XMTQ and Minister for Home Affairs (Migration) - [2020] AATA 986

XMTQ and Minister for Home Affairs (Migration) [2020] AATA 986 (30 March 2020)

Division:GENERAL DIVISION
File Number(s): 2020/0214
Re:XMTQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member
Date of Decision: 30 March 2020
Date of Written Reasons: 28 April 2020
Place:Melbourne

The Tribunal sets aside the decision made by the delegate of the Respondent dated 16 December 2019 and in substitution decides not to refuse the Applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958 (Cth).

.........................[sgd]..........................................

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – refusal of visa on character grounds – where applicant does not pass the character test – whether there is another reason the visa should not be refused on character grounds – consideration of primary and other considerations – decision set aside and substituted

Legislation

Migration Act 1958

Cases

Chief Executive Officer of the Australian Customs Service v Karam (No. 2) [2013] NSWSC 33
Comptroller General of Customs v Haidary [2018] VCC 848
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hayes v Weller (1988) 50 SASR 182
Ibrahim and Minister for Home Affairs [2019] FCAFC 89
Minister for Home Affairs v Omar [2019] FCAFC 188
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303

Secondary Materials

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

28 April 2020

This is an expedited review of a decision by delegate of the respondent made on 16 December 2019 refusing the applicant’s application for a Bridging E (Class WE) visa (the “visa”) under section 501(1) of the Migration Act 1958 (the “Act”).
The hearing in this matter was held on 24 and 25 March 2020. The applicant was represented by Mr Dushan Nikolic, a lawyer with Carina Ford Immigration Lawyers. The respondent was represented by Ms Siran Nyabally, a lawyer with the Australian Government Solicitor.
On 30 March 2020 the Tribunal decided to set aside the decision under review. Set out below are the written reasons for the Tribunal’s decision.

BACKGROUND

The applicant is a 35-year-old Chinese citizen who arrived in Australia on 18 September 2011 as the holder of a Student (Temporary) (Class TU) visa (the “student visa”).
Following his arrival in Australia, the applicant did not take up his studies, but rather commenced work in various unskilled jobs including working as a removalist and also as a plasterer. The applicant claims that he had a genuine intent to take up his studies but was unable to do so for practical reasons.
The applicant’s student visa expired on 16 April 2012 and he remained in Australia without a visa until 20 June 2018. He continued to work in various unskilled jobs during this time.
The applicant commenced a relationship with his wife, Ms T, in around July 2015 and they were married on in December 2016. The applicant and his wife have two children, AW who is 3 years of age and JW who is 1 year of age.
On 20 June 2018 the applicant was granted a Bridging C (Class WC) visa (the “first bridging visa”) in connection with an application for a Protection (Class XA) (Subclass 866) visa (the “first protection visa application”). The applicant’s first protection visa application was refused, and his first bridging visa also ceased on 21 September 2018. At that point the applicant once again became an unlawful non-citizen.
The applicant has made two further attempts to secure a partner visa sponsored by his wife, but neither application was successful due to a condition of the applicant’s student visa which prevents him from making a valid application for an onshore partner visa unless there are compassionate or compelling circumstances.
In October 2019 the applicant was convicted of two offences in the County Court of Victoria in connection with a scheme to import a quantity of cigarettes. The applicant was sentenced to 22 months imprisonment, but in recognition of time served was released on a $200 good behaviour bond for 2 years.
On 10 October 2019 the applicant made a further application for a Protection (Class XA) (Subclass 866) visa (the “current protection visa application”). The applicant’s current protection visa application was also refused and that decision is presently the subject of a review before the Tribunal’s Migration and Refugee Division.
The applicant made his present bridging visa application in conjunction with his current protection visa application and it was also refused. It is that refusal decision which is now the subject of this review.

ISSUE

The Tribunal is satisfied that the applicant was sentenced to a total effective sentence of imprisonment of 22 months duration and that, as such, the applicant does not pass the character test as set out in section 501(6) of the Act on the basis of him having a substantial criminal record.
Therefore, the issue before the Tribunal is whether it should exercise its residual discretion to not refuse the visa under section 501(1) of the Act. In exercising its discretion, the Tribunal must have regard to all of the circumstances of the case and all relevant considerations in accordance with Direction No. 79, issued under section 499 of the Act (the “Direction”) including, in particular, those set out in Part B of the Direction.

CONSIDERATION

Paragraph 6 of the Preamble to the Direction sets out a number of principles that provide a framework within which decision-makers should approach their specific task. Those principles are:
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) 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.
(5) 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 period of 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.
(6) 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 should be allowed to come to, or remain permanently in, Australia.
(7) 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.
In deciding whether to refuse the visa, paragraph 11(1) of the Direction provides that the primary considerations are:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
The Direction provides that primary considerations should generally be given greater weight than the other considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]

Primary Considerations

[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.

Protection of the Australian community from criminal or other serious conduct

Paragraph 11.1 (1) of the Direction states:

When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should be non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the applicant’s conduct

Paragraph 11.1.1 (1) of the Direction provides that:

In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

a)The principle that, without limiting the range of offences that may be considered serious, violence and/or sexual crimes are viewed seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)The cumulative effect of repeated offending;

Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

In October 2019 the applicant was convicted in the County Court of Victoria of two offences, namely, attempting to possess tobacco products, knowing the goods were imported with the intention to defraud the Commonwealth; and dealing with money exceeding $100,000, reasonably suspected of being the proceeds of crime.
The offending related to the applicant’s role in a broader scheme to import cigarettes into Australia without the payment of appropriate customs duty.
The applicant was sentenced to 22 months imprisonment on the first charge and six months imprisonment on the second charge, to be served concurrently. On the day of the sentencing, the applicant had already been in custody for 485 days and the sentencing Judge ordered that the applicant be released from custody, subject to a $200 good behaviour bond for a period of two years. The applicant was also ordered to forfeit $160,000 in cash which were found to be the proceeds of crime.
The applicant’s representative contends in his written submissions that the offending is not “serious” for the purpose of the Direction on the basis that it does not involve violence or sexual conduct and was not otherwise inflicted on a woman, child or other vulnerable victim nor was it committed in immigration detention.
The applicant’s representative also submitted that the applicant’s offending should be viewed as involving a limited role in the broader importation scheme and related to the transportation of a smaller amount of cigarettes, not the full amount that was ultimately detected and that the applicant’s role did not extend to the actual importation nor the organisation of the shipment. The applicant was not the instigator of the broader scheme nor the principal offender.
The applicant’s representative also submitted that Corrections Victoria’s rating of the severity of the applicant’s offence was ‘low’ which further supports the conclusion that the applicant’s offending was less serious.
The respondent’s representative contends that the offending is objectively serious as it involves a customs offence which are inherently difficult to detect[2] and also because it is an offence with the effect of defrauding the Commonwealth with public revenue and health consequences and it therefore has a real and substantial impact on the Australian community. [3]
[2] The respondent referenced a number of cases in support of this contention including Hayes v Weller (1988) 50 SASR 182 and Comptroller General of Customs v Haidary [2018] VCC 848. The respondent also provided a number of articles in support of this contention.
[3] In support of this contention the respondent cited Chief Executive Officer of the Australian Customs Service v Karam (No. 2) [2013] NSWSC 33.
The respondent also contends that, notwithstanding the applicant’s limited role in the broader importation, that fact alone should not diminish the seriousness of the offending.
Having considered all of the material before it, the Tribunal finds that the applicant’s offending is serious.
Notwithstanding that the offending does not involve offending of a kind that the Direction explicitly references as being viewed seriously in paragraph 11.1.1 (1), the Tribunal is not satisfied that a proper construction of the Direction requires that a finding of serious offending is to be limited to the categories of offending expressly referred to that part of the Direction.
There is no question in the mind of the Tribunal that the offending involved a serious potential to defraud the Commonwealth of substantial revenue and that the nature of a customs offence of this kind is such that it must be viewed as being an offence against the Australian community at large, with potential significant revenue and also health consequences. There was also evidence before the Tribunal in relation to the lucrative nature of the illegal importation trade in Australia and also its association with broader organised criminal activity, which further supports the conclusion that this type of offending is serious.
The Tribunal forms its view in relation to the seriousness of the offending not because of the prevalence of the offending nor the difficulty of detection as contended by the respondent, but rather because of the significant consequences that may flow to the Australian community from the type of offending in which the applicant engaged. The Tribunal forms this view also acknowledging the low severity rating of Corrections Victoria.
In his direct evidence to the Tribunal, the applicant acknowledged the seriousness of his offending. The applicant told the Tribunal that he was deeply remorseful for his offending and acknowledged that it had a “very bad” impact on his family and community in general. In his evidence to the Tribunal the applicant accepted that he was fully responsible for his offending and in the view of the Tribunal did not seek to diminish or deflect his criminal conduct in any way.
In addition, it was clear on the evidence that the applicant had assisted police in relation to the execution of the warrant at his property which facilitated their investigations more broadly. The applicant had also proactively directed police to the location of the cash left with him by his co-accused. The applicant also made full admissions and entered a plea of guilty to the charges at an early stage.
The Tribunal accepts that the applicant had a more limited role than others involved in the importation scheme and was at the lower end of culpability. However, the applicant did, nonetheless, play an important role in the scheme and one which was necessary in order to facilitate the broader importation objective. This is further supported by the comments of the sentencing Judge as referred to in the respondent’s submissions, where the Judge states:
I accept that your offending was at the lower end of culpability; you played, however, a vital role in moving and holding the cigarettes, as well as holding the money.
The seriousness of the applicant’s offending is further reinforced by the relatively substantial sentence the applicant received for what was a first offence. The Tribunal forms this view acknowledging that the sentencing Judge released the applicant on a good behaviour bond on the basis that he had already been in custody for more than 12 months of the 22 month sentence. The Tribunal does not accept that this takes away from the significance of the 22 month sentence that was imposed for the offending.
The Tribunal now turns to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct in the future.
Paragraph 11.1.2 of the Direction provides that:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that 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 should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.

The Tribunal accepts the respondent’s contention that if the applicant were to reoffend again in a similar manner it would have the potential to cause significant harm to the Australian community at large including the potential for revenue and health impacts.
The representative of the applicant contends that the applicant is at the lowest possible risk of reoffending and cites the following factors in support of this conclusion:
(a)other than the applicant’s October 2019 convictions the applicant has not otherwise been convicted of any offence;
(b)the applicant has fully acknowledged his offending, demonstrated insight into his offending, acknowledged the harm caused by his offending and demonstrated genuine remorse for his offending;
(c)the applicant has not sought to hide his offending from the Department:
(d)the applicant has undertaken English courses and other educational courses while in prison;
(e)the applicant has been of good behaviour while in prison and detention and was assessed by Corrections Victoria as being of minimum risk;
(f)the applicant has the ongoing love and support of his wife as well as a broader friend network;
(g)the applicant has demonstrated a determination to not reoffend and is motivated by a desire to be there for his wife and family and also to avoid returning to prison or detention;
(h)the applicant has demonstrated a clear understanding of the serious consequences of any future reoffending both for himself personally and for his family;
(i)the applicant’s release on a good behaviour bond is indicative of an assessment of lower risk to the Australian community;
(j)any risk to the Australian community is limited by the fact that the visa being sought is a bridging visa which will only be valid for so long as it takes to complete the review of the applicant’s current protection visa application. The nature of the visa being sought is also relevant in the sense that it will involve conditions which require the applicant to attend periodically at a place and on a date of the Minister’s choosing.
The applicant also relied on the independent expert evidence of Mr Warren Simmons who concluded that the applicant was at extremely low risk of reoffending. In relation to Mr Simmons’ evidence, the representative for the applicant noted in particular that Mr Simmons had concluded that there was an absence of certain risk factors including antisocial personality disposition, substance abuse and criminal history.
The respondent contends that the risk of the applicant reoffending is unacceptable and the protection of the Australian community consideration should weigh heavily against the applicant. The respondent cites in support of this contention the following factors:
(a)the catalyst for the applicant’s offending was financial and the applicant’s financial circumstances have remained substantially unchanged;
(b)there is no evidence before the Tribunal of the applicant having undertaken programs of rehabilitation in the form of counselling or other “treatment”;
(c)the applicant’s unlawful residence in Australia is indicative of him having little regard for Australian laws;
The Tribunal accepts that the applicant has no criminal history other than the two offences for which he was convicted in 2019.
The Tribunal accepts that the applicant has demonstrated genuine insight into, and remorse for, his behaviour and a full recognition of the seriousness of his conduct, the harm he has caused and that he has taken responsibility for it.
In his direct evidence the applicant told the Tribunal that his previous behaviour had been selfish and he now wanted to put his family first. He told the Tribunal “I’m absolutely determined not to reoffend because of the impact on my family and the community”. The applicant told the Tribunal that he had had the opportunity to reflect on his offending and understood the very serious consequences that would flow to him if he were to ever reoffend again.
This conclusion is further supported by the comments of the sentencing Judge who accepted that the applicant was genuinely remorseful. It is further supported by the evidence, which the Tribunal accepts, of the applicant assisting police, his early admissions and his pleas of guilty to the charges at an early stage. In her sentencing comments, the sentencing Judge stated:
Your plea has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that. It has been submitted that your plea of guilty is consistent with having remorse for your conduct. In light of your ongoing cooperation with police and the time of your guilty plea, I accept that submission.
The Tribunal also accepts that the fact the applicant was released on a good behaviour bond is relevant to the sentencing Judge’s assessment of perceived risk of the applicant reoffending.
The Tribunal accepts that the applicant has not sought to hide his offending in his subsequent visa applications which further supports a conclusion that the applicant has accepted both the nature of his offending and his responsibility for it.
Tribunal accepts that the applicant has used his time in custody constructively including undertaking a number of courses that are relevant to his future employment opportunities. Importantly, there is no evidence of any significant adverse incidents involving the applicant during his time in either prison or detention. This is consistent with Corrections Victoria’s assessment of the applicant being of minimum risk.
The Tribunal also accepts that the applicant’s access to other rehabilitation type courses was limited due to language constraints and also a lack of courses relevant to the applicant’s offending.
The Tribunal accepts that the applicant has the benefit of the ongoing love and support of his wife and family and this in turn is an important protective factor against any further offending. This conclusion is consistent with the observations of the sentencing Judge in her remarks.
The applicant’s wife, Ms T, gave evidence to the Tribunal that she remains very committed to their marriage and to supporting the applicant both emotionally and financially. The Tribunal found the applicant’s wife to be very compelling witness and accepts her evidence in this respect.
There was also evidence of support being offered to the applicant from other friends. For example Ms T’s friend, Ms S gave evidence about her strong relationship with both Ms T and the applicant whom she considers to be “very close friends”. She told Tribunal that she was committed to doing all she could to help support the couple and their children into the future. She told the Tribunal that she was willing to help facilitate securing Ms T additional shifts at their joint workplace to enable her to earn extra money, although she acknowledged that this would only be practical if the applicant is released into the community and was in a position to look after AW (and also JW when he returns to Australia).
The Tribunal accepts the applicant’s evidence regarding his positive plans for the future. The applicant told the Tribunal that he very much regretted his behaviour and understood the impact it had on his family and was determined not reoffend so that he is able to be in the community to support his wife and family in the future. It was clear to the Tribunal that the fact the applicant had missed the birth of his son due to his incarceration had, as described by the applicant’s representative, a “profound” impact on the applicant and will serve as an ongoing reminder of his previous offending. The impression the Tribunal was left with having heard from the applicant directly was that he felt a sense of shame for what he had done and felt a strong obligation to do the right thing by his family in the future and to be a good role model. In his written statement dated 19 February 2020, the applicant stated that:
I remain committed to [Ms T]. If and when I am able to work in the future, I intend to support her and our children financially and emotionally for as long as we both may live. I understand that I may need to provide support from China, in the long run.
The applicant was also very clear in his evidence to the Tribunal that he fully understood the very significant consequences that would flow to him if he were released into the community and reoffended and was determined not to do so.
The Tribunal accepts the applicant’s representative’s contention that there is a reasonable basis for concluding that the circumstances of the applicant and his family are substantially different today than they were the time of his offending. While the Tribunal accepts that the applicant’s family continues to have financial pressures, until very recently, the applicant’s wife had taken up full-time employment and their financial position has improved as a consequence.
The Tribunal accepts that a number of days prior to the hearing the applicant’s wife had ceased work due to a need to remove her child from childcare as a consequence of the coronavirus. However, it was clear on the evidence that the applicant’s wife is committed to working and would recommence her work as soon as it was possible to do so. In addition, it was clear on the evidence that her capacity to work would be enhanced if the applicant was released back into the community and able to support her. The applicant’s wife also told the Tribunal that she had significant savings and was currently able to meet all of the family’s financial obligations.
The Tribunal accepts the evidence of consulting psychologist Mr Simmons who told Tribunal in his direct evidence that, in his view, the risk of the applicant reoffending again is extremely low although he acknowledged that a risk could not be ruled out entirely. Further, the Tribunal accepts Mr Simmons evidence regarding the absence of factors that are known to be involved in offending behaviour as well as the existence of positive factors including his strong relationship with his wife, his recognition of the seriousness of his offending and his recognition of the significant consequences that would flow to him if he engaged in further offending. The Tribunal also accepts Mr Simmons evidence that the applicant’s prior history of remaining in Australia unlawfully does not alter his assessment of the risk of the applicant engaging in further criminal offending.
The Tribunal accepts the applicant’s contention that the nature of the visa being sought by the applicant is relevant in the Tribunal’s assessment of risk in respect of the applicant reoffending.
The fact that the visa being sought by the applicant is a bridging visa means that the visa would only be valid for so long as it takes for applicant’s current protection visa application to be reviewed and therefore the length of time that the applicant would be in the community under the visa would be limited. The Tribunal accepts that this is another factor which reduces the likelihood of the applicant engaging in a repeat of the type of offending that he was convicted of in 2019. This conclusion is consistent with paragraph 11.1.2(3)(b)(iii) of the Direction which relevantly states:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
…ii the duration of the intended stay in Australia.
The Tribunal is satisfied that the limited duration of the visa is a material consideration in the overall assessment of risk of the applicant reoffending in a manner similar to his 2019 offences.
For these reasons, Tribunal is satisfied that the risk of the applicant reoffending again in a manner similar to his 2019 offences is extremely low.
The respondent also contends that the applicant’s history of visa non-compliance itself constitutes an example of serious conduct for the purpose of the Direction and that there remains a risk that the applicant, if released back into the community, would engage in such conduct again. The respondent cites a number of examples of this conduct including his failure to commence his studies initially, electing not to return to China or seek legal advice following the expiration of his visa, working in Australia while unlawful and also applying for a partner visa while in Australia contrary to his student visa conditions. The respondent also cites the applicant’s complicity in his migration agent’s action in lodging a false claim about the applicant’s involvement in a land dispute in support of his first protection visa application.
The applicant’s representative submitted that there was no basis for concluding that the applicant’s history of visa non-compliance itself amounts to serious conduct noting that no charges had been brought against the applicant in respect of this conduct and that the overstay of a visa was not, of itself, a criminal offence.
The Tribunal accepts the respondent’s contention that the applicant’s history of visa non-compliance amounts to serious conduct in its own right and that an assessment by the Tribunal of the risk of it being repeated is necessary in the exercise of its discretion.
In reaching this conclusion the Tribunal has been mindful of the fact that, on his own evidence, the applicant has accepted that he had remained in Australia unlawfully for approximately six years and did so knowingly. He has also conceded that he worked unlawfully during this period. There is no doubt in the mind of the Tribunal that ensuring compliance with Australian migration law is important in the protection of the Australian community and that the flouting of those laws has potentially serious consequences for the community including, undermining public confidence in the immigration system and also potentially exposing to members of the community to health or security risks.
The Tribunal does however accept that there were circumstances that mitigate, to some limited degree, the level of seriousness of the applicant’s conduct. More specifically, the Tribunal accepts that the applicant was experiencing very difficult financial circumstances during the period he remained unlawfully in Australia, which limited his capacity to be able to return to China. The Tribunal also accepts the applicant’s evidence that he felt an obligation to his family to remain in Australia in order to be able to repay the debt incurred by his family to facilitate his travel to Australia and that during the later period of his overstay he had felt an obligation to support his pregnant wife.
The Tribunal also accepts the applicant’s evidence that he had not intentionally sought to mislead authorities in the provision of information and that the land dispute claim made by his migration agent had occurred without his knowledge. He told the Tribunal that the migration agent had told him that he could get him a temporary visa to enable him to stay in Australia and care for his wife. He told the Tribunal that he had simply provided the agent with a copy of his passport and placed his faith in him. The Tribunal is satisfied there is no compelling evidence of a tendency of the applicant to be untruthful and the Tribunal found his evidence consistent and reliable and accepts his evidence in this regard.
The respondent contends that, although the applicant’s justifications for this behaviour may have been understandable and his intentions may be good, the Tribunal cannot be satisfied that the applicant will not engage in such behaviour again out of an attempt to ensure his family is provided for or in response to the family falling into further financial hardship or if some “other unfortunate circumstances beset them”.
The Tribunal accepts that it cannot be certain that the applicant would not engage in visa non-compliance again but is satisfied the risk of him doing so is low. There are a number of reasons for this conclusion.
First, the bridging visa is likely to be subject to conditions and any failure to meet those conditions would put the applicant at risk of returning to detention, almost certainly being repatriated to China and separated from his family. It is clear to the tribunal that this is an outcome the applicant is determined to avoid.
The Tribunal also accepts that the circumstances of the applicant’s family are significantly different to when he last overstayed his visa. Other than in very recent days, the applicant’s wife has been working and there is clear evidence of her capacity to secure even more work if he is released and able to care for AW (and also JW if he returns).
In addition, many of the protective factors relevant to the applicant’s risk of reoffending are relevant also to this risk assessment, although the Tribunal accepts that Mr Simmons’ evidence itself does not extend to this risk assessment. In particular, the Tribunal accepts that the applicant’s stated determination to be a better role model for his children and not be seen by them as a bad person is relevant to this risk assessment. As discussed above, the Tribunal is satisfied that his stated determination in this respect is genuine.
These conclusions are further supported by the direct evidence of the applicant himself and also his wife.
The applicant told Tribunal that that it was very difficult working without a visa as he was not able to do certain types of work and he doesn’t want to do it that way again. He told the Tribunal that he was determined to legalise his visa status as he now has a family to consider and he is determined not to let them down again. When asked directly whether he would return to China if his protection visa application was refused the applicant told Tribunal that he would. The applicant’s acceptance that he may have to return to China if his protection visa application is unsuccessful was clear throughout his evidence. He also told the Tribunal that he was committed to ensuring he met all of his visa conditions.
In addition, it was clear from the evidence of the applicant’s wife that she too was committed to ensuring that the applicant met all of his future visa conditions. When asked specifically how the Tribunal can be confident that the applicant would comply with visa conditions Ms T told the Tribunal “We have suffered. He has to obey or he will have to go back to China. It would be a disaster for the family and he would lose his chance to be with the children”.
Having heard the applicant directly, the Tribunal is satisfied that the applicant is acutely aware of the very serious consequence of him engaging in any further conduct that is inconsistent with Australian immigration law and is satisfied that his stated determination not to do so again is genuine.
For these reasons, the Tribunal is satisfied that the risk of the applicant repeating such conduct is low, although it accepts that the risk cannot be ruled out entirely.
For these reasons, the Tribunal is satisfied that the risk to the Australian community from the applicant reoffending or engaging in future serious conduct is not an unacceptable one. In forming this view the Tribunal has had regard to each of the principles in paragraph 11.1.2 of the Direction. However, given that there remains some level of risk, the Tribunal is satisfied that the protection of the Australian community consideration weighs in favour of affirming the decision under review, but not substantially so.
Best interests of minor children in Australia affected by the decision
There was considerable evidence before the Tribunal regarding the applicant’s children and the significant impact the Tribunal’s decision would have on them.
Both of the applicant’s children, AW age 3 and JW age 1, are Australian citizens. AW is currently living with the applicant’s wife, Ms T. JW is currently residing with the applicant’s mother-in-law in Hubei Province, China. JW relocated to China when he was about six months old. Both the applicant and Ms T made clear that their intention was for JW to return to Australia as soon as possible. They also made clear that, if the applicant is forced to return to China, it was their intention for the children to remain in Australia with Ms T. Ms T told the Tribunal that she has made a life for herself here in Australia and that she believed that the children would have better prospects in Australia, although she acknowledged that making that ultimate decision would be difficult.

The Tribunal accepts that the applicant has a genuine love and affection for both of his two children, although it was clear from the evidence that his relationship with JW is less established due to the applicant being in custody and also because JW is currently living in China. His connection to both children was supported by the evidence of a number of other witnesses, including Ms T and other friends.
The applicant told the Tribunal that JW had been born shortly after he went to prison and he described the huge emotional impact that missing JW’s birth has had on him. He told the Tribunal that he was not a responsible father at the time. The applicant told Tribunal that he has met JW face-to-face while in prison on a number of occasions. JW previously came to visit him in prison him on a weekly basis until he relocated to China. The applicant told the Tribunal that he asks about JW frequently and that he video chats with him every week. The Tribunal found the applicant’s evidence in relation to his connection to JW, notwithstanding the separation, to be very compelling.
The applicant told the Tribunal that he has a very strong and close relationship with his eldest son AW, who was born before he went to prison. He told the Tribunal that he had played an important role in AW’s upbringing before he went to prison and that he used to feed him in the night. The applicant told the Tribunal that following his incarceration, AW continued to visit him on a regular basis, together with Ms T. For the first year they would visit every week and for the second year they would visit fortnightly because of the costs involved. He told the Tribunal that since he has been in detention, they would visit every second or third week, due to his wife finding work exhausting and her need to rest, as well as their capacity to maintain contact by way of video call every night. The applicant told the Tribunal that very recently their face-to-face visits had ceased due to coronavirus constraints.
The applicant told the Tribunal that, if his bridging visa is granted, he will resume living with his wife and eldest son. This would also extend to include JW if his safe passage back to Australia can be arranged during the term of his visa. He told Tribunal that being released into the community would enable him to help support his wife including by looking after AW and also JW (if and when JW was able to return to Australia) and this, in turn, would help assist his wife to be able to work. He told the Tribunal that, even if that was for a short period, it would be very helpful to her.
The applicant told the Tribunal that he is committed to playing an important role in the lives of his two children and also to support Ms T in her efforts as a parent of the children. He made clear to the Tribunal that he remain committed to his relationship with Ms T and the children, even if he is forced to return to China. In his written statement dated 19 February 2020 the applicant stated:
My relationship with [Ms T] brings me happiness, even though things are difficult at the moment. Our two wonderful boys, [AW] and [JW], are very important to both of us. [Ms T] and I intend to stay committed to one another so that we can support them. I again confirm that I understand that I may need to support them from China, in the long run.
The Tribunal is satisfied that the applicant has a genuine desire and determination to do all he can to help support both of his children and also that the applicant has a capacity to make such a contribution if he were released back into the community and were able to remain in Australia, notwithstanding his prior offending.
There was no evidence before the Tribunal that the applicant’s offending has had a direct impact on his children other than the obvious impact flowing from his absence and his inability to be able to support them and their mother.
There was evidence before the Tribunal that the applicant’s wife Ms T had found caring for the two children by herself to be very difficult and that this was part of the reason for JW being relocated back to China.
In her evidence Ms T told the Tribunal that the applicant had a strong relationship with AW in particular and that, before he went to prison, he would assist in looking after him including feeding him and cuddling him and taking him out to the gardens and the shopping centre. Ms T told the Tribunal that she had made a significant effort to visit the applicant in prison and detention on a regular basis, although this had become less frequent more recently given the distance she was required to travel and the poor facilities. She told the Tribunal that she would call the applicant up to 3 times a day and also do video calls on a regular basis. She described how much AW loved visiting his father face-to-face, as it enabled them to cuddle and also play games. Ms T told Tribunal that the visitor centre is currently closed as a consequence of the coronavirus.
Ms T told the Tribunal that the applicant’s engagement with JW had been more difficult. She told the Tribunal that it makes her feel very sad and she feels sorry for JW, because he hasn’t seen his dad face-to-face, other than on a few occasions. She told the Tribunal that the applicant calls her mother to catch up with JW via video calls on a weekly basis, although she stated that she believed that JW had difficulty in understanding who the applicant is.
Ms T told the Tribunal that in the absence of the applicant it was very difficult for her to care for both children, because she was not able to work while caring for both at the same time. Ms T told the Tribunal that, if the applicant was able to be released back into the community and live with them, then he could look after AW (and JW when he returns to Australia) and she would then be able to work more and help pay the bills.
Ms T’s evidence was further supported by the evidence of her friend, Ms S. Ms S told Tribunal that she had known Ms T for more than 10 years and had watched her relationship with the applicant grow into a very strong and loving one. She told Tribunal that she had observed the applicant to have a very positive relationship with his children. Ms S told Tribunal that the applicant had maintained regular contact with AW through prison visits as well as by phone. She acknowledged that the applicant’s relationship with JW had been more limited but she told the Tribunal that he had made an effort to remain in contact with JW and that “he loves him very much” and maintains contact with JW by phone.
The Tribunal accepts that, in the event the applicant is denied his bridging visa and ultimately forced to return to China, the applicant would effectively be separated from his wife and eldest son, without the opportunity to say goodbye to them, outside of the detention environment. The Tribunal accepts that these circumstances would extend to JW also in the event that JW relocates back to Australia before the applicant’s protection visa application review is finally determined. In addition, the Tribunal accepts that if the applicant is denied a bridging visa it will be difficult for AW (and JW if he returns to Australia) to visit the applicant in detention until the coronavirus visiting constraints are lifted.
For these reasons, the Tribunal is satisfied that it is in the best interests of both AW and JW for the decision under review to be set aside.
The Tribunal’s conclusion with respect to the best interests of the children is mitigated to some degree by the limited nature of the applicant’s relationship with his children, due to his periods of absence and the more limited nature of the applicant’s relationship with JW.
The Tribunal has also been mindful of the possibility that the applicant might remain in Australia only for a very short period of time if the current decision under review were to be set aside, noting that the visa relevant to the Tribunal’s present decision is a bridging visa only.
Notwithstanding this, the Tribunal accepts that if the applicant were able to be released into the community and spend time with his eldest son (and potentially also JW if he returned to Australia in time) it has the potential to have a significant and positive impact on them. In addition, if the applicant is released back into the community and, as a consequence, is able to support his wife even for a limited period, this has the potential to have a significant impact on her, which in turn could benefit AW and potentially also JW, if he were to return to Australia in time.
For these reasons the Tribunal is satisfied that the best interests of minor children in Australia consideration weighs significantly against affirming the decision under review.

Expectations of the Australian community

Paragraph 11.3(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal accepts the contentions of both parties that the expectations of the Australian community consideration should be applied consistently with the plurality of Charlesworth and Stewart JJ in FYBR v Minister for Home Affairs [2019] FCAFC 185. Consistent with this, the Tribunal accepts that is not the task of the Tribunal to determine for itself the expectations of the Australian community, but rather to have due regard to the Government’s stated views as to the expectations of the Australian community, as set out in the Direction. Further, the task of the Tribunal is to determine the weight to be attached to this consideration.
The Tribunal has had careful regard to the Government’s stated views as set out in the Direction and in considering the weight to be given to this consideration is particularly mindful of its conclusion in relation to the applicant’s offending constituting serious offending which, if repeated, would have the potential for significant adverse consequences for the broader Australian community, including the potential for significant loss of revenue and also potential adverse health consequences. The Tribunal has also been mindful of the fact that the applicant demonstrated a disregard for Australian law in the form of his visa non-compliance and that any repeat of such conduct could have consequences for the community.
However, the Tribunal is also mindful of its conclusion that there is an extremely low risk of the applicant reoffending and a low risk of him repeating his previous behaviour of visa non-compliance.
In addition, the Tribunal has been particularly mindful of the fact that the visa the applicant is seeking to obtain is a bridging visa linked to his current protection visa review and, as such, will only be valid for a limited period of time. Given these circumstances, as well as the ongoing impact of the coronavirus which limits the applicant’s capacity for visits in detention and is also having an impact of the applicant’s wife’s capacity to work, the Tribunal is satisfied that there are reasonable grounds for giving this consideration less weighting in the present circumstances.
For these reasons, the Tribunal finds that the expectations of the Australian community consideration weighs in favour of affirming the decision under review but not substantially so.

Other Considerations

International non-refoulement obligations

The applicant claims that he is a person to whom Australia owes protection obligations for the purposes of section 36(2) and (3) of the Act, on the basis summarised in the applicant’s Statement of Facts, Issues and Contentions, namely, that:
(a)the criminal network that organised importation of the tobacco that was at the centre of the applicant’s offending will harm him if he is returned to China, because he cooperated with Australian authorities and handed over $100,000 cash (and the Chinese state cannot or will not protect him);
(b)the Chinese state will harm him by its imposition of its social credit system and/or by trying and convicting him again on the charges he has already faced in Australia.
As referred to earlier in these reasons, these claims are the subject of the applicant’s current protection visa application which is presently being reviewed by the Migration and Refugee Division of the Tribunal.
In addition, the applicant claims that he is a person to whom Australia owes international non-refoulement obligations under Article 3 of the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, which came into force on 26 June 1987 (the “CAT”). More specifically, as summarised in the applicant’s Statement of Facts, Issues and Contentions the applicant claims that:
(c)he will be subjected to cruel, inhumane or degrading treatment or punishment at the hands of members of the criminal syndicate he has been involved with (with the complicity of corrupt officials), contrary to Article 16 of the CAT; and
(d)he will be subjected to cruel, inhumane or degrading treatment or punishment at the hands of the Chinese state, contrary to Article 16 of the CAT, through his likely adverse interactions with China’s social credit system as a convicted criminal and, independently and relatedly, in respect of the prosecution (or risk of prosecution) he will endure in China’s criminal justice system regarding offences that occurred in Australia and for which he has already been convicted and punished in Australia.
Paragraph 12.1 of the Direction states as follows:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of whom the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under section 501 of the Act, or can be clear from the facts of the case (such as whether non-citizen is an applicant for a protection visa).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether there visa application should be refused.
(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them-sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizens criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application was refused, they would face the prospect of indefinite immigration detention.
The Tribunal accepts the contention put by the applicant’s representative that, while the applicant’s protection obligation claims under section 36 of the Act are being considered through a separate review process, the Tribunal must nonetheless consider the applicant’s claims in the context of Australia’s broader international non-refoulement obligations for the purpose of determining whether there is “another reason” why the decision under review should be set aside.[4]
[4] See Minister for Home Affairs v Omar [2019] FCAFC 188 and also Ibrahim and Minister for Home Affairs [2019] FCAFC 89.
Having regard to the applicant’s evidence presented to the Tribunal the applicant’s claims may be summarised in further detail as follows:
(a)The applicant had a connection to an organised crime syndicate involved in the importation of tobacco into Australia and which lost approximately $160,000 as a result of the applicant being arrested, charged and convicted. In addition, the applicant cooperated with the Australian authorities and, as a consequence, two other individuals associated with the syndicate faced subsequent criminal charges. It is reasonable to infer from these factual circumstances that the applicant is at risk of consequential harm at the hands of the organised crime syndicate and its broader network in China.
(b)The organised crime syndicate was known to have a network of contacts in China and that the risk faced by the applicant was enhanced as a consequence of the extent of Chinese corruption.
(c)In a written submission to the Department by the applicant’s lawyers dated 6 November 2019, it was stated that:
The scale of Chinese corruption is detailed in the Transparency International’s 2018 Corruption Perceptions Index and is referred to at paragraphs 2.40- 2.49 of the relevant DFAT Country Information Report China - 3 October 2019.
… China ranked 87 of 180 countries and territories measured by the Corruptions Perceptions Index, noting that the most “prevalent forms of corruption in China are bribery, diversion of public funds and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system”. Corruption is noted as being widespread in China.
(d)In addition, the applicant was at risk of adverse consequences at the hands of the Chinese government by reason of its social credit system and also the recognised risk of double jeopardy in China, which could result in further punishment for his Australian offending. The consequences of the Chinese social credit system may include the applicant experiencing difficulty in obtaining employment, housing and other social support services and also the applicant may be constrained in his capacity to relocate within China, which may in turn have further adverse consequences for him either in obtaining employment or in relation to the risk of retribution at the hands of the organised crime syndicate’s network.
(e)The applicant’s written submission dated 6 November 2019 states that:
This [Chinese social credit] system is based on principle of “once untrustworthy, always restricted” (see DFAT Report at 3.159-3173). Media reports that over 17.46 million “discredited” people were restricted from flying, 5.47 million were prohibited from purchasing train tickets and 8.8 million people had been placed on a blacklist for violation related to transferred or hidden assets or evading/resisting law enforcement. Given the Applicant’s criminal history he fears being placed on this blacklist and being unable to travel or obtain employment if returned to China making relocation impossible.

In his direct evidence to the Tribunal the applicant told the Tribunal that he believed he was at risk of harm at the hands of the organised crime syndicate or their broader networks in China.
The applicant told the Tribunal that his former boss in the syndicate had given him $160,000 in cash to facilitate syndicate’s activities and it was this cash that he had directed the authorities’ attention to when they executed the warrant on his home. As a consequence, the authorities took possession of the cash. The applicant told the Tribunal that his former boss left Australia in May 2018 and he understood he was now in China. When asked whether he was concerned that his former boss may seek to harm him if he were to relocate to China, the applicant said: “yes, because I gave his money to the police”. He told Tribunal: “He could track me down. He must have a network. He will ask for the money back or he will harm me”. The applicant told the Tribunal that he did not have the capacity to repay the money to his former boss. The applicant also told the Tribunal that he was concerned his co-accused might also seek to have him harmed, as he was charged with offences following the applicant’s arrest and is currently awaiting trial.
In relation to the potential consequences the applicant might suffer at the hands of the Chinese authorities themselves, the applicant told the Tribunal that his life in China would be very difficult because of his criminal record and that this would have an impact on his capacity to obtain work, to get a loan or to travel internally within China and that he might also be subjected to further punishment by the authorities due to his Australian offending.
When asked under cross-examination what he based his concerns regarding the Chinese authorities on, the applicant told the Tribunal that it was his opinion and that he had heard of other people’s experiences.
While the Tribunal is satisfied that there is some level of generic risk of the applicant being pursued by the organised crime syndicate or its networks in China, the Tribunal is not satisfied that the risk rises to a level that would trigger Australia’s international non- refoulement obligations under the CAT. More specifically, the Tribunal is not satisfied that there are substantial grounds for concluding that the applicant specifically is at real risk of torture at the hands of the syndicate or its networks if he is returned to China. While the underlying facts that the applicant relies on to support his claims of harm in this respect are not in contention, namely, that he was involved in the activities of the organised crime syndicate and that they lost a substantial amount of money and had criminal charges pursued against other members as a consequence of the applicant’s engagement with the Australian authorities, there was no compelling evidence before the Tribunal that any members of the syndicate or their networks have taken specific steps to pursue the applicant following his arrest. Nor was there any compelling evidence before the Tribunal in relation to the precise nature of the harm the applicant is at risk of suffering at the hands of the syndicate or its networks, other than vague references to physical harm.
Further, while the Tribunal accepts that there is a risk of adverse consequence to the applicant through the application of the Chinese government’s social credit system, it is not satisfied that the risk rises to a level that would trigger Australia’s international non-refoulement obligations under the CAT. Again, the Tribunal is not satisfied that there are substantial grounds for concluding that the applicant specifically is at real risk of torture at the hands of the Chinese authorities as a consequence of his Australian offending.
The Tribunal also accepts the practice of the Chinese social credit system as referenced in the DFAT Country Report and acknowledges the potential for Chinese citizens to be subjected to tracking by government authorities in relation to their financial, legal and social activities and the potential for the government authorities to affect the citizens freedom in relation to travel, employment and access to services including hotels, airports, financial institutions, housing and other social supports.
However, other than applicant’s own evidence, the evidence presented to the Tribunal in relation to the social credit system and the potential consequences someone such as the applicant could suffer was generic and not specific to the applicant’s actual circumstances. The applicant’s own evidence was also vague in detail and, he conceded, was based on his own opinion and what he had heard of other people’s experiences.
In addition, the Tribunal is not satisfied that the risk of harm posed to the applicant as a consequence of double jeopardy in China rises to a level that triggers Australia’s international non-refoulement obligations under the CAT. Based on the information before the Tribunal including, in particular the DFAT Country Report, the Tribunal is satisfied that Chinese citizens returning from abroad and who have been convicted of offences overseas have the potential to be punished again for the same offence upon their return to China in certain circumstances. However, again there was an absence of compelling evidence before the Tribunal in relation to the likelihood of further punishment and the likely extent of punishment in the applicant’s specific circumstances. Rather, the evidence that was presented to the Tribunal was in relation to a broad generic risk. Accordingly, the Tribunal is not satisfied that the risk faced by the applicant equates to substantial grounds for believing that the applicant specifically would be in danger of being subjected to further prosecution or punishment.
The Tribunal accepts the contention put by both parties that, in considering the weight to be given to this consideration, the Tribunal should have regard to the legal effect of a decision by the Tribunal in this matter.
The Tribunal is satisfied that in the event the decision under review is affirmed there will be no immediate legal obligation on Australian authorities to remove the applicant back to China. Rather, the legal effect of such a decision would be that the applicant would be subjected to ongoing immigration detention pending the final outcome of his current protection visa application review.
The Tribunal accepts that, in the event that the applicant’s current protection visa application review is unsuccessful, he would be subject to removal from Australia as soon as reasonably practicable, and consequently could be exposed to the broad generic risks of harm as identified above. While recognising this outcome as a possibility, the Tribunal has given it little weight due to the fact that it would be a consequence not of the decision presently before this Tribunal, but rather as a consequence of an independent decision in respect of the applicant’s current protection visa application review.
However, the Tribunal accepts that if the decision under review is affirmed, the applicant will be subjected to ongoing detention and would therefore be denied the opportunity to spend time with his family in the community and, in the current constraints imposed as a consequence of the coronavirus, he would have very limited, if any, face-to-face contact with his wife and eldest son. This could also extend to include his younger son if he were able to return to Australia before the final determination of the applicant’s current protection visa application review.
In addition, the Tribunal accepts that, to some limited degree, the applicant himself would be exposed to a heightened risk of contracting coronavirus while in detention. In reaching this conclusion the Tribunal relies on the post-hearing document provided by the respondent titled “COVID 19 health alert” issued by the Department of Health and dated 25 March 2020. Having formed this view the Tribunal also notes that the applicant is of a relatively young age and the Tribunal is not aware of any specific health concerns that would otherwise put him at a heightened risk of an adverse outcome as a consequence of contracting COVID 19, nor is it aware of any specific heightened risk profile in respect of the actual detention facility in which the applicant is located.
For these reasons, the Tribunal satisfied that this consideration weighs against affirming the decision under review, but only slightly so.

Impact on family members

There was considerable evidence before the Tribunal of the significant impact the applicant’s ongoing detention is having on his wife, Ms T.
The Tribunal is satisfied that the applicant and Ms T have a very strong and loving relationship and that the applicant’s absence due to his imprisonment and detention has had a very significant impact on her both emotionally and also in relation to her capacity to work while caring for the children. This conclusion is supported by the evidence of several witnesses including the applicant and Ms T, as well as Ms T’s friend, Ms S.
Ms T told the Tribunal that she loved her husband very much and that she finds it very difficult to accept that he is removed from her life at present. She told the Tribunal that she had maintained regular contact with the applicant during his time in prison. She said that initially she had been visiting him weekly but that changed to every 2 to 3 weeks due to the expense of visiting him, although when she did visit, she would stay for a very significant part of the day. Ms T told the Tribunal that since the applicant has been in immigration detention, she has continued to visit him every 2 to 3 weeks, but again this is been difficult because of the significant distance required to travel and also due to the poor facilities. She told the Tribunal that she speaks to the applicant up to 3 times a day and also does face time regularly. Ms T told the Tribunal that the visitor centre is currently closed due to constraints imposed as a result of the coronavirus.
Ms T told the Tribunal that she is currently very stressed and depressed as a consequence of her present circumstances and that she is seeing a psychologist to help care for her mental health. She told the Tribunal that it had been extremely stressful for her looking after AW and working at the same time to meet the financial needs of the family. Ms T told the Tribunal that this was part of the reason why JW had been relocated to China to live with her mother.
Ms T is a disability support worker. She told the Tribunal that, until very recently, she continued to work on weekdays and placed AW into childcare for the time she is at work. Ms T told the Tribunal that as of very recently, she has stopped working as she has had to stay at home to look after AW, because she has had to remove him from childcare due to the coronavirus. She told Tribunal that, if her husband was released back in the community, then he could look after AW and she would be able to do her work and potentially pick up additional shifts to help meet the family’s financial commitments. Ms T told Tribunal that things were difficult financially and she worries about her future financial security, although she currently had enough funds, including some significant savings, to help meet her bills. She told the Tribunal that she worries about getting sick or AW not being able to go back to childcare because of the coronavirus and the impact this may have on her working capacity.
Ms T also told the Tribunal that if JW were to return from China he may need to have a period of isolation and that it would be difficult to deal with that situation, but that if the applicant were back living with them he would be able to support her.
Ms T told the Tribunal that even if the period of the applicant’s remaining time in Australia was short, having him with her to help support her and care for AW in the present circumstances would have a big impact.
Ms T told the Tribunal and she also wanted to have the opportunity to be able to say goodbye to her husband in an orderly way outside of detention, that she desperately needed his emotional and practical support in looking after their eldest son and also in coping with day-to-day life, including managing her own health issues.
Ms T’s friend, Ms S also gave evidence regarding the impact the applicant’s current detention is having on Ms T. Ms S told the Tribunal that she had known Ms T for more than 10 years and gave evidence regarding the strength of a relationship with the applicant. She told Tribunal that Ms T had been “heartbroken” when the applicant was taken into custody and had found it very difficult to cope with the responsibilities of caring for her children while at the same time working to pay the mortgage and car loan.
Ms S, who is also a disability support worker who works with the same employer as Ms T, told the Tribunal that Ms T was a very valued employee but had been constrained in her capacity to take on further shifts because of her need to care for AW. She reinforced Ms T’s evidence that if the applicant were released into the community and was able to look after AW, then this would provide much-needed relief for Ms T and assist in her taking on further work to help meet the family’s financial obligations. Ms S also told the Tribunal that she would be willing to give up shifts in order to enable Ms T to take on additional work.
The Tribunal found the Ms T’s evidence extremely credible and compelling and is satisfied that the ongoing absence of her husband is having an extremely significant impact on her emotional well-being. There is no question in the mind of Tribunal that, even acknowledging that the applicant’s bridging visa would be for a limited period of time, the presence of the applicant in her life to support her emotionally and assist with caring for AW (and potentially also JW if he were to return to Australia) during the present time would be very significant.
For these reasons, the Tribunal is satisfied that this consideration weighs significantly against affirming the decision under review.

Impact on victims

There was no specific evidence before the Tribunal in relation to the impact a decision to grant the applicant the visa would have for the victims of the applicant’s criminal behaviour (or their family members) and therefore this consideration weighs neither for nor against the applicant.

Impact on Australian business interests

There was evidence that if the applicant were released back into the community and able to support his wife it would help facilitate her role as a disability support worker and that this would be helpful to her employer due to current strains they are experiencing as a consequence of a number of employees having left and also with anticipated pressures associated with the coronavirus. While the Tribunal accepts this evidence in relation to the applicant’s wife’s specific employer it is not satisfied that it can be accepted as evidence of an impact on Australian business interests more broadly. Accordingly, this consideration weighs neither for nor against the applicant.

Other

The applicant’s representative submitted that in making its decision, the Tribunal should have regard to the potential difficulties that the applicant will have to endure if he is forced to return to China. The applicant’s representative made particular reference to the potential risk the applicant may suffer due to the coronavirus.
There was no specific evidence presented to the Tribunal in relation to a comparative risk of the applicant contracting coronavirus in China compared to his risk in Australia, nor was there any specific evidence in relation to the applicant’s capacity to be able to access high quality health care in China, other than a reference to difficulty he may have in obtaining employment and being financially secure.
The Tribunal accepts that if the applicant is forced to return to China, he is likely to face challenges in the transition back into Chinese life. These challenges are likely to include difficulties in obtaining secure employment and an adverse emotional impact as a consequence of the likely separation from his family.
However, the Tribunal has afforded these factors no weight given that, as acknowledged in the consideration of international non-refoulement above, the legal effect of affirming the decision under review is for the applicant to be subjected to ongoing detention rather than a forced repatriation to China. Any forced repatriation would be the legal effect of the outcome of the applicant’s current protection visa application review and not the decision of this Tribunal.

CONCLUSION

The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in section 501(1) of the Act in accordance with the Direction.
For the reasons set out above, Tribunal is satisfied that the risk of the applicant reoffending is extremely low and the risk of the applicant engaging in further visa non-compliance is also low. However, as the applicant’s offending and other conduct has been serious and the risk cannot be ruled out entirely, the Tribunal accepts that the protection of the Australian community consideration weighs in favour of affirming the decision under review, although not substantially so.
Similarly, while the Tribunal is satisfied that the nature of the applicant’s previous offending and other conduct is such that the expectations of the Australian community weigh in favour of affirming the decision under review, having regard to the mitigating circumstances, the weighting in this respect is again not a substantial one.
Weighing against these considerations are the interests of minor children and the impact on the family, which the Tribunal is satisfied weigh significantly against affirming the decision under review. Notwithstanding that this matter involves a bridging visa which would have a limited duration, the Tribunal is satisfied that, if the decision under review was set aside and the applicant was able to be released into the community to live with his wife and eldest son (as well as JW if he returns to Australia), it would have a very significant and positive impact on them. This is especially true in relation to the applicant’s wife, who is clearly under significant emotional stress as a consequence of the present circumstances.
For the reasons set out above, the other considerations are of either neutral or marginal weighting.
On balance, the Tribunal is satisfied that the decision under review should be set aside.

DECISION

The Tribunal sets aside the decision made by the delegate of the Respondent dated 16 December 2019 and in substitution decides not to refuse the Applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..........................[sgd].......................................

Associate

Dated: 28 April 2020

Date of hearing:	24 & 25 March 2020
Advocate for the Applicant: Solicitors for the Applicant	Dushan Nikolic Carina Ford Immigration Lawyers
Advocate for the Respondent:	Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor