Wu and Minister for Immigration and Border Protection (Migration)

Wu and Minister for Immigration and Border Protection (Migration) [2017] AATA 120 (2 February 2017)
Division:GENERAL DIVISION
File Number: 2016/5314
Re:Yu Shuai WU
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
M Kennedy, Member
Date:2 February 2017
Place:Adelaide

The decision under review is affirmed.
.............. [Sgd] ..................................................
Deputy President K Bean
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Application for revocation of mandatory visa cancellation – Cancellation of visa on character grounds under section 501 – Consideration of principles under Ministerial Direction 65 – Decision under review affirmed.
LEGISLATION
Migration Act 1958, ss 499 and 501
REASONS FOR DECISION
Deputy President K Bean
M Kennedy, Member
2 February 2017

The applicant, Mr Wu, is a 29 year old citizen of China. He arrived in Australia in January 2004 when he was 16, and has been residing in Australia since then. Until February 2016, he held a Class BB (subclass 155) Resident Return visa.
On 1 September 2015, Mr Wu was convicted in the District Court of South Australia of Aggravated Causing Harm with Intent to Cause Harm. Mr Wu was sentenced to serve 19 months in prison with a non-parole period of 12 months and was serving that sentence at the time a delegate of the Minister for Immigration and Border Protection (the Minister) cancelled his visa under provisions of the Migration Act 1958 (the Act) pertaining to character.
Mr Wu applied for revocation of the visa cancellation on 23 March 2016. On 2 September 2016, a delegate of the Minister decided that the visa cancellation would not be revoked, finding that Mr Wu failed the “character test” and primary considerations such as the serious nature of Mr Wu’s offending, the likelihood of reoffending, and the expectations of the Australian community outweighed all other countervailing considerations. Mr Wu has applied to the Tribunal for review of that decision.
LEGISLATIVE FRAMEWORK
Relevant Provisions of the Act
Section 501 of the Act provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the State, the Minister must cancel the visa: subs 501(3A) of the Act.
In this regard, a person has a “substantial criminal record” if the person has (among other things) been sentenced to a term of imprisonment of 12 months or more: subs 501(7) of the Act.
The character test is set out at subs 501(6). It is not in dispute that Mr Wu does not pass the “character test”, because he has a substantial criminal record and therefore satisfies paragraph 501(6)(a).
Therefore, on 25 February 2016, a delegate of the Minister cancelled the visa in compliance with the statutory requirement in subs 501(3A) of the Act.
Furthermore, at the time of cancellation, Mr Wu was serving a sentence of imprisonment full-time in a South Australian custodial institution.
Under subs 501CA(4), the Minister may revoke a visa cancellation if the person makes representations in accordance with an invitation to do so within a prescribed time, and the Minister is satisfied that the person either passes the character test or there is another reason why the original decision should be revoked.
As mentioned above, Mr Wu made that request on 23 March 2016, but a delegate of the Minister declined to revoke the visa cancellation. This is the reviewable decision before the Tribunal, and the issue for us to decide is whether to revoke the visa cancellation.
The visa cancellation may be revoked if the Tribunal decides that Mr Wu passes the character test as defined by s 501.
We find however that Mr Wu does not pass the character test on account of his serious criminal record, demonstrated by a National Police Certificate (the Certificate) recording the conviction of 1 September 2015 and the sentencing remarks of Judge Cuthbertson in relation to that matter.[1] We note that Mr Wu has accepted throughout that he does not pass the character test on account of his conviction.
[1] Exhibit R1, T7 and T8.
We may also revoke the visa cancellation if we are satisfied there is another reason why it should be revoked: sub-paragraph 501(3A)(b)(ii) of the Act.
Ministerial Direction 65 (the Direction)
Section 499 of the Act authorises the Minister to give a written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of its powers. The Tribunal must comply with directions issued under this provision.
Ministerial Direction 65, at Part C[2], engages directly with the performance of our functions and exercise of our powers in reviewing Mr Wu’s revocation request. The Direction requires us to treat the following as primary considerations:
- The protection of the Australian community from criminal or other serious conduct;
- The best interests of minor children in Australia; and
- The expectations of the Australian community.
Each of these terms is elaborated upon in the Direction.
[2] Direction No. 65 – Migration Act 1958 – Direction under s 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.
The Direction requires that other considerations must also be taken into account: namely, international non-refoulement obligations, the strength, nature and duration of ties to Australia, the impact on Australia’s business interests, the impact on victims and the extent of impediments likely to be experienced if Mr Wu is removed.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to us in terms of the objectives of the Act and the character provisions, and the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia. It states that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which we are to approach the exercise of our discretion in this matter are that:
- the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
- a non-citizen who has committed a serious crime, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia;
- sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
- Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
- the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.[3]
With these principles in mind, we turn to consider the particular circumstances in this review. We find it convenient to do so within the framework of the Direction.
PRIMARY CONSIDERATION: THE PROTECTION OF THE AUSTRALIAN COMMUNITY
We have regard to the Government’s commitment to protect the community from harm as a result of criminal activity by non-citizens, and acknowledge the Government’s view that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.[4]
[4] Item 13.1 of the Direction.
We are to give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Wu’s conduct
The Direction calls on us to consider the nature and seriousness of Mr Wu’s conduct, expressed to be criminal offending or other conduct. In this regard, the conviction that has caused Mr Wu to fail the character test is not the only instance of criminal offending leading to conviction. Nor are the matters leading to conviction the only matters the subject of reports and records maintained by the South Australia Police (SAPOL). We are conscious that we must proceed with care in placing any weight on allegations of potentially criminal conduct that have not been proved.
We will first consider the circumstances of Mr Wu’s conduct leading to criminal convictions.
Matters the subject of the convictions
The circumstances of this conduct discussed below are drawn from the Police Certificate, the SAPOL records forming the respondent’s supplementary T-Documents[5], a written statement purporting to be from Mr Wu as to the circumstances of these matters[6], and Mr Wu’s oral evidence to the Tribunal when he was invited to explain these matters further. In relation to the most serious offence, we have had careful regard to the remarks of the sentencing Judge.
[5] Exhibit 1, T7/33 and Exhibit 2.
[6] Exhibit 1, T7/42 - 44.
Written submissions attributing comments about the circumstances of the convictions to Mr Wu appear in the T Documents.[7] At the hearing, we observed that Mr Wu had difficulty recalling details of aspects of his offending in his oral evidence. We observed that his recollections often differed from accounts recorded by Police in the supplementary T-Documents, and differed in detail to the comments attributed to Mr Wu in T7. Matters which Mr Wu appears to have been able to comment on in T7 were matters he was unable to recall in his oral evidence. On occasion it appeared that Mr Wu would confuse incidents or would be simply unable to recall the details.
[7] At Exhibit 1, T7 and onwards.
Mr Wu explained that the Table at T7[8] was prepared with the assistance of his criminal lawyer, but could not explain why the detail in his comments in that document was different to his oral evidence. Nor could he explain why he could recall matters when he gave instructions for the preparation of that Table a few months beforehand, but could not recall those matters at the hearing.
[8] Exhibit 1, pp 42 - 44.
Ultimately, we have decided that we will place little weight on Mr Wu’s oral evidence as to the circumstances of the offences, or the content of comments in the written table at T7. We have concerns as to the accuracy of both Mr Wu’s oral evidence and the contents of T7, given the inconsistencies between them and the fact that it was not explained to our satisfaction how the comments in T7 were prepared in circumstances where Mr Wu could not confidently recall details in his oral evidence and in many instances his remarks were inconsistent with contemporaneous records made in the supplementary T-Documents. We have therefore decided to place greater weight on the contemporaneous reports made in SAPOL’s records.
We should add that certain remarks of Mr Wu in his oral evidence about matters that have been proved have also caused us concern, as they suggest Mr Wu either does not appreciate the seriousness of his behaviour, or was not willing to acknowledge this. We will return to our concerns in this regard later in these Reasons.
The following consideration of the evidence as to the circumstances of Mr Wu’s offending is ordered by reference to the date of the offence (in bold).
On 20 October 2008, when Mr Wu was 21 years old, he was convicted for driving with excess blood alcohol. He was fined $700 and his licence was disqualified for three months. The SAPOL record indicates the offence occurred on 13 July 2008.[9]
[9] Exhibit 2, ST1/1 - 192.
SAPOL has recorded that on this occasion Police observed Mr Wu driving a black Audi at a fast rate of speed onto Clubhouse Lane (off Hindley Street in Adelaide), before requiring Mr Wu to submit to an alcohol test. Mr Wu requested a blood test which returned a Blood Alcohol Concentration reading of 0.104. Mr Wu produced a Chinese driving licence. SAPOL recorded his demeanour as argumentative.
We take notice of the fact that Clubhouse Lane and Hindley Street are public places and indeed are busy and crowded Adelaide nightspots. The Hindley Street precinct features prominently in records of Police contact with Mr Wu and in the circumstances of matters leading to convictions. We consider the public and busy nature of this precinct to be relevant having regard to the Directions’ concern to protect the safety of the Australian community.
On 21 July 2009, Mr Wu was convicted for driving while under disqualification or suspension, driving an unregistered motor vehicle, driving an uninsured motor vehicle and failing to answer questions as to his identity. Mr Wu was sentenced to imprisonment for one month, but this was suspended on him entering into a good behaviour bond for two years. His license was disqualified for seven days, and he was fined $300.
These offences occurred on 28 November 2008, which we note was just over a month after Mr Wu was convicted of his previous offence and the licence disqualification was imposed by the Court. The Police records indicate that on this occasion Mr Wu was intercepted in his vehicle at Kent Town, and he first provided Police with a false name. He is recorded to have later told Police that he was aware the vehicle was unregistered and that he was disqualified from driving, but had done so because a friend needed a lift.[10]
[10] Ibid, ST1/17.
Mr Wu’s comments about these offences at T7 provide a specific example of why we find his remarks about the circumstances of the offending to be unreliable. At T7 Mr Wu refers to needing to get to work because he was desperate for income, but the SAPOL records indicate the offence was detected just after midnight.
On 6 January 2011, Mr Wu was convicted of an assault causing aggravated harm. He was sentenced to six months imprisonment, suspended on a bond to be of good behaviour for 12 months. The offence took place on 8 March 2010.
The SAPOL report[11] refers to Mr Wu (who was unknown to the victim at the time) entering a private room in the company of others and asking where another person was. When the victim replied he did not know, Mr Wu hit the victim five or six times with a glass bottle, and then hit him three or four times with a microphone. When the victim was dragged to the ground, the other males in the company of Mr Wu joined in punching and kicking the victim while he was on the ground.
[11] Ibid, ST1/47.
Another victim reported placing herself over the first victim to protect him, and being punched and kicked.
The Police records state that Police observed CCTV footage showing the incident.
On 7 July 2010, Mr Wu was dealt with for an offence of disorderly behaviour, without conviction, for an offence that took place on 8 April 2010.
According to the Police account[12], Mr Wu was observed on CCTV as being amongst a group of males pushing and punching each other at the intersection of Hindley Street and Bank Street at 4.20am. Later, when Police approached, they observed Mr Wu standing by another male who was lying on the ground.
[12] Ibid, ST11.
On 1 April 2011, Mr Wu was convicted for damaging a motor vehicle and for an assault. The offences took place on 16 May 2010. According to the SAPOL records[13], Mr Wu was a passenger in a taxi. After Mr Wu paid the fare he left the taxi and kicked the taxi’s mirror with his foot. Mr Wu attempted to run off but was chased by the driver. Mr Wu assaulted the driver. The victim stated he was punched about 16-17 times to the head. When questioned at the hearing, Mr Wu felt he had been overcharged by the driver, and had himself been the victim of an assault by the driver who had pursued him.
[13] Ibid, ST1/53.
On 18 November 2011, Mr Wu was dealt with without conviction for offences of disorderly behaviour and damaging a building. The offences took place on 25 May 2010.
According to the SAPOL reports[14] a witness observed Mr Wu and a co-accused fighting on the corner of King William Street and Halifax Street in Adelaide. Mr Wu was observed to be swung around by the co-accused and to “go through the window” of a building. On arrival Police observed Mr Wu to have a deep laceration on his shoulder and the co-accused to be missing a tooth. The smashed window was 20 meters away.
[14] Ibid, ST1/63.
On 28 January 2011 and 22 March 2011, Mr Wu was convicted of offences taking place on 17 December 2010. The offences were driving with excess blood alcohol, failing to produce an interstate driver’s licence and stating false personal details. For the first two offences, Mr Wu was convicted and fined $1,000 and subjected to 12 months licence disqualification. For the latter offence, he was convicted and fined $140.
SAPOL records state[15] that the incident took place at a mobile random breath testing station. Mr Wu was detected as being over the legal blood alcohol limit and was unable to produce a licence, stating he had never held a South Australian licence and had lost his Chinese licence and English translation. He also gave a different identity. However, Police took a photograph of Mr Wu, and on further enquiry a witness was able to identify him from the records of an educational institution.
[15] Ibid, at ST1/105 and 115.
Mr Wu was convicted of assaults on 2 July 2013 arising from events of 13 June 2011. The SAPOL record[16] details that the offences took place at a karaoke bar in Hindley Street. The victim was invited into a private room where Mr Wu was present. Mr Wu is reported to have sworn at the victim. The victim left the room, but was followed by Mr Wu to the foyer. Another person came in from the street and assaulted the victim, and Mr Wu joined in on the assault. The situation deteriorated to an affray involving others. The victim left the premises but returned to retrieve his mobile phone, to be assaulted by Mr Wu again.
[16] Ibid, at ST1/74.
For these offences Mr Wu was discharged without penalty in relation to the first count, and fined $600 for the second.
Mr Wu was convicted of disorderly behaviour on 18 August 2011 arising out of events of 2 July 2011. Mr Wu was placed on a good behaviour bond.
According to SAPOL[17], Mr Wu was observed by Police to be standing at the open door of a taxi shouting at the male occupant inside and attempting to pull him out.
[17] Ibid, ST1/111.
Mr Wu was convicted of giving a false answer as to the identity of a driver or owner of a vehicle and not holding a licence in relation to events of 24 October 2012.
Mr Wu was convicted of failing to comply with a bail agreement on 23 January 2013 in relation to events of 10 November 2012. He was subject to estreatment (pecuniary forfeiture) of bail on 27 February 2013 in relation to events of 27 February 2013.

On 29 September 2013, Mr Wu committed the offence that gives rise of itself to his failure to pass the character test and the mandatory cancellation (subject to revocation) of his visa. It is convenient to reproduce extracts of the sentencing remarks of Judge Cuthbertson to set out the circumstances of this offence and the attitude of the sentencing Court as to its gravity:
Yushuai Wu, you have been convicted by your own confession of the offence of Aggravated Causing Harm with Intent to Cause Harm. The maximum penalty for this offence is imprisonment for 13 years.
On the evening of 28 September 2013 the victim had been attending a number of nightclubs with friends in the Adelaide Hindley Street area. In the early hours of the morning of 29 September 2013 he was in a club called Rock On Club & Karaoke. He was on the external balcony of the premises when a group of males ascended the stairs. You were in that group of males and you were intent on assaulting him and causing him harm.
The assault was a cowardly one. Being too cowardly to tackle the victim individually you determined to do it as a group. As a result of this gutless assault the victim has suffered significant injuries. He was rendered unconscious and taken to the Royal Adelaide Hospital. He suffered multiple facial fractures with nose fractures and jaw fractures. He required complex surgery to correct the facial fractures together with further surgery at a later time. When last seen in the outpatients clinic on 24 September 2013 (sic) he was suffering from double vision. In addition he and his family and friends have suffered significant stress. He suffers overwhelming anxiety and has had to consult a psychologist on a number of occasions. There has been financial stress due to an inability to work or drive following the surgery. He has suffered depression, loss of a job opportunity and the injuries have had a significant impact on his social life. You say that the victim had made inappropriate remarks to you. The victim is in no position to recall what happened due to the nature of his injuries. Whether or not an inappropriate remark was made is of little relevance in my view given that this was a premeditated assault on him, sometime after the sting of any remark must have been blunted.
You and a number of other individuals ran up the stairs in order to assault him. The Full Court has pointed out in Harkin (2011) 109 SASR 334 at para.42 that revenge attacks threaten the security of the community and involve the taking of the law into one’s own hands undermining the operation of the criminal justice system.
You claim you had been at the Lavish bar with your girlfriend when she claimed she had been touched by the victim. You intervened and told him to leave the woman alone. This is when you say he made an inappropriate remark. You claim you noticed him when you entered the Rock On nightclub sometime later. You claim he kept staring at you and threw punches at your friend and a fight took place.
The video shows that this is clearly an incorrect explanation as to what happened. It shows you and a group of others coming up the stairs after you had wrapped a belt around your hand and that it was then that the victim was assaulted. I find that you deliberately wrapped the belt around your hand with a view to assaulting the victim. At least three of you attacked the victim who was kicked and punched to the head. After that had occurred you sat on his stomach and punched him to the face with a belt wrapped around your hand.
…
… [o]ffences of violence in public places late at night in bar precincts are more and more prevalent and are dangerous, as the exact result of the assault is fortuitous and may well depend on how the victim falls and hits his head. Such falls have been known to lead to the death of victims of a coward’s punch.
This serious assault created serious damage and was aggravated because it was committed by more than one of you and in a cowardly fashion and involving the use of a weapon; namely, a belt wrapped around your hand. …[18]
[18] Exhibit R1, T8/45 - 47.
At the commencement of Mr Wu’s evidence to us, he stated that he regretted his actions. He said he regrets what it has done to his family. Mr Wu said he regrets the victim’s suffering. He attributed his criminal behaviour to drinking.
In the course of his evidence, Mr Wu was questioned about the circumstances of this last and most serious of offences. He explained that his belt had been broken in an earlier fight, and he had the belt wrapped around his hand because he had nowhere else to put it. In this way, Mr Wu denied an aggravating aspect of the assault. The sentencing Judge did not accept that explanation, and nor do we. We were concerned to observe this example of Mr Wu failing to appreciate the seriousness of the offence and not being truthful in his evidence to us.
The respondent contends that the offences for which Mr Wu was convicted are clearly serious offences of the type identified by the Direction. We agree. Limiting our consideration for this purpose to those offences that have been proved, we identify features of violent assaults, sometimes using improvised weapons, in public places, on strangers. We observe assaults taking place in the company of others, and we observe a regularity of criminal conduct. Finally, we observe with particular concern an escalation of the seriousness and violence of Mr Wu’s conduct, ending with him being subject to home detention and then incarceration.
We characterise the last and most serious offence as a crime of a violent nature, as are Mr Wu’s earlier convictions for assault. We accept that the assaults, in one sense, were not committed against vulnerable members of the community, but take into account also the concerns expressed by the sentencing Judge in relation to the cowardly nature of the assault being undertaken upon a single victim by a group. We note the offences committed on 8 March 2010 and 13 June 2011 similarly featured Mr Wu embarking on an assault on a victim in the company of others. We consider that having regard to Mr Wu’s last offence, but also his earlier offending, the principle expressed in the Direction at 6.3(3) to the effect that a non-citizen who commits a serious crime including of a violent nature, should generally expect to forfeit the privilege of staying in Australia is in play. We view Mr Wu’s convictions for assaults, and in particular the final conviction very seriously.
Further as required by the Direction, at item 13.1.1, we have had regard to the sentence imposed by the courts. The sentencing Judge declined to suspend the sentence having regard to the seriousness of the offence and also Mr Wu’s criminal record including previous convictions for assault. The sentence imposed was 19 months with a non-parole period of 12 months, but would have been two years and one month prior to credit from Mr Wu’s plea of guilty. The approach of the sentencing Judge reinforces the seriousness with which we view Mr Wu’s last offence.
We consider Mr Wu’s overall record of offending as demonstrating frequent violent offending and as mentioned above we have observed a trend of increasing seriousness. We have taken into account not only the last offence but also the cumulative effect of Mr Wu’s earlier convictions for violent offending.
The respondent contends further that Mr Wu’s convictions relating to drink driving should also be viewed as serious offences with the potential to place the community at risk. We also observe elements of dishonesty in Mr Wu’s offending where he has provided a false identity to Police on at least two occasions, and gave false information on another. We agree that these matters are serious in the sense contended for by the respondent, but our concerns arise primarily in response to the violent nature of Mr Wu’s assault and related convictions.
Item 13.1.1(g) of the Direction requires us to take into account whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Mr Wu was questioned by his representative, Mr Glazbrook, as to whether he knew his visa may be cancelled because of his offending. Mr Wu indicated that he did not, and he believed his visa to be permanent. Similar remarks were made in the course of his mother’s and sister’s evidence. Mr Wu was asked whether his behaviour would have changed if he had been aware that his visa could be cancelled, or if he had received a warning. Mr Wu believed that if he had known his visa would be cancelled he would have changed his behaviour, but said he had never meant to commit crime.
This matter was revisited in submissions. We are asked to take into favourable account that Mr Wu had not been given a warning that criminal conduct may lead to visa cancellation. Submissions were made addressing the absence of express conditions addressing criminal conduct being placed on Mr Wu’s student visa,[19] on the basis that visa conditions play an important part in informing people of restrictions and consequences.
[19] Mr Wu first entered Australia on a student visa in January 2004 before obtaining permanent residency on 28 May 2007.
We accept that Mr Wu did not receive an express written warning about the potential consequences of criminal offending on his migration status prior to his visa being cancelled, but we place no favourable weight on this fact in reaching our findings as to the nature and seriousness of Mr Wu’s conduct. In particular, we do not consider that the absence of an express visa condition prohibiting criminal conduct on earlier visas held by Mr Wu bears upon the nature and seriousness of Mr Wu’s conduct in Australia. We note that the Direction suggests that the absence of a warning should not be considered to be in the non-citizen’s favour. It is submitted on behalf of Mr Wu that many of his offences involve alcohol. It is submitted that Mr Wu is not a threat to the community as he has since matured and is now motivated to avoid further offending. He has stated that he will ensure he will not join his “drink buddies” on the basis that he has been easily influenced by them in the past. We will consider these submissions further in light of the evidence of Mr Fugler, a psychologist called to give evidence at Mr Wu’s request.
Other recorded incidents
We acknowledge that in addition to the above evidence, the Police records before us also include details of a number of other incidents involving Mr Wu which have not resulted in criminal convictions. Although it forms part of the body of information before us, we are not in a position to draw conclusions from this material as to whether the events referred to and involving Mr Wu actually occurred or, if they did, Mr Wu’s degree of culpability. Therefore, aside from noting that Mr Wu has come to Police attention on other occasions, we make no findings with respect to those other incidents.[20]
[20] And we do not regard them as part of the history of conduct in applying the Direction—subject to our remarks at [63] above.
The risk should further offences be committed
In accordance with the Direction, our consideration of the risk should further offences be committed incorporates an assessment as to the potential harm to the Australian community should the conduct be repeated, and also the likelihood of Mr Wu engaging in further criminal or other serious conduct.
As to the first limb, as mentioned above, we have found that Mr Wu’s conduct is of the nature of violent assaults, sometimes using improvised weapons, in public places, on strangers. We consider the potential harm to the Australian community should conduct of that nature be repeated to be grave.
As to the likelihood of Mr Wu engaging in further criminal conduct, we are assisted by the opinion of Mr Allen Fugler, Clinical Psychologist, provided on behalf of Mr Wu. Mr Fugler’s reports of 29 July 2014[21] and 28 March 2016 pertaining to Mr Wu are before the Tribunal. A further brief report of Mr Fugler of 28 November 2016 is also before us.[22] That report is primarily concerned with Mr Wu’s mother, but mentions Mr Wu briefly.
[21] Exhibit A5.
[22] Exhibit A4.
Mr Fugler’s report of 29 July 2014 was provided for the Court. His report of 28 March 2016 was prepared for Mr Wu’s application to revoke the visa cancellation. Mr Fugler’s opinion about relevant matters has accordingly been formed as a result of considering Mr Wu’s circumstances at different points in time, and he has interviewed Mr Wu on a number of occasions. In addition to Mr Fugler’s qualifications and extensive experience, and his careful and reflective responses to the Tribunal’s questions, these features render his evidence of particular value for our purposes.
We also have before us two reports of Mr Martin Walsh, Psychologist. The first[23] dated 14 April 2015 was prepared for the purpose of a sentencing submission. The second[24] is dated 20 May 2015 and is a progress report.
[23] Exhibit A9.
[24] Exhibit A10.
In relation to the report of April 2015, we observed that Mr Walsh had recorded that Mr Wu had denied any criminal charges or convictions in his past. We questioned Mr Wu about this at the hearing, suggesting that he may have been selective with the history he had given to Mr Walsh, and had perhaps misled him. Mr Wu told the Tribunal that he was not comfortable telling Mr Walsh everything and had just wished to discuss his current issue (that is, information for the sentencing submission). Mr Wu denied having misled Mr Walsh. He said that he had told Mr Walsh he had convictions but didn’t give details. We do not accept his evidence given the statements in Mr Walsh’s report that he “undertook a full case history of Mr Wu … and subsequently conducted a follow-up interview with Mr Wu to inform the compilation of my report”[25] and “Mr Wu did not report any criminal charges or convictions in his past”.[26]
[25] Exhibit A9, p 1.
[26] Ibid, p 2.
Mr Fugler has considered these reports in forming the opinions he has expressed to us. The reports of Mr Walsh are important as they detail progress by Mr Wu in a therapeutic process aimed at addressing his behaviour. The flawed history in this regard, however, leads us to have reservations in accepting the limited favourable remarks in the reports of Mr Walsh as to Mr Wu’s progress.
Turning to Mr Fugler’s evidence, we note from his reports that Mr Fugler does not consider that Mr Wu displays signs of anxiety disorder, memory disturbance or disturbed cognitions suggestive of a major psychiatric disorder. Mr Fugler believes Mr Wu to be operating within the average range of intellectual functioning. Mr Fugler noted that no psychological dysfunctions were reported to have presented during Mr Wu’s formative years or middle childhood.
Mr Fugler observed that Mr Wu believed he was not often aroused to anger, but was sometimes impulsive. Mr Fugler concluded in July 2014, based on Mr Wu’s account, that in relation to the most serious conviction the ‘fight’ with the victim was triggered by behaviour of the victim Mr Wu had found to be inappropriate. Mr Fugler noted that Mr Wu had denied deliberately wrapping a belt around his hand to use as a weapon. Mr Fugler also observed that at the time, Mr Wu was in a steady and positive relationship. In these circumstances, Mr Fugler was of the opinion that Mr Wu would benefit from being involved in counselling. Mr Fugler was of the opinion that Mr Wu would have a good prognosis if he could apply cognitive and behavioural skills he would learn in such a programme.
In the report of 28 March 2016, Mr Fugler specifically addressed Mr Wu’s rehabilitation and the likelihood of him reoffending. Mr Fugler recounted that he had previously opined that Mr Wu would benefit from involvement in a program of counselling for anger management and observed that Mr Wu had participated in such a programme with Mr Walsh for a few months, with Mr Walsh having observed he had responded positively.
Mr Fugler reported that Mr Wu had told him that he did not intend to avoid contact with his friends and peer group, but did not intend to accompany them to social venues where alcohol was present.
However, Mr Fugler further observed that it was clear from the further interview with Mr Wu that he continued to have several areas to cover in therapy that would improve aspects of rehabilitation, and had not yet addressed the connection between his use of alcohol and the display of disinhibited behaviour. Mr Fugler observed that while Mr Wu had admitted to difficulties with impulse control, it did not seem to Mr Fugler that he had yet learned sufficient cognitive control techniques to be confident in interrupting a tendency to display impulsive behaviour. Mr Fugler noted that Mr Wu believes this to be a result of not being able to fully complete Mr Walsh’s program before being imprisoned.
Mr Fugler concluded his report by observing that Mr Wu presented as more mature, reflective and motivated to avoid further offending than when he was interviewed in July 2014. Mr Fugler further observed that it was clear that the process of therapeutic change had not yet reached a point where a relapse would be regarded as highly unlikely to occur.
Mr Fugler observed that the chances of Mr Wu being fully rehabilitated would be enhanced if he were to avail himself of specialised assistance in Australia and continue to receive family support. Mr Fugler considered it was not possible to provide a definitive opinion with respect to the likelihood or otherwise of reoffending, as such a matter could only be addressed after he had fully completed a program of anger management.
In his oral evidence to the Tribunal, Mr Fugler further emphasised the need for Mr Wu to avoid contact with past associates and situations that had previously provoked him to become aggressive. Mr Fugler declined to express an opinion about the impact on Mr Wu’s rehabilitation should he be forced to return to China, because he did not know the environment Mr Wu would be returning to.
The Tribunal pressed Mr Fugler on his degree of confidence in making assessments about the risk of reoffending. Mr Fugler believed that what Mr Wu had done so far was encouraging, but not enough in the absence of ongoing involvement in a programme.
The Tribunal asked for more information about what techniques Mr Fugler used to assess progress and the risk of reoffending. Mr Fugler explained he would analyse past offending behaviour and examine cognitive changes made, including asking about future events. Mr Fugler emphasised the importance of avoiding certain kinds of people. Mr Fugler was asked by the Tribunal if he had made any particular observations in his interviews with Mr Wu that were of assistance in forming his opinion. Mr Fugler believed that Mr Wu had learned some things but needed to learn others.
The Tribunal asked Mr Fugler in general terms what measures he took to reassure himself that he was not being given responses by interviewees in order to obtain a favourable report. Mr Fugler believed his experience assisted him in this regard, and mentioned certain inconsistencies in behaviour may trigger some doubts. He did not believe Mr Wu was ‘trying to pull the wool over [his eyes].’
During cross-examination by counsel for the respondent, Mr Fugler elaborated on his concerns to the effect that Mr Wu lacked recognition that alcohol and disinhibited behaviour go together, and that Mr Wu had not yet learned techniques for impulse control. Mr Fugler explained that people must learn to recognise triggers and interrupt behaviours, and there is a problem with this if people use alcohol. Mr Fugler believed that Mr Wu understood some triggers but needed to learn cognitive behavioural skills to interrupt the triggers.

Mr Fugler confirmed his opinion that Mr Wu had not yet reached a stage where he believed relapse was highly unlikely.
Mr Fugler told the Tribunal that he had regard to the complete Police apprehension report for the serious assault conviction and background. We note that in the report of 29 July 2014, Mr Fugler mentions he is aware of other convictions. The Tribunal informed Mr Fugler that it was aware of other extensive Police interactions with Mr Wu, and asked if such information might influence his opinion and whether he would be more cautious with his prognosis with respect to reoffending in light of such information. Mr Fugler said that past behaviour is an indicator of future behaviour unless something happens in between. He would take into account such information and it would influence his opinion.
Mr Fugler also agreed that, based on the information he had when he wrote his report, his opinion in relation to the prospects of Mr Wu reoffending might properly be described as ‘guarded’, preferring that term over the term ‘optimistic’.
We place significant weight on the opinion of Mr Fugler and accept Mr Fugler’s opinion as to the consequences of the incomplete nature of the therapeutic interventions in Mr Wu’s case and the limitations on Mr Wu’s understanding about the influence of alcohol on his behaviour and the risk of associating with former associates. We have also paid careful regard to Mr Fugler’s concerns regarding Mr Wu potentially lacking the skills to interrupt triggers that have previously led to his offending. We accept and share Mr Fugler’s assessment that Mr Wu’s risk of further offending cannot be described as highly unlikely, and we place weight on Mr Fugler’s ‘guarded’ opinion as to these matters.
It follows that we are not confident there is a low risk of Mr Wu reoffending in a violent manner similar to many of his previous convictions. Having regard to the nature of the harm to the Australian community should Mr Wu engage in further criminal conduct of that nature, and our concerns that the risk of reoffending cannot be seen to be highly unlikely, we have formed the view that the risk posed by the offending and the likelihood of the conduct being repeated cumulatively is an unacceptable risk to the Australian community. We are of the view that the Australian community should be protected from the unacceptable risk posed by Mr Wu.
PRIMARY CONSIDERATION: THE BEST INTERESTS OF MINOR CHILDREN AFFECTED BY THE DECISION
Mr Wu has a daughter born on 28 January 2015 in Sabu Malaysia. Mr Wu had a relationship with Mr Wu’s daughter’s mother (a Malaysian national) in Adelaide prior to his incarceration. Mr Wu’s daughter and her mother now live with Mr Wu’s daughter’s maternal grandparents in Malaysia. We understand that the sentencing Judge was in factual error when he referred to Mr Wu being an expectant father at the time of sentencing on 1 September 2015.[27]
[27] See Exhibit R1, T20.
Mr Wu’s daughter is not an Australian citizen, and does not reside in Australia. The Direction requires that we treat as a primary consideration the best interests of minor children in Australia affected by the decision. Although Mr Wu’s daughter is not in Australia, and her best interests are therefore not a primary consideration under the Direction, we have nonetheless considered carefully the evidence available to us about her.
It is submitted on Mr Wu’s behalf[28] that he hopes that his partner and their daughter will return to Australia upon his release from prison, and it is submitted that the ability to live together as a family unit would be in the best interests of Mr Wu’s daughter.
[28] Ibid, T20/108.
We do not accept the premise to that submission. Mr Wu does not mention his daughter in his statement accompanying his application to have the visa cancellation revoked.[29] This is explained in submissions as attributable to Mr Wu’s belief that her interests would not be relevant to the decision the Department was to make about revoking the visa cancellation. In any event, we have no evidence from Mr Wu’s daughter’s mother as to her intentions. In his evidence, Mr Wu told the Tribunal that he had no contact with his daughter, because he did not have the contact details. We do not consider this evidence to be consistent with the submission advanced on Mr Wu’s behalf in relation to wishing to live together in Australia with Mr Wu’s daughter and her mother as a family unit.
[29] Ibid, T9.
In these circumstances, we are not satisfied that Mr Wu, his daughter’s mother and their daughter intend to live together in Australia as a family unit. We see nothing adverse to Mr Wu’s daughter’s interests in cancelling Mr Wu’s visa.
Mr Wu also has a niece, born 29 April 2016. Mr Wu mentioned her impending birth in his statement to the Department, and her interests were raised with us in the hearing. Mr Wu told us in his evidence that he had met his niece a few times. He told us that he does not assist with raising his niece financially on account of his imprisonment, which also greatly limits his ability to spend time with her.
In submissions, Mr Glazbrook submitted that it was difficult for Mr Wu’s niece’s family to take her to prison to visit Mr Wu, but he is her only uncle. It was submitted that it was important for her to have family in Adelaide. Ms Stokes, counsel for the respondent, contended that Mr Wu will not have a parental role in relation to his niece, and aside from the desire for a niece and uncle to know one another, negative impacts on Mr Wu’s niece as a result of his removal from Australia will be limited due to her young age and Mr Wu’s lack of involvement in her life to date.
The adverse effects on the best interests of Mr Wu’s niece as a result of him not being in Australia are limited in our view, and will be in the form of a lost opportunity to form as close a relationship with her uncle as she otherwise may. We accept the submission that it is important for a child to have extended family available, but we note that Mr Wu’s niece will have her parents and her grandmother in Adelaide. In the event that we affirm the decision under review, Mr Wu’s niece will be able to maintain some contact with her uncle in China through other means, although we accept they are less likely to form as close a relationship. We take into account the niece’s interests in having her uncle physically present in Adelaide in order to form a close relationship with him in the future, but also our view that the adverse effects on Mr Wu’s niece of not having that opportunity are limited.
With respect to the other particular matters made relevant by subs 13.2(4)(a) - (h) of the Direction, we note that Mr Wu’s relationship with his niece is non-parental and their existing relationship could not be considered close. Further, his niece’s parents and grandmother are all available to care for her. We accept that Mr Wu’s past conduct has not had any direct impact on his niece (nor is there any reason to expect that his future conduct would have a negative impact on her).
PRIMARY CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of Direction No 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The respondent submits that whilst the Australian community may have greater tolerance for a person who has lived in Australia for 12 years, in Mr Wu’s case the tolerance would have long ago been exhausted when regard is had to the number of convictions, frequency of offending and the risk of reoffending. The respondent contends that the Australian community would expect that Mr Wu’s visa would be cancelled.
We consider, having regard to the objectives of the Direction, the principles set out in the Direction and the explanation of the meaning of the concept of the ‘expectation of the Australian community’ set out in the Direction that this is a case where the community would expect the visa cancellation not to be revoked. We reach this view having regard to our finding that Mr Wu presents an unacceptable risk to the community in light of the nature of his offending and the likelihood that it may be repeated.
OTHER CONSIDERATIONS: STRENGTH, NATURE AND DURATION OF TIES
We take into account that Mr Wu arrived in Australia at the age of 16 (2004) and has resided here since that time. He has returned to China briefly on three occasions (2004, 2006 and 2012).
Mr Wu completed his schooling in Adelaide and has been employed as a labourer and in hospitality. We have had regard to written statements provided from previous work colleagues.
The Direction requires us to have regard to how long Mr Wu has resided in Australia, including whether he arrived as a young child. The Direction provides that less [favourable] weight should be given where the non-citizen began offending soon after arriving and more [favourable] weight to time Mr Wu has spent contributing positively to the Australian community.
We consider that Mr Wu’s circumstances fall somewhere in the middle. The time he has spent residing in Australia is substantial, but this is not a case where he arrived as a child and spent a lifetime living in Australia. Mr Wu did not arrive as a young child, but as a juvenile. We accept his entire adult life has been lived in Australia, but he is young. Mr Wu’s offending began in 2008, four years after his arrival in Australia, escalating to violent offending in 2010. His offending commenced soon after he reached adulthood. It had continued without interruption until his incarceration after his most serious offence.
We take into account that Mr Wu’s immediate family reside in Australia, with the exception of his father who resides in China. We will elaborate on the family’s circumstances below.
We proceed on the basis that we accept that Mr Wu has strong personal ties with Australia in these circumstances, and only limited personal ties with China.
As to Mr Wu’s family, Mr Wu explained that his mother and father divorced in China when he was a child. He says in his statement[30] that he has not had contact with his father for many years. However, as explained later, we are not particularly confident in the evidence before us as to the nature of ties between Mr Wu and his father in China or Mr Wu’s father’s circumstances.
[30] Ibid, T9.
As we have mentioned, Mr Wu has a mother and sister in Adelaide. We received evidence from Ms Hu, Mr Wu’s mother, and Mrs Wu, Mr Wu’s sister.
As to the effect of non-revocation on Mr Wu’s immediate family, it is clear that Mrs Hu is deeply upset and anxious about her son’s predicament.
Ms Hu is the subject of two reports by Mr Fugler. Mr Fugler diagnoses Ms Hu as depressed, and poses the possibility of Post-Traumatic Stress Disorder. Ms Hu was involved in a serious motor vehicle accident in December 2013, leaving her with chronic pain in her clavicle and monocular vision. Mr Fugler reports she is distressed by these matters and concerned Mr Wu will be deported to China.
Mr Fugler reported that Ms Hu believes that Mr Wu has brought shame into her life, but despite this believes she will be unable to cope emotionally were he to depart. Mr Fugler believed in March 2016 that Ms Hu’s low mood and anxiety would be unlikely to improve in the foreseeable future if her son is deported, an action he believes will place Ms Hu under further stress and exacerbate her already low level of functioning.
Mr Fugler reported on Ms Hu again in November 2016.[31] On this occasion, he reported that Ms Hu’s overriding concern was that if her son were deported he would have no support and would be without work and finances, and she would not be able to visit him as a result of insufficient finances. Mr Fugler reported being told of suicidal thoughts. Mr Fugler was of the opinion that Ms Hu continued to show signs of depression, with the focus of Ms Hu’s distress being the fear her son will be deported.
[31] Exhibit A4.
Ms Hu has also provided a statement to the Tribunal[32], and gave oral evidence, seeking a further chance for her son. In her oral evidence, Ms Hu said that her son had helped her accomplish things before he went to jail, such as going to the doctor and chemist. She would rely on her son for anything that needed physical strength. Ms Hu elaborated on her decision to migrate to Australia with her children. She said she had sold everything in China. She expressed concern that her son would have difficulty finding work in China and the social safety standard was lower. Ms Hu elaborated on the Chinese tradition of reliance on sons for care in old age, but explained this obligation now falls on her daughter. Ms Hu believed she would have difficulty travelling to China because of her age, managing her luggage and inability to speak English.
[32] Exhibit A6.
During cross-examination by the respondent’s counsel, Ms Hu said she was now 60 years old, and had lived in China until she was 51. She said she has relatives in China, and is in contact with her sister. Ms Hu confirmed her son did not live with her before he was sent to prison, and she now lives with her daughter. Ms Hu said she was financially dependent on her daughter and son-in-law. She had previously worked as an employed cook in a restaurant.
Mrs Wu (the applicant’s sister) also provided a written statement to the Tribunal and gave oral evidence. In her statement she explained that Mr Wu lived with her prior to her mother joining them in Australia. The thought of her brother being sent back to China horrifies her because she does not believe he will have family support, the help of friends, social security, Medicare and the like. Mrs Wu is concerned about her mother, describing a need for constant care.
In her oral evidence, Mrs Wu described constant worry about her mother and brother and the financial pressure on her and her husband to look after her mother. She worries it will have an impact on her marriage. Mrs Wu also described the concern that her daughter will not be able to spend time with Mr Wu growing up, which we have considered above.
We consider that Ms Hu’s psychological health is fragile and will be damaged further should Mr Wu’s visa cancellation not be revoked. We accept the reports of Mr Fugler to the effect that the distress Ms Hu faces relates to the consequences of her motor vehicle accident and also her concerns for her son and the shame associated with his actions and possible deportation, as well as the prospect of being separated from him. We accept the effect on Ms Hu of non-revocation will be highly adverse.
We are not persuaded however that Ms Hu will be unable to visit her son in China, although we accept it will be financially difficult. We note that Ms Hu migrated to Australia on her own in 2007, and do not accept that air travel to China is beyond her, particularly if her psychological health were to improve with time and the therapy suggested by Mr Fugler in his reports. If Mr Wu is deported, we also anticipate that she will maintain regular contact with him, potentially including via social media. Although we make these observations, we do not minimise the distress Ms Hu will face should her son be removed from Australia, or suggest that maintaining contact with her son via social media or other means will be in any way equivalent to having him present with her in Adelaide.
As to Ms Hu’s care needs, the evidence of Ms Hu and Mr Fugler does not support the evidence of Mrs Wu to the effect that she needs constant care. Ms Hu can dress herself and travels to Chinatown by public transport on her own. We accept that she needs some care and assistance that was once provided by her son, but this was not in the nature of constant care. We accept that the burden of providing the care Ms Hu needs now falls on Mrs Wu and her husband, where it has fallen for some time, and will remain there in the event the visa cancellation is not revoked. We accept that in these circumstances the consequences of non-revocation will also be adverse for Mrs Wu.
We take into account the adverse effect non-revocation of the visa cancellation will have on Ms Hu and Mrs Wu.
OTHER CONSIDERATIONS: EXTENT OF IMPEDIMENTS IF REMOVED
We have considered the evidence before us relating to the impediments Mr Wu may face if removed from Australia to China in establishing himself and maintaining basic living standards. The Direction requires us to consider this in the context of what is generally available to other citizens of China.
As to Mr Wu’s age and health, we consider that he is relatively young and we have no evidence of poor health. We do not consider that Mr Wu’s age or health serve as an impediment to establishing himself in China and maintaining basic living standards.
As to whether there are substantial language or cultural barriers, Mr Wu confirmed when questioned by Ms Stokes that he spoke fluent Mandarin. We also note that Mr Wu spent his childhood and early adolescence in China. We do not consider there are substantial language or cultural barriers to be faced by Mr Wu if removed from Australia to China in establishing himself and maintaining basic living standards.
As to the availability of social, medical and economic support to Mr Wu, we accept the contention of the respondent that Mr Wu will be entitled to access the same services as any other citizen of China.
We explored the availability of family support and contacts in China further in the course of the hearing. Mrs Wu gave evidence about circumstances in China for jobseekers, pay rates and health care. We place limited weight on her evidence in this regard as her qualification for giving evidence about such matters was not established.
We enquired further as to the whereabouts and circumstances of Mr Wu’s father in China. In her evidence, Mr Wu’s sister, Mrs Wu, said that she had maintained contact with her father in China, which she did by telephone. She also said she financially supports her father who has had a stroke and cannot speak. Mrs Wu said her brother did not maintain contact. As we have mentioned above, Mr Wu has also said in a statement that he did not have any contact with his father.
However, in the report of Mr Fugler of 29 July 2014, prepared before the visa was cancelled, Mr Fugler reports being told that Mr Wu enjoyed a close relationship with his father prior to the divorce, and maintains contact with that parent.
Mrs Wu was asked further questions by the Tribunal as to the circumstances of her father and other relatives, who live in Shenyang. Mrs Wu confirmed that when she had travelled to Australia for study, her father had owned a successful business. Her evidence in this regard was consistent with the lifestyle she had described, which involved her being able to study in Australia and travel regularly to China. Mrs Wu said the business went bankrupt about 12 years ago. She said the business related to making white wine and had elements relating to mining. Mrs Wu could not name the business, which was an aspect of her evidence we found troubling.
We asked Mrs Wu if her father was aware of Mr Wu’s predicament. Mrs Wu said that his mind wasn’t clear after suffering a stroke, but before the stroke his father had understood Mr Wu had fights with people. Mrs Wu said she had not told her father that Mr Wu was in prison.
The Tribunal asked Mrs Wu if her father had connections (guanxi) that might assist her brother to find employment should he return. Mrs Wu said that since the business went downhill all the connections are gone. The Tribunal asked Mrs Wu how she knew this. She explained she knew whether people visited her father or not. Mrs Wu also told the Tribunal that her father needs 24 hour care, provided by a new domestic partner.

As to other relatives, Mrs Wu explained that her mother’s sister also lives in Shenyang, but they are not close with their cousins.
As mentioned above, on account of inconsistencies in statements attributed to Mr Wu about his relationship with his father, and aspects of Mrs Wu’s evidence that we found unconvincing, we are not confident we have an accurate understanding of the extent to which family and social connections and support would be available to Mr Wu should he be removed from Australia to China.
In any event, we consider that Mr Wu’s personal characteristics, language skills, qualifications and work experience are such that the impediments in establishing himself and maintaining basic living standards are not significant and would not be significant even without family support. We consider that family support exists in Shenyang on both his mother’s and father’s side, albeit limited. We take these matters into account.
OTHER CONSIDERATIONS: INTERNATIONAL NON-REFOULEMENT OBLIGATIONS, IMPACT ON AUSTRALIAN BUSINESS INTERESTS, IMPACT ON VICTIMS
No evidence or argument was advanced in relation to Australia’s non-refoulement obligations.
Limited reference was made to the impact on Australian business interests, relating to Mr Wu’s value as an employee. We have had regard to the statement of Mr David Liu of 4 November 2016[33] to the effect that he would employ Mr Wu when he is released from prison. We place limited weight on this factor in circumstances where Mr Wu has not been employed on account of his incarceration for some time.
[33] Exhibit A1.
We have no direct evidence from the victims of Mr Wu’s offending as to the impact on them of a decision not to revoke the cancellation. As we understand it, the victims of Mr Wu’s violent offending, including the victim of the most serious assault, were strangers. In relation to the most serious offence, we have had regard to the remarks of the sentencing Judge about the impact of the violent assault on the victim in that matter.
OVERALL ASSESSMENT
We are to decide if there is any reason why the decision to cancel Mr Wu’s visa should be revoked, in the exercise of our discretion, exercised in accordance with the Direction.
In this regard, we have found that the primary consideration of the protection of the Australian community, including the nature and seriousness of Mr Wu’s offending and the risk to the community should Mr Wu reoffend is such that we consider the risk posed by Mr Wu to be unacceptable. In respect of another primary consideration, namely, the expectations of the Australian community, we consider that, guided by the Direction as to what the expectations of the community are, Mr Wu’s case is one where the community would expect the visa to be cancelled.
While we have had regard to the best interest of Mr Wu’s niece, we do not consider that her interests will be significantly adversely affected by refusing to revoke the visa cancellation, and this factor does not outweigh the other primary considerations.
It is clear to us that the adverse effect on Ms Hu of non-revocation of her son’s visa cancellation will be very significant. We also accept that the requirement that Mr Wu leave Australia upon the expiry of his custodial sentence will mean that Mrs Wu will continue to provide care and support for Ms Hu on her own. We have reflected carefully on this adverse effect on Mr Wu’s family members in Australia, but ultimately accept that the Direction provides that such matters will generally be afforded less weight than the primary considerations, and we agree that the clearly adverse effect on Mrs Wu and especially Ms Hu are, in this case also, outweighed by the unacceptable risk to the Australian community we have found to exist.
We also consider that the impediments to be faced by Mr Wu upon his return to China are not so significant as to outweigh the primary considerations falling in favour of non-revocation.
In these circumstances we are not satisfied that there is sufficient reason to revoke the cancellation of the visa, and will affirm the decision under review.
DECISION
The decision under review is affirmed.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and M Kennedy, Member

........ [ Sgd] ............................................
Administrative Assistant
Dated: 2 February 2017

Date of hearing: 2 December 2016

Representative for the Applicant:
Mr M Glazbrook
Migration Solutions

Solicitor for the Respondent: Ms C Stokes
Australian Government Solicitor

[2017] AATA 120

2 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	2 December 2016
Representative for the Applicant:	Mr M Glazbrook Migration Solutions
Solicitor for the Respondent:	Ms C Stokes Australian Government Solicitor