not submit that ss 501(6)(g) or (h) are engaged.
In response to a direct query from the Tribunal, the Respondent submitted that it confines its submissions in relation to contending Mr Wong does not pass the character test to his past criminal conduct in relation to his offending in Australia and that there is a risk that he would engage in criminal conduct in Australia. Mr Sypott said that there were no submissions from the Minister that Mr Wong’s past and present general conduct was in issue.
Notice under s 500(6K) of the Act
At the conclusion of the hearing, the Tribunal considered the evidence of Ms JZ that the Applicant’s and her residence was searched when he was taken into immigration detention on 4 November 2022. This evidence was not challenged by the Respondent at the hearing. Given that the nature of the search was unclear and that the Minister’s legal representatives did not have any instructions on the matter, the Tribunal decided to issue a notice to the Minister under s 500(6K) of the Act. The basis of this notice was that if there was information in the possession of the Department that led to the search that may have been linked to alleged criminal or other general conduct, that information might be relevant to an assessment of Mr Wong’s character.
Section 500(6K) relevantly provides that if the Tribunal is of the opinion that particular documents may be relevant to a decision under review, the Minister may be served with a notice to produce the documents and the Minister must comply. The documents sought were the search warrant apparently executed at Mr Wong’s residence on 4 November 2022; and any documents relating to the issuance of that search warrant.
The Minister complied with the notice to provide the search warrant on 18 January 2023 but requested that, apart from the search warrant itself, other documents be protected by a s 35(4) order under the AAT Act prohibiting them from being provided to the Applicant or his representatives because they may disclose operational practices of the Department or the ABF. The Tribunal agreed to issue such an order on 19 January 2023. The remaining documents were provided to the Tribunal on 19 January 2023. The Tribunal appreciates the prompt response of the Minister to the terms of the s 500(6K) notice.
Having read the search warrant and the other documents, the Tribunal is satisfied that there is nothing contained within them that supports a foundation of any other criminal or general conduct apart from the factual situation that Mr Wong was an illegal non-citizen in the migration zone because he did not possess a valid visa. It would appear that any search was limited to the potential that a non-citizen might have relevant documents contained within the scope of the warrant, and there was no evidence before the Tribunal that was the case here.
Offending history
The National Criminal History Check dated 24 February 2021 (GD, p 18) lists only the two Customs Act offences referred to above. In addition, the Applicant furnished a Traffic Record Report from Roads and Maritime Services New South Wales dated 10 February 2022, which listed three traffic offences. In August 2016, Mr Wong was fined $425 and incurred three demerit points for a camera-detected offence, ‘disobey traffic lights’. In November 2018, he was fined $114 and incurred one demerit point for the camera-detected offence of ‘exceed speed limit by not more than 10 km/h’. In December 2018, he was fined $448 and incurred three demerit points for the camera-detected offence of ‘not stop at red arrow’.
The Applicant also provided a VicRoads report dated 16 December 2022, which recorded no traffic offences recorded by Mr Wong in the State of Victoria and no demerit points recorded in the past five years, together with a copy of the Applicant’s current Victoria driver licence.
Road traffic offences of any sort are irresponsible. Here there is no significant regular history of driving offences and no offences involving drink or drug driving, or collisions or injury to other road users. The most recent traffic offence is more than four years old. In these circumstances, the Tribunal does not place great weight on such traffic offences in counting against Mr Wong’s character.
In terms of the Customs Act offences, before the Tribunal were the sentencing remarks of Judge Herbert in the District Court of New South Wales on 22 February 2019. His Honour noted that the total amount of customs duty and GST evaded by Mr Wong in relation to the import of cigarettes was more than $200,000 (GD, p 23).
The Judge noted that Mr Wong had no prior criminal record. He referred to a report by Mr Jason Borkowski, forensic psychologist, which was also in the papers before the Tribunal. Mr Borkowski reported no evidence of perceptual disturbance or thought disorder. Mr Borkowski reported no mental health history and an alcohol consumption of one or two times a week with occasional experimentation with cannabis.
Mr Borkowski reported that the Applicant told him about a history of problematic gambling commencing around 2012, playing table games, baccarat, and blackjack at a casino in Sydney. Mr Wong reported that his girlfriend at the time had returned to her home country of Korea. He felt lonely and was invited out by friends to a casino. He started gambling as a distraction. His Honour recorded:
He would try to contain his gambling and limit it to .. several hundred to a thousand dollars per session. He reported that in 2013 he had lost approximately $130,000 of his own money over a short period of time. After meeting his current partner, who he described as a positive influence, he said his gambling decreased and eventually ceased and he has only gambled once every few months with his gambling limited only to several hundred dollars per occasion. He said in the past year his gambling has started to increase again, which he said was a mechanism for him to cope with stress and pressure.
In his oral evidence at this hearing, Mr Wong said that the money he used for gambling came from his family in Hong Kong and was provided to him for daily living. He was embarrassed that he had lost it by gambling and did not tell his family and tried to win it back. The Tribunal notes that the Judge recorded he also sublet an apartment and used the rental income to part-fund his gambling habit.
In terms of the cigarette importation, Mr Wong told the Tribunal he noticed that members of the Chinese community in Australia lamented they could not easily obtain Chinese-brand cigarettes in this country. He saw a business opening and found a supplier online in China. He asked his parents for money to start a business but admitted to instead using that money to purchase and import more cigarettes.
His Honour recorded (GD, p 28):
The offender maintains that he did not know that importing and selling cigarettes was a criminal offence and he said that he was not completely aware of the legal implications of his actions. He added that on occasions he would pay excise duty when it was requested by the relevant authorities but other times he did not. He said he was aware that his actions were not entirely legal but said he did not understand the seriousness of the actions. He spoke about being under financial pressure due to having gambled all his money years earlier.
(Emphasis added.).
The Judge recorded that Mr Wong said he was ashamed of what he had done in using money borrowed from his parents, and that he was apologetic to the Australian Government and the community for his wrongdoing. His Honour recorded that Mr Wong has sought ways to make amends. He has volunteered through Strathfield Council, volunteered with Liverpool City Council and the Charming Asia Association and Charming Asia Lunar Carnival.
Mr Wong said that his family provided him with financial support, and he used the money to purchase and establish a legitimate business, a dog and cat grooming business and a pet store.
Likelihood of future offending
Mr Borkowski administered a Level of Service Inventory–Revised (‘LSI-R’) actuarial assessment tool designed to identify an individual’s risks and needs with regard to recidivistic criminal behaviour. In his report, he relevantly stated:
…Mr Wong presents with a number of strengths and protective factors that suggests he would be a low risk of future offending. He appears to have general self-regulation skills and he did not report a history indicative of impulsive behaviour. He reported an ability to maintain stable interpersonal relationships, and he has access to prosocial support networks and peers, and he did not provide a history of socializing within a criminal sub-culture. Mr Wong has a positive attitude toward employment, and a history of being able to maintain employment. He does not present with any serious mental illnesses or serious personality dysfunction. He has no prior criminal history, he demonstrates prosocial values and beliefs and there is no evidence of antisocial rationalizations to support a criminal lifestyle. He has an interest in, and actively engages in prosocial leisure pursuits. Mr Wong does not have a current substance use problem.
The primary criminogenic need that warrants intervention is Mr Wong’s gambling disorder. Overall, Mr Wong is rated as Low Risk of general re-offending on this measure.
Mr Borkowski concluded that, based on the Applicant’s self-reporting and other information, he concluded that Mr Wong (then) presented with the following psychological condition: Gambling Disorder, Moderate, Episodic.
Mr Borkowski recommended Mr Wong engage with a psychologist to help him better manage stress and gambling counselling. He noted the recent establishment of Mr Wong’s pet business and regarded that as a positive measure to help him establish financial stability through legitimate means.
In Court, Judge Herbert adopted the assessment of Mr Wong being a low risk of re-offending. He found that the Applicant’s prospects of rehabilitation are good, and that he was unlikely to re-offend (GD, p 31).
His Honour found that Mr Wong’s actions were objectively serious, but that his offending did not amount to a sophisticated offence. It was noted that the Applicant had the cigarette consignments sent to him in his own name to his home address and to the flat that he was shortly to move into with his then girlfriend. It was noticed that the customs declarations on the parcels described other items such as ‘clothes’, ‘coats’, ‘plastic toys’ and ‘accessories’ (Agreed Statement of Facts, SGD, p 98).
The Judge found that Mr Wong had previously been a person of good character, which he took into account. He also took into account the Applicant’s plea of guilty at the earliest opportunity and applied a significant discount for this early plea.
However, Judge Herbert noted that there was an element of ongoing criminality, given that the offending took place over a period of several months. Taking into account the provisions of Part IV of the Crimes Act 1914 (Cth), he determined a sentence of imprisonment was appropriate, in all the circumstances of the case.
However, although Mr Wong was sentenced to a sentence of imprisonment, the Court determined that the sentence should be served by way of an Intensive Correction Order, including that he not commit any other offence and perform 240 hours of community service work. Mr Wong was also to participate in a rehabilitation programme to address his gambling addiction.
In his oral evidence, Mr Wong said he did not undergo any formal gambling counselling but did engage with members of his church. Before the Tribunal was an email from a Senior Community Corrections Officer at the NSW Department of Justice dated 3 March 2020 (GD, p 42) replying to a request from the Applicant of proof of when he completed his Court-imposed community service order. The officer wrote:
Chong, you completed your 240 Community Service hours on 18/7/2029 [sic] and the Order expired on 22/2/2020
Given the date of the email, the Tribunal is satisfied that the typographical error was meant to record the completion of the order on 18 July 2019. The Tribunal notes that Mr Wong completed his 240 hours of community service well within the time allocated. Ms JZ said that he was required as part of the Court order to go to a church once a week to help with cleaning, food preparation and other chores. She said he decided to do this for three days a week, in order to discharge the obligation earlier.
Mr Wong established his animal grooming business and settled into a stable relationship with Ms JZ. More recently, he moved to Melbourne because Ms JZ, who is an accountant, obtained a full-time job there. He said he had not resumed gambling, a fact that Ms JZ corroborated in her evidence.
The Tribunal has been provided with very extensive material relating to the Applicant’s business. It includes tax and other business records and satisfies the Tribunal that it was a legitimate and profitable business. Mr Wong said he employed a total of fourteen staff, four of whom he believed were either permanent residents or Australian citizens. The remainder were casual employees on work visas. The Tribunal has perused the tax records provided and is satisfied that the business appears to have been conducted in a manner consistent with usual corporate obligations. Mr Wong said he sold the business when he relocated to Melbourne with Ms JZ.
In weighing the scales of whether Mr Wong is of good character, the Tribunal is mindful that his criminal offending was over a relatively short period, between June and October 2017. There is no evidence of any prior offending except for the motor traffic offences outlined above. There is no evidence of any subsequent offending, including traffic infringements since 2018.
Apart from establishing and growing a profitable business, the Applicant has undertaken a number of other community-minded activities. Ms JZ said in terms of the grooming business, Mr Wong frequently assisted pensioners with low-cost grooming for their pets. Both she and Mr Wong emphasised that they kept the business operating throughout the pandemic lockdowns and did not lay off staff, as many small businesses were compelled to, because they felt an obligation to their staff and clients. The Tribunal accepts this.
Mr Wong has also been productive in other ways since he has been in Australia. He undertook a Diploma in Management at a Sydney college, and then successfully completed a Bachelor of Accounting degree at Central Queensland University. He enrolled in a master’s degree, which he said he did not complete. He completed an internship with a finance company and worked for a time in real estate, undertaking requisite training to be a property manager. The Tribunal is satisfied that he has made some positive contributions to Australia.
However, the fact remains that the Applicant has been convicted of two significant Commonwealth offences relating to defrauding the revenue. While it can be fairly described as an unsophisticated course of criminal activity, I am satisfied that Mr Wong knew what he was doing was wrong. It may be that he did not realise that it was criminal conduct and that he thought he could be fined for evading excise duty and GST, but the fact remains that, as the Judge found, he knew that what he was doing was illegal. To the extent that he equivocated to some extent in his evidence about the level of criminality at the hearing, the Tribunal rejects that, and notes it is inconsistent with his pleas of guilty, which means he accepted all the elements of the offences of which he was charged.
In the scales, there are many things that weigh in favour of Mr Wong: His unblemished history in terms of criminal offences (save three minor traffic offences) until the Customs Act offences, and no offending since. His academic achievements and building up a business in Australia, employing people and providing a worthwhile service. His community service outside that which was required by his Court-imposed obligations.
In BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (‘BOY19’), O’Bryan J was considering the concept of ‘good character’ in terms of the conferral of Australian citizenship. However, His Honour’s remarks at [47]-[50] are relevant:
47.In Irving v Minister of State for Immigration, Local Government & Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422, the Full Court considered the meaning of the expression “good character” in a provision of the Migration Act which gave the Minister power to refuse or cancel a visa if the Minister was satisfied that the relevant person was not of good character. Davies J observed (at 424-5):
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this court will not grant an order of review. The Administrative Decisions (Judicial Review) Act 1977 (Cth) confers on the court not the function of reviewing decisions on their merits, but the function of correcting those errors which may loosely be described as errors of law, that is to say errors which offend the legal principles laid down for administrative decision-making.
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will tum his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
48.His Honour also observed (at 427-8):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
49.Similarly, Lee J observed (at 431):
Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character....
Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.
50.In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277, the Full Court again considered the meaning of the expression “good character” in s 501 of the Migration Act which gave the Minister power to refuse a visa if the Minister was satisfied that the relevant person was not of good character. The Court observed (at [8]) that the meaning to be given to the expression depended on the statutory purpose:
Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
The Reverend Frankie Law, Co-ordinating Minister at the West Sydney Chinese Christian Church, provided a letter to the Court dated November 2018 (GD, p 39). Mr Law said:
I have known Chong Leong Wong for more than a year. Chong Leong came to our church in September 2017 and since then he has been a regular attendee of the Cantonese Worship Services. Chong Leong has come across to me as a polite and decent young man.
It was about two weeks ago that Chong Leong told me about his court case in relation to the importing of tobacco, of which he will be sentenced on 26 November 2018. Chong Leong admitted that he had done something terribly wrong and he is very remorseful of it.
After speaking to Chong Leong, I have reasons to believe that he is now a changed person and I sincerely hope that an opportunity for a second chance might be granted to him so he could begin a new and responsible life again.
A more recent testimonial was provided by the Reverend Billy Lee, of the same church, dated 14 December 2022 (Exhibit A1). Mr Lee said he had known Mr Wong for four years and that the Applicant was a regular attendee of the church in Sydney until he moved to Melbourne in 2021. Mr Lee wrote:
Upon spending time with him, I have come to realize that he has characteristics that are considered to be of great value in this country. Chong Leong has come across to me as a polite and decent young man. He is hardworking and loves to do his job dedicatedly. Chong Leong has been able to develop friendships within the church community. He is a man who has an authentic faith in Jesus Christ. Additionally, Chong Leong is very helpful in local community. Many pet owners are stranded overseas and unable to return home during the pandemic. Chong Leong has a heart to help the abandoned pets find a new home and arranged the international pet relocation services during the lock down period. During his time in Sydney, he also involved in Bushcare volunteer group at Strathfield council. I consider Chong Leong to be a man of great character.
Ms Wai Ching Ma provided a testimonial dated December 2022 (part Exhibit A5). She was a fellow congregant of the Cantonese Christian Church and knows both Mr Wong and his mother. Ms Ma wrote:
I came to know that Chong Leong did something which [violated] the law, and our church pastor was supporting him when he faced court hearing. During those years he was stressed out, but I never heard him blaming anyone or showing bitterness when he talked about his matter. He never shied away from his mistake but willing to take responsibility for what he had done.
What I observed was that Chong Leong was regret and remorse for his wrong, he carried out his duties to serve the community whole heartily after the sentence. It was also evident that he determined to leave the past behind and start a new life. He worked diligently and reliably with his customers, and he maintained good relationship with his work mates.
I am aware of the purpose for which this reference is obtained. I believe good character should come from inside, not merely outward behaviours such as performing good deeds or helping others. Based on the period from October 2017 to December 2021 while Chong Leong was living in Sydney, I observed him admitting his mistake, repented, and learnt from his error.
Of these three testimonials, those provided by Mr Law and Ms Ma weigh more usefully than that of Mr Lee, because it is not clear that the latter clergyman was aware of Mr Wong’s offending. It is also valuable to remember, as is clear in from the extracts of the judgment in BOY19 above, that repute and character are not synonyms. A man might be well regarded in his community and yet not be of good character because of conduct of which others are unaware. Equally, a man who has done a terrible thing might, in time, be found of good character because of his remorse and subsequent good acts.
Finding on the character test
Because of the relatively short period since July 2019 when Mr Wong completed his obligations to the Court in relation to two significant Commonwealth offences and his application for the visa in June 2020, the Tribunal finds that he does not pass the character test on the basis of his past criminal conduct. The Tribunal has not come to that conclusion easily, because there are many elements to Mr Wong that would support a conclusion that he is of good character. They are set out above. However, playing into this conclusion is the following. Mr Wong’s criminal offending was over a short period. It would seem to be inconsistent with his general character and mores, both before and after this period of offending. However, it was not a hot-headed crime, committed on the spur of the moment. The offending conduct was carried out over several months. He did it partly using money from his family, which they thought was funding his daily living expenses and helping him set up a legitimate business. He misled them. He knew what he was doing was illegal.
The Tribunal makes the point that, had it been a little longer since he had completed the orders imposed by Judge Herbert, assuming no further offending, it may well be that a finding that he is (now) of good character could be sustained. Even serious offending, if isolated and not part of a pattern, can be delible in terms of a person’s character. But I must make a finding based on my assessment as of now, and I find that Mr Wong is not of good character in terms of s 501(6)(c)(i) of the Act – in terms of criminal, not general, conduct.
Because of this finding, it is not strictly necessary for me to go on to consider the other contention of the Respondent that Mr Wong fails the character test because there is a risk if he remains in Australia of offending (s 501(6)(d)(i)). Mr Sypott submitted that, because of the past offending, there was ‘a risk’, and it need only be some risk, not a fanciful or trivial risk. There is some strength to the view expressed by the late Justice Mathews in Re: Lam and Minister for Immigration andMulticultural Affairs [1999] AATA 56, sitting as a presidential member of this Tribunal, where Her Honour said, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
However, in this case, the sentencing Judge in early 2019 and the forensic psychiatrist in 2018 were of the view that Mr Wong was a ‘low risk’ of reoffending. I give strong weight to their assessments, especially to His Honour’s. If anything, Mr Wong’s ‘low risk’ then found has diminished further given the unchallenged fact of (a) no further offending, (b) the stability of the Applicant’s relationship with Ms JZ; (c) his involvement both in his church and in building up a productive and profitable legitimate business; and (d) his apparent strength in not resuming gambling. I have decided to make no finding in relation to this submission of the Minister. That is because I consider, on the facts, that there is negligible risk of the Applicant reoffending.
Having decided Mr Wong does not pass the character test, the discretion in s 501(1) is enlivened. The Tribunal must now consider whether it should be exercised to refuse the Applicant a visa. In doing so, the Tribunal must address considerations set down in the Direction.
APPLYING THE DIRECTION
The Direction requires the Tribunal to consider four primary considerations, as relevant to an applicant. It also lists four other considerations that, if relevant, must be addressed but makes clear this is a non-exhaustive list. The Tribunal should consider any other matter which is consistent with the purposes of the Act.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Applicant has committed no crimes in any of these categories. His sole criminal offending related to crimes against the revenue. He has three other historical traffic infringements.
The Tribunal must consider whether the non-citizen’s offending is directed at vulnerable members of the community. Importation of cigarettes through irregular (and, in this case, illegal) channels brings with it a possibility that the tobacco product itself may be more injurious to a person’s health than cigarettes inherently are. There is no evidence of that, but the Respondent did make the point that the Australian Government’s plain-paper packaging regime is undermined by such activity.
The Customs Act offences are serious; that is how they were described by the Judge, and he considered they warranted a sentence of imprisonment (albeit to be served by way of an ICO). Paragraph 8.1.1(1)(b)(iii) of the Direction deems that any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon a decision-maker’s opinion, is declared to be serious.
The Tribunal must consider the frequency of the offending, any trend of increasing seriousness and the cumulative effect of repeated offending. In this case, the offending was frequent but over a period of around four months. Several parcels of cigarettes were imported by Mr Wong with the intention to evade the revenue and on-sell the tobacco items for commercial gain. There was no subterfuge other than the misdescription on the customs declarations on some of the parcels, which Mr Wong said was done by the sender, not by him. There is no trend of increasing seriousness, nor a particular effect of cumulative offending.
The Direction also requires the Tribunal to consider whether the Applicant has committed any offences in immigration detention, or whether he has offended after being warned in writing or another way by the Department of the potential effect on his migration status. There was no evidence of offending in detention. There was no evidence of any warning to Mr Wong, although axiomatically, as someone who had applied for a number of visas in the past, he can be assumed to know that he should not commit offences in Australia, or it might jeopardise his entitlement to stay in this country.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2) of the Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that.
There is a risk to the revenue if the Applicant resumes offending in the same manner. More particularly, there is a risk to the health of the Australian community if unregulated tobacco products are coming into this country in a clandestine way, without required health warnings and without an assessment of the tar content.
Mr Borkowski carried out the only criminogenic risk assessment in relation to Mr Wong in late 2018, and he concluded a ‘low risk’ of re-offending, a view also arrived at by the sentencing Judge.
The Tribunal will not repeat what it has observed earlier in these reasons about the additional protective factors which are relevant to Mr Wong in terms of his changed lifestyle and – most importantly – no further offending in the last five and a half years.
Overall, the Tribunal finds that this primary consideration relating to the protection of the Australian community weighs slightly against granting the visa. Mr Wong committed two serious offences whilst relatively new in this country, purely for commercial gain. However, the weight is not heavy because of the finding about the unlikelihood of re-offending.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent conceded this consideration is not engaged because there is no evidence of any relevant offending or other conduct by Mr Wong.
The Tribunal finds that this primary consideration weighs neutrally.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
There are no relevant children brought to the Tribunal’s notice by either party, whose interests would be affected by Mr Wong being granted or refused the visa. This primary consideration therefore weighs neutrally.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; in other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may try to derive by some other evaluative or balancing process.
The then Minister made the (current) Direction after FYBR. The fact that it imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would incline slightly against the Applicant. His Customs Act offences were serious and involved defrauding of the revenue of some $200,000. He was on a temporary visa at the time.
However, there has been no further offending, and that is a significant factor in favour of Mr Wong. He pleaded guilty and completely fulfilled the community obligation imposed by the Court. Apart from that required of him by the Court, he has undertaken other proactive community work, which is to his credit.
This primary consideration weighs very marginally in favour of refusing the visa.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Both parties submitted that this is not relevant. If he is refused the visa, Mr Wong will be deported to the Hong Kong Special Administrative Region of the PRC.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.
Unusually, the Applicant’s representative submitted that there were no impediments to Mr Wong if he was repatriated. He will return to his family home and will then endeavour to obtain employment.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen. There was no evidence before the Tribunal of any quantifiable impact on victims, having noted above that importation of illegal cigarettes does have a broad detrimental health impact on those in the community who obtain the items.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
The Applicant has lived in Australia for 15 years. Some of that period has been as a person without a valid visa when Mr Wong was applying for a different category of visa, but the Respondent said the Minister does not seek to rely on that fact in terms of reflecting on the Applicant’s character. It is evident from the papers before the Tribunal that Mr Wong built up a strong circle of friends in Sydney through his church. He and Ms JZ remarked that they have yet to develop a core of friends in Victoria because they only moved to the State several months ago.
In regard to Ms JZ, her evidence is that she holds a Temporary Skill Shortage (Subclass 482) visa. That is a class of visa with a maximum duration of four years. She therefore falls outside the scope of paragraph 9.4.1(1) of the Direction. The Tribunal will deal with her situation later in these reasons.
Are domestic animals ‘members of the Australian community’?
In her closing submissions addressing this other consideration, Ms Rao submitted that the Tribunal should regard the cats and dogs that are in Mr Wong’s care as members of the community. This is a step too far for the Tribunal. It has long been established in common law that domestic animals are property. Halsbury’s Laws of Australia[i] relevantly states:
Domestic animals, like other personal and moveable chattels, are the subject of absolute property.
While this may seem stark, it is the law. Nonetheless, there are statutory protections to ensure the welfare of domestic animals and to impose sanctions in cases of cruelty and neglect. The Tribunal acknowledges that domestic pets are often held in great affection and thought of, in a colloquial sense, as ‘part of the family’, but they are not ‘members of the Australian community’ in the sense intended in paragraph 9.4 of the Direction. That term is confined to Homines sapientes, and thence further confined by the stipulations in paragraph 9.4.1(1).
There is evidence of a positive contribution Mr Wong has made to the Australian community, in his community service and in providing a service to animal owners. I accept the evidence that he occasionally went out of his way to assist pensioners and others with special needs to groom their pets at a reduced cost. I also accept the evidence included in testimonials that he built up friendships at his church in Sydney and is in the process of doing so in Victoria. However, there was no person specifically identified by the parties within the bounds of this sub-consideration who will be significantly affected by whether or not Mr Wong is granted the visa.
The Tribunal finds that this sub-consideration weighs neutrally.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 would significantly compromise the delivery of a major project or important service in Australia.
Mr Wong has sold his pet grooming business. His evidence is that he continues to be registered as a cat breeder and has 26 cats and three dogs at his residence, currently being cared for by Ms JZ. While some kittens have been born while Mr Wong has been in detention, Ms JZ estimated it was ‘five or six’, so it does not appear to the Tribunal that there is any major breeding programme being undertaken.
While the service Mr Wong provides in caring for domestic animals is a worthy one, the Tribunal does not consider that it rises to the level contemplated in this part of the Direction.
Regarding this consideration overall, I find that this consideration weighs neutrally.
Special consideration – the Applicant’s partner
The Direction, at paragraph 9.4.1(2), allows for consideration of ties to persons who may not be citizens, permanent residents or entitled to remain in Australia indefinitely, but only in the case of a visa cancellation or revocation of a mandatory cancellation. This is a lacuna in the Direction in relation to a situation such as Mr Wong’s. He is a visa applicant, but his long-term de facto partner is in Australia on a long-term but temporary visa.
The Tribunal considers that, notwithstanding Ms JZ is not in the category of persons stipulated in paragraph 9.4 of the Direction in regard to ties with Australia because she holds a temporary visa, the effect on her if the visa is not granted should be considered. Not to do so would be discordant with the wording of paragraph 9(1) of the Direction, which states that other relevant considerations must be taken into account, not limited to those then set out later in the same paragraph.
Ms JZ’s evidence is that she first came to Australia in 2016 on a student visa. She has a bachelor’s degree from a university in the PRC and completed a master’s degree in accounting at the University of Sydney. She met Mr Wong on-line in 2018, and they became friends. In early 2019, she said she assisted in his pet shop when he was completing his ICO, and they became closer. The friendship became romantic.
Ms JZ said she was aware of Mr Wong’s offending but, at first, thought, it was less serious and would involve the imposition of a fine. She said for the first six months of knowing him she was, ‘observing him’ and decided he was a good person. She said on occasion, they would dine near a casino, and she would ‘test’ him by asking if he wanted to go and gamble. She said Mr Wong each time declined. Ms JZ said she is in the process of completing her professional qualifications for admission to an accountancy body.
Ms JZ agreed in response to a direct question from the Tribunal that the category of visa she is on is convertible to a permanent residence visa after three years but said she has not contemplated what she will do after that period. She said her new job in an accountancy firm in Melbourne is full-time and permanent. She enjoys the work and wants to prosper in it.
Ms JZ took the Tribunal through her typical day. It would appear that, notwithstanding she works in Melbourne as an accountant, which is about one hours’ commuting time from her and Mr Wong’s residence, at least three hours of her day is occupied tending to the cats and dogs Mr Wong acquired before he was taken into detention. She must feed them, clean their trays and cages, and walk the dogs. Ms JZ said she must also monitor the 29 animals for signs that any needs veterinary attention and arrange it if so. The Tribunal was impressed by Ms JZ’s dedication, which reflects the strong relationship she has with Mr Wong.
Ms JZ said she is from mainland PRC and did not plan to leave Australia and go to Hong Kong if Mr Wong is deported, or indeed if he returns there at the end of any short-term visa he is granted. She said she wants to complete her three years in Australia working in her profession. She then will decide whether to seek a permanent visa, but she expressed the view that she would probably ultimately return to China because her family is there. Ms JZ said she planned, if Mr Wong goes back to Hong Kong, to visit him regularly during holidays. She said their relationship remains strong, and she loves him.
The Tribunal considers that this special consideration weighs against refusing the visa, and relatively strongly so. Ms JZ is, to some extent beyond her control, significantly affected by the Applicant being taken into immigration detention, because of the animals she must care for. The Tribunal accepts the evidence she gave, which is also set out in detail in her statutory declaration, that she has made some attempts to rehome the animals, but it was not a good time to do so, in the lead up to Christmas, when animal shelters were full.
SUMMATION - SHOULD THE VISA BE REFUSED?
Of the primary considerations in the Direction, only two are relevant in this case: protection of the Australian community and the expectations of the Australian community. Both have been found to weigh slightly in favour of refusing the visa. The other primary considerations are not relevant and weigh neutrally.
Of the other considerations in the Direction, none is really engaged in any significant way. The special consideration identified by the Tribunal and relating to Ms JZ weighs in favour of not refusing the visa, and relatively strongly so.
The Direction includes, at paragraph 8.1.2(2)(c) the following:
Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether tie risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
It is significant that the category of bridging visa sought by Mr Wong is a Bridging E (Class WE) (Subclass 050) visa. This is a visa that, according to the Department’s website, “lets you stay in Australia while you make arrangements to leave, finalise your immigration matter or wait for an immigration decision”. There are a number of conditions that the Department can attach to such a visa, not limited to: reporting provisions, no work provisions, requiring a person to live at a certain address, showing a valid ticket to depart, and departing by a specified date.
Given the class of visa being sought, the plans Mr Wong has to arrange the rehoming of most of the animals in his care and the transport of some of them with him to Hong Kong, the Tribunal considers that notwithstanding the finding that he has not passed the character test, the discretion should not be exercised to refuse the visa under s 501(1) of the Act.
In coming to this conclusion, the Tribunal is of the view that the welfare of the Applicant’s domestic animals in Australia is a relevant factor in terms of the need for homes them to be found homes. The alternative is that, apart from two or three that could be sent by Ms JZ to Hong Kong if Mr Wong is deported, what will happen to the remaining animals is not clear. It is not impossible that, in extremis, there is a prospect that some may have eventually to be humanely destroyed. This possible fate is something that is not desirable; it is avoidable by the grant of the short-term visa the Applicant is seeking. Having said that, it would also have been avoidable if Mr Wong had taken action in the last 18 months or so to divest himself of the cats and dogs, in the knowledge that he was applying for a short-term visa to enable him, he says, to do just that.
The risk of Mr Wong reoffending has been found to be negligible. He has no impediments facing him on returning to Hong Kong; on the contrary, he has a loving family there who support and have supported him, including when he faced criminal proceedings. He also has a supportive partner here, and the evidence supports that he has sloughed off his gambling habit.
The Tribunal, under s 33 of the AAT Act, has examined the rules for importing domestic animals into Hong Kong and notes that a special permit may be issued by the Hong Kong Agriculture, Fisheries and Conservation Department but that such a permit is only valid for six months. This will be an added incentive for Mr Wong to promptly make the arrangements he needs to make regarding the dogs or cats he intends to take back.
Where a discretion is available in an enactment, and the Tribunal is reviewing the exercise or otherwise of that discretion by a decision-maker, the task before it is to decide whether it was exercised in a preferable manner. In this case, in all the circumstances, I am satisfied it was not. Although I have found Mr Wong does not pass the character test, the Tribunal finds he should not be refused the visa under s 501(1) of the Act.
The Tribunal returns the matter to the Department for the processing of the bridging visa applied for by the Applicant.
DECISION
The Tribunal sets aside the decision dated 22 February 2022 to refuse the Applicant a Bridging E (Class WE) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Act should not be exercised to refuse the visa.
I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 25 January 2023
Dates of hearing:
10 and 11 January 2023
Advocate for the Applicant:
Ms Minjia Rao
Agents for the Applicant:
HECT Migration & Appeal Experts
Advocate for the Respondent:
Mr Keith Sypott
Solicitors for the Respondent:
The Australian Government Solicitor
[i] Halsbury’s Laws of Australia, Vol. 1(2)
Annexure – Schedule of Exhibits
R1 Volume of s 501G (‘GD’) documents lodged on 25 November 2022
R2 Volume of supplementary (‘SGD’) documents lodged on 23 November 2022
R3 Department screenshot of visas held by the Applicant lodged on 10 January 2023
R4 Copy of Applicant’s Bridging A visa grant notification, dated 14 August 2017
R5Copy of Applicant’s withdrawal of application for review before the Migration and Refugee Division of Tribunal, dated 6 May 2020
A1Statement of The Reverend Billy Lee, dated 14 December 2022
A2Email correspondence between Applicant and former legal representative, various dates lodged on 23 December 2022
A3 Applicant’s statement, with translation dated 22 December 2022
A4 Applicant’s submissions lodged in 5 parts on 19 December 2022
A5 Applicant’s bundle of final material, lodged 5 January 2023
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