XRXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

XRXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5984 (23 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/6458
Re: XRXL
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Damien O’Donovan
Date:23 December 2019
Place:Sydney

The decision of the respondent made on 4 October 2019, is affirmed.
........................................................................
Senior Member Damien O’Donovan
MIGRATION – non-revocation of mandatory cancellation of visa –where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – strength nature and duration of ties –impediments to applicant if removed – risk of re-prosecution on return to China - decision under review affirmed
Migration Act 1958 (Cth)
Criminal Law of the People’s Republic of China, Article 10
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
JC and the Secretary of State for the Home Department [2008] UKAIT 00036
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YF and The Secretary of State for the Home Department [2011] UKUT 32
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 20 December 2018, commenced 28 February 2019)
Convention on the Rights of the Child, opened for signature on 20 November 1989, (entered in to force 2 September 1990) art 4
REASONS FOR DECISION
23 December 2019
INTRODUCTION

XRXL ('the applicant') was born in China on 13 December 1988. He arrived in Australia on 4 June 2005. He remains a Chinese national. Within a few years of arriving in Australia he had married and had a child, but he had also committed a number of criminal offences.
In 2010 he was convicted of cultivating a commercial quantity of cannabis and given a suspended sentence (the Cultivation Conviction). On 3 October 2015, he was convicted on 3 counts of intentionally importing prohibited goods including ephedrine and pseudoephedrine. He was sentenced to 6 years imprisonment with a non-parole period of three and a half years (the Importation Conviction). As a result of this sentence the applicant did not pass the character test specified in section 501 of the Migration Act 1958 (the Act).
On 28 March 2018, the applicant’s visa was mandatorily cancelled pursuant to section 501(3A). He was invited to make representations to the Minister for Home Affairs (as they were then known[1]) about revocation of that decision which he did.
[1] Now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
On 4 October 2019, the Minister’s delegate decided not to revoke the original decision under section 501CA. The delegate was not satisfied that there was another reason why the cancellation decision should be revoked. That decision which is the subject of this review. It is common ground that the applicant does not pass the character test. The question is whether there is another reason why the cancellation decision should be revoked.
APPLICATION TO THE TRIBUNAL
On 10 October 2019, the applicant's representative applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision of the delegate dated 4 October 2019.
G Documents were prepared by the respondent and filed with the Tribunal on 22 October 2019, which included all of the material before the delegate. Following the filing of the application, the applicant also filed:
(a)A tender bundle of material that I have taken in and refer to as the Applicant’s Tender Bundle, which included:
(i)An article on the impact of separation from a parent on brain development;
(ii)Extracts of the Criminal Law of the People’s Republic of China;
(iii)A decision of the UK Upper Tribunal – YF (double jeopardy – JC confirmed) China CG [2011] UKUT 32 (IAC);
(iv)An article from the Australian Border Force newsroom concerning the applicant headed ‘Sydney man sentenced to six years jail for importing precursor chemicals’;
(v)An article entitled ‘the NSW Intensive Drug and Alcohol Treatment Program (IDATP) and recidivism’;
(vi)School Certificates for the applicant’s daughter; and
(vii)A letter confirming the applicant’s attendance at church services in Villawood since April 2019.
(b)Two witness statements from the applicant;[2]
(c)A witness statement from the applicant’s wife;[3]
(d)A witness statement from the applicant’s half-sister;[4]
(e)A letter of support from the applicant’s sister-in-law;[5] and
(f)A witness statement from the applicant’s pastor.[6]
[2] Exhibit A2; Exhibit A3.
[3] Exhibit A4.
[4] Exhibit A5.
[5] Exhibit A6.
[6] Exhibit A1.
The respondent also filed a bundle of documents that I refer to as the Respondent’s Tender Bundle, which consisted of:
(g)Documents produced under summons by the Commissioner of Police (NSW);
(h)An extract from the United Nations Office on Drugs and Crime;
(i)The key findings of the National Drug Strategy Household Survey; and
(j)An Australian Department of Health report entitled ‘National Drug Strategy 2017-2026’.
A hearing was conducted on 11 December 2019. At the hearing the applicant and his wife gave evidence. He also called his pastor and his half-sister. All witnesses were cross-examined by the respondent’s representative and answered questions from the Tribunal.
Both parties filed a Statement of Facts, Issues and Contentions and made oral submissions. Supplementary submissions were filed after the hearing by both parties in relation to:
(k)Whether the Tribunal could look behind the facts which formed the basis of the applicant’s Importation Conviction; and
(l)How the Tribunal should approach the question of non-refoulement having regard to the possibility that the applicant may face drug charges upon his return to China.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant made the representations required by s 501CA(4)(a). As outlined at [2] of this decision, the applicant was sentenced to a term of imprisonment of 6 years with a non-parole period of 3 and a half years in relation to the Importation Conviction. As a consequence the applicant fails the character test. [7] The only substantial issue to be determined on this review is whether the power to revoke the mandatory cancellation should be exercised in the applicant’s favour because there is another reason to do so,.
[7] A person will not pass the character test if they have a ‘substantial criminal record’: Migration Act 1958 (Cth) ss 501(6)(a). A substantial criminal record includes if a person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c))
In considering that question, I approach the matter consistently with the observations of the Full Court of the Federal Court in Minister for Home Affairs v Buadromo:[8]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[9]
[8] [2018] FCAFC 151.
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether there is another reason why the original decision should be revoked. If there is, then that is determinative and I am obliged to revoke the original decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A), to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…The principles below…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…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 cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime…should generally expect to forfeit the privilege of staying in Australia.
(4)…
(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)…
(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 the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph 16 above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(c)Protection of the Australian community from criminal or other serious conduct;
(d)The best interests of minor children in Australia; and
(e)Expectations of the Australian community.[11]
[10] The Direction, paragraph 7(1)(b).
[11] Ibid, paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(f)International non-refoulement obligations;
(g)Strength, nature and duration of ties;
(h)Impact on Australian business interests;
(i)Impact on victims; and
(j)Extent of impediments if removed.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[13]
THE APPLICANT'S BACKGROUND - WORK, SOCIAL AND CRIMINAL HISTORY
[12] [2018] FCA 594.
[13] Ibid at [23].
Fact finding principles
The following represent my findings of fact. The evidence on which they are based is as cited. As it is necessary for me to form a view about the applicant’s likelihood of re-offending it has been necessary to make a number of findings about his criminal past. The trial judge who sentenced the applicant made a number of findings about the circumstances in which the applicant’s crime was committed. The applicant gave evidence about his involvement in the crime which was not entirely consistent with the findings of the primary judge. In reaching my findings on the primary facts I must apply the principle, recently clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[14] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.[15] Accordingly, where the applicant’s evidence is inconsistent with the essential findings of the sentencing judge, I have disregarded that evidence.
[14] [2019] FCAFC 202 at [68].
[15] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [195].
However, I do note that the applicant is entitled, to a limited extent, to seek different findings from the Tribunal in relation to the criminal convictions which did not form part the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection.[16] These principles are pithily summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[16] [2018] FCA 1803 at [41] - [77].
Accordingly, I have taken a less restrictive approach when making findings about the Cultivation Conviction.
Applicant’s history
The applicant is a citizen of China. He was born there on 13 December 1988. When he was five he was left in the care of his grandmother while his parents moved to Japan. After 2 years he was placed in the foster care of his school teacher until he was about 12 years of age. His parents returned from Japan but split up upon their return.[17] On 4 June 2005, at age seventeen the applicant came to Australia with his father.[18]
[17] G7, Folio 54.
[18] G 38 folio 173.
His first conviction was entered on 11 February 2009 for the relatively minor offence of driving with a suspended licence.[19]
[19] G3, folio 31.
The applicant met his wife in December 2008 and they were married on 23 December 2009.
During 2009 the applicant’s father became involved in the growing of a commercial cannabis crop in a suburban house. The applicant was asked by his father to do a job at the house. When he arrived at the house he realised that the house was being used for criminal purposes. Notwithstanding this, he helped his father at the house on two further occasions.[20] On the third occasion, on 17 August 2009, the police moved in and arrested the applicant and his father and a third person.[21] The applicant was charged with cultivating a commercial quantity of a prohibited plant.[22]
[20] Exhibit A3, at [3].
[21] Respondent’s Tender Bundle, page 6.
[22] G3, folio 31.
On 22 July 2010, the applicant’s daughter was born.[23]
[23] Exhibit A4, at [9].
On 29 September 2010, the applicant pleaded guilty to the cultivation charges and was given a suspended sentence of 8 months and 14 days.[24] His father was sentenced to 20 months imprisonment.[25]
[24] G3, folio 31.
[25] Exhibit A3, at [3].
After that conviction the applicant worked as a manager at a Karaoke bar,[26] running a butcher shop and laying timber floors. In this period he had a close and loving relationship with his wife and daughter.[27]
[26] Respondent’s Tender Bundle, page 11.
[27] Exhibit A5, at [11].
At some point before April 2013 the applicant was approached by some people, one of whom was a tenant in his house, to arrange to bring chemicals into Australia. He was asked to find other people to receive parcels. The applicant knew that it was illegal to do so and that the chemicals would be used to make drugs.[28] In April 2013 the applicant travelled to China to make necessary arrangements including the purchase of ‘cold tablets’.[29] The applicant has never given the police information about others involved in organising the importation due to threats after his arrest which he understood may involve harm to his family.[30]
[28] Exhibit A3, at [4].
[29] G38 and applicant’s oral evidence.
[30] Exhibit A3, at [5].
Around July 2013 the applicant imported one shipment of ephedrine and two shipments of pseudoephedrine.[31] He was arrested on 3 January 2014. The circumstances surrounding the importation and arrest are set out in the remarks of the sentencing judge:
The first count relates to ephedrine 1.6 kilograms…the second count relates to 252 grams of pseudoephedrine…and the third count relates to 1.39 kilograms of pseudoephedrine…One only needs to go to [the] communications to realise that it was the offender who provided the relevant details as to the packages and gave a series of directions. It is clear that the offender in Australia was operating at a very superior level. Indeed large sums of money were deposited into his account…They were deposited into the account and transferred into accounts in the name of the offender….His trips to China were clearly connected with importation…it is clear that this was a deliberate, highly organised drug importation for profit, and the offender was an organiser and director of activities. He was directing the subsequent collection of the product as far as he was able to, and what was involved in Australia was a network of some sophistication…One needs to look at [the communications] in combination with the trips to China; the depositing of the money into his account, and the money he threw off the balcony, the hard case at his residence, upon the arrival of authorities, which contained plastic bags and remnants of something called Contact NT[32]…no doubt there were other people involved in China – but certainly in terms of Australia there [is] no-one above him in the hierarchy…I am satisfied beyond any doubt that the accused well knew what it was he was importing…this was a money making venture, and money was the primary objective…there is no evidence of remorse anywhere; there is no remorse on the horizon...He is at the top of the chain – at least here in Australia...
[31] Respondent’s Tender Bundle, page 5.
[32] A medicine available in China with high levels of pseudoephydrene

On 3 January 2014, the applicant was arrested by customs officers and charged with three counts of intentionally importing prohibited tier 1 goods. He pleaded not guilty.
While awaiting trial it appears that the applicant continued to work as a manager of a butcher shop, joined a local church and donated blood.[33]
[33] G7, folio 60.
On 23 August 2014, the applicant was 13 hours late in complying with his bail condition which required him to report to Campsie Police Station three times a week on specified days.
On 22 September 2015, after a jury trial the applicant was found guilty on all three counts. He was sentenced on 8 October 2015 by Judge Frearson in the District Court of New South Wales. In relation to the first count he was sentenced to four years and 2 months, in relation to the second, three years, and in relation to the third, three and a half years. The total sentence to be served was six years with a non-parole period of three and a half years from 21 September 2015.[34] He served most of his sentence at the Mannus Correctional Centre.[35] While serving his sentence the applicant received a number of statements of attainment covering skills in construction, logistics, forestry and food preparation.
[34] G4, folio 38.
[35] G5, folio 40.
During 2017 the applicant worked at Hyne Timber on a work release program. While in that program he worked hard and received favourable references. The money he earned he sent to his family.
At present the applicant is in immigration detention.
The applicant’s daughter is now 9 years of age and attends school in Campsie. His wife trained as a beautician. In early 2019, the applicant’s wife, daughter and cousin were in a serious car accident.[36]
[36] G22, folio 138.
If the applicant is released from immigration detention he hopes to take up an apprenticeship as an electrician.
On 28 March 2018, the applicant’s visa was cancelled under section 501(3A). He made extensive representations seeking a decision to revoke the cancellation. On 4 October 2019 the delegate decided not to revoke the cancellation.
PRIMARY CONSIDERATIONS
As noted above, in determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
(a)Protection of the Australian community (which includes other considerations within it);
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests
(d)Impact on victims
(e)Extent of impediments the applicant will face to establishing themselves and maintaining basic living standards if removed.
This is a non-exhaustive list of relevant considerations.
Primary Consideration A: The protection of the Australian Community
Paragraph 13.1(2) of the Direction further provides that decision-makers should 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 the non-citizen commit further offences or engage in other serious conduct.
In relation to this criterion the applicant submitted that:
(a)The Australian community is not, now or in the foreseeable future, at any significant risk of harm from him. Past conduct can only be a relevant factor in protecting the community from harm where it is an indicator that future harm may occur;
(b)In considering the factors relevant to assessing the nature and seriousness of the applicant’s conduct outlined in paragraph 13.1.1(a) – (i) of the Direction, the applicant submitted:
(i)In respect of factor (a), the applicant’s offences were not violent and/or of a sexual nature;
(ii)Factors (b) and (c) were not relevant in the circumstances;
(iii)In respect of factor (d), in relation to the importation offences, the sentence received was in the low to mid-range of available sentencing options and the sentence for the cultivation offence was at the very low end of the scale;
(iv)In respect of factors (e) and (f), it is not really possible to establish an increasing trend of seriousness based on only two instances (treating the driving while disqualified as unrelated), although it could be said there was an increase in seriousness; and
(v)Factors (g), (h) and (i) were not applicable in this case.
(c)In relation to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, outlined in paragraph 13.1.2 of the Direction, the applicant submitted:
(i)He had turned a page in his life and would not risk his and his family’s future again by committing further offences;
(ii)There was evidence of insight and efforts at rehabilitation that he had made during his time in prison including a growing interest in religion;
(iii)His prison record was exemplary and he was found to be sufficiently trustworthy to be given work release allowing him to develop work skills and provide financial support for his family;
(iv)Even though the sentencing judge considered that his prospects of rehabilitation were ‘at best fair’, the Tribunal should take a different view after the applicant’s experience of prison and the realisation of the long-term impact of his actions;
(v)Any risk of re-offending is low and should be given less weight than the interests of the applicant’s child and family and the other issues set out under other considerations.
In relation to this criterion in paragraph 13.1 of the Direction, the respondent submitted:
(i)There can be no dispute that the importation offences committed by the applicant were serious because ephedrine and pseudoephedrine are precursor chemicals used to manufacture methamphetamine – a powerful, highly addictive stimulant that affects the user’s central nervous system. Some of the harmful effects which may arise from the use of methamphetamine include mental illness, cognitive impairment, cardiovascular problems and overdose. Violent behaviour is also more than six times as likely to occur among methamphetamine dependent people when they are using the drug. 39.8% of Australians identified methamphetamine as the illicit drug of most concern to the community;
(ii)The seriousness of the applicant’s offences is also reflected by the sentence imposed by the Court. Incarceration is the penalty of last resort in the sentencing hierarchy and a custodial sentence of 6 years is reflective of the gravity of the applicant’s offending. Justice Rares observed in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7], a suspended sentence of more than 12 months is a ‘very serious penalty’;
(iii)The seriousness is compounded by the previous cultivation conviction which involved cannabis plants with a value of $785,000;
(iv)There is a trend of increasing seriousness in his crimes which have escalated from driving with a suspended licence, to cultivation, to importation of prohibited substances;
(v)In assessing the risk of conduct being repeated the Tribunal 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 caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. Given how damaging methamphetamines are to the Australian community, the Tribunal should have low risk tolerance for further offences;
(vi)The respondent submits that there is a likelihood that the applicant will re-offend. First, because the applicant has demonstrated a complete disregard for the Australian legal system by driving with a suspended licence and failing to comply with his bail conditions. Second, the applicant’s criminal conduct was motivated by financial gain and was well organised and involved careful planning including multiple trips to China. The applicant’s involvement in the offences indicated that there was no-one above him in the hierarchy. In light of the applicant’s criminal connections and intelligence and propensity to engage in anti-social behaviour there is a significant likelihood that he would commit similar offences should he be tempted by the financial gains associated with the illicit drug trade;
(vii)The applicant’s rehabilitation steps should be viewed in light of the applicant’s previous drug cultivation offence. The applicant did not rehabilitate after being convicted of that offence. Further on the date of sentencing the applicant had shown no remorse. It was submitted that the Tribunal should be slow to accept that the applicant was now completely rehabilitated;
(viii)The applicant’s claim that because his daughter is of great importance to him he would not commit further offences should not be given much weight. The applicant committed his most recent offence after she was born at a point in time when, because of the cultivation conviction, he knew a custodial sentence would separate him from his daughter.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s immigration status…
...
It is clear from the facts set out above that the applicant has a short but serious history of offending.
The applicant moved to Australia when he was 17 years old and he was free in the Australian community for just over 10 years. In the time in which he was in the Australian community he committed 3 criminal offences the last of which was very serious. It involved the deliberate importation into Australia of chemicals which the applicant knew would be used to manufacture illegal drugs. The applicant recruited at least one other person to assist with the commission of the offences and he was, to use the sentencing judges words ‘at the top of the chain – at least here in Australia’. The custodial sentence of 6 years reflected the seriousness of the offence.
This sentence was imposed against a background of offending of increasing seriousness. In relation to his drug offences the applicant has moved from providing peripheral assistance in the cultivation of a commercial cannabis crop to being a central player in arrangements to import component chemicals for manufacturing a very dangerous drug into Australia. I am satisfied that this involves a trend of increasing seriousness. I reject the proposition that a trend cannot be determined based on only two convictions. Even if it were the case that two convictions are insufficient to establish a trend, I consider that the applicant’s first conviction for driving while his licence was suspended is relevant in considering whether his conduct has involved a trend of increasingly serious criminality.
I accept the respondent’s submission about the seriousness of drug offences and the harm which they cause to individual Australians and the Australian community generally.
Accordingly, I am satisfied that the applicant’s past conduct should be regarded as very serious and it weighs heavily against him when considering the protection of the Australian community criterion.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, can be properly informed by the nature of his offending apparent in his criminal history to date.

Given the applicant’s offending history, it is likely that if the applicant engaged in criminal conduct in the future, it would take the form of involvement in an organised criminal enterprise to assist in the production and/or distribution of illegal drugs in this country. I form that view based on the role the applicant played in the cultivation offence and the importation offences.
I accept, as the respondent submits, that illegal drugs, and methamphetamines in particular, are a scourge on the Australian community. The harm faced by individuals if the applicant were to re-offend includes mental illness, cognitive impairment, cardiovascular problems and overdose. The costs to the community include increased presentations to drug treatment services, ambulance attendances and admissions to public hospitals as well as increased exposure to violent behaviour.
I am satisfied that any re-offending by the applicant would result in significant harm to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Under the Direction I must also have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The respondent submits that in light of the applicant’s criminal history, there is a likelihood that the applicant will reoffend. The applicant rejects that proposition and submits that the likelihood of re-offending is low having regard to the applicant’s exemplary record in prison, his concerns about the impact on his family and his efforts at rehabilitation and growing interest in religion. In his reply submission the applicant rejected any characterisation of him as a hardened criminal and emphasised that he has no substance abuse problems which are a common cause of recidivism. The applicant urges the Tribunal to find that he has been rehabilitated and has shown insight into and remorse for his past crimes.[37] The applicant contends that the likelihood that he will re-offend should be considered to be very low.
[37] At the hearing the applicant particularly stressed his regret at pleading not guilty to the Importation Charges.
In assessing this factor I am making an assessment of the chances of something happening in the future. This is by its very nature a difficult task and in the present case is particularly difficult because the applicant claims that his past conduct is a poor guide to his future conduct because he has learnt an important lesson and is now reformed.
I accept that the applicant’s behaviour in prison has been exemplary and he has worked hard to acquire skills which will be useful if he were released back into the Australian community. I also accept that he has a close relationship with his wife and daughter and that he is very regretful about the negative impact his criminal conduct has had on them. I am also prepared to accept that the applicant has a sincere interest in Christianity and the promise of redemption that underpins it. I accept also that he is not addicted to drugs and therefore one potential source of risk of recidivism is not present.
However, the applicant’s conduct in prison is in a very controlled environment where there are significant incentives for good behaviour. It is not a reflection of life in the real world.
Of much greater significance is that the applicant, in the relatively short period of time in which he was at liberty within the Australian community, got involved in very significant and complex criminal enterprises. Accepting that his involvement in the cannabis cultivation was a consequence of a family connection, his involvement in the importation of prohibited substances was a different matter altogether.
The applicant became connected with people in China and in Australia who he knew were engaging in illegal activity. He was placed in a key organisational position and recruited at least one other person in order to pursue the criminal enterprise. Since being caught the applicant has not reported to the police the names of his criminal associates involved in this enterprise. His failure to do so, though understandable in the circumstances, demonstrates the influence that those associates continue to have over him. The sentencing judge found no evidence of remorse. In these circumstances it is not possible to assess the likelihood of the applicant re-offending as very low. In my assessment there is at least a moderate risk that the applicant will be drawn again into criminal conduct. His past conduct and associations support such a conclusion. In these circumstances, I consider that the combination of:
(i)the seriousness of the harm to individual Australians and the Australian community that will arise if the applicant were to engage in further criminal conduct ; and
(j)the moderate risk that that will occur;
combined with the nature and seriousness of the criminal conduct already engaged in mean that this consideration weighs heavily against the applicant.
Conclusion: Primary Consideration A
As noted above, the applicant’s offending is very serious and there is a moderate risk that he will engage in criminal conduct in the future. If the applicant engages in similar criminal conduct in the future, it will have cause serious harm to Australians and the Australian community. Protection of the Australian community strongly favours a non-revocation decision.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a minor child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are five children whose interests the Tribunal must have regard to in the applicant’s case, namely the applicant’s daughter and the applicant’s nieces and nephews.
The applicant’s daughter (‘V’)
The applicant’s submissions in relation to his daughter who I will identify as ‘V’ are as follows:
(a)Cancellation of the applicant’s visa would not be in the best interests of V, since it would either result in a separation from her father or a move to China that would have significant negative impacts on her education and future life prospects and uproot her from her life in the country of her birth and nationality.
(b)The applicant has had a strong paternal relationship with daughter up until his incarceration and this has been maintained as well as possible by frequent visits and telephone calls.
(c)V is 9 years old. If the applicant is released from custody he will return to live with her and her mother and will continue to play a significant role in her life.
(d)V has not been directly impacted by her father’s criminal conduct.
(e)A long separation from a parent and primary attachment figure can permanently alter brain development and have lasting impacts on life outcomes for a child. V is closely attached to him and would be devastated by losing contact with him.
(f)There is no other person who can fulfil the paternal role in V’s life.
(g)V has written a letter to the delegate expressing her view that she wants her father to stay with her.
(h)The impact on V would obviously be worse if the applicant were re-prosecuted in China.
In relation to V, the respondent submits that:
(a)In light of the applicant’s repeated criminal conduct and the fact that he has been in prison for a third of her life, there is doubt that he will have a positive influence on V in the future.
(b)Despite the claimed importance of his relationship with daughter the applicant committed further offences despite being sentenced for the drug cultivation offence.
In my assessment, the applicant enjoys a close and loving relationship with both his wife and his daughter, V. If the cancellation of the applicant’s visa is revoked, I am satisfied that he would resume living with his wife and his daughter.
If, however, the applicant’s visa remains cancelled and he is returned to China, two possibilities present themselves. The first is that V and her mother will return to China to live with him. Alternatively, the applicant and his wife may decide that it is in V’s best interests to remain in Australia and from that point contact between the applicant and V will be more limited. Both of these scenarios are likely to have an adverse effect on V.
If a decision is made that V and her mother will return to China with the applicant, his daughter’s education is likely to be adversely affected. Although she can speak and understand Mandarin, she does not read and write Mandarin. This is likely to set back her education. Further, because she is an Australian citizen (and not a Chinese national) she is not entitled to attend state run schools in China. The only alternatives are fee paying international schools which the applicant and his wife are unlikely to be able to afford. While V is likely benefit from living with both her mother and her father[38] together as a family in China, she will be disadvantaged in her education.
[38] If the applicant is not re-sentenced in China – an issue I will consider later.
Alternatively, if a decision is made that V and her mother should remain in Australia, then V will have to deal with a long term separation from her father. The evidence supports the conclusion that notwithstanding his time in prison, the applicant and his daughter are close. It would be a significant loss to her to have her father removed from the country while she remains behind. While I am not prepared to accept that this further separation would cause harm to V’s brain development (in light of the fact that she has already endured a significant separation from her father as a result of his incarceration), I do accept that it will be harmful for her to be separated from her father.
Accordingly, I accept that it is not in V’s best interests for his visa cancellation to be maintained.
The applicant’s niece and nephews
The other minor children who would be affected by the removal of the applicant from Australia are his niece and nephews. I will deal with all four together as the evidence relating to them is sparse and there is no suggestion that their interests differ.[39]
[39] See paragraph 11.2(3) of the Direction.
The applicant’s half-sister has 2 sons and the applicant’s brother has 1 daughter and 1 son.
The applicant’s half-sister’s children are around the same age as V, between 8 and 10 years old.
The applicant’s brother’s children are also around the same age as his daughter, V, with the youngest being around 3 years younger.
The applicant gave evidence that his relationship with his nieces and nephews was ‘normal’ and that his half-sister’s children visited him twice or three times while he was in custody.
However, the applicant conceded that the impact upon these children would not be very great. They would be sad, but he did not claim an impact beyond that.
I accept that in a very broad sense it could be beneficial for the applicant’s niece and nephews’ to have their uncle physically present in Australia but a decision not to revoke the cancellation is unlikely to impact his niece and nephews in any significant way.
Conclusion: Primary Consideration B
If the applicant’s visa cancellation is not revoked, there will be a significant adverse impact on his daughter, V. Either she will end up living in China facing significant barriers to continuing her education, or she will remain in Australia without the company and care of a father to whom she is close. It is in her best interests for her father to remain in Australia.
In relation to the criteria in paragraph 13.2(4) of the Direction:
(a)The relationship between the applicant and V is a close and meaningful father/daughter relationship notwithstanding the period of separation resulting from the applicant’s custodial sentence.
(b)The applicant is likely to play a positive parental role in V’s life, although there is a risk that he will engage in further criminal behaviour with all of the negative consequences that can entail.
(c)To date V has been insulated from the applicant’s criminal conduct but she has obviously suffered as a result of being separated from her father following his incarceration. If the applicant were to offend again in the future it appears unlikely it would have a direct adverse effect on V. The applicant appears to be very good at insulating his family from his criminal conduct. Even at the hearing his wife remained unaware of most of the details of his criminal behaviour. However, if the applicant were convicted and incarcerated again this would negatively affect V.
(d)If the applicant were returned to China permanently, this would significantly alter the father/daughter relationship which would otherwise develop if he remained in Australia – unless the whole family returned to China.
(e)There is no-one else who fulfils the paternal role for his daughter, but she has a close and devoted mother who has looked after her well while the applicant has been in prison.
(f)V has expressed the desire to have her father returned to her.
(g)There is no evidence of abuse or neglect of V.
(h)There is no evidence that V has suffered trauma as a result of the applicant’s conduct.
In these circumstances, I am satisfied that it would be in his daughter’s best interests for the applicant to have his visa cancellation revoked.
Having regard to the applicant’s relationship with his niece and nephews and that some negative impact has been identified, I am satisfied that it would not be in their best interests if the applicant’s visa cancellation was not revoked. However, the impact on their interests is slight.
In these circumstances, Primary Consideration B weighs in favour of revoking the cancellation.
Primary Consideration C: Expectations of the Australian Community
The final primary consideration is the expectations of the Australian community.
In approaching this consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant:
(a)The expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different.[40]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction.[41]
(c)The expectations of the Australian community are conclusively expressed (for present purposes) in paragraph 13.3 of the Direction.[42]
(d)There are a spectrum of ways of reading paragraph 13.3 of the Direction and the precise way of expressing the expectation of the Australian community as discernible from paragraph 13.3 is one on which reasonable minds may differ. In its strongest form, the paragraph can be understood as expressing a deemed community expectation that all person who have committed serious criminal offences giving rise to character concerns should not have their visa cancellations revoked.[43] A more flexible expression of that principle is ‘[I]f you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive’.[44]
[40] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J (FYBR).
[41] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[42] FYBR at [68] per Charlesworth J and at [94] per Stewart J (although noting that those judgments deal with clause 11.3 of the Direction which applies to visa applicants. Paragraph 13.3 is not materially different except that it applies to revocation requests.)
[43] To adapt the words of Justice Charlesworth in FYBR at [75] to present circumstances.
[44] To use the words of Justice Stewart in FYBR at [101].
Whichever expression of community expectations is accepted, in the present circumstances, it weighs against revocation of the cancellation. The applicant has breached the community expectation that non-citizens will obey the law while in Australia. The seriousness of the offences – including both the cultivation offence and the importation offences – are such that the Australian community would expect that the applicant should not hold a visa. While this is not decisive in determining whether the applicant’s visa cancellation should be revoked, I must have due regard to this when making my decision. Accordingly this factor weighs against the applicant.
OTHER CONSIDERATIONS
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I will address each in turn.
(a) International non-refoulement obligations
The parties are in agreement that the risks that the applicant faces on his return to China of re-prosecution for the importation offences are most appropriately dealt with under the rubric of ‘other considerations’ including the consideration ‘extent of impediments the applicant will face if removed’.[45] The applicant accepts that it is unnecessary for the Tribunal to determine whether the applicant’s claims give rise to international non-refoulement obligations in the present circumstances.[46]
[45] Respondent’s supplementary submissions at [8]. Applicant’s further submissions at [4].
[46] Applicant’s further submissions at [2] to [4]. I note for completeness that I have read Ibrahim v Minister for Home Affairs [2019] FCAFC 89, and paragraphs [87] to [117] in particular, and I am conscious that consideration of a protection visa application does not involve full consideration of Australia’s non-refoulement obligations, but I am satisfied that the applicant will not be returned to China if to do so is inconsistent with any non-refoulement obligations.
(b) Strength, nature and duration of ties
The principles in the Direction relevantly provide:
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.[47]
[47] The Direction, paragraph 6.3(5).
This principle is relevant in assessing the strength, nature and duration of the applicant’s ties.
The applicant submits that he first came to Australia when he was 16 and has now spent nearly half of his life, and all of his adult life, in this country. He has been married for nearly 10 years and his daughter is an Australian citizen aged 9. He has improved his English and acquired useful work experience skills while in Australia, including in prison, and has good job prospects on release. He has no close family ties in China.[48]
[48] Applicant’s submission, at [28].
I accept those submissions. If anything they understate the ties the applicant has to the Australian community. As the delegate noted, the applicant has extensive family ties to Australia. His wife, father, sister, brother, three uncles or aunts, four nieces and nephews and four cousins live in Australia. His siblings and some extended family members are Australian citizens. The applicant and his wife are members of a Christian church and he is a blood donor.
The respondent submits that the Tribunal should put limited weight on the duration of the applicant’s ties to Australia. The respondent notes that the applicant has spent approximately 14 years in Australia but began offending in 2009.
I accept that submission. It is very significant that the applicant, who arrived at a relatively young age, was involved in a serious criminal offence just over four years after his arrival. This is a rapid descent into criminality upon arrival in Australia. The further conduct to which his 2015 conviction relates occurred in 2013 and his flights to China to co-ordinate the offending occurred in April 2013. The applicant has been incarcerated since late 2015. In my assessment the applicant was contributing to the Australian community only for a short period of time before a pattern of criminality emerged. Pursuant to the Direction, the Australian community has a low tolerance for crimes committed by people who have been contributing to Australia for a short period of time. This is also reflected in paragraph 14.2(1)(a)(i) of the Direction which states that ‘less weight should be given [to this consideration] where the non-citizen began offending soon after arriving in Australia.’ In my assessment that is the case for the applicant. Accordingly less weight should be given to the strength, nature and duration of the applicant’s ties.
The respondent accepts that the family ties are strong, that departure will have negative emotional and financial impacts on the applicant’s extended family with his wife and daughter being most affected. However, the respondent submits that the applicant could re-unite with his wife and daughter in China and, as such, only limited weight should be given to this factor in favour of revocation.
I agree that the applicant’s family ties are strong in Australia and this favours revocation. Further, I do not accept that the possibility that the applicant’s immediate family may re-join him in China lessens the significance of these ties. Regardless of whether the applicant’s immediate family joins him in China or remains in Australia, non-revocation will result in the breaking of strong family ties in Australia and significant disruption.
Accordingly, this factor weighs in favour of revocation but not as strongly as it would if the applicant had enjoyed a lengthy period of compliance with Australian law. The applicant was not a child when he arrived in Australia and he relatively quickly became involved in criminal conduct. At most it could be said that he spent ten years contributing positively to Australian society before being incarcerated for a serious crime. However, he has strong ties and social links in Australia (including friends who provided references to the delegate) and this weighs in his favour.
(c) Impact on Australian business interests
The applicant submits that there is evidence before the Tribunal that he is considered a productive employee by Australian businesses. This is true, but the impact on Australian business will be trivial. There is no suggestion that the applicant has any skills which could not be matched by other employees available in Australia nor could there be any suggestion that he has employment links which if broken ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’[49] This consideration does not favour revocation of the cancellation decision.
[49] The Direction, paragraph 14.3(1).
(d) Impact on victims
The applicant submits that there is no evidence that any individuals would be directly impacted by the decision to revoke the cancellation of the applicant’s visa. I accept that submission. Therefore, this consideration is not relevant.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Tribunal must take into account the criteria set out in paragraphs 14.5(1)(a),(b) and (c) of the Direction which are:
(a)       the non-citizen’s age and health;
(b)       whether there are substantial language or cultural barriers; and
(c)       any social, medical and/or economic support available to them in that country.

I will deal with this criteria in broad terms before dealing with the applicant’s submissions concerning the specific risk he faces of further prosecution if returned to China.
In my assessment there are no real impediments which the applicant faces in establishing himself and maintaining basic living standards. The applicant resided in China until he was 17 years of age. His primary language is Mandarin and there are no cultural barriers he faces. With the exception of the matter discussed further below, no impediments were suggested by the applicant and therefore, no evidence was lead in relation to the matters outlined in paragraph 14.5(a) – (c) of the Direction.
At the hearing it became clear that the applicant is a young, healthy, able bodied man with a good work ethic. Although he lacks a work history in China he has since worked in Australia and obtained a number of qualifications in respect of logistics, food preparation and construction. The experience the applicant has obtained in Australia will assist him to gain employment in China.
There is no evidence in respect of social, medical or economic supports available in China to the applicant. However, as he has good work prospects I do not foresee any difficulties in him establishing himself and maintaining basic living standards.
This consideration does not weigh in favour of revocation.
Possibility of further prosecution in China
The applicant has submitted that I should take into account the possibility that he may be subject to further punishment for his role in the importation offences if he is returned to China. The applicant submits that this possibility can be considered either as an impediment to the applicant establishing himself in China or as another relevant consideration. I am satisfied that I can and should take this matter into account in determining whether to revoke the cancellation and it is most appropriate to treat it as another relevant consideration.
Submissions
The applicant submits that there is a possibility that he could be subject to further punishment in China despite the fact that he has already been punished for his crimes in Australia. Article 10 of the Criminal Law of the People’s Republic of China provides:
Any person who commits a crime outside PRC territory and according to this law bears criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.
The applicant submits that on the basis of this law there is at least a chance that the applicant could be further punished for his offences in Australia. The fact that the offences are drug related increases the likelihood that some sort of punishment may be meted out.
The Tribunal was referred to a decision of the UK Upper Tribunal (Immigration and Asylum Chamber) (UK Tribunal) which received expert evidence about the risk that a drug offender (in that particular case a Chinese national involved in cannabis cultivation) would be re-prosecuted in China.
The applicant noted that the evidence received by the UK Tribunal included evidence to the effect that:
(a)It was extremely difficult to follow up the cases of individuals who have been returned to China to ascertain how they have been dealt with by the Chinese legal system.
(b)It would not be possible to have confidence in any assurances given by government officials about the likely treatment of an individual.
(c)The Chinese authorities currently took a hard line towards drug crimes as exemplified by the execution of foreigners in drugs cases in spite of pressure from the international community.
(d)Drug offences had been politicised in China.
(e)A returnee could be detained either in a prison or a labour camp and the death sentence was a real risk.
(f)It could not be inferred from the absence of any known cases of re-prosecution for drug trafficking (although there was a reference to one) that such cases did not happen because reporting would not necessarily be at the national level and the local press was not monitored by anyone.
The UK Tribunal found that the Chinese national in that case would not be re-prosecuted. The applicant submits that he is at serious risk of being prosecuted relative to the case considered by the UK Tribunal because his case has a higher profile as a result of his name and the details of his conviction being reported on an official Australian Border Force website which it could be expected would be known to Chinese Authorities.[50] The applicant also submits that his crime could also be expected to be a matter of concern to the Chinese authorities because the drugs were sourced in China. The applicant submitted that it is fundamentally unfair that a person who has been punished under Australian law should be further punished under the law of another country for the same offences.
[50] Applicant’s Tender Bundle, pages 46-47.
The applicant also submitted that while it is hard to say what penalty might be applied to him if re-prosecuted, it should be noted that Article 347 of the Criminal Law stipulates that sentences of 15 years, life imprisonment or capital punishment apply to people who take part in organised international drug trafficking activities. The applicant’s offences could reasonably be seen as falling within that category.
The respondent submits that currently there is no expert evidence before the Tribunal regarding the operation of Article 10 or its application to the applicant’s situation. In any event, Article 10 makes clear that a person who has already received criminal punishment in a foreign country, as the applicant has in the present case, may be exempted from punishment or given a mitigated punishment. In those circumstances, there is a real likelihood that the applicant would not be punished as claimed. Additionally, on a fair reading of Article 10, it appears that the underlying purpose of the provision was to recognise penalties imposed in foreign countries. Similarly, although the applicant’s wife and half-sister suggested that the applicant could face the death penalty in China, there is no evidence before the Tribunal to substantiate that claim.
The respondent summarised YF and The Secretary of State for the Home Department (YF)[51] (which includes reference to an earlier related decision of the Tribunal, JC and the Secretary of State for the Home Department [2008] UKAIT 00036) as concluding that although there is a risk of re-prosecution under Article 10, the use of that provision is discretionary and extremely rare. Although that risk is a question of fact, it is more likely where:
(a)there has been a substantial amount of adverse publicity within China about a case;
(b)the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas;
(c)the offence is unusually serious;
(d)political factors (which may include the importance attached by the Chines authorities to cracking down on drugs offenders) may increase the likelihood of prosecution or re-prosecution; and
(e)the Chinese Government is also particularly concerned about corruption of Chinese officialdom: see YF at [11] and [77].
[51] [2011] UKUT 32.
The respondent submits that the applicant has not provided any evidence that his criminal offences have received a substantial amount of adverse publicity in China. Nor is it apparent that his actions have significantly embarrassed the Chinese authorities. While it may be accepted that the Chinese authorities are committed to crack down on drugs offenders, the applicant had been previously convicted of a drug offence and was able to enter and depart China with no apparent difficulties. Moreover, the applicant’s offences could not be described as ‘unusually serious’ nor have those offences raised concerns about corruption of Chinese officialdom. For these reasons, the respondent submits, it is unlikely that the applicant would not be re-prosecuted under Article 10 and accordingly the consideration should be given little weight.
The applicant submits that the fact that the applicant could enter China after his cultivation conviction is irrelevant as it was a far less serious matter and was not the subject of publicity. Further he was travelling on a valid Australian visa. If however he is removed now, it would be obvious to Chinese authorities that he has done something wrong in Australia.
The applicant asserts that it would be naïve to find that the case has not received a ‘substantial amount of adverse publicity’ in China.
Consideration
The applicant invites me to find that he faces a risk of re-prosecution if returned to China and that re-prosecution could result in incarceration or the death penalty. How large that risk might be is to be determined by reference to the approach taken by the UK Tribunal in YF. The respondent appears to accept that this framework for analysis is appropriate.
In establishing its method of assessment, the UK Tribunal noted that there have not been any known cases of re-prosecution of drug offenders that are truly ‘double jeopardy’ cases. Consequently, notwithstanding its finding that political factors might motivate a drug re-prosecution as a demonstration by Chinese authorities of its crackdown on drug offenders, the UK Tribunal was satisfied that there was only a real risk of a drug offender suffering double jeopardy if the following factors were also present:
(a)there has been a substantial amount of adverse publicity within China about a case;
(b)the proposed defendant has significantly embarrassed the Chinese Authorities by their actions overseas; and
(c)the offence is unusually serious.[52]
[52] YF at ATB 39 at [84].
I am not satisfied that these factors are present.
While the applicant’s offence has received publicity on the Australian Border Force website and it appears reasonable to assume that public officials in China are aware of that fact: that is not a basis for concluding that the applicant’s case has received ‘a substantial amount of adverse publicity within China’. The word ‘publicity’ implies that the case is widely known. There is no evidence that that is the case. The fact that government officials may be aware of the applicant’s conviction does not amount to ‘a substantial amount of adverse publicity within China’.
There is no evidence that Chinese Authorities have been embarrassed by the applicant’s actions.
Finally, there is no basis for me to determine how seriously or otherwise the Chinese government would consider the applicant’s offence to be. The applicant acquired ‘cold tablets’ in China which appear to have been obtained without difficulty and may have been acquired legally. How seriously Chinese authorities would treat the sending of those tablets to another country is not a matter on which I have any evidence.
In these circumstances, I am not prepared to find that the applicant faces a real risk of re-prosecution upon his return to China and it would not be appropriate to give this consideration any weight in determining whether to revoke his visa cancellation.
SUMMARY OF FINDINGS – OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength, nature and duration of ties: in favour of revocation.
·Impact on Australian business interests: not significant and does not support revocation.
·Impact on victims: not relevant.
·Extent of impediments if removed: does not support revocation.
·Risk of re-prosecution in China: no real risk of re-prosecution.
CONCLUSION
Is there another reason to revoke the cancellation of the applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the Direction and other relevant considerations. As I have noted in my decision, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am not satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
Contrary to the expectations of the Australian community, the applicant committed drug offences on two occasions. The importation offence was serious, justifying a significant custodial sentence. His senior role in the commission of an international drug importation offence weighs very strongly in favour of non-revocation. The offence was serious and for the reasons explained above, I am satisfied that there remains a moderate risk that he will re-offend. If he does, the harm to the Australian community from the manufacture and distribution of methamphetamine will be significant.
I make this decision notwithstanding that I accept that it is in the best interests of the applicant’s daughter, V, that the cancellation decision is revoked. This decision will result in very significant disruption to her life whether she remains in Australia in her father’s absence or returns to China with him. However, the expectations of the Australian community and the need to protect the Australian community from the risk of further offending by the applicant, weigh more heavily in favour of not revoking the visa cancellation.
None of the other considerations alter that analysis in any significant way.
DECISION
The decision of the respondent made on 4 October 2019, being a decision of the delegate of the then Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 134 (one hundred and thirty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan

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Associate
Dated: 23 December 2019

Date(s) of hearing: 11 December 2019

Solicitors for the Applicant:

Mr Michael Jones, Parish Patience Immigration Lawyers

Solicitors for the Respondent: Mr Max Gao, Australian Government Solicitor

[2019] AATA 5984

23 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	11 December 2019
Solicitors for the Applicant:	Mr Michael Jones, Parish Patience Immigration Lawyers
Solicitors for the Respondent:	Mr Max Gao, Australian Government Solicitor