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

Yi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1485 (26 May 2020)
Division:GENERAL DIVISION
File Number(s):2018/0790
Re:Sihui Yi
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 May 2020
Place:Sydney

The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the subject visa to the Applicant.
...............................[SGD].........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – refusal of application for a Partner (Provisional) (Class UF) visa– applicant failed to pass the character test under section 501(6)(d)(i) – whether the discretion in section 501(1) should be exercised – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REAONS FOR DECISION
Senior Member Theodore Tavoularis
26 May 2020
Contents
Background
The Applicant’s Visa History
Issues
Does the Applicant pass the Character Test?
Should The Tribunal Exercise Its Discretion To Refuse To Grant The Visa To The Applicant?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Consultant Psychologist Mr Tim Watson-Munro (“Mr Watson-Munro”) (Report dated 30 July 2018):
Evidence in Chief of Mr Watson-Munro
Cross-Examination of Mr Watson-Munro
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s Written Evidence
Cross-Examination of the Applicant
Cross-Examination of the Applicant’s Wife
Conclusion: Primary Consideration B
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Impact on family members
(c) Impact on victims
(d) Impact on Australian business interests
Conclusion
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
Decision
“Annexure A”: Exhibit Annexure
BACKGROUND

This matter relates to an application for review filed by Yu Xiang[1] (“the Applicant”) on 13 February 2018. The decision under review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) dated 12 December 2017 and notified to the Applicant on 25 January 2018. The delegate’s decision pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”) was to refuse the Applicant’s combined application for a Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa.[2]
[1] Note: to avoid confusion, the nominated “Applicant” in the instant application is the Applicant’s wife, namely, Ms Sihui Yi. The ultimate beneficiary/recipient of the requested visa is, of course, her husband, namely, Mr Yu Xiang, who is offshore. For the purposes of these Reasons, “the Applicant” will be Mr Yu Xiang.
[2] Exhibit 7, s501 G Documents, G2, page 7.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(b) of the Act.
The Applicant is a 34 year old citizen of China. Movement records[3] indicate that he first arrived in Australia on 4 August 2005. He departed Australia on 7 October 2005 and returned on 18 December 2005. He then departed Australia on 2 August 2012 and has not since re-entered this country.
[3] Ibid, page 92.
THE APPLICANT’S VISA HISTORY
On 8 July 2005, the Applicant was granted a UF-309 visa to travel to Australia. The Applicant commenced a relationship with a woman in Australia in April 2008. There followed an application for a Partner (Residence) (Class BC) visa on which the Applicant was listed as a dependant.[4] This application was refused on 24 February 2009 and the refusal was affirmed on review on 9 August 2010. Subsequently, the Applicant was granted a Bridging E (Class WE) visa. Following his commission of an offence in March 2011, and a subsequent engagement with law enforcement authority, the Applicant was, on 9 June 2011, granted a Criminal Justice Stay (Class ZB) visa pending finalisation of the charges resulting from his offending in March 2011. The Applicant was sentenced to a custodial term in December 2011. Upon serving that custodial term, the Criminal Justice Stay (Class ZB) visa was cancelled on 19 July 2012 prior to the Applicant’s final departure from Australia on 2 August 2012.[5]
[4] Exhibit 6, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1.
[5] Exhibit 7, s501 G Documents, G2, page 13; Exhibit 6, Respondent’s SFIC, pages 2-3.
There followed, on 16 January 2015, an application for the abovementioned Partner (Provisional) (Class UF) visa (“the visa”).[6] Its eventual refusal on 12 December 2017 led to the filing of the instant application on 13 February 2018. The refusal occurred on the basis of the Respondent forming the view that the Applicant did not pass the character test because, pursuant to s 501(6)(a) of the Act, he had a “substantial criminal record” as defined by s 501(7)(c) of the Act.[7] The Respondent’s view derived from the imposition of a custodial term of imprisonment of 12 months upon the Applicant in December 2011. Further, the Respondent’s delegate made a decision pursuant to s 501(1) of the Act to refuse to grant the visa to the Applicant.[8]
[6] Exhibit 7, s501 G Documents, G2, pages 26-46.
[7] Exhibit 7, s501 G Documents, G2, page 20.
It is pertinent to mention that the instant application records the Applicant’s wife, Ms Sihui Yi, as “the person applying for review”. She, of course, is acting as the sponsor for her husband, Mr Xiang, who is recorded as the “Primary visa applicant” in the instant application. While there is sparse reference to a “visa applicant” and a “review applicant” in the material, for the purposes of these Reasons, I will refer to Mr Xiang as “the Applicant”. Denial of the visa to the Applicant as the “Primary visa applicant” would, for all intents and purposes, extinguish any utility in the further ventilation of the instant application.
The hearing of the instant application proceeded before me on 3 April 2019. The hearing received oral evidence from: (1) the Applicant; (2) his wife; and (3) the Consultant Psychologist, Mr Tim Watson-Munro. The hearing also had the benefit of written evidence. That written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Section 501(1) of the Act provides that:
(1)…The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[9] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[10]
[9] Per s 501(6)(a) of the Act.
[10] Per s 501(7)(c) of the Act.
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As mentioned earlier, the character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is, in turn, relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s representative did not appear to cavil with the proposition that the Applicant does not pass the character test. The delegate found:
“[The Applicant] has not satisfied me that he passes the character test.[11] The Respondent contends:
“…the Tribunal should not be satisfied that the Visa Applicant passes the character test in s 501(6)(a) of the Migration Act as he has a substantial criminal record (as defined by s 501(7)(c) of the Migration Act.”[12]
[11] Exhibit 7, s501 G Documents, G2, page 18.
[12] Exhibit 6, Respondent’s SFIC, page 4, paragraph [3].
Each of these positions were, in my respectful view, appropriately taken. The Applicant has a relatively limited criminal history in Australia. The history has only one serious aspect. Stated in full, the absolute totality of the Applicant’s offending history (for both criminal and traffic offences) consists of:
·On 25 March 2010, the Applicant received a traffic infringement notice for exceeding the speed limit by more than 30 klms per hour but less than 45 klms per hour;[13]
·On 28 September 2010, the Applicant committed “actual stealing”, particulars of which comprise:
“…At the above time, date and Place, both offenders[14] were seen by the victim to pick up two mens jackets walk to the exits of the store past a number of cash registers and attempted to leave the store without paying for the jackets. Out side the store POI 1 and POI 2 were stopped by the witness. POI 1 and POI 2 were taken back inside to the loss prevention Office by the witness. Police were then called. Police attended and conveyed POI 1 and POI 2 back to…Police Station. There both POI’s particulars were verified and they were issued CIN’s and a short time later they were allowed to leave. POI 1 stole a Flinders brand Jacket valued at $300. POI 2 stole a blaq brand jacket valued at $300. Both jackets were returned to…undamaged to be sold in the store.”[15]
[Errors in original]
·On 4 October 2010, the Applicant received a traffic infringement notice for exceeding the speed limit by more than 10 klms per hour but less than 20 klms per hour.[16]
[13] Ibid: see page 15 of the material exhibited to that SFIC.
[14]    Note: this quoted narrative refers to “POI 1” and “POI 2”. POI 2 is the Applicant.
[15]    Ibid.
[16]    Ibid.
On 9 March 2011, the Applicant, in company with another offender, committed his single serious offence. The offending is of a relatively novel nature and is best understood by a fulsome reference to the relevant police report:
“On Wednesday the 9^th of March 2011…(accused) and [the Applicant] co-accused) went to the ticket counter located at…main rail station to purchase tickets on the … train bound for Sydney from Perth. The accused attempted to purchase two tickets in economy class section as backpackers but were informed that these seats were not available. An alternative date was offered to which was declined as the accused stated he had to travel on this date. The sales clerk offered other options to the accused which costs more money. The accused left the counter and return with further cash funds to pay for the two trips to Sydney. The accused agreed on the…seats which included a sleeper cabin. The accused paid for the two tickets with cash. These tickets cost $6,000 for a one way trip in Gold Deluxe for two adults. Both tickets were paid for in cash by the accused. The accused then boarded the…train. The porters offered to help load the luggage of the accused and the co-accused, which was adamantly declined. The porters thought this was unusual as passengers in this class usually seek assistance. These suitcases were back plastic cases with padlocks and appeared to be heavy to move. The accused and co-accused wheeled their bags when they could. Further suspicion came from the dress of the accused. He was wearing shorts and black thongs which is not the normal attire from people travelling in Gold Deluxe. Once onboard the accused and co-accused entered their cabin. The train departed and arrived in…Upon arrival at the station, the train manager informed Safety and Assurance of the suspicious behaviour of the two Asian passengers. The information passed on, described two young Asian males 5ft 4 in tall and travelling together. These males had not left their sleeper cabin for the whole trip from…to…The accused and co-accused only ordered room service and did not leave their sleeper cabin for anything. This is odd behaviour for such a long trip. Safety and Assurance then contacted Western Australian Police of the activity of the two accused. As the local time in…would have been 6:00am, Safety and Assurance also informed NSW Police where the train was destined. This information was passed onto… Crime of the descriptions and intended arrival time of the…at 11:30am on Saturday the 12^th March 2011. About 11:30am on Saturday the 12^th of March 2011, the…arrived and was greeted by police officers from…Commuter Crime. Police searched the crowed for the two Asian males with large black suit cases with padlocks and of the build described by informants from Safety and Assurance. Officers noticed two males who alighted from the Gold Deluxe section to be of similar appearance to the descriptions provided to police. Officers introduced themselves, rank, station of duty and reason for speaking with them as per the Law Enforcement (Powers and Responsibilities) Act 2002. Police asked if they could search their bags, which both stated that police could search their bags. Police opened the bags in which they located a large sum of cash sealed inside plastic vacuum bags. Most of the denominations appear to be either in hundred and fifty dollar notes. Police estimate the amount to be around $2 million dollars. The accused and co-accused were conveyed to…Police Station and entered into custody. The accused and co-accused both sought legal advice and interpreters. Upon legal advice, both offenders declined to participate in an electronic record of interview. POI…informed investigators that he had completed a previous ‘run’ from…; however would not disclose any further information with regard to where the money had come from or who it was intended for. The suitcases were taken to…and entered into the safe. As the volume was to big, the money was removed from the suitcases and placed in the safe. (this process was video taped). The safe was secured with two keys required to gain access to the safe…Due to the excessive amount of cash located, investigators have charged the offenders with Recklessly deal with proceeds of crime – SI. Both POI(s) have been given bail. Bail includes Report x 3 days per week (Mon, Wed, Fri) Surrender passports Not approach any points of departure Not to consort with each other. Detectives from…counted, photographed and video recorded the counting process. The total amount in the suitcases came to $2.52 Million dollars (this does not include the $6.945.25 found upon POI…). Police have arranged for the money to be transferred to…, where the money will again be counted and weighed. A cheque will be issued by…in the total amount.”[17]
[Errors in original]
[17] Ibid, page 14.
For his first three offences, the Applicant received nothing in the way of sentences involving the serving of custodial time. For this fourth offence, the Applicant came before the Downing Centre Local Court on 21 December 2011. He was convicted on one count of “Deal With Property Suspected Proceeds of Crime”.[18] The court imposed a head custodial term of imprisonment of 12 months. The sentencing Magistrate (Her Honour Local Court Magistrate J Wahlquist) said:
“SO HAVING CONSIDERED THOSE MATTERS, I THINK THE APPROPRIATE PENALTY IS ONE OF 12 MONTHS IMPRISONMENT. I am prepared to vary the normal ratio of imprisonment to non-parole and parole period in view of the fact that it’s your first time in gaol and you are both young men, and of course, you’re in a country where it’s not your own country. I don’t see any reason to differentiate between the two of you, although I’m told that it was Mr Wang’s idea as opposed to [the Applicant’s]. There is no other material which suggests any real difference in your roles, so I think it’s appropriate that you both be given the same penalty. I’m prepared to reduce the non-parole period in view of it being the first time in custody, and the desirability of a period of supervision on parole after you’re released, to a non-parole period of seven months.
SO YOU WILL BE SENTENCED TO A PERIOD OF TWELVE MONTHS, A NON‑PAROLE PERIOD OF SEVEN MONTHS, WHICH WILL COMMENCE TODAY, AND YOU WILL BE ELIGIBLE FOR RELEASE ON PAROLE ON 20 JULY 2012, AND WHEN YOU ARE RELEASED YOU’LL BE SUBJECT TO SUPERVISION.”[19]
[18] Exhibit 7, s501 G Documents, G2, pages 13 and 93.
[19] Exhibit 7, s501 G Documents, G2, page 109, lines 3-20.
Despite the fact that the aforementioned 12 month custodial term imposed on 21 December 2011 provided for a non-parole period of seven months, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[20]
[20] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the delegate correctly decided that the Applicant does not pass the character test.
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
Section 499(2A) of the Act provides that in determining an application seeking to set aside the refusal of a visa pursuant to s 501(1) of the Act, the Tribunal must have regard to Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancelation of a visa under s501(CA) made pursuant to s499 of the Act (“the Direction”).
The Direction contains (1) guidance for decision makers, and (2) certain Principles that provide a framework within which decision makers should approach the task of deciding whether to exercise the discretion to refuse the grant of a visa to a non-citizen. Part B of the Direction identifies the considerations relevant to visa applicants in determining whether to exercise that discretion.
The considerations relevant in the context of a visa refusal decision appear in Part B of the Direction. Paragraph 11 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(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.

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 Other Considerations which must be taken into account are provided in a non‑exhaustive list in paragraph 12 of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests.
I note and emphasise the importance 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:[21]
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 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 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 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.[22]
[21] [2018] FCA 594.
[22] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
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;
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 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;
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;
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 be allowed to come to or remain permanently in Australia; and
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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 11.1(1) of the Direction compels decision makers to 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. This paragraph further provides that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
In determining the weight applicable to this Primary Consideration A, paragraph 11.1(1) of the Direction requires decision makers to 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 determining the weight applicable to each of these two elements, it is necessary to have regard to the circumstantial totality of the Applicant’s criminal history. I have earlier summarised the totality of the Applicant’s offending history. With specific reference to the written material before the Tribunal, particulars of his offending history can be gleaned from (1) the Applicant’s Chinese Police Certificate, dated 25 November 2015,[23] (2) the Advice of Court Result from the Downing Centre Local Court dated 21 December 2011;[24] (3) the Applicant’s National Police Certificate dated 8 December 2015;[25] (4) Transcript of Court Proceedings, Downing Centre Local Court, dated 21 December 2011;[26] and (5) the material annexed to the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[27]
[23]    Exhibit 7, s501 G Documents, G2, pages 53-55.
[24]    Ibid, pages 76-77.
[25]    Ibid, page 78.
[26]    Ibid, pages 93-109.
[27]    Exhibit 6, Respondent’s SFIC, annexure thereto – pages 1-15.
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 11.1.1(1) of the Direction specifies that decision makers must have regard to a number of factors. 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 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 s501(6)(c), is considered to be serious;
(f) Subject to paragraph (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;
(i) 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.
Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are to be viewed very seriously. The Applicant has two relatively common and mundane traffic offences involving speeding, dating from 10 years ago. He has a relatively common and mundane shoplifting offence involving the theft of a single men’s jacket in the sum of $300. His apprehension for that offence occurred on a virtually simultaneous basis with his commission of it. No loss was sustained by the retail outlet to which the subject jacket was returned, undamaged, for retail sale. The Applicant has, as a fourth and final offence, a conviction for dealing with property suspected of being the proceeds of crime.
None of these offences involve violence and/or criminal offending of a sexual nature. This sub-paragraph (a) is of no relevance to this determination.
Sub-paragraph (b) of paragraph 11.1.1(1) of the Direction stipulates the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed. None of the Applicant’s four offences involved violence against women or children. This sub-paragraph (b) is of no relevance to this determination.
Sub-paragraph (c) of Paragraph 9.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.
I have recounted the particulars not just of the Applicant’s offending, but his conduct following apprehension. His apprehension for the two traffic matters passed without incident. When apprehended for the theft of the men’s jacket, the Applicant readily complied with the police direction resulting in (1) his ready compliance to provide his particulars; (2) receive the relevant infringement notice (or equivalent); and (3) facilitate return of the subject jacket to the retail store for resale.
Following his apprehension for the fourth offence, it is clear from the police summary that both he and his co-accused (1) surrendered to the authority of the police; (2) allowed the police to search their bags which located the subject funds; (3) agreed to be conveyed to the relevant police station; and (4) entered into custody. Both the Applicant and his co‑accused were granted bail and there is no evidence that bail was breached. Indeed, there is evidence that bail was actually enlarged.[28] Nothing adverse to the Applicant can be taken from his request for legal advice and, based upon that legal advice, his refusal to participate in an electronic record of interview.
[28] See Exhibit 7, s501 G Documents, G2, pages 74-75 – This comprises an Order dated 11 October 2011 to the effect that “The Bail Undertaking entered by [the Applicant] on the 12 March 2011 is continued.”
Thus, there is no evidence that any of the Applicant’s offending was committed against vulnerable members of the community or against government representatives or officials. None of the Applicant’s offending was committed against, or otherwise caused him to challenge, the lawful authority of “government representatives or officials…in the performance of their duties”. Accordingly, this sub‑paragraph (c) is of no relevance to this determination.
Sub-paragraph (d) of paragraph 11.1.1(1) of the Direction concerns itself with any crime committed by a non-citizen, inter alia, while in immigration detention. The factual sequence is clear: this Applicant committed his fourth and most serious offence and then was placed on bail and remained in the general community until he was sentenced in 21 December 2011. He served the custodial component of the sentence imposed upon him until 20 July 2012. Upon release, “…he was sent to Villawood Immigration Detention Centre for one week before departing Australia…”[29] for China on 2 August 2012. The Applicant has spent a miniscule amount of time in immigration detention that passed without moment. Accordingly, this sub‑paragraph (d) is of no relevance to this determination.
[29] Ibid, page 15, paragraph [20].
Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction refers a decision maker to the principle that conduct forming 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 s 501(6)(c), is considered to be serious.
As amply ventilated earlier, the Applicant does not pass the character test. This is based on the delegate’s finding, which I now accept, that consequent upon the sentence imposed upon him in December 2011, the Applicant does have “a substantial criminal record” as defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
I am mindful of the reference to “…does not pass a subjective limb of the character test…” as contained in this sub-paragraph (e). Out of an abundance of caution, I have looked through the componentry of s 501(6) of the Act and have sought to glean any subsection thereof that may be referable to the Applicant’s offending for present purposes. I note:
·The Applicant has not been convicted of an offence committed while in immigration detention, during an escape from immigration detention or after an escape from immigration detention;[30]
·The Applicant has not been convicted of an offence against s197A of the Act;[31]
·The Applicant is not the subject of a reasonable suspicion held by the Respondent that he has been or is a member of a group or organisation and that such group or organisation has been involved in criminal conduct;[32]
·The Applicant is not the subject of a reasonable suspicion held by the Respondent that the Applicant has committed offences in the realms of people-smuggling, trafficking in persons, a crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;[33]
·That if the Applicant were allowed to enter or remain in Australia, there is no discernible risk that he would (1) harass, molest, intimidate or stalk another person in Australia; or (2) vilify a segment of the Australian community; or (3) incite discord in the Australian community or in a segment of that community; or (4) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to or in violence threatening harm to that community or segment of that community, or in any other way;[34]
·That no court in Australia or a foreign country has (1) convicted the Applicant of one or more sexually based offences involving a child, or (2) found him guilty of such an offence, or found a charge against the Applicant proved for such an offence, even if the Applicant had been discharged without a conviction;[35]
·That the Applicant has not, in Australia or a foreign country, been charged with or indicted for one or more of (1) the crime of genocide; (2) a crime against humanity; (3) a war crime; (4) a crime involving torture or slavery; or (5) a crime that is otherwise of serious international concern;[36]
·The Applicant has at no time been the subject of any assessment by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);[37]
·The Applicant has at no time been the subject of an Interpol notice from which it is reasonable to infer that he would present a risk to the Australian community or a segment of that community.[38]
[30]    Section 501(6)(aa)(i), (ii) and (iii).
[31]    Section 501(6)(ab).
[32]    Section 501(6)(b)(i) and (ii).
[33]    Section 501(6)(ba)(i), (ii) and (iii).
[34]    Section 501(6)(d)(ii),(iii),(iv) and (v).
[35]    Section 501(6)(e)(i) and (ii).
[36]    Section 501(6)(f)(i), (ii), (iii), (iv) and (v).
[37]    Section 501(6)(g).
[38]    Section 501(6)(h).
Based upon the above bullet point summary, I am not able to glean any subjective limb of the character test provision (s 501(6) of the Act) referable to the Applicant’s conduct such that it be considered serious pursuant to this sub-paragraph (e).
However, put at its highest, there are the balance or remaining subjective limbs of s 501(6) of the Act that may be taken into account in terms of characterising the Applicant’s conduct as serious. Those remaining subjective limb provisions of s 501(6) comprise:
· s 501(6)(c) provides:
“(c) having regard to either or both of the following:
(i)the person’s past or present criminal conduct;
(ii)the person’s past or present general conduct”;
· s 501(6)(d)(i) provides:
“(d) in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia…”
In the decision under review, the delegate recounted the circumstances of the Applicant’s offending involving the fourth offending episode and said:
“…
7. Magistrate Wahlquist made reference to the inference that [the Applicant] and [co-accused/name redacted] were used (as mules) to transport the money rather than being the owners of the money. Given the psychologist’s report tendered to the court, Magistrate Wahlquist stated that it was clear neither of the defendants could be capable of being involved in anything which could produce that sort of money and it was most likely that they were simply transporting the money.
8. The fact that it was a large sum of money made it a serious crime and most probably the proceeds of crime. The amount suggested that it was an organised crime enterprise and the inference was made that they (the defendants) were to receive a financial benefit, although the degree of the financial benefit was not clear.
9. Magistrate Wahlquist stated that they were both young, of good character and because they pleaded guilty this would be taken into account. Both defendants had indicated remorse to the psychologist, however this was not a sign of extensive remorse as there had been no information forthcoming in relation to the whole enterprise and their participation. Neither had been willing to be more cooperative.
10. Magistrate Wahlquist did not give the maximum sentence of two years as [the Applicant] was not charged with the more serious offence of Recklessly dealing with the proceeds of crime, although the amount of money was (in the Magistrate’s view) at the more serious end for this type of offending and she was not prepared to suspend the sentence.
…
20. In his Partner visa application [the Applicant] declared that in 2011 he helped a friend bring “plenty of money” from one place to another in Australia. The police found out but as he could not explain the source of the money he was detained and then released on bail. He was sentenced to one year imprisonment and after seven months of serving his sentence he was sent to Villawood Immigration Detention Centre for one week before departing Australia…
21. In a personal statement dated 18 January 2016, [the Applicant] states that his offending was due to losing approximately $50,000 in a business venture, feeling depressed and lost and wanting to recoup some of his financial loss as the money he lost was also his parents’ hard earned money.
22. [The Applicant] states that he was told he would be paid a few hundred dollars if he delivered some cash. He stated that he did hesitate as he considered the source of the money however he then thought he was only responsible for the delivery and not the source.
23. [The Applicant] expresses deep regret and remorse for his offending. Since returning to China he has been working and attends community activities which include visiting elderly people and volunteering with community services. He has matured since his offending and is now a husband and father. Although he cannot erase the errors in his past, he has reformed since that time…
24. [The Applicant] has no other recorded offending…
25. [The Applicant’s] intention is to reside permanently in Australia with his wife and children as a family unit.”[39]
[39] Exhibit 7, s501 G Documents, G2, pages 13-16.
I have had regard to the circumstantial totality of the Applicant’s offending. First, I am of the view, pursuant to s 501(6)(c)(i) that the Applicant’s past criminal conduct may, to an extent, constitute “a subjective limb of the character test” and thus attract application of this sub‑paragraph (e) to ground a finding that his offending conduct in this country is to be regarded as serious. With further reference to s 501(6)(c)(i), the Applicant has not re‑offended in China. The material makes this abundantly clear.[40]
[40] Ibid, see pages 53-55: Chinese police certificate dated 25 November 2015, which states that “This is to certify that [the Applicant] has no criminal record during his residence in the People’s Republic of China up to November 23, 2015.” There is nothing in the material to indicate the Applicant has offended since that date.

With specific reference to s 501(6)(c)(ii), I am hard-pressed to identify any instance or element of the Applicant’s past and present general conduct such as to attract the operation of this sub‑paragraph (e). In terms of the Applicant’s past conduct in this country, he has committed two traffic (speeding) offences that were committed and dealt with without moment. His offending involving the shoplifting of a men’s jacket in the sum of $300 is not, to my mind, of sufficient gravity to warrant a finding that his past general conduct in this country militates in favour of a finding that his conduct has been serious. He has been absent from this country since August 2012. He cannot be said to have been present in this country since that time, and, accordingly, there is no “present general conduct” in Australia upon which to base any finding pursuant to this sub-paragraph (e). There is no evidence that the Applicant’s present general conduct in China since August 2012 is any different to his past general conduct in this country.
Second, I have had regard to s 501(6)(d)(i) of the Act relating to the Applicant’s risk of engaging in further criminal conduct in Australia were he allowed to re-enter this country. In the decision under review, the delegate does not reach a concluded view about the Applicant’s risk of engaging in further criminal conduct in Australia were he allowed to return here. The delegate notes “Although he cannot erase the errors in his past he has reformed since that time.” While I accept this does not constitute a definitive finding of the Applicant’s risk of recidivism were he to return to Australia, it nevertheless does not constitute a positive finding that he will re-offend. Later in these reasons I will form a view about the Applicant’s risk of recidivism. Anticipating my findings on that specific issue, I will, for present purposes, conclude that s 501(6)(d)(i) of the Act should not be relied upon to activate the provisions of this sub‑paragraph (e) to characterise the Applicant’s past criminal offending in this country as serious.
Put at its highest, I am of the view that s 501(6)(d)(i) of the Act invokes application of this sub‑paragraph (e). However, only on the basis that, by virtue of his “past…criminal conduct…”, the Applicant’s failure to pass this (and only this) subjective limb of the character test engenders an allocation of weight in favour of a finding that the nature of his criminal offending in this country, some 10 years ago, has been “serious”.
Sub-paragraph (f) of paragraph 11.1.1(1) of the Direction directs a decision maker to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 11.1.1(1) of the Direction. It is well‑established that imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.[41]
[41] See PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at paragraph [22]; and Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at paragraph [50].
The Applicant has been the subject of only one custodial sentencing episode in Australia. He has not, since being sentenced to a term of imprisonment in December 2011, committed any further crimes, be they in a violent or other context in Australia, or, as the evidence indicates, in China or elsewhere. I accept that he has experienced a deterrent effect from the custodial term of imprisonment imposed on him on 21 December 2011.
For present purposes, it should be accepted that the nature of the sentence on the Applicant in December 2011 does, to a certain extent, militate in favour of a finding that his fourth offending episode was of a serious nature. However, that observation must be counterbalanced by the obvious deterrent effect he has experienced from 2011 until now. Accordingly, I allocate only a very slight measure of weight to this sub-paragraph (f) of paragraph 11.1.1(1) of the Direction in favour of a finding that the singular custodial sentence imposed by the Downing Centre Local Court in December 2011 is demonstrative of the serious nature of his offending.
Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points a decision maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (g) largely parallels the preceding exercise involving an application of sub-paragraph (f). Obviously, any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it can be fairly noted that the Applicant has an offending period of barely 12 months – that is, running from March 2010 to March 2011. It can also be fairly noted that, brief though his offending history may be, it does carry an indication of a trend (of sorts) of increasing seriousness.
As mentioned, there are four offences in the entire offending history. The first three of them cannot, on any objective basis, constitute serious offending. Those first three offences occur in March, September and October 2010. There is a clear evolution in the offending history such that it escalates in seriousness from the date of the third offence (October 2010) to the date of commission of the fourth and most serious offence, in March 2011. The first three offences were relatively minor and non-indictable offences. The significant graduation of seriousness occurs with the Applicant’s commission of the “deal with property suspected proceeds of crime” offence in March 2011.
Turning to the frequency of his offending, the Applicant first arrived in Australia in August 2005. For all intents and purposes, he spent seven years in Australia from 2005 until 2012. The offending occurred across a single 12 month period from March 2010 to March 2011. It is correct to say that the offending was “frequent” during that specific 12 month phase. However, it cannot be said that the Applicant was a “frequent” offender for much or all of his seven years in this country. All too often, applications of this type involve criminal histories that dominate a non-citizen’s time in this country. The offending arising from those types of criminal histories involve a non-citizen receiving custodial terms (measured cumulatively) that often equate to or exceed the non-citizen’s total time in this country.
This is not the case in relation to this Applicant. For reasons I will expand upon later, there are commercial explanations that prompted the Applicant’s most serious offence. However, for the purposes of determining the level of weight attributable to this sub-paragraph (g), I am not of the view that this Applicant has been a frequent offender in this country. His first three offences barely troubled lawful authority and were dealt with in a regular and mostly mundane way. I accept the position is otherwise with his fourth and most serious offence. Be that as it may, I cannot safely find that putting the four offending episodes together, the Applicant can somehow be said to be a “frequent” offender for the purposes of this sub-paragraph (g).
Thus, an application of this sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points to a finding that, whilst the Applicant’s offending was not necessarily frequent over a particularly long period of time, it was relatively frequent across the 12 month period of its duration from March 2010 to March 2011. He appears to have learnt his lesson and experienced a deterrent effect from the custodial term imposed upon him in December 2011.The evidence points to no further episodes of offending either in Australia or China.
On balance, I am of the view that to any extent this sub-paragraph (g) militates in favour of exercising the power to refuse the visa, it should be tempered against the brevity of the offending period and its isolation to four offences across a 12 month period, three of which are not serious. I accordingly allocate a slight level of weight to this sub-paragraph (g) in favour of a finding that the Applicant’s conduct has been serious.
Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant first came to this country in August 2005. He had been here for approximately seven years until he returned to China in August 2012.
For the seven years he spent in Australia, he was removed from the Australian community for a period of no more than seven months from December 2011 until July 2012. He spent barely a week in immigration detention at the end of July 2012 before departing for China at the beginning of August 2012. The conduct grounding the refusal of the visa he seeks has seen him physically removed from the Australian community for no more than seven months of the approximately seven years (i.e. 84 months) he has spent here. That is a period equivalent to 1/12^th of his time in Australia. Put in another and more disadvantageous way for the Applicant, even if one looks at the head custodial term of 12 months (as opposed to the time actually served – seven months) we are talking about a period of one seventh of his total time in Australia. This Tribunal has seen far worse cumulative effects arising from comparative offending histories of other applicants.
Unique to this case, another (and for the Applicant, positive) cumulative effect of the Applicant’s offending is the reality that he has not re-offended in a like way for nearly a decade – either in Australia or in China. I take the Applicant’s evidence in this regard at face value. Similarly, I take at face value the evidence comprising the abovementioned Chinese Police Certificate dated 25 November 2015.[42] This is not a case where the Applicant’s persistent and repeated offending has caused him to be placed in criminal custody and then to spend a similarly long period in immigration detention. This Applicant did what he did from March 2010 until March 2011. He served a custodial term of seven months from December 2011 to July 2012 and then, virtually immediately, departed Australia and has not re-offended in a like way (or at all) since.
[42] Exhibit 7, s501 G Documents, G2, pages 53-55.
Thus the cumulative effect of the Applicant’s offending can be seen from at least three aspects. First, his offending history comprises four offences, only one of which can objectively be said to be serious. Second, his offending occurred across a 12 month period from March 2010 to March 2011 and he has not since re-offended in a like way in Australia or China. Third, his offending has seen him physically removed from the Australian community for only seven months out of the approximately seven years he spent here.
Accordingly, the application of this sub-paragraph (h) to the present factual matrix gives rise to a finding that a slight measure of weight is attributable to a conclusion that the cumulative effect of his past offending is such as to render it serious.
Sub-paragraph (i) of Paragraph 11.1.1(1) of the Direction directs a decision maker to consider whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending. There is no evidence in the material (written or oral) pointing to conduct by the Applicant in this regard. Accordingly, this sub-paragraph (i) is of no relevance to this determination.
Sub-paragraph (j) of Paragraph 11.1.1(1) of the Direction directs a decision maker to consider any offending committed overseas, and whether those offences are classified as an offence in Australia. Again, any enquiry required by this sub-paragraph (j) is squarely resolved in the Applicant’s favour by reference to the abovementioned Chinese Police Certificate, dated 25 November 2015. There is no evidence before the Tribunal that the Applicant has re‑offended in China or elsewhere since November 2015. Accordingly, this sub-paragraph (j) is of no relevance to this determination.
Out of an abundance of caution, it is necessary to refer to the chapeau to the factors at Paragraph 11.1.1 of the Direction. Recourse can be had to this chapeau if a decision maker finds conduct by an applicant in the material that is not captured by any of the 10 sub-paragraphs in paragraph 11.1.1(1) of the Direction. The chapeau reads as follows:
“(1) 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: …”
[My underlining]
I am not able to find any other aspects of the Applicant’s offending conduct that are not directly captured by the 10 sub-paragraphs of paragraph 11.1.1(1) of the Direction. Accordingly, there is no other discernible conduct of this Applicant that could constitute “other conduct” pursuant to the chapeau that would be relevant to any assessment of the nature and seriousness of his offending history in this country.
Having regard to the totality of the evidence to which the abovementioned sub‑paragraphs (e), (f), (g) and (h) of paragraph 11.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct can, at its highest, be characterised as “serious”. Upon application of the respective weights I have attributed to the relevant sub-paragraphs of paragraph 11.1.1(1) of the Direction I find that the nature and seriousness of the Applicant’s conduct to date is of a serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) tells a decision maker that in considering whether a non-citizen represents an unacceptable risk of harm to the Australian community, regard should be had to the principle that the Australian community’s tolerance for any risk of harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, were it to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 11.1.2(2) directs decision makers to 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. This principle is intended to point out that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In considering and assessing the risk a non-citizen poses to the Australian community, paragraph 11.1.2(3) provides that a decision maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 11.1.2(3)(a) requires me 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 11.1.2(3)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account:
o   Information and evidence on the risk of the Applicant re-offending;
o   Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence; and
o   The duration of the Applicant’s intended stay in Australia.
Paragraph 11.1.2(4) also directs decision makers to 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.
In the hearing before me, the sole primary independent and expert witness who provided written and oral evidence informing the Tribunal about the Applicant’s risk of re-offending was the Consultant Psychologist Mr Tim Watson-Munro. His report is dated 30 July 2018 and appears as Exhibit 4 in the exhibit material. In addition to his oral evidence in chief at the hearing, Mr Watson-Munro was cross-examined by the Respondent’s representative. It should also be noted that the only other person who has made assessment about the Applicant’s psychological state and, presumably, his risk of re-offending is Dr John Jacmon in a report dated 19 October 2011. This report was tendered by the Applicant’s representative at the sentencing hearing in December 2011.[43] For accepted statutory reasons limiting the introduction of that evidence into these proceedings, it was not possible for the Applicant’s representative to tender a report of Dr Jacmon’s above‑mentioned report. As mentioned earlier, the delegate’s reasons do not disclose any assessment of the Applicant’s risk of re‑offending.
[43] Ibid, G2, page 96, lines 22-23.
Consultant Psychologist Mr Tim Watson-Munro (“Mr Watson-Munro”) (Report dated 30 July 2018):
Mr Watson-Munro is a vastly experienced Consultant Psychologist who practices from rooms in Sydney and Melbourne. He has examined and reported on something in the order of 30,000 patients in the course of his career in practice. Mr Watson-Munro examined the Applicant on two separate occasions by WeChat. The first examination occurred on 1 June 2018 and the second was on 22 July 2018. Consequent upon those examinations, Mr Watson-Munro produced his report, dated 30 July 2018. Consequent upon provision of that report, Mr Watson-Munro made himself available to give evidence in chief to this Tribunal in the instant matter. He also submitted himself to cross‑examination.
In terms of general observations, Mr Watson-Munro noted:
·“[The Applicant] presents as a co-operative though somewhat depressed and anxious man who is seeking to be sponsored by his wife Ms Sihui Yi, to migrate to Australia on a Partner (spouse) Visa.”[44]
[44]    Exhibit 4, Report of Mr Tim Watson-Munro, dated 30 July 2018, page 2.
…
·“It is clear that this is a well-bonded loving marriage, which dates back to September 2012. [The Applicant] was candid in terms of his discussions of his offending behaviour, which led to him being required to leave the country.”[45]
[45]    Ibid.
…
·“I note that [the Applicant], beyond the index offence which led to his incarceration and deportation, has no prior or subsequent forensic history.”[46]
[46]    Ibid, page 3.
…
·“Consistent with earlier instructions, [the Applicant] stated that he was unaware of the purpose of the trip until he arrived in Perth and saw the money in the suitcases.”[47]
…
·“It is apparent that his maturation and commitment to his family has been a significant issue in terms of the couple maintaining their robust love for one another in extraordinarily trying circumstances.”[48]
…
·“I initially spoke to [the Applicant] by way of audio visual link at the time that I assessed his wife, Ms Sihui Yi on 1 June 2018 in Sydney. Since that time she has travelled to Shanghai to be with him in order to strengthen their family bond, with particular reference to the children. Consequently, I was in a strong position to observe [the Applicant] in the company of his wife, as well as the two children on the two most recent occasions that I examined him.”[49]
·“It is apparent that [the Applicant] has matured substantially since he was charged with the Deal with Property Suspected Proceeds of Crime in 2010. Reflective of this, he has maintained stable employment in the one job and is providing well for the family.”[50]
…
·“…it is apparent from his overall history, which has been characterised by only this offence and nothing since that time, that the likelihood of him reoffending in any manner is remote.”[51]
[My underlining and emphasis]
[47]    Ibid.
[48]    Ibid.
[49]    Ibid.
[50]    Ibid, page 4.
[51]    Ibid.

In terms of the Applicant’s social history, Mr Watson-Munro noted that:
·     “[The Applicant] stated that he met his wife in 2006. It was not until 2008 however that their relationship commenced with them marrying on 26 September 2012 in Shanghai. They share two children as noted. Both his son and daughter were born in Australia and consequently are citizens of the nation [i.e. Australia]. His contact with the children has been sparse, although meaningful arising from his inability to return to Australia.”[52]
·     “[The Applicant] reported that he has been in stable employment in China. He has been with the one company for the entire period. This clearly speaks to his stability, as well as his work ethic. He reported that his wife has visited China on four occasions and is currently in Shanghai with him. He described a strong desire to re-establish himself in Australia through becoming involved in the hospitality industry.”[53]
[My emphasis and underlining]
[52]    Ibid, page 5.
[53]    Ibid.
In terms of the Applicant’s drug, alcohol and psychological history, Mr Watson-Munro noted these things:
·     “[The Applicant] denies using illicit drugs or abusing alcohol. He conceded that in the lead up to his offending in Australia he was vulnerable, immature and financially stressed. He evidently has established a cleaning business but had been given misleading figures in terms of its viability and profitability. This additional stress impacted at a level of significance upon his judgment. Arising from this he accumulated a significant debt, which rendered him further vulnerable to the solicitations of those who inveigled him to travel to Perth with a view to transporting the money back to Sydney.”[54]
·     Mr Watson-Munro was of the view that specifically identifiable dynamic factors were the contributors towards his commission of his most serious offence. Those factors involved the impairment of the Applicant’s day to day functioning resulting from (1) a failed investment jointly held with his wife and (2) the resultant break-up of his relationship in late 2010. Mr Watson-Munro opined that the Applicant made the decision to involve himself with that type of offending due to the impact that depression and anxiety will have had upon his cognitive ability including elements such as concentration, memory, problem-solving, decision-making, confusion and impulsivity.[55]
·      “Clearly, the issue of remorse is relevant to risk management and assessment. From my experience, individual’s [sic] who have insight to the dynamics surrounding their offending and associated with remorse, focus not only upon themselves but effectively the behaviour on others, tend to respond more favourably to treatment with a more positive prognostic outcome in terms of forensic considerations.”[56]
·     “This issue has been comprehensively addressed in the other documentation I have read from [the Applicant’s] family members and indeed himself…He further describes his offending occurring during the nadir of his life…”[57]
[54]    Ibid.
[55]    Ibid, see bottom of page 5-top of page 6.
[56]    Ibid, page 6.
[57]    Ibid.
In terms of his observations of the Applicant with his family unit, Mr Watson-Munro noted the following:
·     “It is clear that this is a well-bonded family. The children spontaneously hug their father and equally so, the interactions of [the Applicant] and his wife is nothing other than positive and loving.”[58]
·     “[The Applicant] reported that when not at work he spends all of his available time with his family including outings to the park…He reported…if he is permitted to return to Australia, he will make a contribution in a pro-social way where the children will clearly benefit not only by his presence but also the additional income and the educational opportunities they will enjoy.”[59]
[58]    Ibid, page 7.
[59]    Ibid.
In terms of a concluded opinion, Mr Watson-Munro said these things:
“Opinion:
…
2. In terms of the issue of risk management referrable to future offending behaviour, I am of the considered opinion that this is remote. I say this advisedly, on the basis of [the Applicant’s] prior history before the offence was committed, his attitude towards the offence, as well described in the psychologist’s report at that time and in addition, observations of significant others in his life, as well as demonstrated and consistent good behaviour since he has returned to China. In other words, he has matured. It is clear that at the time of the index offence he was psychologically vulnerable, suffering from significant depression, anxiety and features of an Adjustment Disorder. … Compounding the dynamic he had borrowed money to establish a cleaning business and was clearly duped in this regard in terms of the business not being viable or profitable. This too had a substantial effect upon his mood state, judgment, capacity for consequential thinking and impulse control…
3. [The Applicant’s] focus is clearly on a pro-social life and hopefully a renewed relationship with his family whilst living in Australia. He has positive aspirations for the future. The dynamics which led to his offending in the first instance have now dissipated. He is well supported by his wife and is keen to move forward. Certainly, he comprehensively understands the consequences of any future offending, which additionally galvanises my view that it is highly unlikely that he will reoffend in Australia, if he is given the opportunity to live here.”[60]
[My emphasis and underlining]
[60] Ibid, pages 8 and 10.
Evidence in Chief of Mr Watson-Munro
In his evidence in chief, Mr Watson-Munro was taken to his abovementioned report, dated 30 July 2018. He largely re-confirmed the contents of that report.
Cross-Examination of Mr Watson-Munro
Mr Watson-Munro was asked about whether an interpreter was involved in the provision of instructions by the Applicant to him. Mr Watson-Munro said that he did not have the benefit of an interpreter and that he largely relied upon the Applicant’s wife, who provided him with a “fairly cogent history”. Mr Watson-Munro accepted that the Applicant “…spoke a little bit of English, but I would have been lost without her.”[61] In the final analysis, I do not think anything significant turns on the absence of a formally appointed interpreter and I am content to accept that Mr Watson-Munro was properly instructed by the Applicant via the assistance of his wife.
[61] Transcript dated 3 April 2019, pate 33, lines 42-43.
The Respondent’s representative sought to suggest to Mr Watson-Munro that his report may have been somewhat compromised because the material he cites as having been briefed to him for preparation of his report did not include a copy of the material summonsed from the police, or, more generally, the material presently appearing as the various annexures to the Respondent’s SFIC. I do not think anything significant turns on the absence of the summonsed material having been briefed to Mr Watson-Munro. Put at its highest, this material would have informed Mr Watson-Munro about a couple of traffic infringements and a relatively minor stealing episode involving an item of men’s apparel valued at $300.
Likewise, something was sought to be made about the Applicant not telling Mr Watson-Munro about his two traffic infringements and the stealing episode in relation to the men’s jacket. The obvious response is to say that Mr Watson-Munro had not been briefed to report on the Applicant’s risk of re-offending in the realm of traffic infringements and relatively minor stealing conduct. He had been briefed to report on factors that predisposed the Applicant to offend in a serious way involving the transport of a large amount of cash from Perth to Sydney. Ultimately, I do not think this line of questioning went anywhere.
A perhaps more significant line of questioning arose from the inconsistency about the Applicant’s knowledge regarding what he was transporting back to Sydney when one compares what he said about this in his written material as opposed to what he said in evidence at the hearing. It was put to Mr Watson-Munro that in his written material, the Applicant said he was not aware that he was going to be transporting cash until he actually arrived in Perth. Yet in his oral evidence at the hearing, the Applicant conceded he knew that he would be delivering cash. While, Mr Watson-Munro conceded this discrepancy, I do not consider that such discrepancy impugns his findings about the Applicant’s risk of recidivism being “remote” and that is it “highly unlikely” he will re-offend in Australia.
Mr Watson-Munro was also asked about whether his findings about the Applicant’s risk of recidivism were based on any formally applied psychometric testing methodologies. Mr Watson-Munro replied that he did not apply psychometric testing methodologies to the Applicant and that his findings were primarily based on what the Applicant has done since his seven month term of incarceration in Australia and his ensuing release and return to China. Mr Watson-Munro also said that we now have the additional knowledge that the Applicant has committed no further offences across the period of almost a decade that he has been in China.
Mr Watson-Munro was taken to page 6 of his report, where he speaks of remorse: “Clearly, the issue of remorse is relevant to risk management and assessment.” The Respondent’s representative sought to impugn Mr Watson-Munro’s findings about the Applicant’s level of remorse by referring him to the following passage from the sentencing remarks of the sentencing Magistrate, Her Honour, J Wahlquist:
“…You have indicated remorse to the psychologist, Mr Jacmon, who has provided some background information to the Court about both of you, and you’ve pleaded guilty. That’s also a sign of remorse, but that’s not extensive remorse, in view of the fact that there has been no further information forthcoming in relation to the whole enterprise and what you were doing, which of course would entitle you to a greater consideration for remorse had you been willing to advise in relation to that, and cooperating in relation to that.”[62]
[62] Exhibit 7, s501 G Documents, G2, page 108, lines 13-20.
Mr Watson-Munro is entitled to form a view about the Applicant’s level of remorse based upon the contemporaneous assessment of that remorse made by Dr Jacmon. With respect, I am of the view that it is unfair to an applicant (and to an expert assessing that applicant) to suggest that levels of remorse are not what they should be or that it is not “extensive remorse” simply because an applicant did not provide further information “in relation to the whole enterprise and what you were doing”. Two things can be said about that: first, the Applicant may not have had, or been privy to, any “further information” about the “whole enterprise.” Second, the Applicant was perfectly entitled to provide whatever level of assistance he saw fit based upon legal advice he was receiving at that time. With every measure of respect to the sentencing Magistrate, there seems to be something inherently unfair in measuring an Applicant’s remorse based upon the level of assistance provided to the police. The Applicant (1) was convicted on his own plea of guilty, (2) took the opportunity to secure independent legal advice, and (3) had the matter resolved, by way of his own plea, in a relatively short timeframe.
There followed a question from myself to the effect that were the Applicant allowed to return to Australia and again be confronted with the same economic difficulties and strictures that obviously grounded the factors leading to his commission of the serious offence, what is the level of likelihood of him re-offending in those circumstances? Mr Watson-Munro agreed that “…it’s not the worst history. He has a history.”[63] Mr Watson-Munro then noted that there are clearly discernible factors now in place militating against the Applicant re‑offending were he again to find himself in a similar position of economic difficulty in this country. Mr Watson‑Munro cited those factors as:
(1) The Applicant’s is older now – he was 25 at the time of committing the index offence and is now in his mid-30s;
(2) The Applicant became married when he was 27 years old;
(3) There are two children of that marriage born when he was aged 27 and 31 years respectively;
(4) He was severely punished for his offending in Australia with a 12 month head custodial term and a requirement that he serve seven months in actual custody;
(5) He knows there are further severe consequences, both in terms of criminal sentencing and his visa status, were he to re-offend in Australia;
(6) He is involved in an obviously stable, well-bonded and long-lasting marriage; and
(7) He has not re-offended since commission of the index offence either in Australia or China.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
[63] Transcript dated 3 April 2019, page 38, line 26.
Having regard to the nature and level of seriousness of the Applicant’s fourth offence, were it to be repeated, it is difficult to glean any direct impact upon a specific victim or victims. Such a finding would be unsafe. To my mind, the Applicant’s conduct comprises him playing an albeit small role in a broader enterprise that may very well have had the effect of inflicting harm on the Australian community. There can be little or no argument against the proposition that the nature of the harm that would have been inflicted on the Australian community in the course of generation of such an extraordinary amount of money would probably have been palpable and significant.
It is very difficult to gauge the nature of that harm. The simple and immediate conclusion is to arrive at a thought that these funds were the proceeds of unlawful conduct in relation to illicit drugs or other unlawful activity in the realm of unlawful gambling or unlawful prostitution, for example. On the other hand, the harm may derive from the subject funds simply being undeclared profits from a legitimate business (or a group of businesses) for the purpose of avoiding a liability to pay taxation on those funds.
Whichever way that harm is viewed or inferred, there can be little or no argument against the proposition that were the Applicant to again involve himself in the transportation and safe delivery of funds of this magnitude, harm will either (1) have already been occasioned to members of the Australian community (assuming the funds came from criminal activity) or (2) be occasioned to members of the Australian community in future (assuming the funds were undeclared profits from legitimate business activity) by depriving the Australian community of the benefit of taxation revenue that the government would derive from those funds.
Consequently, I find that were he to re-offend, the resulting harm would be serious and could conceivably involve the occasioning of palpable and serious financial, physical or mental harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has acknowledged (1) that he has offended in a quite serious way, (2) that he bears sole responsibility for the regrettable and serious effects of his unlawful conduct, and (3) that he is ashamed of and remorseful about his conduct.
For the purposes of this decision, I am prepared to find that, in accordance with the views of Mr Watson-Munro, there are discernible factors now militating against the Applicant again resorting to criminal offending in the event of him being confronted with economic stricture and difficulty in Australia. There is no argument against the proposition that since August 2012 his life in China has been consistently stable. He has held down responsible and remunerative employment for the entirety of that period. This stability has been augmented by the stability and staunch support he has enjoyed from his wife and his two infant children.
One of the objectives of the Australian community’s sentencing process is to ensure that offenders experience a deterrent effect from a given sentence imposed upon them. The undeniable reality, endorsed and proven by the passage of almost a decade, is that this Applicant has (1) demonstrably experienced a deterrent effect from the custodial sentence previously imposed upon him in December 2011, and (2) managed to achieve an exemplary record of behaviour in China since August 2012.
This is not a case of an Applicant solely promoting his own low prospects of re-offending. Those prospects have been the subject of expert examination, deliberation and analysis. I will again quote Mr Watson-Munro, who puts it more eloquently and expertly than I:
·“…it is apparent from his overall history, which has been characterised by only this offence and nothing since that time, that the likelihood of him reoffending in any manner is remote.”[64]
·In terms of the issue of risk management referable to future offending behaviour, I am of the considered opinion that this is remote.[65]
·The dynamics which led to his offending in the first instance have now dissipated. He is well supported by his wife and is keen to move forward. Certainly, he comprehensively understands the consequences of any future offending, which additionally galvanises my view that it is highly unlikely that he will reoffend in Australia, if he is given the opportunity to live here.”[66]
[My emphasis and underlining]
[64]    Exhibit 4, Report of Mr Tim Watson-Munro, dated 30 July 2018, page 4.
[65]    Ibid, page 10.
[66]    Ibid.
I have misgivings about any propounded submission – either by an Applicant or a Respondent in a case such as this – about a decision maker having to reach a point of satisfaction regarding an Applicant having a “zero chance” of recidivism. Such a concept can surely only exist on a hypothetical basis and, to the extent it exists at all, it can only apply to an extremely narrow sector of our community such as the very young or infantile population. The simple physical reality is that every able-bodied or otherwise physically self-sufficient member of our community can harm any other member of our community at any time.
There is independent and expert evidence before the Tribunal (which I accept) that this Applicant’s risk of returning to any offending conduct, of the type for which he was convicted in December 2011 is, respectively, “low”, “remote” and “highly unlikely”.
I am also of the view that the combined effect of at least two legally-derived elements constitute a significant “Sword of Damocles” over the head of this Applicant, which militates against his prospects of re-offending. First, the Applicant has experienced a genuine deterrent effect as a result of his placement into criminal custody (in 2011). He clearly never wants to be deprived of his liberty ever again. Second, I think there can be little or no doubt that, were the Applicant to re-offend, there is every possibility that the Minister would (and in my respectful view, with every justification) cancel his visa.
This is not an Applicant who presents before the Tribunal with a lengthy litany of offending. His serious offending was isolated to one incident. It cannot be said that the Applicant has been isolated in a cocoon of repetitive offending, deriving from, for example, an unresolved predisposition towards offending in the realm of illicit drugs and the additional, often violently unlawful conduct spawned by such offending.
Having regard to (1) the analysis and findings of Mr Watson-Munro about the Applicant’s low risk of recidivism, (2) the absence of the all-too-often adverse impact of the abuse of either illicit substances or alcohol in the Applicant’s history, and (3) the abovementioned two legally-derived factors, I am satisfied that this Applicant presents with a genuinely low risk of re-offending.
Conclusion: Primary Consideration A

FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[87]
[87] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[88]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[89]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[90]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[91]
[88]    Afu at paragraph [85].
[89]    FYBR at paragraph [42].
[90]    FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[91] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus:
“From 01/2010 to 11/2011 – Worker – [Name of employer redacted]
“From 05/2008 to 12/2009 – Courier – [Name of employer redacted]
“From 10/2006 to 04/2008 – Cleaner – [Name of employer redacted]
“From 08/2005 to 09/2006 – Sales – [Name of employer redacted]”[92]
[92] Exhibit 7, s501 G Documents, G2, page 126.
He lists contributions to and participation in Australian cultural and community life. In his material, he said:
“During the seven years in Sydney, I was overwhelmed at the beginning, then gradually became fond of this place. I went to the Easter Show every year. I also watched annual New Year’s firework displays, participated in gay parades, auto shows, yacht shows and other big events. Sometimes I also joined in different community activities to feel the multicultural life and atmosphere in Australia, such as Korean Festival held by Campsie, classic car show held by Burwood. Annual Chinese New Year’s celebrations will be held in Sydney as well so that even if I could not come back to China for the holiday, I can still feel the atmosphere. It is very warm. I also recognized that Australia is a community which can tolerate, accept and respect different cultures around the world with different races.”[93]
[93] Ibid, page 149.
I have had regard to the nature and totality of the Applicant’s unlawful conduct during the period March 2010 to March 2011. His offending, particularly his fourth and singular serious offence can, on one view, be found to have breached the expectations of the Australian community. As against that, the passage of time proves that in the almost ensuing decade, the Applicant has experienced the intended deterrent effect of the custodial sentence imposed upon him in December 2011. Further, the passage of time also proves that, to the best extent he can, the Applicant has successfully (and without any offending incident) negotiated his way through his life since that time. His current marital relationship remains committed, loving and ongoing.
In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)The strong level of the Applicant’s positive contributions to the Australian community via his employment history;[94]
(ii)The Applicant lived in Australia for approximately six years (up to his removal from the Australian community in December 2011 for seven months);[95]
(iii)The continued absence of the Applicant will have an adverse impact on the relevant two minor children and his wife of eight years, all of whom are in Australia;[96]
(iv)The serious nature of the Applicant’s only serious offence committed in Australia;
(v)The nature of the totality of his conduct in this country, involving, as it does, a single bad phase of offending limited to a defined period from March 2010 to March 2011, and further limited (in terms of serious offending) to the exclusive realm of “Deal with property suspected proceeds of crime”;
(vi)The absence of the commission of any further offending (of any description) by this Applicant for the best part of the last decade, indicating successful deterrence from the custodial sentence previously imposed upon him;
(vii)The current, independent and expert evidence of Mr Tim Watson-Munro, attesting to: (1) the Applicant’s level of insight into his offending, (2) his acceptance of culpability for his previous offending, (3) the support structure afforded to him via the stable and lengthy natures of both his marital relationship and strong parental relationship with his two children, and, ultimately, (4) his low/remote/highly unlikely risk of re‑offending;
(viii)My assessment of the significant risk of substantial and palpable harm to the Australian community were he to re-offend; and
(ix)My own finding of a genuinely low/remote/highly unlikely likelihood that he will engage in any further serious conduct if returned to the Australian community.
[94] The Direction, paragraph 6.3(7).
[95] The Direction, paragraph 6.3(5).
[96] Ibid, paragraph 6.3(7).
I do not consider there is an unacceptable risk that this Applicant will again breach the trust the Australian community placed in him to obey Australian laws while in Australia. Further, I do not accept that the nature of this Applicant’s character concerns or offences are such that the Australian community would expect that he should not continue to hold a visa.
I am mindful of the deemed community expectation contained in the observations of their Honours Charlesworth and Stewart in FYBR (Full Court)[97]:
“It is not for the decision-maker to make his or own assessment of the community expectations and to give that assessment weight as a “primary consideration.”...I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[98]
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[99] The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in order to reach an evaluative assessment of “appropriateness”.”[100]
[My underlining]
[97] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[98] Ibid, at paragraph [67] (per Charlesworth J) and paragraph [104] (per Stewart J).
[99] Ibid, at paragraph [101] (per Stewart J) and paragraph [76] (per Charlesworth J).
[100] Ibid, at paragraph [97] (per Stewart J).
I have had regard to principle 6.3(3) of the Direction and appreciate that non-citizens convicted of a serious crime should generally expect to be denied the privilege of staying in Australia. However, the factors I have identified at paragraphs [147][101] and [157] (i)-(ix) (inclusive), which factors are, in my respectful view, properly supported by the evidence, militate against a finding that this case falls within the category of cases giving rise to a “general expectation” that the subject visa should not be granted.
[101] Specifically, the 15^th, 16^th, 17^th and 18^th bullet points thereof.
Conclusion: Primary Consideration C
I, therefore, find that while the Australian community might consider that this Applicant, via his offending, has, to an extent, breached the trust they have placed in him to obey Australian laws while in Australia, the Australian community would not generally expect this Tribunal to exercise the power conferred by s 501(1) of the Act to refuse to grant the subject visa sought by the Applicant. I accordingly find that this Primary Consideration C, in the relatively unique circumstances of this case, is of neutral weight on the question of refusing to grant the subject visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 12 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c), and (d).
(a) International non-refoulement obligations
At the hearing, the Applicant’s representative said that the present factual matrix raises “…no protection issue”. In his Personal Circumstances Form, the Applicant respectively ticked the “No” box in response to these two questions: (1) “Do you face any criminal charges/convictions in your country of citizenship?” and (2) “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”[102]
[102] Exhibit 7, s501 G Documents, G2, page 127.
The Applicant has not claimed to fear harm if compelled to remain in China. He has lived there since August 2012 without incident, and none of the evidence suggests a risk of harm in those circumstances. Given that the Applicant does not contend or raise any claims to fear harm, this Other Consideration (a) is not relevant to the determination of this application.
(b) Impact on family members
There are the following limited concessions made by the Respondent:
“63. The Respondent acknowledges that the Applicant has family members in Australia, comprising his wife, and his two minor children.
…
65. …The Respondent contends that this consideration [i.e. Other Consideration (b)] only slightly favours the [Applicant].”[103]
[103] Exhibit 6, Respondent’s SFIC, pages 15-16.
Paragraph 12.2 is specifically concerned with an assessment of the impact that refusal of the visa would have on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. For present purposes, those “immediate family members in Australia” comprise (1) the Applicant’s wife and (2) his two biological children.
Earlier in these Reasons, I have had regard to the evidence of both the Applicant and his wife about the effect of the Applicant’s continued physical absence from the lives of the two infant children. As I have also earlier recounted and summarised, the evidence of the Applicant and his wife in this regard is independently and expertly corroborated by Mr Tim Watson-Munro. It is clear that he is of the view that the physical absence of the father from the lives of the two infant children, as they grow and develop, will result in adverse outcomes for both of those children.
Mr Watson-Munro could not be clearer when he says “Clearly, it is in the best interests of the children to be raised by both parents in the one country. The current situation in terms of long term bonding is unsatisfactory.” In terms of future impact upon the children, Mr Watson-Munro noted that despite the children enjoying a well-bonded relationship with their father thus far, “with the effluxion of time and distance…this will inevitably dissipate and weaken.”
Mr Watson-Munro has also looked into the future in relation to the how the physical exclusion of the Applicant from the lives of the children will adversely affect them. He also makes it clear that relatively frequent trips to China to see their father may be commendable, but, inevitably, the continued physical isolation of the father from the children will enable cultural and other issues to distance them from him:
“Inevitably, as they are educated in Australia, the cultural and language nuances associated with their life here will drive a further wedge between them and their father, consequently impacting upon bonding and ultimately their physical wellbeing. Arising from this it is important to put in place a more normalised relationship between the children and their father before they grow much older.”
To my mind, there is a strong level of weight attributable to this Other Consideration (b) in favour of the Applicant on the basis that refusal of the visa he seeks will significantly and adversely affect his two minor biological children in this country.
An additional measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found upon an examination of the effect that the Applicant’s continued absence from Australia would have on his wife, Ms Yi.
Mr Tim Watson-Munro has produced a second report for the purposes of determination of this application. This second report relates to Ms Yi and is dated 30 July 2018.
As I understood his report, Mr Watson-Munro interviewed Ms Yi and with her assistance, he interviewed the Applicant by way of audiovisual methods with the Applicant being domiciled in Shanghai. Mr Watson-Munro noted that:
“It is clear that this is a well-bonded loving marriage, which dates back to September 2012...
It is evident that Ms Yi is suffering in his absence. She impresses as an intelligent and insightful individual, but nevertheless against a backdrop of effectively being a single parent in Australia, she is struggling at a financial and emotional level.
…
…It is equally apparent that Ms Yi, who is suffering a moderate Depressive Disorder according to DSM-5 criteria, will experience a significant escalation in her symptoms, if the application before the AAT for review of the Decision is unsuccessful. Compounding this dynamic, both parties stated that it will be very difficult for her to return with the children to China because the children are Australian citizens and consequently are unable to access the usual civil rights in China, inclusive of state-subsidized health and education.”[104]
[104] Exhibit 3, Report of Mr Tim Watson-Munro (Ms Yi), dated 30 July 2018, pages 2-3.
In terms of social history relating to Ms Yi, Mr Watson-Munro noted that she accompanied the Applicant back to China at the time of his deportation (in early August 2012) but that she returned to Australia in March 2014. The children were both conceived in China and were born in Australia in 2014 and 2017, respectively and, consequently, are both Australian citizens by birth.
In terms of any drug, alcohol and/or psychological history, Mr Watson-Munro noted that Ms Yi denied any involvement with illicit drugs or the abuse of alcohol. She impressed him as a “…well-adjusted individual, who nonetheless is clearly stressed by the current situation.”[105] Mr Watson-Munro noted that Ms Yi has not received any psychological attention for her moderate Depressive Disorder. He further thought that, should the instant application be unsuccessful, “…the imperative for this [i.e. psychological treatment] to occur will escalate.”[106]
[105] Ibid, page 4.
[106] Ibid.
In terms of his observations of the Applicant, Ms Yi and the children, Mr Watson-Munro noted:
“…Ms Yi reported that the parties have endeavoured to maintain a bond between father and children through regular audio visual means. She stated in addition that she visits China on a regular basis with them and indeed Ms Yi is currently in China to this end. She reported that she intends to remain there for a period of four months and that the last occasion she visited was in June 2016. All told she has travelled four times to China.
They generally communicate via WeChat. She stated that although this is helpful, it is at best a palliative measure and that the children, particularly the daughter, have difficulty in adjusting when they are separated from their father when they return to Australia.
Whilst in Shanghai [the Applicant] works during the week but spends all of his spare time with the children and his partner engaged in a range of age appropriate activities.
Ms Yi reported that when she is in Australia on her own, despite the support of an uncle in Sydney, she finds the process difficult.”[107]
[107] Ibid, page 5.
In terms of a concluded opinion, Mr Watson-Munro noted these things:
“Opinion
1. Ms Yi presents as a co-operative, articulate though psychologically distressed woman who is currently assisting her husband, [the Applicant], in relation to his Application for a Partner (spouse) Visa…I note that she is currently a permanent resident in Australia seeking citizenship. The two children of the marriage are Australian citizens…
…
3. Ms Yi impresses as a devoted wife and mother. She is understandably concerned about her husband’s situation and the impact which the limited contact that he has with her children at a physical level is having upon them both in the present and more so in the future. To this end, she has travelled to mainland China on four occasions and is currently domiciled there with a view to supporting him and providing the children with an opportunity to reinforce the bond they enjoy with their father. As with her husband, she expresses considerable concern regarding their future should for some reason they be returned to China in order to reconstitute the family unit, if his application is unsuccessful. As non Chinese citizens, they will be precluded from educational opportunities, as well as other services of the State and ultimately this will impact upon their employability and careers as adults.
4. These dynamics in conjunction with her being separated from her husband is clearly creating significant psychological problems for her in terms of depression, anxiety, and fears regarding the future. Ms Yi is a law abiding individual, which in my view is relevant but notwithstanding the problems associated with the marriage in terms of logistic considerations with the parties living in separate countries, she has stood by her partner and intends to do so. Clearly, the family’s best interests would be served if they can live together, ideally in Australia.
5. In the alternative, Ms Yi reported that she may have difficulties in securing work and in any event, even if this was possible, the cost of educating the children as non citizens would be exorbitant and crippling given the parents’ respective earning capacity. She is confident that her husband has learnt his lesson and in support of this, consistent with my observations, speaks to his consistent employment history in China, where he is evidently well regarded. Both parties acknowledged that there may be periods of adjustment in terms of him returning to Australia, although this can be well covered through him being with his family. [The Applicant] stated that he has also accumulated some savings and the financial pressures which he previously experienced in the lead up to the offence have now dissipated and are now not relevant.”[108]
[My emphasis and underlining]
[108] Ibid, pages 5-7.
As was the case with his findings in relation to impacts upon the two relevant children, Mr Watson-Munro’s evidence regarding Ms Yi was not challenged in cross-‑examination.
The abovementioned findings and conclusions of Mr Watson-Munro also appear in Ms Yi’s evidence in chief given at the hearing. Mr Watson-Munro’s expert and independent evidence clearly corroborates that of Ms Yi. I accept the findings of Mr Watson-Munro to the effect that the current dynamic has resulted in Ms Yi suffering a moderate Depressive Disorder according to the DSM-5 criteria. I further accept his finding that she will experience “A significant escalation in her symptoms...” if the requested visa is not granted to the Applicant such that he can return to Australia and assume his role within the family unit.

I also accept Mr Watson-Munro’s findings to the effect that Ms Yi will experience significant ongoing psychological problems if confronted with the apparently unresolvable impasse of feeling compelled to return to China with the result that the children will suffer preclusion from educational and other services of the state as a result of such return.
Having regard to the evidence of the Applicant and Ms Yi, which is duly corroborated by the expert evidence of Mr Watson-Munro, I am of the view that a heavy level of weight is attributable to this Other Consideration (b) in favour of the Applicant on the basis that refusal of the visa he seeks will significantly and adversely affect his wife, Ms Yi, who is a permanent resident in this country.
(c) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s return to Australia would have on any victim(s). In the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s return to Australia would have on any victim(s). Accordingly, I cannot find that this Other Consideration (c) attracts any weight either in favour of, or against, the granting of the Applicant’s visa and is thus neutral.
(d) Impact on Australian business interests
There is no evidence before the Tribunal suggesting that refusal to exercise the power to grant the Applicant’s visa would significantly compromise the delivery of a major project or delivery of an important service in Australia. I thus allocate neutral weight to this Other Consideration (d).
Findings: Other Considerations
The application of the Other Considerations in the instant application can be summarised as follows:
·international non-refoulement obligations: not relevant;
·impact on family members: of heavy weight in favour of granting the subject visa;
·impact on victims: of neutral weight; and
·impact on Australian business interests: of neutral weight.
CONCLUSION
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant.
In reaching this conclusion to not exercise the power, I have had regard to the considerations referred to in the Direction. With regard to the weight allocatable to each of these Primary and Other Considerations, I find as follows:
·     Primary Consideration A weighs moderately, but not determinatively, in favour of exercising the discretion to refuse to the subject visa;
·     Primary Consideration B weighs heavily in favour of not exercising the discretion to refuse to grant the subject visa;
·     Primary Consideration C is of neutral weight;
·     Other Considerations (a), (c) and (d) are of either neutral weight or not relevant to this consideration;
·     Other Consideration (b) weighs heavily in favour of not exercising the discretion to refuse to grant the subject visa;
·     The combined weight of Primary Consideration B and Other Consideration (b) determinatively weighs in favour of not exercising the discretion to refuse to grant the subject visa;
·     The combined weight of Primary Consideration B and Other Consideration (b) outweighs the weight attributable to the remaining Primary Consideration A, which favours exercising the discretion to refuse to grant the subject visa;
· A holistic application of the considerations in the Direction to the evidence therefore militates in favour of this Tribunal not exercising the discretion to refuse to grant the subject visa to the Applicant.
Consequently, I do not exercise the power conferred by s 501(1) of the Act to refuse to grant the subject visa to the Applicant.
DECISION
The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the subject visa to the Applicant.

I certify that the preceding 188 (one hundred and eighty- eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..............................[SGD].............................................
Associate
Dated: 26 May 2020

Date(s) of hearing: 3 April 2019

Advocate for the Applicant: Mr Nicholas Poynder (Counsel)

Solicitors for the Applicant: Stanley Immigration & Law Pty Ltd

Advocate for the Respondent: Ms Rachel Noronha (Senior Associate)

Solicitors for the Respondent: Clayton Utz
“ANNEXURE A”:EXHIBIT ANNEXURE
Applicant’s Material

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE OF FILING

1

Applicant’s SFIC

30 July 2018

30 July 2018

2

Documents – Losses from Clean Tastic

Various dates

30 July 2018

3

Medical Report: Mr Tim Watson-Munro re MsYi

30 July 2018

30 July 2018

4

Medical Report: Mr Tim Watson-Munro re the Applicant

30 July 2018

30 July 2018

5

Extract: Nationality Law of the PRC (translated on 5 July 2018)

Undated

13 July 2018

Respondent’s Material

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE OF FILING

6

Respondent’s SFIC (incl. Annexures A, B, C & D)

15 August 2018

15 August 2018

7

Section 501 G Documents

Various dates

21 March 2018

Additional Material Received at or after Hearing

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE OF FILING

8

Movement Records for Child N

2 April 2019

3 April 2019

9

Movement Records for Child L

2 April 2019

3 April 2019

[2020] AATA 1485

26 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	3 April 2019
Advocate for the Applicant:	Mr Nicholas Poynder (Counsel)
Solicitors for the Applicant:	Stanley Immigration & Law Pty Ltd
Advocate for the Respondent:	Ms Rachel Noronha (Senior Associate)
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE OF FILING
1	Applicant’s SFIC	30 July 2018	30 July 2018
2	Documents – Losses from Clean Tastic	Various dates	30 July 2018
3	Medical Report: Mr Tim Watson-Munro re MsYi	30 July 2018	30 July 2018
4	Medical Report: Mr Tim Watson-Munro re the Applicant	30 July 2018	30 July 2018
5	Extract: Nationality Law of the PRC (translated on 5 July 2018)	Undated	13 July 2018