XIN LIANG and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 392
•12 June 2013
CATCHWORDS – IMMIGRATION – visa – failure to pass character test – substantial criminal record – exercise of discretion whether to cancel visa – decision set aside.
CATCHWORDS – IMMIGRATION – Minister’s Direction – whether application came to an end when Minister’s appointment as Minister came to an end and new appointee had not expressly adopted them or continued their application – continuing application.
CATCHWORDS – IMMIGRATION – Minister’s Direction – international non-refoulement obligations – whether limited to those entitled to protection visas provided for under s 36 of the Migration Act – broader application.
Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Pillai v Canada Human Rights Committee Communication No 1763/2008, 25 March 2011, UN Doc CCPR/C/101/D/1763/2008
SC (Double jeopardy – WC considered) China CG [2006] UKAIT 00007; 23 January 2007
WC (no risk of double punishment) China [2004] UKAIT 00253; 15 September 2004
YF (Double jeopardy – JC confirmed) China v Secretary of State for the Home Department, CG [2011] UKUT 32
Migration Amendment (Complementary Protection) Bill 2011
Direction no.55 – Visa refusal and cancellation under s 501
Convention and Protocol relating to the Status of Refugees
International Covenant on Civil and Political Rights
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Treaty between Australia and the PRC on Mutual Legal Assistance in Criminal Matters; signed: 3 April 2006; [2007] ATS 21
Treaty on Extradition between Australia and the PRC; entered 6 September 2007; [2007] ATNIF 26
DECISION AND REASONS FOR DECISION [2013] AATA 392
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2013/1380
GENERAL ADMINISTRATIVE DIVISION )
Re XIN LIANG
Applicant
And MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 12 June 2013
Place: Melbourne
Decision:The Tribunal decides to:
(1)set aside the decision of a delegate of the respondent dated 7 March 2013 to cancel Mr Liang’s Class DE Subclass 881 Skilled – Australian sponsored Overseas Student visa under s 501 of the Migration Act 1958; and
(2)substitute a decision that the visa not be cancelled.
[sgd] S A Forgie
Deputy President
REASONS FOR DECISION
Mr Xin Liang is a citizen of the People’s Republic of China (PRC). He came to Australia as an 18 year old student to pursue his studies. He held a Class DE Subclass 881 Skilled – Australian sponsored Overseas Student visa and was entitled to stay in Australia indefinitely. Following a course of events in 2006, Mr Liang was convicted of offences of trafficking in a marketable quantity of a controlled drug being cocaine, conspiring to traffick a marketable quantity of a controlled drug being heroin, dealing with money believed to be the proceeds of crime with a value greater than $1,000,000 being $4,026,950 and trafficking a commercial quantity of a controlled drug being Dimethylamphetamine or ice. For the first, he was imprisoned for 2 years and 6 months and for the last three, he was sentenced to an effective period of imprisonment of 8 years and 2 months. From 12 October 2006 until he was release on parole on 6 January 2013, Mr Liang was either on remand or serving his sentence. He has been in immigration detention since being served with the Minister’s decision dated 7 March 2013 to cancel his visa. The material raises the issue whether Australia has non-refoulement obligations under international treaties. I have decided that the discretion should be exercised in favour of Mr Liang’s retaining his visa and so have set aside the Minister’s decision cancelling it.
BACKGROUND
In this part of my reasons, I will set out the facts that I have found on the material and that are not in dispute between the parties.
Chronology of Mr Liang’s life in Australia, convictions and courses
In the following passage, I have summarised Mr Liang’s convictions and placed them in the context of some of the major events in his life.[1] [2]:
[1] These are taken from Mr Liang’s written statement (Exhibit A) and his oral evidence as well as the other documentary material lodged on his behalf and that of the Minister.
[2] The convictions are taken from a National Police Certificate issued by the Australian Federal Police on 31 August 2012 in relation to Mr Liang (Exhibit 1 at 46-47), the sentencing remarks of Judge Wood in the County Court (Exhibit 1 at 48-64) and the judgment of the Victorian Court of Appeal (Exhibit 1 at 65-76).
∙ 5 January 1982
Mr Liang was born in Guang Zhou in China. He does not have any siblings.
His mother is a school principal and his father is a director of a government trading company. They paid for him to continue his studies in Australia and funded his accommodation, car expenses and travel to China.
∙ 6 May 2000
At the age of 18, Mr Liang arrived in Australia as the holder of a Class TU Subclass 560 student visa.
He was enrolled in Year 11 at the Wantirna Secondary College and accommodated with a Malay Chinese family near the college.
∙ December 2000
Mr Liang was introduced to Mr Kwong (Steven) Cheng, his wife, Maria, and their two children. The children and Mr Liang were of a similar age.
Mr Liang accepted Mr and Mrs Cheng’s invitation to live with them at Doncaster.
∙ 2001
Mr Liang enrolled in Year 12 at the Doncaster East Secondary College.
∙ 2002
After completing Year 12, Mr Liang moved from Mr and Mrs Cheng’s home to live with several other students in East Doncaster.
He enrolled at the Royal Melbourne Institute of Technology (RMIT) in International Trade.
∙ 2003 - 2004
Mr Liang transferred to the Australian College of Tourism & Hospitality where he completed a Commercial Cookery Course.
He shared an apartment with a friend in Melbourne’s Central Business District (CBD).
He socialised and used Ecstasy.
In December 2003, he met Gloria. She was a graduate student at a University and, in early 2004, they began to live together in the apartment and later moved to another at Southbank.
After completing his cookery course, Mr Liang had difficulty in finding employment and decided to import blank DVDs from China. At the end of 2004, he registered TNG Pty Ltd as part of his plan to do so.
∙ 2005
The first delivery of 30,000 blank DVDs arrived in Australia. Mr Liang paid for them from $30,000 sent by his parents. When he could not sell them to large stores as he had hoped to do, he sold the DVDs on e-bay recouping only some $10,000 of his outlay.
Mr Liang and Gloria left Australia in December 2005 to travel first to Hong Kong so that he could meet her parents and then to China so that she could meet his. They returned to Australia on 3 February 2006.
∙ 2006
While in China, Mr Liang told his parents that he and Gloria were keen to buy the beauty therapy business where she worked and that it would be a good business as they built their lives together. His parents lent him the whole purchase price of $60,000 together with a further $30,000 for the purchase of the stock in hand.
Mr Liang did not consult Mr Kwong Leung (Steven) Cheng whom he regards as a father figure.
Between 9 April 2006 and 7 May 2006, Mr Liang visited China where he attended a trade fair that gave him some ideas for the business.
He found that he could not meet the ongoing expenses and unsuccessfully tried to borrow money from friends.
Mr Liang began to gamble at Crown Casino to try to make some money.
He was introduced to a man whom he calls “Big Brother” but has not identified either to the police or at the hearing of this matter. If he were to identify him, he fears for the safety of his parents and of himself.
Big Brother engaged Mr Liang to undertake certain tasks related to drug trafficking.
Mr Liang was arrested on 12 October 2006 for:
(1)trafficking a commercial quantity of a controlled drug being Dimethylamphetamine (or ice) by aiding and abetting, counselling or procuring the commission of that offence by others: Yik Lun (Joey) Siu and Tin Yu (Rocky) Ng; and
(2)trafficking in a marketable quantity of a controlled drug being cocaine.
∙ 2007
After his arrest, Mr Liang was remanded in custody. He did not apply for bail.
On 30 January 2007, Mr Liang completed a two hour psycho-educational programme offered to parents who have a history of substance abuse. Its stated aim is to provide participants with information about the risks associated with substance abuse and strategies for staying safe on release. The programme covers the following topics: Common risks associated with substance abuse; Risks associated with substance abuse upon release from prison; Risks associated with method of use; How to stay safe and harm reduction; and Drug and Alcohol services.[3]
[3] Exhibit 1 at 106
On 27 March 2007 and while on remand, he was interviewed by police in relation to two further offences.
On 24 April 2007, Mr Liang was charged with two further offences:
(1)between 23 June 2006 and 12 October 2006, Mr Liang conspired with a person identified as Big Brother and with others to traffick in heroin and the amount trafficked being a marketable quantity; and
(2)between 13 April 2006 and 27 July 2006, Mr Liang dealt with more than $1,000,000, believing it to be the proceeds of crime.
A committal hearing was held in October 2007 in relation to the offence of trafficking a marketable quantity of a controlled drug being cocaine. That offence related to events in the period from May to October 2006. At the end of the committal hearing, Mr Liang entered a guilty plea.
| Date | Court | Offence | Sentence or result |
| 10 October 2007 | County Court Melbourne | Trafficking in a marketable quantity of a controlled drug being cocaine | Convicted: sentenced to a term of imprisonment of 2 years 6 months to be released after serving 16 months on entering recognizance in sum of $500 to be of good behaviour for 14 months. |
∙ 2008
The recognizance release order made by the County Court was to take effect on 11 February 2008 but, as he had already been charged with further offences relating to events arising in the period from May to October 2006 and intended to plead guilty to them, he decided not to enter the recognizance or, later, apply for bail.
On 23 July 2008, Mr Liang was arraigned in relation to the remaining three charges.
After completing a subject called “Participate in Workplace Safety Arrangements” in each of 2007 and 2008, Mr Liang was awarded a Certificate II in Asset Maintenance (Cleaning Operations).[4]
[4] Exhibit 1 at 107
Mr Liang also completed a subject called “Follow Workplace Hygiene Procedures” as part of a Certificate II in Hospitality (Kitchen Operations).[5]
[5] Exhibit 1 at 108
In 2007, he completed one subject towards a Certificate II in Information Technology and completed the remaining subjects in 2008.[6]
[6] Exhibit 1 at 109
∙ 2009
The Victorian Court of Appeal dismissed Mr Liang’s appeal from the sentence imposed by County Court on his conviction for trafficking in a marketable quantity of a controlled drug (cocaine). It did so on 16 February 2009.[7]
[7] The Queen v Liang [2009] VSCA 18; Neave and Weinberg JJ; Exhibit C at 45-46
On 17 and 18 August 2009, a plea was heard by Judge Wood in the County Court of Victoria.
| Date | Court | Offence | Sentence or result |
| 15 October 2009 | County Court Melbourne | Conspiracy to traffick a marketable quantity of a controlled drug – Heroin Deal with money believed to be the proceeds of crime with a value greater than $1,000,000 Between 5 and 12 October 2006, trafficked a commercial quantity of a controlled drug – Dimethylamphetamine | Convicted: sentenced to a term of imprisonment of 8 years. This is the base sentence. Convicted: sentenced to a term of imprisonment of 7 years and 6 months. Convicted: sentenced to a term of imprisonment of 6 years. One year of the 6 years and one year of the 7 years and 6 months is to be served cumulatively upon the period of 8 years’ imprisonment making a total effective sentence of 10 years’ imprisonment. Non-parole period of 7 years’ imprisonment was set. The sentencing Judge recorded that Mr Liang had served 611 days’ imprisonment and ordered that those days be reckoned as time already served.[8] |
[8] Exhibit 1 at 15-16 A total of 611 days passed between the date on which Mr Liang was eligible to apply for parole and the date of sentence on 15 October 2009.
In 2009, Mr Liang completed a unit entitled “Prepare and Serve Espresso Coffee” and “Follow Workplace Hygiene Procedures” and was awarded a Certificate in Hospitality (Kitchen Operations).
On 16 October 2009, The Age reported Judge Wood’s sentencing remarks in sentencing Mr Liang and his two co-offenders for offences relating to importing and trafficking large commercial quantities of ice and heroin and then selling it.[9]
[9] Exhibit C at 138
On 17 December 2009, the Australian Crime Commission (ACC) released a Press Release with the heading “Eight sentenced in Australia’s biggest money laundering investigation”.[10] No reference was made to Mr Liang but the sentences imposed on seven other offenders that were the subject of Operation Gordon were named.
[10] Exhibit C at 139
∙ 2010
Mr Liang repeated the two units and was again awarded a Certificate in Hospitality (Kitchen Operations).[11]
[11] Exhibit 1 at 111
∙ 2011
On 3 May 2011, the Court of Appeal heard Mr Liang’s appeal from his sentence and, on 19 May 2011, it delivered its judgment.[12]
[12] [2011] VSCA 148; Harper JA with whom Ashley JA and Lasry AJA agreed: Exhibit 1 at 65-76
| Date | Court | Offence | Sentence or result |
| 19 May 2011 | Court of Appeal Melbourne | Conspiracy to traffick a marketable quantity of a controlled - drug – Heroin Deal with money believed to be the proceeds of crime with a value greater than $1,000,000 Between 5 and 12 October 2006, trafficked a commercial quantity of a controlled drug – Dimethylamphetamine | Appeal allowed: sentence of 4 years’ imprisonment substituted on basis amount trafficked at the lowest point of a marketable quantity. No longer designated as the base sentence. Appeal dismissed: sentence of 7 years and 6 months’ imprisonment confirmed. This is designated as the base sentence. Appeal dismissed: sentence of 6 years’ imprisonment confirmed. Eight months of the sentence for trafficking in a commercial quantity of Dimethylamphetamine to be served cumulatively on the base sentence of 7 years and 6 months making a total effective sentence of 8 years and 2 months’ imprisonment. Non-parole period of 5 years’ imprisonment was set. |
∙2012
On 30 January 2012, Mr Liang successfully completed the Fulham Correctional Centre 40 Hour Semi-Intensive Drug Treatment Program. It is described as a 20 session programme covering the topics: Why should I consider change?; How am I going to change?; What do I need to do to change?; and How will I keep the change going?[13]
[13] Exhibit 1 at 105 I return to this at [26] below
On 20 August 2012, Mr Liang was transferred to the Judy Lazarus Transitional Centre (JLTC).
While there, he:
(1)undertook community work as a barista at Friends of the Earth and at the Oak Room Café;
(2)had overnight visits with Mr and Mrs Cheng; and
(3)received visits from Mr and Mrs Cheng and many other friends and supporters.
∙ 2013
Mr Liang was released on parole from the JLTC on 6 January 2013.
His parole period ends on 11 April 2016 and, during that time, he is subject to the terms of his parole. Those terms include his being of good behaviour and not violating any law.
If he is not in custody as a consequence of matters arising under the Migration Act, he must also comply with the conditions set out in [4] of the parole order. They include his being supervised by his parole officer, obeying his parole officer’s reasonable commands and reporting as required, living in a place approved by his parole officer and working at employment that is also approved, attending counselling as directed and not using, possessing, manufacturing certain drugs listed in the Poisons Act 2011 (Vic) or associating with those who do.[14]
THE EVIDENCE
[14] Exhibit C at 225-226
The offences and the circumstances in which they were committed
In this section, I have set out the sentencing remarks of Judge Wood in the County Court relation to the latter two indictments as well as the judgments of the Court of Appeal on appeal from the sentences he imposed. I have also set another judgment of the Court of Appeal on appeal from the sentence imposed on the first indictment relating to the trafficking of cocaine. In relation to Judge Wood’s sentencing remarks regarding Mr Liang’s conviction for conspiring to traffick a marketable quantity of heroin, I note the conclusion of the Court of Appeal that
Mr Liang had admitted only to conspiring to traffick heroin at the lower end of the range being 250 grammes and the prosecution had not established beyond reasonable doubt that he had trafficked a greater amount than that.[15] Interspersed with the material from the sentencing remarks and the judgments of the Court of Appeal is the evidence of Mr Liang.
A.Events preceding Mr Liang’s convictions
[15] Exhibit 1 at 71-72; per Harper JA with whom Ashley JA and Lasry AJA agreed
A. Judge Wood’s sentencing remarks
Judge Wood found that Mr Liang was, at all relevant times, a member of a consortium that trafficked in heroin. He was involved in its acquisition, distribution and sale and also paid for it by remitting money to overseas’ suppliers. The Australian Crime Commission (ACC) had been monitoring the activities of the consortium and, in May 2006, Mr Liang’s telephone became the subject of a warrant authorising its interception as was the telephone of his co-accused, Ms Kim Phuong Tran. The principal was a Cantonese male known as “Big Brother” who has not been identified. Another conspirator was a Vietnamese speaking Melbourne-based male person who has been a substantial wholesale buyer from the consortium. I have interspersed Judge Wood’s finding with Mr Liang’s evidence relating to how he came to meet Big Brother and commit the offences. Mr Liang has not spoken about his involvement in all three offences but he has pleaded guilty to each of them.
B.Mr Liang first meets Big Brother
B.1Mr Liang’s evidence
The beauty therapy business purchased by Mr Liang employed four part time staff. Rent of $2,000 was payable each month. Mr Liang had purchased it without obtaining advice from an accountant as to its viability and without considering how he would pay the ongoing expenses of the business let alone the money he owed his parents. Mr Liang explained his mindset at the time:
“18 … I became very concerned I’d got out of my depth, and how I was going to repay my loans. In truth, I bought the business solely to please Gloria, and I had no expertise or experience of the industry, or this type of business. I was in fact out of my depth. I believed that the only way I could save face with my family and repay the money lent by them, was to borrow more money from some one else, and then try and in turn repay them. I started to ask around for such help, but no-one was interested.
19. I became extremely depressed. I felt I had ruined my chance for a successful start in business. I became desperate, and in retrospect, I totally lost my normal judgment, which led me to making the very poor decisions that have led to my current situation. I started gambling at Crown Casino in a desperate attempt to make some money to keep my business afloat and to pay back the loans to my parents.
20. …
21. When I had been asking around for help, someone had told me that, although they did not have the money to lend me, they knew of someone who would possibly be able to help. This person turned out to be Big Brother. He was very kind and understanding. He seemed very interested in my business, and said he was looking for ‘good investments’, and thought I had a lot of potential. He said he would back my business activities, but that, first, I needed to prove my loyalty and trustworthiness to him. Big Brother was very nice to me and I was very flattered because it seemed obvious that he was a very successful businessman, and a real gentleman. He was very sophisticated, and said he came from a very high-class family, which I had no doubt was correct. He mixed with other, older and successful businessmen, who all appeared to be investors, as they were always talking about their businesses, and about other business possibilities.
22. I talked about my plans to expand my business to Big Brother. He was very encouraging and said that he would help me. He told me, however, that I first needed to help him. He said that, as a successful and busy man, he frequently was unable to directly supervise his activities. He needed someone he could trust to help him to make sure that others did not rip him off. All he wanted me to do was to re-count money that had been already counted by another person. I would report to him the amount I counted, to ‘double check’ what the other person was claiming to have counted. This seemed quite reasonable and not in any way ‘illegal’. I agreed to help, and was very happy to be offered the work. …”.[16]
C. Circumstances involving offence of trafficking with cocaine
[16] Exhibit A
C.1 Mr Liang’s evidence
Mr Liang did not address this offence.
C.2 Facts identified in Court of Appeal’s judgment
After considering the roles of Mr Liang and his co-offender, the Court of Appeal accepted the Crown’s synopsis of the relevant facts:
“3. … In August 2006, the appellant and Mr Hu travelled separately to Hong Kong and China. While overseas, they met with each other and a man known as ‘Mr Ding’. Following their return to Melbourne, the appellant,
Mr Hu and Mr Ding discussed purchasing cocaine and then re-selling it for a profit to be divided equally between them. Under the plan, Mr Hu and
Mr Ding would liaise with narcotics suppliers, including a supplier known as ‘Bald Head’, to secure supply. It was intended that the appellant would liaise with prospective wholesale purchasers to secure the capital to buy the drug.4. A quantity of cocaine was sourced from a supplier and it was arranged that the handover of the drugs would take place on 6 October 2006 at a car wash in Spencer Street, West Melbourne. Mr Hu received the cocaine as planned and took it to the appellant’s Southbank apartment, where the two men weighed and re-bagged it. They informed Mr Ding of the successful collection of the drug. The appellant retained a sample of the cocaine to provide to prospective customers and Mr Hu took the balance of the drug to his home in Kensington.
5. In the following days, the appellant unsuccessfully attempted to find a buyer for the cocaine. On 12 October 2006, Mr Hu’s house was searched and the cocaine was found. It weighed 349.4 grams, 264.2 grams of which were pure. Both the appellant and Mr Hu were arrested on the same day and later pleaded guilty to the offence.”[17]
D. Mr Liang’s work for Big Brother: counting money
[17] Exhibit C at 45-46
D.1 Mr Liang’s evidence
“… I was introduced to an older lady, who would be counting the money with me. She would then send the money to where ever Big Brother told her, after I would report the amount, which I had also separately checked. The work was not difficult but it was time consuming, and I was able to start saving. When I started, I regarded my activities as an extension of book-keeping type work. I assumed that the money came from legitimate business activities, as I had been told, and the money was being handle [sic] as it was because Big Brother wanted to avoid Tax.
D.2 Judge Wood’s sentencing remarks
“The evidence establishes that on eight occasions during May, June and July 2006 you dealt with money in the total sum of $4,026,950, knowing such monies were the proceeds of crime, and provide such sums in cash to money remitting services for remittance to your overseas suppliers. The remitter took commission totalling $166,950 and the balance was sent by the remitter to your suppliers.
Tran, your co-accused, is a female and 12 years your senior. She provided cash totalling $5,893,950, knowing such monies were the proceeds of crime, to money remitters on 12 occasions between April and July 2006. These 12 occasions include the eight occasions that you were also involved in. After payment of commission of $233,950, the balance was remitted to persons located overseas in payment for heroin that they supplied to the syndicate.”[18]
E. Circumstances involving offence of conspiring to traffick heroin
[18] Exhibit 1 at 50-51
E.1 Mr Liang’s evidence
Mr Liang did not address this offence in his evidence.
E.2 Judge Wood’s sentencing remarks
“On 20 June 2006, Tran asked you to provide to her Big Brother’s new telephone number because she wanted to contact him. Three days later, on 23 June 2006, another telephone conversation between Tran and you took place. Both of these calls were intercepted. In the latter conversation Tran states that Big Brother will send one or two shipments the following week. Tran says, ‘One million’, to which you reply, ‘One million? … one hundred and twenty something almost one hundred and thirty’, with which Tran agreed. Tran reported to you Big Brother’s suggestion that only part of this shipment ought to be released at first and, when the quantity of this drug in the market place is lower the balance could be released at a higher price.
In June 2006 Big Brother, Tran and you trafficked in a large marketable quantity of heroin, being seven blocks that were sold to ‘X’[being the Melbourne-based Vietnamese speaking co-conspirator].
On 11 August 2006 you departed Australia for China and you returned on
3 September 2006. Upon your return you informed Tran of arrangements Big Brother had made to deliver heroin from overseas. There was, it appears, dissatisfaction with the quality of the substance supplied to the customer, X. Big Brother offered to return by refund $150,000 compensation.Intercepted calls on 7 September 2006, between Tran, Big Brother and X reveal that X complained that three of the seven blocks previously supplied were totally useless. Further calls between the three of them were intercepted. At one point, Big Brother offered to refund $150,000 to X. On 8 September 2006 Tran informed you that X wanted to give the three blocks back. That proposal was not acceptable. At this time X had not paid in full for the seven blocks.
Subsequently, a sample of the contentious consignment was examined by Tran and yourself in your vehicle. You were overheard speculating as to the possible causes of the sample being defective. You told Tran to stand firm as you and she were on Big Brother’s side.
Following meetings between Tran, X and yourself, you provided $47,000 of the $160,000 on 11 September 200 [sic] to X. The balance of $103,000 was provided to Tran by Big Brother on 22 September 2006, who in turn paid X.
Together with Tran you met with X. Tran and you spoke to Big Brother by telephone and you advised him that the defect in the product did not arise ‘on our side’. Two further meetings were arranged between Tran and you and X and followed a telephone conversation with Big Brother. In these discussions the supply of heroin was discussed and, because X no longer wished to trade with you, Big Brother identified other potential customers who were targeted by the [ACC’s] Gordian Katakan Taskforce.
You later informed Big Brother that you had contacted one of these targets, ‘Chicken Man’, but you could not do business at that time because of disagreement about the price – though the matter would be pursued later. Tran approached another target, ‘Longhair’, whose sister, it was reported, might be able to take small consignments, at first at ‘31’ (i.e. $31,000 per block). This proposal was put to you by Tran. You replied that in the past Longhair had moved three blocks in one month. On 20 September 2006 you reported to Big Brother that Longhair would take ‘31’ ($31,000) over two to three weeks.”[19]
[19] Exhibit 1 at 50-52
F.Circumstances relating to offence of trafficking in Dimethylamphetamine (ice)
F.1Mr Liang’s evidence
Mr Liang did not address this offence in his evidence.
F.2 Judge Wood’s sentencing remarks
“In October 2006, Ng Tin Yu, also known as ‘Rocky Ng’, Siu Yik Lun, also known as ‘Joey Siu’, and yourself made arrangements for the collection of a quantity of dimethylamphetamine (ice) in Sydney and for its delivery to Melbourne. As was the case with Tran and you, warrants authorising the interception of these telephone numbers and the installation of optical and audio monitoring devices in respect of them were obtained.
On 3 October 2006, Rocky Ng telephoned you and advised that he would be departing from Hong Kong the next day for Melbourne and that there would be some ‘garments’ on the way. This reference to garments was to methylamphetamine. On 9 October 2006, in another intercepted call, Rocky, Joey and you were recorded. Rocky stated that the third party was not going to bring the substance down to Melbourne and Siu replied, ‘We’ll have to go up.”
A discussion ensued as to the transportation of the drug to Melbourne and you suggested that Siu take the overnight bus service to Sydney and discussion was had as to the best type of apparatus to house the drugs. You suggested that Siu would travel to Sydney by air and return by bus the following day and then collect the drugs at the outlet in Redfern.
These conversations include ones between Ng and yourself in relation to marketing and distribution of the drugs once they arrived in Melbourne and were handed on to you. It is clear from these conversations that Ng had dealings with suppliers overseas for the provision of he [sic] drugs and delivery to Sydney where Siu was to collect them.
On 11 October 2006 Siu travelled by air to Sydney where he collected the drugs in Redfern. He then travelled by overnight bus to Melbourne. He was arrested at the Southern Cross Station. Ng and yourself were arrested shortly thereafter on 12 October, near your homes. The quantity of contraband transported by Siu was 799.5 grams pure; that is, just under half a gram under 800 grams and it was contained in a mix weighing just under one kilogram which was in a mix of 81 per cent purity. This quantity is 50 grams over the minimum quantity constituting a commercial quantity of methylamphetamine which is 750 grams or more.
Subsequently, on 12 October 2006 at 9.20am you were arrested. Searches of your apartment in Southbank reveal that four mobile phones were there. …”[20]
Behaviour during remand and imprisonment
[20] Exhibit 1 at 52-54
A.Melbourne Remand Centre and Fulham Correctional Centre
Due to timing issues associated with his being charged on three separate indictments and there being some time between the first indictment and the two that followed, much of Mr Liang’s time was spent on remand rather than in prison. From the early days, the Local Management Plan File Notes record that he is “courteous and compliant with staff”[21] and notes that he “is always polite to staff”[22] or words to that effect continue throughout the records. The notes also record that he gets on well with both staff and prisoners and there is a consistent pattern of that from the earliest days.[23] He has assisted other prisoners from time to time by acting as an interpreter.[24]
[21] Exhibit C at 142a dated 8 November 2006
[22] Exhibit C at 144 dated 2 October 2007 and see also, for example, at 145a dated 26 November 2008, 149 dated 14 April 2010 and 150 dated 22 February 2011
[23] See, for example, Exhibit C at 142a dated 8 November 2006, 150a dated 8 June 2011 and 152a dated 14 March 2012
[24] Exhibit C at 144a
The only possible exception to this pattern of behaviour is recorded as having occurred on 16 June 2011 when he was “… challenged about whether he was feeding pigeons in the vicinity of Calder B …”.[25] The note records that Mr Liang:
“… became very defensive and argumentative to staff. Behaviour displayed by Liang as insolent. Was spoken to by [name redacted in Exhibit] reference prisoners are not to feed pigeons and his hysterics when asked a question as to any involvement by him breaking area rules of not feeding birds.”[26]
A note dated 12 July 2011, and so nearly a month after the incident, recorded:
“Prisoner Liang spoken to tonight reference his ability to have moved on from the notation dated 16.6.11. He assured me, he had and was looking forward to continuing status quo.”[27]
[25] Exhibit C at 151
[26] Exhibit C at 151
[27] Exhibit C at 151
In his oral evidence, Mr Liang was asked about this incident. His view of the event was that he had been identified by the officer as the person feeding the pigeons. The fact of the matter was that he had told the person who was feeding them not to do so. Mr Liang said that he “got emotional” but that he and the officer understood each other. No action was taken in relation to the incident.
Mr Liang was not asked at the hearing to elaborate on the incident that occurred on 1 February 2010. The records do not indicate that any action was taken about it other than to note that it had been raised with Mr Liang a few days later and the incident had “gone by the wayside”.[28] The incident arose when Mr Liang and another prisoner:
“… had words today … that could have escalated to a Code Purple. They were asked to leave the area and return to units. Discussed matter with Liang who said he was sick of the ‘Smart Arse’ but would not elaborate. …”[29]
[28] Exhibit C at 148a
[29] Exhibit C at 148a
The final incident of note in the records does not relate to Mr Liang’s interaction with staff and other prisoners but with stealing chicken stock from the kitchen on 4 May 2008.[30] This was about eighteen months after he had first been received on remand on 18 October 2006. By then, he had worked in textiles and had, on 7 October 2007, applied for EWP status i.e. essential working prisoner status at the Melbourne Remand Centre. [31] He had been sentenced and had already served 12 months of the minimum sentence of 16 months imposed on his conviction on the first indictment for trafficking cocaine. On 26 April 2008, he was assigned to the kitchen on a trial basis.[32] A note dated 4 May 2008 reads: “Liang was caught stealing from the kitchen today. He has lost his job.”[33] As a result, he also lost his EWP status[34] and was fined $20.[35]
[30] Exhibit C at 145a
[31] Exhibit C at 144
[32] Exhibit C at 145
[33] Exhibit C at 145a
[34] Exhibit C at 145a
[35] Exhibit C at 146
In his oral evidence, Mr Liang said that he and another prisoner had taken a handful of chicken stock in a glove in order to cook chicken soup. He was transferred to work in the metal industries and remained there for three months without incident. Mr Liang was assigned to work in the laundry and then, in January 2009, returned to work in the kitchen[36] where he remained until the end of his time in the Melbourne Remand Centre.
[36] Exhibit C at 146a
B.Judy Lazarus Transition Centre
On 20 August 2012, Mr Liang was transferred to the Judy Lazarus Transition Centre (JLTC). Ms Sarah Eagle is a Transition Officer with the Department of Justice at the JLTC and has been for the past five years. Before that, she has been engaged with Corrections Victoria for 11 years.
Ms Eagle explained that placement at the JLTC is regarded as a great privilege for it has only 25 places at a time when the population of male prisoners in Victoria is in the order of 6,000 to 7,000. She had been involved in Mr Liang’s assessment for placement at the JLTC. He was assessed as suitable because he met a number of criteria. First, when he had been first sentenced, he had been assessed as having a moderate level of risk of reoffending. That is an assessment that stayed with him throughout his sentence and could not be changed however well behaved he was in the prison system. Such an assessment was a prerequisite for admission to the JLTC. Second, he had been assessed at the lowest level of security risk and that was also a prerequisite for admission to the JLTC. That is an assessment that can be changed by a person’s behaviour in prison. Third, he had continuing good behaviour and, fourth, he had shown a willingness to change and to reintegrate in the community.
Ms Eagle said that Mr Liang progressed to the next stage at the JLTC each month. He worked for four days in community work each week. One placement was at The Oak Room and the other at Friends of the Earth. His supervisors in each location were impressed with his progress. She noted that he made friends with both Asian and non-Asian backgrounds and treated officers with respect.
When asked whether Mr Liang passed on the wisdom he had gained to others, Ms Eagle replied that he had always been put in billet positions and so positions of trust. That meant higher pay for him but it also meant that he was regarded as a positive influence on others. She observed him as having a positive demeanour.
She raised the possibility that a business venture in which Mr Liang showed interest might be a pyramid scheme. He allayed her concerns about it but, at the same time, she said, he took her counsel to heart and did not pursue it.
Insight into the consequences of drug trafficking
After Mr Liang completed a 40 hour (Level 4) Alcohol and Other Drug Treatment Program on 30 January 2012, the facilitator completed an assessment dated 29 February 2012. The facilitator’s name has been redacted from the documents I have and that were given to Mr Liang under the Freedom of Information Act 1982 (Vic). If the facilitator’s qualifications were recorded, they too have been redacted. The facilitator wrote:
“Mr Liang completed the 40 hour AOD program successfully. He made contributions in the group discussions and activities when asked. He was willing to share his current offence that related to drugs, negative consequences experienced because of drug dealing.
…
Mr Liang demonstrated a positive attitude towards learning by participate [sic] group work and activities. He missed one session due to canteen. Mr Liang was receptive; he told the writer that he realized how drugs damage people’s life and society through group discussion.
…
Mr Liang developed some insight in relation to his current offence. In the final review session, Mr Lai [sic] revealed that his person [sic] values on the way of making money and life were changed by listening to the other participants’ experiences. He described that he used to think it was ok to sell drugs as long as he did not use; he perceive [sic] it was a ‘short-cut’ for him to make a lot of money. He further described that he now realized living with containment was more important to him. He did not want to let his parents down again in the future and did not want to damage other people’s lives by drugs. He also added ‘What goes around comes around’. Furthermore, he was planning to work when he was released and may set up his own coffee shop in the future.
…
Mr Liang appeared insightful and remorseful in relation to his current offence. He realized that all the ‘drug money’ did not last. He expressed that he was very motivated to make positive change in his life and will not making [sic] comparison with other people’s wealth with his own in the future.”[37]
[37] Exhibit C at 190-190a
In his oral evidence, Mr Liang said that imprisonment meant that he had to associate with everyone. That meant that he saw people craving for drugs and fighting when they were taking drugs. He saw the damage caused to the community by drugs. He now thinks that if he wants to make money, he has to do it by working in the “right” work. It should be work that is a passion rather than just a means of earning money. In life, he has to work hard and, no matter how hard he was to work or how difficult it is, he must not go the way he went in the past. He caused himself, his family and his loved ones huge harm. He should take responsibility for things himself and, however hard things get, they can never be harder than being in prison. Even if they become so hard that he becomes bankrupt, that is the course that he must take rather than doing things that put him back in prison.
In his written statement, Mr Liang said:
“38. I have had lots of time to think about the wrong things that I have committed and the effect that my actions would have had on people. I am ashamed of what I did. I am truly sorry and I will do all that I can to repay to the community by my good deeds, positive actions and hard honest work.
39. I have spent my time in custody in trying to prove to everyone, in particular the Australian Authorities, my parents, and my adopted family and friends in Australia, that I have reformed.
40. If given the chance to stay in Australia, I will not let anyone down.”[38]
[38] Exhibit A
Friends and family
Mr Cheng is a medical scientist by profession and worked as a senior medical technologist before migrating to Australia from Hong Kong in 1995. In more recent years, he has worked as an overseas student coordinator and as a property developer. He first met Mr Liang at the end of 2000 when another international student introduced him. Mr Liang was then aged 18 and about the same age as his children. They all attended the same school. Mr and Mrs Cheng had other young students living with them but Mr Cheng said that they had a soft spot for Mr Liang because he was more polite and respectful to older people and always keen to help in the house. They had wanted him to continue living with them after he completed Year 12 but he wanted to be independent and moved to live with friends. Despite his having moved away, Mr Liang often visited them and attended all family functions and celebrations.
Mr Liang said that Mr and Mrs Cheng were the first to visit him after he was arrested. They supported him throughout and consider him to be like an adopted son and a family member. While Mr Liang was held in or near Melbourne, they visited him each month or more regularly but could not when he was transferred to a regional area. During the years of imprisonment, Mr Cheng said, he has:
“… had the opportunity to see a maturity and a change in Terry. He has accepted and acknowledged that what he did was very wrong. I think that he was drawn into making fast money and did not to [sic] stop to consider his actions. He has had over six long years in jail to think about what he did. He has paid dearly for his past actions. Each time I visited Terry we talked about his past wrongdoings and how to live a positive and meaningful life to be a good person. I have seen the effort that Terry has made while in custody, to prove to everyone, including the Authorities, his parents, his employers and us that he has reformed and is ready to give back to the community.”[39]
[39] Exhibit B at [12]
The material contains references from the two cafés in which Mr Liang worked. The first, from the Friends of the Earth Food Co-op in Melbourne is undated:
“Xin Liang has been doing Community Work at Friends of the Earth for the last two months working 2 days a week consistently. In this time Xin has proven himself a valuable asset and an integral member of this busy and demanding hospitality outlet.
As Xin is a great communicator who works well in a team environment with a keen sense of diligence and initiative, the duties to be performed are broad. Duties included working in the kitchen helping prepare and serve meals daily, being our head barista on the days he works, he helps make the day run very smoothly. Xin also works in a training role helping to train new volunteers how to make coffee.
Xin is a patient, polite, helpful, and respectful person. Xian [sic] presence helps relieve some of the pressure that is commonly associated with fast-paced café/retail environments.
It’s been a pleasure having Xin working with all of us at Friends of the Earth.
…”[40]
[40] Exhibit 1 at 115
The Business Manager of the Oak Room wrote a reference dated 7 July 2012. In it, he wrote that he consented to Mr Liang’s undertaking work experience in his business. Furthermore, he was happy to offer him full time employment as a barista to assist Mr Liang with his reintegration into society.[41]
The future
[41] Exhibit 1 at 116
A.The future if permitted to live in Australia
Money is no longer his main priority and that is a marked difference from his previous attitude to it, Mr Liang said. He acknowledged that people might be sceptical as to whether he had in fact changed but said that he had done a lot of reading and study in prison. When he was young, he did not think properly and all he could see were dollars. Now that he has had a chance to view things more widely, he sees that life is about more than making money. He needs to be responsible to his loved
ones and he cannot just act selfishly. It is more important to have a happy life than to have a luxury life.
In the future, Mr Liang said, he wants to have the opportunity to tell young people his story so that they do not make the mistakes he has made. He wants to tell them that they have to chase their passion and not money. For those who have already been imprisoned, Mr Liang wants to have the opportunity to encourage them not to give up; even if mistakes have been made in the past, the future can be changed.
At one time, Mr Liang had hoped that his mother would move to Australia to be with him but he now recognises that this would be unrealistic. He plans to live with the Chengs as his adopted family and to work with Mr Cheng in his business and to take care of him and his wife.
Mr Liang has plans to live with Mr and Mrs Cheng and Mr Cheng has confirmed that he and his wife would welcome him as they did after his release on parole earlier in the year. Their children no longer live with them and they see
Mr Liang as living with them and caring for them in their old age. Mrs Cheng is not in good health and Mr Liang had been a terrific help to them with cleaning, gardening and shopping earlier in the year. He had been full of enthusiasm and of life and worked hard at two jobs.
Mr Cheng regards Mr Liang as a reformed young man, who has recognised and admitted his past wrongs. He is making every possible effort to put those wrongs right. As a consequence, Mr and Mrs Cheng have given him the same opportunities as they gave their own two children. They have made him a beneficiary of their family trust as he has proved himself worthy of their love and care. If
Mr Liang is allowed to remain in Australia, Mr Cheng would like him to learn his business of property development with a view to his taking it over one day. It is a business that Mr Cheng conducts conservatively, he said. Neither of his children is interested in it and he believes that Mr Liang, with his keen interest in business, can do well in it if properly guided.
Mr Liang said in his oral evidence that he would not go into business with his friend, Rocky, who had been a co-offender or any others with whom he had previously been associated when he was offending. Although he had discussed his business plans with Rocky in the past, he stopped doing so when he discovered he had been charged with offences relating to credit card fraud. Initially, he had been allowed supervised visits with Rocky as he was deemed to be a supportive friend even though a co-offender. Due to his further offending, Rocky was taken off Mr Liang’s list of visitors as from 27 November 2012.[42]
[42] Exhibit C at 159
Ms Eagle said that she had been concerned that Mr Liang was financially motivated. In a letter to the Department of Immigration and Citizenship (Department), she had noted that Mr Liang’s offending had been driven by financial greed and wanting to save face with his parents and friends when his business ventures failed. In her report, Ms Liang expressed the view that:
“Mr Liang is realistic about the hard work need [sic] to reach the success that he has always craved. Like before, he has high expectations of himself, but with the benefit of hindsight & maturity, he can identify what will be different this time around. Previously he was flitting from one business idea to the next, deeming the means to his end fortune of little importance. He still has immense drive for financial success, however he is determined to pursue it through a job that he truly enjoys, & a lot of hard work.
… I am confident that he will strive to be a positive member of Australia’s community upon release. …”[43]
[43] Exhibit C at 174-174a
In her oral evidence, Ms Eagle said that she thought his remorse “absolutely” genuine. In addition, he has insight into his past conduct. He is very appreciative of his time in gaol as it has given him time to reflect and to turn his life around. In that regard, he has been quite unusual. Mr Liang was able to look not just at the punitive side of his imprisonment but also the rehabilitative and took every opportunity to engage whole heartedly in what was offered. He has been very open with her and, unlike much of her experience with other prisoners, she did not have to find out things “on the side” that he had not told her. Rather, he gave her “everything”. Mr Liang has put in the effort, she said, and he deserves to be supported.
B. Fears if required to return to China
In his statement, Mr Liang spoke of his fears were he required to return to China:
“31. I am very scared about returning to China. The Chinese authorities know of my activities and, I believe, will arrest me if I am returned. If I do not co-operate, I fear very harsh punishment, including beatings, and if I am charged, I am worried that enough evidence is already available from the Cases in Australia, to provide the Chinese Authorities to prosecute me. If I am convicted, which I believe will almost automatically occur if I get prosecuted, then I face the Death Penalty. Even though I have already been sentenced and punished for these crimes in Australia.
32. I do not want my parents to be in danger from people associated with Big Brother if I am returned. I fear that they will harm my parents, if I co-operate with Chinese Authorities in the investigation of his related activities in China, which became known by the evidence provided to the Australian Courts during my hearings.”[44]
[44] Exhibit A
Mr Cheng spoke of similar fears in his statement and in his oral evidence. He said:
“16. I have grave fears that if Terry is returned to China that he is at great risk of significant harm. China is a communist country and there is no freedom of speech. The government officials do not work according to rules and regulations. I have personal experience of instances where sensitive issues aired on TV of Hong Kong channels in China have suddenly been cut off. This is because the Government does not want the public to know what is really going on. It is difficult to know what will happen to Terry if he returns to China. It is likely that the Chinese officials will know about his offences and his jail term. I believe that he will be made to serve the balance of his prison sentence and may even be killed as drug trafficking is a very serious offence in China that would call for death penalty.”[45]
LEGISLATIVE FRAMEWORK
[45] Exhibit B
Visas
Under the Act, the Minister may grant permission to a non-citizen (known as a visa) to travel to and enter Australia, to remain in Australia or to do both.[46] There are classes of visas.[47] Some are specified in the Act itself[48] and some are prescribed in the Migration Regulations 1994 (Regulations).[49] The classes prescribed in the Regulations are:
“(a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).”[50]
Mr Liang holds a visa of a subclass that was prescribed in r 881 of the Migration Regulations. That regulation and subclass visa were repealed with effect from 1 July 2012 but its repeal is of no relevance in this case.[51]
[46] Migration Act; s 29
[47] Migration Act; s 31(1)
[48] Migration Act; ss 32-38
[49] Migration Act; s 31(3)
[50] Regulations; r 2.01
[51] Migration Amendment Regulation 2012 (No. 2); rr 2 and 3 and Schedule 1, Item [102]
Cancellation of visas on basis of visa holder’s failure to pass character test
As Mr Liang held a Class DE Subclass 881 Skilled – Australian-sponsored Overseas Student visa, the provisions of
s 501 apply to him.[52] That means that the Minister has power under s 501(2) of the Migration Act to:“… cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
[52] Migration Act; ss 5(1) and 29
The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general 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 significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is
2 years or more; or(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence.[53] There was no suggestion that Mr Liang passes the character test for the terms of imprisonment imposed in relation to the first indictment let alone the remaining two mean that he clearly does not.
[53] Migration Act; s 501(12)
Section 501G sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as Mr Liang, who is in the migration zone. The “migration zone” includes mainland Australia.[54] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision.
The Minister’s Direction
[54] Migration Act; s 5(1)
A.The express statutory boundaries within which the Minister’s Directions must be framed
If a person fails the character test, s 501 does not require the Minister to cancel that person’s visa or to refuse that person’s application for a visa. It confers a power on the Minister to cancel or refuse but it is a discretionary power that is subject to limits. The Minister will necessarily delegate power and may give directions to those who exercise that delegated power as well as to those such as the Tribunal who review the exercise of that power. Those directions are given under s 499 of the Migration Act, which provides, in part, that:
“(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) …
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) …
(4) …”
Section 499(2) underlines the principles stated in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[55] (Peko-Wallsend). The boundaries of the exercise of any statutory discretionary power are drawn from the form of the subject-matter, scope and purpose of the legislation in which the power is found. His Honour said:
“… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation in the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”[56] As a rule, the power to give directions and make guidelines is determined by reference to “... the subject matter, scope and purpose of the statute ...”.[57]
[55] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ
[56] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[57] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. This approach accords with the Approach to statutory interpretation later endorsed in Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [69]; 381; 855; 509 by McHugh, Gummow, Kirby and Hayne JJ when they said:
B.Other boundaries within which the Minister’s Directions must be framed
Quite apart from these boundaries, there is a practical limitation of another sort on the power of the administrative decision-maker. That is a limitation on the manner in which the administrative decision-maker weighs evidence relating to the matters that are relevant and the weight he or she gives one matter over another. In Peko-Wallsend, Justice Mason addressed that limitation as well after first setting out the general principle. His Honour said:
“… [I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation …, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. … [A] court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”[58]
[58] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 41-42; 309-310
His Honour’s statement needs to be read in light of the very recent case in the High Court of Minister for Immigration and Citizenship v Li.[59] The Migration Review Tribunal (MRT) had refused to defer its decision on the application for review before it until the Trades Recognition Authority (TRA) had reviewed Ms Li’s skills assessment. A favourable skills assessment was an essential condition for the grant of the particular visa for which Ms Li had applied. The then Federal Magistrates’ Court quashed the MRT’s decision and remitted it to the MRT. An appeal to the Full Court of the Federal Court from that decision was dismissed on the basis that the MRT had acted unreasonably. The outcome of the appeal turned on the particular provisions of the Migration Act governing the way in which the MRT is required to conduct its review of a decision but, in the course of reaching that outcome, the High Court referred to principles of more general application in guiding administrative decision-makers. They are:
[59] [2013] HCA 18; French CJ, Hayne, Kiefel, Bell and Gageler JJ
(1)Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[60]
[60] [2013] HCA 18 at [23] per French CJ
(a)If the legislation does not state any criteria, Parliament intends that the decision-maker is, in light of the general scope and purpose of the enactment, to give effect to his or her view of the justice of the case provided:
(i)that view is reached by a process of reasoning;
(ii)that process of reasoning is:
∙intelligible and reasonable and directed towards and related intelligibly to the purposes of the power; and
∙impartial;
(iii)an examination of the reasoning in separate decisions reached as a result of the exercise of the same discretionary power reveal a continuity and consistency of decision-making.[61]
[61] [2013] HCA 18 at [23]-[25] per French CJ and [63]-[67] and [76] per Hayne, Kiefel and Bell JJ
(2)A statutory discretion may also be confined by:
(a)specific conditions expressly stated in the legislation in relation to the exercise of the power; and
(b)implied conditions relating to requirements of procedural fairness:[62]
[62] [2013] HCA 18 at [26] and [29] per French CJ At [88]-[92], Gageler J explained the implied condition in terms of reasonableness in the exercise of a discretionary power. It is a condition that encompasses both why a decision is made under a statute as well as how it is made.
(i)the implication of conditions proceeds on the assumption that Parliament is aware of the common law and its notions of justice and fairness and, unless set aside expressly or by necessary implication, intends that those notions will apply;[63]
[63] [2013] HCA 18 at [26] referring to Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 258-259; [11]-[13] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ
(ii)s 75(v) of the Commonwealth of Australia Constitution Act (Constitution) ensures that denial of procedural fairness by an officer of the Commonwealth, and so an administrative decision-maker, may result in a decision made in excess of jurisdiction for which an order of prohibition may be made.[64]
[64] [2013] HCA 18 at [57] per Hayne, Kiefel and Bell JJ
(3)Implied conditions may be excluded by the specific terms of the legislation but the terms of the exclusion must be closely analysed to decide the extent of the exclusion.[65]
(4)The formulation of reasonableness by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[66] (Wednesbury) is neither the starting nor the end point for a consideration of what is unreasonable when making a decision of either a substantive or procedural character and is:[67]
(a)not limited by considerations of whether a decision is so unreasonable that no reasonable person could have arrived at it;[68]
(b)evident in more specific errors going to jurisdiction, which the law recognises, such as:
(i)an administrative decision-maker’s misdirecting him or herself as to the operation of the relevant legislation or failing to take into account relevant considerations;[69]
(ii)failing to give adequate weight to a relevant consideration or giving too much weight or reasoning illogically or irrationally;[70]
(iii)reaching a decision that lacks an evident and intelligible justification; or[71]
(iv)reaching a decision that exceeds what, on any view, is necessary for the purpose it serves.[72]
[65] [2013] HCA 18 at [[55] per Hayne, Kiefel and Bell JJ
[66] [1948] 1 KB 223
[67] [2013] HCA 18 at [26]-[28] and [68] per Hayne, Kiefel and Bell JJ
[68] [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ
[69] [2013] HCA 18 at [26] per French CJ and [71] per Hayne, Kiefel and Bell JJ
[70] [2013] HCA 18 at [72] per Hayne, Kiefel and Bell JJ
[71] [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ
[72] [2013] HCA 18 at [30] per French CJ and [73]-[74] per Hayne, Kiefel and Bell JJ
C. The Tribunal’s role on review
Within the wider boundaries of the Migration Act, s 499 permits the Minister to determine the weight that will be given to the various considerations to be taken into account in reaching a decision under, in this case, s 501. Even when the Minister has done so and the Tribunal is bound to have regard to it, its role:
“… is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[73]
The Tribunal must consider matters set out in any direction and follow it in considering the particular circumstances of a visa holder and coming to a decision. If it were to be in conflict with the Migration Act, the Migration Act must prevail. This is recognised in s 499(2) of the Migration Act. If the Direction were to be in conflict with the implied conditions of unreasonableness, it would have to give way so that the Tribunal makes a decision that will, in law, be regarded as reasonable. Therefore, the Tribunal will have to have regard to principles of the sort set out by the High Court in Minister for Immigration and Citizenship v Li.
MINISTER’S DIRECTION UNDER SECTION 499 OF MIGRATION ACT
[73] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590, 70 per Bowen CJ and Deane J
Outline of Direction
The Minister issued directions under s 499 on 25 July 2012 in relation to visa refusal and cancellation under s 501 of the Migration Act. It is “Direction no. 55 – Visa refusal and cancellation under s 501” (Direction). The Tribunal must comply with the Direction but the Direction does not require a particular outcome in a particular case.
Paragraph 6.1(1) of the Direction states that the objective of the Migration Act is to regulate, in the national interest, the entry into, and presence in, Australia of non-citizens. Under the heading of “General Guidance”, the Direction states:
“The Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[74]
[74] Direction; cl 6.2(1)
Clause 6.3 sets out principles guiding the exercise of the power. They include the following:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disable, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
Clause 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.”
Clause 8 separates those who are already visa holders and those who are applying for visas. Mr Liang is a visa holder. Therefore, the considerations set out in Part A of the Direction are those that are relevant. In applying those considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Clause 8(3) provides that “Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.” Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[75]
CONSIDERATION
Challenge to applicability of the Direction
[75] Direction; cll 8(4) and (5)
A. The submissions
Mr Piesse very properly drew my attention to the originating application for review lodged in the Federal Court in relation to the Tribunal’s decision in Re Jagroop and Minister for Immigration and Citizenship[76] (Jagroop). One of the grounds on which the application has been made is that the Tribunal made a jurisdictional error when it decided that it must comply with the Minister’s Direction being Direction No. 55 dated 28 July 2012 and made under s 499 of the Migration Act. That Direction was made by the Honourable Christopher Bowen when he was Minister but, on 4 February 2013, the Governor-General revoked his appointment as Minister. In his place, she appointed the Honourable Brendan O’Connor as Minister. The case of Jagroop is listed for hearing in the Federal Court in October 2013. In another case and if it were known that the issue remains in dispute in Jagroop, it may have been appropriate to wait for judgment to be delivered in that case so that I had an authoritative statement of the law to apply. This is, however, a case in which I will be deemed to have affirmed the Minister’s decision if I do not complete the review by a date later this month. Therefore, I must consider the issue, which has very properly been raised by Mr Liang’s legal representatives.
[76] [2013] AATA 237; Senior Member Fice
Although not expressly stated, it would seem that the argument supporting the argument that the Direction has no relevance in this case is that a Direction made by a Minister under s 499 ceases upon the revocation or cessation of his or her appointment. Unless made by and under the hand of the incoming Minister, the Direction has no application. Mr Piesse understood that to be the argument that is put in Jagroop and he put it on behalf of Mr Liang. Ms Wende submitted that the continuing operation of the Direction was not dependent upon the identity of the person occupying the position of Minister; simply upon the fact that they had been made by a person occupying that position. She referred to s 20 of the Acts Interpretation Act 1901 (AI Act), the Privy Council case of Wiseman v Canterbury Bye-Products Co Ltd[77] (Wiseman) and to [12.14] of Delegated Legislation in Australia by Emeritus Professor Dennis Pearce and Stephen Argument[78] when they wrote:
“ The office of some subordinate legislation makers will continue in existence effectively forever, for example, a Governor-in-Council. However, ministerial portfolios change names, local authorities are amalgamated and statutory authorities are abolished. The question then arises of what is to happen to delegated legislation they have made. The answer was provided by the Privy Council in Wiseman v Canterbury Bye-Products Co Ltd [1983] 2 AC 685. It said that delegated legislation properly made by a statutory authority continues in force notwithstanding any change in the person or body constituting the authority unless the enabling statute provides otherwise. This is an important ruling, as it maintains on foot legislative instruments that have been made by a subordinate legislation maker even though that office no longer exists.
Regard should also be paid to the various (and differing) provisions in the Interpretation Acts of each jurisdiction relating to the meaning of expressions ‘Minister’ and ‘Department’. Relevant also is the provision that states that a reference to the holder of an office means the holder for the time being of that office, including a person acting in it.[79]”
[77] [1983] 2 AC 685
[78] 4th edition, 2012, Lexis Nexis Butterworths
[79] “Cth s 20; …”
In subsequent written submissions received on Friday evening,
Ms Wende referred also to s 19 of the AI Act which provides:“Where in an Act any Minister is referred to, such reference shall be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister.”
The Tribunal’s obligation under s 499(3) of the Migration Act is to comply with directions validly made under s 499(1). The Direction was validly made.
B. Consideration
B.1 May the Tribunal consider the submissions?
The answer to the question I have posed is found in the following passage from the judgment of Weinberg J in Saitta Pty Ltd v Commonwealth[80] (Saitta) when he considered whether a challenge could be made to the validity of the Accreditation Grant Principles for 1998 and the Accreditation Grant Principles for 1999 made by the Minister of State for Health and Aged Care under s 96-1 of the Aged Care Act 1997. His Honour said of the Principles:
“ The AAT is able to decide questions of law arising in proceedings before it – Administrative Appeals Tribunal Act 1975 (Cth), s 42. Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so. Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened – Re Adams and Tax Agents’ Board (1976) 12 ALR 239 at 245 per Brennan J. The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so - Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 and Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323 at 335-341.”[81]
[80] [2000] FCA 1546; (2000) 106 FCR 554
[81] [2000] FCA 1546; (2000) 106 FCR 554 at [103]; 575
Although entirely different in substance, the Direction made under s 499 of the Migration Act is in no different position from the Principles. While Saitta considered a challenge to the validity of the Principles and the challenge in this case is made to their applicability, both challenges raise legal issues as to the valid operation of each. In Saitta, the challenge was a general challenge but in this case the challenge relates only to a particular time i.e. the time after Mr Bowen had ceased to hold the office of Minister and Mr O’Connor had been appointed. The principles stated by Weinberg J in Saitta are equally applicable in this case.
B.2 Are the Directions applicable?
In answering this question, I have started with s 64 of the Constitution. It provides:
“The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.”[82]
[82] The number of Ministers is determined by s 65 of the Constitution as varied by Parliament in the Ministers of State Act 1952, s 4.
The mechanism by which the Governor-General appoints those officers takes the form of an Administrative Arrangements Order (AAO). While particulars relating to the names of the various Departments of State vary as does the legislation each administers, the opening words remain constant. After referring to the fact that she is acting on the advice of the Federal Executive Council and revoking all administrative arrangements previously made, each AAO then provides:
“1. The matters dealt with by a Department of State include:
(a)the matters referred to in the Part of the Schedule relating to that Department; and
(b)matters arising under the legislation administered by a Minister of State administering the Department.
2.The legislation administered by a Department of State administering a Department is:
(a)the legislation referred to in the Part of the Schedule relating to that Department; and
(b)legislation passed before or after the date of this Order, that relates to a matter dealt with by the Department, not being legislation referred to in another Part of the Schedule.”
It is apparent from the drafting of the AAO that it distributes executive power and responsibility by reference to the position of Minister rather than by reference to the person who is appointed to that position. That suggests that there is intended to be a continuity in the administration of the Departments of State regardless of the identity of the person who is appointed to undertake that administration.
Sections 19 to 19BC of the AI Act are drafted in terms that are compatible with the notion that there must be administrative continuity of this sort. Section 19 deems a reference to the Minister to include a reference to another Minister or member of the Executive Council acting in his or her place. That is a situation in which the substantive occupant of the position of Minister remains constant. Sections 19A to 19BC provide for variety of more complex administrative arrangements and provide the rules for determining the Minister or Department to which a particular enactment is referring. Those arrangements include, for example, situations in which two or more Ministers administer a provision,[83] the position of a particular Minister has been abolished[84] and where references to the Minister are inconsistent with the AAO.[85] Section 19BD ensures that a power is not exercised, or a function or duty is not performed, invalidly by a Minister merely because the power, function or duty is conferred or imposed on a Minister other than the Minister exercising or performing it.
[83] AI Act; s 19A(1)
[84] AI Act; s 19B
[85] AI Act; s 19BA
That brings me to s 20 of the AI Act. It provides:
“Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall be deemed to include all persons who at any time hold or occupy for the time being, or perform for the time being the duties of, the office or position.”
Ms Wende has submitted that this provision is broad enough to apply to Ministers of State. That would seem to be the view of the authors of Delegated Legislation in Australia in [12.14] that I have set out at [59]above. At first sight, it might be thought that a Minister is not an “officer” for, in provisions such as s 19C, the AI Act makes separate reference to a Minister and an office holder or officer.[86] Regard must, however, be had to s 21(1)(a) of the AI Act. It provides that, in any Act and so in the AI Act itself, “references to any officer or office shall be construed as references to such officer or office in and for the Commonwealth”. While s 21(2) provides that the word “office” includes a position occupied by an APS employee and the word “officer” includes an APS employee, it is written in terms of inclusion rather than as an exhaustive definition of the term.
[86] Section 19C deals with references in an agreement to a Department, Minister, officer of body when, after the date of the agreement, the functions of the Department of State in relation to the administration of matters to which the agreement relates are, or have been, allotted to another Department. Section 19(1) provides: “(a)any reference in the agreement to a Minister administering the former Department shall be read as a reference to a Minister administering the new Department or to a member of the Executive Council acting for the time being for him and on his behalf; (b) any reference in the agreement to an officer or body of persons shall be read as a reference to:(i) any other officer or body for the time being exercising the powers or performing the functions of the first-mentioned officer or body; or (ii) an officer or body specified, by order, by a Minister administering the new Department.” Section 19C(2) provides that “In this section: officer includes an APS employee.”
Apart from s 21(1)(a), there is no other reference to an “officer … in and for the Commonwealth” in the AI Act. A “Minister” means one of the Ministers of State for the Commonwealth.[87] That takes me back to the Constitution where reference is made to an “officer of the Commonwealth” on three occasions. They are found in:
[87] AI Act; s 2B
(1)section 51(xxxix)
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
…
(xxxix)matters incidental to the execution of any power vested by this Constitution in … any department or officer of the Commonwealth.”[88]
[88] Constitution; s 51(xxxix)
(2) section 75(v)
“In all matters:
…
(v)in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
(3) section 97
Until Parliament provided otherwise, the laws in force in any Colony which became a State with respect to revenue and audit were to apply as if references to the Colony, or to the Government or an officer of the Colony were a reference to “… the Commonwealth, of the Government or an officer of the Commonwealth …”.
As s 64 had clearly provided for the Governor-General to appoint “officers to administer such departments of State” as he or she might establish as Governor-General in Council and each was to be a Minister, it is clear that each was an “officer of the Commonwealth” in whom the Constitution vested power. Each was a person to whom reference is made in ss 51(xxxix), 75(v) and 97 of the Constitution.
Despite the separate treatment of Ministers and officers in s 19C of the AI Act, it seems to me that s 21 is drafted in broad terms to capture both those who hold an office established by the Constitution and those who hold an office established otherwise than by the Constitution. Therefore, a reference to the Minister in the Migration Act includes “… all persons who at any time hold or occupy for the time being, or perform for the time being the duties of, the office ….”.
Since JC was decided in 2008, the RRT’s Country Advice on Hong Kong was issued on 1 March 2010. It included references to the evidence in JC as well as to evidence of the Home Office in 2009 and reports of the UK Home Office. Paragraph 1 of the guidance note to the case of JC was reproduced but without the modification made to [(d)] of that note by the later case of YF.[134] Reference was made to three cases considered in JC:
“a) In 1990, Ning Hong was convicted of causing serious injury to another Chinese citizen in Kuwait in 1990 and sentenced to imprisonment (the term is unknown). A few months later, Iraq invaded Kuwait. The prison was attacked. Ning escaped and returned to China. After his return, he was identified by the person he attacked. The victim called the police and Ning was subsequently arrested, re-prosecuted, and re-convicted for the same offence in China. …
b) In June 1996, the Shandong PSB [Public Security Bureau] was considering investigating the criminal responsibility of a returned Chinese citizen (Yao Weiye) who had committed a crime and had been tried and punished by a court in Ukraine. However, the prison term the citizen had served overseas might be taken into account by the Chinese authorities as a mitigating factor in determining his punishment. There is no further information as to how this case was handled eventually but the question of re-prosecution was at least considered. …
c) In July 2001, a news article identified the case of Lin Xuecheng, convicted in the United States of smuggling more than 60 illegal immigrants to the United States, tried, and sentenced to 30 months imprisonment. He served his sentence and returned to China; upon his return, he was arrested by the Local Procuratorate. Again, the final outcome of this case is unknown. …”[135]
[134] Exhibit C at 98
[135] Exhibit C at 99
The UK Tribunal in YF later referred to a further case which it described at [89] of its reasons for decision:
“As already stated in JC the Tribunal found, having analysed a great deal of evidence and researches of several experts, that only one case was a genuine double jeopardy or a reprosecution case. There was also the case of Mr Yong …. He was convicted of trafficking illegal drugs to Japan and was sentenced to 5 years’ imprisonment. On release in late February 2007 he was ‘handled in accordance with relevant legal rules’ by the authorities at the Shanghai border. Dr Gechlik did not know whether that included re-prosecution.”[136]
[136] Exhibit C at 131
The opinion that had been obtained on Mr Liang’s behalf referred to the case of Zhigang Zhang and Jingyan Cui who had, for payment, smuggled two people on board a ship on which they were sailors. They fed the stowaways and provided clothing but one died of cold while the ship sailed to Japan. The ship arrived on 3 February 1998 and the Japanese authorities detained Zhigang Zhang and Jingyan Cui in custody. In June 1998, those authorities deported them back to China where they were prosecuted for illegally and stealthily transporting others across the border. They were each sentenced to seven years’ imprisonment and fined. There is no suggestion in the report that Zhigang Zhang and Jingyan Cui were charged and convicted in Japan. The relatively brief period between the commission of the offence in February and their deportation from Japan in June of the same year gives some weight to the suggestion that they were not. Whether convicted in Japan or not, the offence was, under Chinese law, committed in its territory for the ship was a Chinese registered ship. This is not a case in which Article 10 has any application.[137]
[137] Exhibit C at 32-33
An earlier information paper prepared by the Information Office of the State Council of the PRC is entitled “Narcotics Control in China”.[138] Chapter III was entitled “Cracking Down on Drug-related Crimes”. The following extracts give a flavour of the chapter:
“China’s anti-drug law enforcement organs enforce the law strictly and are waging a fierce battle against all drug-related activities, administering merciless punishment to those involved in such activities.
In China, drugs mainly come from other countries, and the Chinese government has done its best to ban transit drug trafficking. … For many years China’s law enforcement organs have consistently adopted a highhanded policy in dealing with drug-related criminal activities and struck heavy blows at the overweening arrogance of the drug-related culprits both at home and abroad.”
[138] Exhibit C at 125-134
On 21 January 2013, Mr Meng Jianzhu, a State Councillor and Commissioner of the National Narcotics Control Commission of China (NNCC) underlined the importance that China places on its war against drugs.[139] The Preface to the Annual Report on Drug Control in China emphasised that “Great impetus had been given to drug law enforcement to restrain the spread of drug crimes.”[140]
[139] Exhibit C at 135
[140] Exhibit C at 136
The Treaty on Extradition between Australia and the PRC entered on
6 September 2007 seems to not yet be in force.[141] Article 3 provides that extradition shall be refused if, in accordance with the law of the Requesting Party, the person may be sentenced to death for the offence for which extradition is requested unless the Requesting Party undertakes that the death penalty will not be imposed or, if imposed, will not be carried out. Article 5 sets out discretionary grounds on which a request for extradition may be refused.[141] [2007] ATNIF 26; Exhibit C at 54-60
The Treaty between Australia and the PRC on Mutual Legal Assistance in Criminal Matters signed on 3 April 2006 is in force.[142] It provides for the two to assist each other by, for example, taking evidence or statements from persons or providing documents, locating persons, executing requests for search and seizure and notifying results of criminal proceedings and supplying criminal records.[143] As
Mr Liang did not ask that details of his charges and convictions not be given to China, it was the parties’ understanding that details would have been given.[142] [2007] ATS 21; Exhibit C at 34-43
[143] Article 1.3; Exhibit C at 34
E.Does the material give rise to Australia’s non-refoulment obligations?
The harm that Mr Liang fears is torture, degrading treatment and capital punishment were he to be returned to China and charged and ultimately convicted of offences arising out of the course of conduct that led to his being charged and convicted in Australia. Treatment of that sort comes within the description of “significant harm” and in 9.4(3)(b) of the Direction. The parties are not in disagreement on this aspect of the matter and I am satisfied on the material that I have that there are substantial grounds for believing that, if convicted, there is a real risk that Mr Liang would suffer significant harm.
The question is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed to China, there is a real risk of Mr Liang’s suffering significant harm of that sort. The answer hinges on whether there is a real risk that he would be prosecuted in relation to his activities in relation to illegal drugs. Articles 7 and 10 of the Criminal Law of the PRC makes it clear that the PRC considers that its judicial power extends to offences committed both inside and outside its geographical borders and in respect of offences for which a Chinese national has already been convicted and sentenced in a foreign country. Claiming power to prosecute and exercising that power are two different things and I have looked to the material to which I have been referred to ascertain the risk of its being exercised.
The material whose flavour I have tried to reproduce in the preceding section of these reasons gives mixed responses to the question. Throughout the material, there is a reference to the difficulties that overseas agencies have in obtaining information about what happens in China’s legal and prison systems. Absence of information does not necessarily lead to the conclusion that events have happened or that they have not but the very absence of information may itself be a relevant factor in assessing whether there is a real risk that Mr Liang may face prosecution on his return to China and so face the treatment to which I have referred in the preceding paragraph.
Against a background of the difficulties of obtaining information, the Australian authorities, which include DFAT, the RRT and the Department’s own resources preparing the ITOA, report that there are no recorded incidents of cases in which a Chinese national has been prosecuted in China in relation to offences arising from events for which he or she has already been convicted in a foreign country and served the sentence. The cases decided by the UK Tribunal record only one case in which China could be said to have retried a Chinese national for an offence committed in Kuwait and for which the offender had been convicted and sentenced in Kuwait. That is consistent with the sovereignty China claims in respect of its nationals. It might be argued that the offender was not jeopardised by China’s actions because he had not served his entire sentence in Kuwait when he was released during Iraq’s invasion of Kuwait.
As well as reading these reports in the context of lack of information, I must also read them in light of further information that is emerging over time. The information of particular relevance is the PRC’s government’s attitude to drugs. Its attitude is reflected in Article 347 of the PRC’s Criminal Law when it provides a sentence of fixed-term imprisonment of fifteen years, life imprisonment or death and, concurrently, confiscation of property for, among other offences, smuggling, trafficking in, transporting or producing any drug of large quantity or taking part in organised international drug activities. The material shows an increasing emphasis by the government of the PRC on reducing drug trafficking and drug use. I have not set out the reports regarding arrests in various areas of China but they seem focused on people in China at the time of the arrests with respect of drug related offences occurring in China.
In 2011 in YF, the UK Tribunal modified the guidelines established in the earlier case of JC but did not alter the conclusion in JC that the risk of prosecution or reprosecution of its returning nationals under Articles 7 and 10 of the PRC’s Criminal Law is discretionary and extremely rare. It did not alter the conclusion that, whether or not that prosecution or reprosecution would take place would be a question of fact in individual cases. The UK Tribunal in JC had set out five factors that would influence the making of that decision but, in YF, modified that relating to political factors increasing the likelihood of prosecution or reprosecution. The modification related to the importance which the government of PRC may attach to its “cracking down on drug offenders”. That may be a relevant factor but so too may the identity of Big Brother. If it were to be the case that he were well-known, at least to the authorities, connected with corruption or if there were political connections of some sort, those would be relevant factors in light of the guidelines set out in JC as modified by YH.
The fact that information about the issues is very difficult to obtain from China makes me cautious about discounting the risks of significant harm that may attend Mr Liang’s returning to China as a consequence of his behaviour in Australia. There is, however, information about other types of cases where Chinese nationals have been prosecuted on their return to China. That dispels my caution in this case. Taking all of the information into account and having regard only to the matters in relation to which Mr Liang was convicted, I have concluded that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of Mr Liang’s returning to China, there is a real risk that he will suffer significant harm of the sort I have identified.
That is not an end of the matter. The offences for which Mr Liang was convicted had an overseas context but he was not convicted in relation to events that happened overseas. At the same time, the sentencing remarks and the judgment of the Court of Appeal in relation to his sentence on the first indictment relating to cocaine make it clear that Mr Liang travelled to China and negotiated for the supply of drugs on Chinese soil. He was convicted of trafficking a marketable quantity which was an amount of 264.2 grams of pure cocaine. Article 347 speaks of a “drug of large quantity” and I have no material on which to determine whether an amount regarded as a traffickable amount of cocaine in Australia would fit the description. That is not the end of the matter, though. That amount was the amount in relation to which Mr Liang was charged in Australia but the Court of Appeal’s judgment makes it clear that his visit to China was not simply for the purchase of that amount of cocaine. The purpose of the visit to China was to put in place a source of supply on an ongoing basis. That raises the reference in Article 347 to taking “… part in organized international drug activities”. Just as a conviction for dealing in a drug of large quantity would expose Mr Liang to a “fixed-term imprisonment of fifteen years, life imprisonment or death and concurrently to confiscation of property”, so too would a conviction for his taking part in organised drug activities.
All but one of the cases to which reference has been made by the UK Tribunal are cases in which the PRC authorities have prosecuted Chinese nationals on their return to China for activities that have a connection with activities taking place in China or, in the case of a ship registered in China, deemed to part of that country. The only exception is that of the conviction in Kuwait. Given this information, the PRC’s increased focus on pursuing drug offenders and the fact that Mr Liang’s activities in China in relation to drug trafficking are documented and publicly available by means of the various judgments, I have reached the view that there are substantial grounds for believing that there is a real risk of Mr Liang’s suffering significant harm. That real risk will be as a necessary and foreseeable risk of his being removed from Australia.
Other considerations
Clause 10 of the Direction requires me to take any other relevant considerations into account. The Minister lists considerations that might be relevant in that context in cl 10(1). They are, but are not limited to:
“a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b)Impact on Australian business interests;
c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.”
There is no evidence relating to cl 10(1)(c) and I make no finding about the impact of a decision not to cancel Mr Liang’s visa on members of the Australian community. As for cl 10(1)(b) regarding the impact on Australian business interests, Mr Liang has yet to have any of his own. Mr Cheng does so and would very much like to train Mr Liang to take over his property development business. His children have displayed no interest in it. Mr Cheng did not indicate that he had any alternative plans for his business were Mr Liang not to remain in Australia. If Mr Liang were required to leave Australia, Mr and Mrs Cheng’s plans that he care for them in their old age would not come to fruition.
Putting aside possible criminal charges, if Mr Liang were required to return to China, he would be fluent in the language. Between his arrival in 2000 and his arrest in 2006, he had returned to China on six occasions and so must be regarded as familiar with its customs and ways. There are no barriers to his reintegration into China. His mother still lives there.
Conclusion
Mr Liang had only been in Australia some six years before he engaged in a course of behaviour that led to his being convicted of various offences relating to drug trafficking and money laundering. The quantities of drugs involved were not small and the money not insignificant. Before this time, Mr Liang had used recreational drugs but there is no suggestion that he has a drug addiction to drugs generally or to those in relation to which he was charged being cocaine, heroin and ice.
Mr Liang explains his behaviour by reference to his failed business dealings and his wish to hide the fact that he has lost his parents’ money as a result. He needed to make money. His statement refers to his being desperate and losing his normal judgment, being gullible, seduced by money and having his senses and normal morals deadened. They are consistent with the evidence of his more general behaviour at the time. That is evidence revealing him as a person who was seeking to impress others, and particularly Gloria, but who was not prepared to put in the hard work to make his own way. The money came easily to him through his parents in China both for his education and accommodation and for his travel. He did not display any maturity in how he spent it and, in particular, did not undertake proper, if any, research before embarking on his project to import DVDs or to purchase the beauty therapy business. His actions showed that he lacked any sense of responsibility or accountability to his parents for the funds they provided let alone any trust that they had placed in him by doing so. It was that same lack of responsibility that led to his so completely embracing the work that he was offered by Big Brother. He did not turn his mind to his responsibility to the community in which he was living. As a member of that community, he is entitled to pursue his own interests but not when the pursuit causes damage to the community of the sort that attends drug trafficking. Mr Liang gave no thought to that damage. That is behaviour that is not acceptable to the Australian community and it led him to committing crimes whose seriousness was reflected in the terms of imprisonment imposed on him.
In his favour, it can be said that Mr Liang accepted responsibility by pleading guilty to the offences but the evidence against him was clear. What is more important is his behaviour since the offences. I have made findings about that when considering the insight he has gained into the harm of his actions and the growing maturity he displayed in prison. He has been in positions of trust in the prison system and has assisted others. While in prison, he has taken the opportunities offered to him to gain skills. I have referred to matters of these sort in coming to the view that the risk of Mr Liang’s repeating his past offending behaviour is very low. In this context, I note that Mr Liang will be subject to parole until 11 April 2016 but I do not think that the level of risk of his reoffending is linked to his being on parole. Mr Liang has made an effort to turn his thinking and his consequent behaviour around and that is not dependent upon his being on parole.
While Mr Liang’s links to Australian citizens and permanent residents are few, they are very strong links. Mr and Mrs Cheng in particular want to maintain that link as does Mr Liang. They have treated him as part of their family in every way and want to provide guidance as well as accommodation and an entrée into the business of property development. I am satisfied that Mr Liang has reached a point where he will not only listen to guidance but has an understanding that he needs to seek it before pursuing his own propositions.
I have already set out my reasons for coming to the view that Australia’s non-refoulement obligations are raised in relation to Mr Liang. That on its own is not sufficient to determine the way in which I should exercise the discretion under s 501 of the Migration Act. It is one of the factors as the Direction makes provision for. Having regard to all of the factors, I have come to the view that the risk of future harm as a result of Mr Liang’s behaviour is at a level that is acceptable to the Australian community should he be permitted to remain in Australia. The risk of his reoffending is low for the reasons I have given. At the same time, it is a foreseeable consequence of his returning to China that there is a real risk that he will suffer significant harm. It could be said that this follows naturally from the choices that
Mr Liang made as a younger person but, if it were to follow, it would arise as a result of a course of conduct undertaken as part of his activities in Australia. That is a part of his life that I am satisfied arose from behaviour and values he has put behind him. In the circumstances, I have come to the view that the Australian community would tolerate that very low risk rather than exposing Mr Liang to a real risk of significant harm should he return to China.
For these reasons, I set aside the decision made by a delegate of the Minister on 7 March 2013 to cancel Mr Liang’s Class DE Subclass 881 Skilled – Australian sponsored Overseas Student visa under s 501 of the Migration Act 1958 and substitute a decision that the visa not be cancelled.
I certify that the one hundred and fifty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: …........[sgd]............................
Associate
Date of Hearing 4 June 2013
Date of Decision 12 June 2013
Counsel for the Applicant Ms Roz Germov
Mr Christopher PiesseMr Brendan Hartwick
Solicitor of the Applicant Ms Joy Popovska
Joy Popovska & Associates
Solicitor for the Respondent Ms Stephanie Wende
Sparke Helmore
“ The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … The meaning of the provision must be determined ‘by reference to the language of the instrument as a whole’ … In Commissioner for Railways (NSW) v Agalianos …, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed …” (citations omitted)
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