YNGR and Minister for Immigration and Citizenship (Migration) [2025] ARTA 977 (7 July 2025)
Applicant/s: YNGR
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9687
Tribunal:R Cameron General Member
Place:Melbourne
Date:7 July 2025
Decision:The Tribunal affirms the decision under review.
.................................SGD.......................................
R Cameron General Member
Catchwords
MIGRATION – Applicant citizen of China - substantial criminal record - mandatory cancellation of visa - did not pass the character test – whether the discretion under s 501CA(4)(b) of the Migration Act 1958 to revoke the cancellation decision should be exercised - is there another reason why the mandatory cancellation should be revoked - -manufacture/produce commercial quantity of a drug, expose the child to manufacture - nature and seriousness of criminal offending - risk to the Australian community-strength, nature and duration of ties to Australia - best interests of minor children - expectations of the Australian community - extent of impediments if removed-
Legislation
Migration Act 1958 (Cth)
Drug, Misuse and Trafficking Act 1985 (NSW)
Cases
VPKY and Minister for Home Affairs (Migration) [2019] AATA 352
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020Secondary Materials
“The Australian Methylamphetamine Market-The National Picture” Australian Crime Commission in 2015
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
INTRODUCTION.
The applicant seeks a review of a decision made by a delegate of the respondent on 29 October 2024 not to revoke the mandatory cancellation of his Class BB, Subclass 155, Five Year Resident Return visa (“the visa”) under s 501CA (4) of the Migration Act 1958 (“the Act”) (“the reviewable decision”).
The applicant is a citizen of China. He is presently 41 years of age having been born in 1984. He arrived in Australia when he was 21 years of age in February 2006.
On 19 September 2018 the applicant was sentenced to an aggregate term of imprisonment of 12 years. A single non-parole period of 8 years from the date of his arrest in January 2016 was fixed. That term expired on 12 January 2024. Upon his release from prison on 13 January 2024 the applicant voluntarily departed for China rather than being held in immigration detention pending the outcome of his representations to have the mandatory cancellation of the visa revoked.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:
(a)The applicant;
(b)The applicant’s wife
(c)The applicant’s brother;
(d)Ms Geddes, a psychologist; and
(e)Ms Martens, a psychologist.
Additionally, several witnesses made statements that were lodged in support of the application, but they were not required by the respondent for cross examination, and their statements were tendered absolutely:
(a)Mr YL, a friend of the applicant;
(b)Mr G, a friend of the applicant;
(c)A cousin of the applicant;
(d)An uncle by marriage, of the applicant;
(e)An aunt of the applicant; and
(f)A sister-in-law of the applicant.
In addition to witness statements from each of the above witnesses there were tendered in evidence the “G” documents, an applicant’s tender bundle (“ATB”) and a respondent’s tender bundle (“RTB”).
Four witness statements from the following people, relied upon by the applicant but not included in the ATB, were separately tendered:
(a)The applicant’s sister-in-law;
(b)The applicant’s cousin;
(c)The applicant’s uncle by marriage; and
(d)The applicant’s aunt.
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act, specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[2]
[2] Direction 110 commenced on 21 June 2024.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[3]
[3] See, G22 to G30, for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent prior to making the reviewable decision. That material has also been read and considered by the Tribunal.
Therefore, two issues remain for determination by the Tribunal as follows:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. He was on 19 September 2018 convicted in the District Court of New South Wales of the crimes of recklessly dealing with the proceeds of crime, manufacturing a prohibited drug being methylamphetamine, manufacturing or producing a commercial quantity of drugs being a large commercial quantity and exposing a child to that process and manufacturing or producing a commercial quantity of drugs. He was sentenced to an aggregate of 12 years imprisonment for such crimes.
In his Statement of Facts, Issues and Contentions, the applicant acknowledged that he does not pass the character test.[4]
[4] Paragraph 8 of the Applicant's Statement, of Facts, Issues and Contentions.
DIRECTION 110
At the outset it is appropriate to refer to several of its provisions which guide decision-makers such as the Tribunal, and to note the considerations to be taken into account as articulated Direction 110. This overview is of course in no way exhaustive, and no substitute for careful consideration of the language used in each of its provisions. Several of those provisions warrant mention at this stage of the process.
Paragraph 4 “Interpretation” provides a definition of several expressions or terms that are referred to in the “primary” and “other” considerations that the Tribunal is obliged to apply.
“Family Violence” is in paragraph 4 defined to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, an assault, a sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, and intentionally damaging or destroying property.
Paragraph 5.1 “Objectives” articulates the objectives of the relevant provisions of the Act. Amongst other things, the objectives include:
(a)To regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa;
(b)Specifically, under subsection 501 (1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion;
(c)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499 (2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 “Principles” provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501, or whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(b)The safety of the Australian community is the highest priority of the Australian Government.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
(d)The Australian community expects that the Australian Government can and should cancel non-citizens visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(f)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation.
(g)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Making a decision” provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that:
(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(c)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 “Primary considerations”, provides that in making a decision under, amongst others, s 501CA (4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strengths, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia;
(e)expectations of the Australian community.
Paragraph 9 “Other considerations”, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
THE APPLICANT’S OFFENDING
Details of the applicant’s offending are contained in a National Criminal History Check record contained in the G documents.[5] It is perhaps appropriate to observe that the applicant’s offending has only involved one appearance in court being the District Court of New South Wales on 19 September 2018. He pleaded guilty to those charges. Prior to this occasion he had no criminal record.
[5] G7.
The facts and circumstances surrounding the applicant’s offending are summarised in the reasons for sentence of the trial judge in the District Court of New South Wales.[6] The details of the applicant’s offending recounted below are derived from those reasons. As part of the plea hearing a crown bundle was tendered which consisted of a sentence summary sheet, committal documents, fact documents an expert certificate and transcripts of the applicant’s record of interview.[7]
[6] G8.
[7] Included in that Crown Bundle was a Statement of Agreed Facts which was also in evidence before the Tribunal, document TB6, RTB.
The applicant’s offending was exposed when late on the evening of 13 January 2016 police and the fire brigade were called to a structural fire at an apartment complex in Waterloo, a suburb of Sydney. Upon their arrival the applicant was located in the ground floor foyer of the apartment building having suffered significant chemical burns to his hands and face. The applicant stated there had been a fire in his unit. The fire officers accessed his unit. Upon doing so they discovered a large amount of liquid chemicals, clear crystal substances, Bunsen burners, glassware and cash. The applicant was manufacturing illegal drugs in the unit. The fire was extinguished. Promptly, the applicant was arrested and conveyed to the burns unit of a major hospital. Whilst being conveyed to the hospital, the applicant informed the police officers in attendance that he had spilled acetone which was ignited by a flame. It should be observed that surrounding units in the complex were evacuated by the emergency services personnel at the same time.
Additionally, a clandestine laboratory was found on the roof of the apartment complex in Waterloo. That laboratory was assessed as not being active nor capable of producing a greater than a large commercial quantity of methylamphetamine in one cycle of operation.
The Waterloo unit did contain a working laboratory. In that unit laboratory 1.758 g of pure methylamphetamine was found in various forms and at various stages of manufacture. In total, this was the charge in respect of the first count that the applicant faced. An expert chemist who examined the waste chemicals expressed the opinion that the applicant had produced a relatively good yield of methylamphetamine. That methylamphetamine was in what is known as “free base” form. Apparently, if the 1.758 kg of pure methylamphetamine had been converted to a solid, it would yield 2.187 kg.
One should pause to observe that for the purposes of the Drug, Misuse and Trafficking Act 1985 (NSW) a large commercial quantity is 500 g.
The applicant admitted that he was paid $7,000 for each kilogram of methylamphetamine that he manufactured. He also admitted that a sum of cash amounting to $70,210 found in the unit was to be used to pay for more pseudoephedrine that he was expecting to be delivered to the unit, such product to be used for the manufacture of methylamphetamine.
The facts relating to the second count which the applicant faced arose because of detectives executing a search warrant at the applicant’s primary residence in another suburb of Sydney. The applicant’s wife and his 18-month-old son were present at the premises at that time.
The detectives found several drums of chemicals and other paraphernalia used for the purposes of manufacturing methylamphetamine. These items were found in several rooms of the unit. Further chemicals and drug making paraphernalia were found in the unit’s garage. Those chemicals included acetone, methylamphetamine spirits, caustic soda, glassware, scientific equipment and various forms of apparatus. Detectives also found significant quantities of methylamphetamine in various forms.
On the top floor of the applicant’s unit was a child’s playroom. A variety of items were recovered which were found to contain methylamphetamine or traces of it. Traces of the drug were also found in the child’s bedroom. Disturbingly, the applicant’s son’s urine was tested and found to contain methylamphetamine. The sentencing judge considered this revelation unsurprising. A consultant forensic pharmacologist formed the opinion that the applicant’s son had recently ingested methylamphetamine. In his report, a copy of which was before the Tribunal he explained that young children are more susceptible to oral ingestion of methylamphetamine in clandestine laboratories owing to their greater propensity to crawl on floors and to put contaminated objects in their mouths.[8]
[8] The report of the Consultant Forensic Pharmacologist of 20 April 2017, being an "Expert Certificate" under s 177 of the Evidence Act 1995 (NSW) retained by the New South Wales Police Force in respect of the applicant's matter is document TB19, RTB.
The sentencing judge recorded that the estimated value of the methylamphetamine discovered at the Waterloo property exceeded $500,000. The estimated value of the methylamphetamine found at his residential unit was $125,000.
PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 110 provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:
(a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(ii)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;
(c)with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose Visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their isa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
(f)the cumulative effect of repeated offending.
In applying this primary consideration there are several relevant matters to consider.
On any rational analysis the applicant’s offending can only be categorised as extremely serious. The Tribunal did not understand the applicant to contend otherwise. During cross-examination when in the witness box the applicant readily accepted the contents of the Statement of Agreed Facts tendered at his plea hearing, and also conceded that the facts concerning the circumstances surrounding his offending, recorded in the reasons for sentence by the Judge in the New South Wales District Court were correct. Also, in cross examination when it was put to him that the respondent contends that the manufacture of a prohibited drug was very serious offending his response was, “Of course, I totally agree”. Similarly, when it was put to him that the respondent contended that at the time he exposed his son to methylamphetamine his son was a vulnerable member of the community, and it was very serious offending, he also agreed.
In a submission to the respondent on 25 July 2019 on the applicant’s behalf, it was conceded that his criminal record reveals offending that can be considered serious.[9] The author of that submission also, quite rightly, referred to the observations of the sentencing judge in the District Court of New South Wales.
[9] G14, 103.
In his Statement of Facts, Issues and Contentions there was a further acknowledgement that the applicant’s criminal record reveals offending considered as serious.[10] In that document, his lawyers in making the concession that the applicant’s criminal record reveals his offending to be serious, stated it was self-evident from the nature of the offences, the sentences given, the fact that his son was found to have ingested drugs and of course from the sentencing remarks of the judge in the District Court of New South Wales.
[10] Paragraph 37 of the Applicant's Statement of Facts, Issues and Contentions.
Mr Dobbie, appearing on behalf of the applicant, in his closing submissions readily conceded that the applicant’s offending was serious. He acknowledged from the observations of the sentencing judge in the New South Wales District Court, the sentence imposed and the facts of such offences themselves made it self-evident. He also candidly conceded that it was an undisputable fact that the applicant’s offending was at the “high-end of the scale” or “definitely the higher end of the scale”.
Some of the observations of the sentencing judge should be recounted in these reasons.
The trial judge observed that the maximum sentences for these offences committed by the applicant are very significant indeed. He noted that for the offence of manufacturing a prohibited drug, the maximum jail term available for any offence in our society, namely life imprisonment is prescribed. The offence of exposing a child to such manufacture carries, as he observed, a very significant jail sentence of 25 years. These maximum sentences prescribed by the New South Wales legislature reflect objectively the nature and seriousness of such offences.
The sentencing judge also stated that it seemed to him that the applicant’s offending was above mid-range. It is hard to disagree with that conclusion.
Another feature of the sentencing judge’s observations concerned the danger to public safety. He expressed the view, and this Tribunal concurs, that the danger to public safety is an aggravating feature of the applicant’s offending. He stated that it is quite obvious the danger to public safety was there and manifested in the offences at Waterloo by way of the fire, which he described as disturbing on its own. Concerning the offences relating to the activities in his residential unit, the judge described that there was a danger to public safety because there was a clear potential danger that arises out of these clandestine laboratories where volatile chemicals are mixed with Bunsen burners and other things. Obviously, if the fire had gotten out of control in an apartment block which is comparatively densely settled the potential to cause very serious harm to other residents of the apartment block was distinct and real. It is a grave aspect of the applicant’s offending.
It should be observed, quite correctly, that the sentencing judge expressed the view with respect to the structural fire at the apartment in Waterloo, that there wasn’t potential danger but there was actual danger. This danger clearly was to other residents of the apartment block, not to mention the danger to emergency services personnel who attended the scene of the fire.
There were other observations made by the sentencing judge that are apposite when one addresses this primary consideration. He said society condemns the use and manufacture of methylamphetamine. He further stated it is notorious in the community as a corrosive and destructive drug. This he observed, would have been known by the applicant both by reason of his use of the drug and by the associates who drew him into the manufacture of that product. He also stated in the context of general deterrence that these drugs essentially poison people and relationships within the community and lead to further crime. It is hardly a novel proposition. However, it is one that is unfortunately extremely accurate.
The fact that the applicant’s 18-month-old son had ingested methylamphetamine is nothing short of deplorable. As observed by the judge, the safety of a child being exposed to highly addictive drugs at such an early age raises very serious issues. In terms of Direction 110 the Tribunal is informed by the provisions of Paragraph 8.1.1 (1) (b) (ii), which as noted above, provides that crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious. An 18-month-old child is demonstrably vulnerable as contemplated by this paragraph of Direction 110. A father is supposed to provide protection, care and nurture a young child such as the applicant’s son, who was of extremely tender years. With regard to this obligation towards his son the applicant failed miserably. It was an extremely serious, if not horrifying violation of the trust and responsibility reposed in him as a parent. A betrayal. In a videotaped record of interview with the police at the Long Bay prison, medical wing after his arrest, the applicant admitted that his son had been severely affected by exposure to methylamphetamine.[11] When a detective stated to him that he could not impress upon him enough that his behaviour with respect to his son was unacceptable, he acknowledged it was. Nonetheless with such knowledge he still exposed his son to that risk. He clearly knew better. Such behaviour shows a remarkable indifference and insensitivity towards his son who he has professed a deep love for. It counts very heavily against him.
[11] The record of interview of 11 February 2016 is document TB17, RTB.
In this context the applicant’s behaviour is also extremely puzzling because as the sentencing judge observed, which accords with the Tribunal’s observations of him, the applicant is a relatively intelligent and educated man. There can be no doubt that he clearly understood what he was doing was morally and criminally wrong to a very significant degree. He clearly knew better but made a conscious decision to engage in a high level of lawbreaking, fuelled by his drug habit and motivated by greed.
The judge also highlighted, when addressing the question of general deterrence, the unquestionable damage the drugs do. As he explained, they essentially poison people and relationships within the community and lead to further crime. When one considers these dangers, there are a range of dreadful consequences that arise from the illicit manufacture and sale of drugs. Unfortunately, more frequently than one would like, there are the people who become addicted to these drugs and sometimes overdose. Time and again at “rave parties” people consuming drugs, not having a clue as to what is in them, suffer overdoses and sometimes regrettably, die. These events place significant demands on the healthcare system, not to mention the diversion of various emergency services. One can well imagine where a law-abiding citizen has a need for a critical care ambulance but does not receive that treatment in a timely way because the ambulances have been diverted to a number of drug overdoses at the same time.
Another feature of the manufacture of illicit drugs is that it generates vast amounts of money, as was apparent in this case with the applicant, that enables underworld criminal elements to thrive. The illicit drug trade in many respects is the lifeblood of organised crime.
Another cumulative effect of the type of offending committed by the applicant involves the significant resources that are diverted from the police, prosecutorial authorities, courts and corrective services. Such resources ultimately of course are funded by the taxpayers. Also, in this case was the diversion of the resources of the firefighting agencies. No doubt, due to the hazardous nature of the chemicals kept on the premises which housed the clandestine laboratories established by the applicant, specialist hazmat officers and equipment would have been required to render the premises safe. Such officers in discharging their duties, protecting the public, are exposed to a significant risk which cannot be underestimated. This risk includes not only that of fire or explosion but also the potential long-term effects of exposure to hazardous chemicals.
Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to cumulatively:
(g)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(h)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm to individuals or the Australian community
Were the applicant to reoffend by engaging in the manufacture and production of commercial quantities of prohibited drugs, including methylamphetamine, very serious harm indeed would be caused to the Australian community. It is a harm that has been held to be obvious. There can be little doubt about this fact. Some of the potential categories of harm have already been touched on when the primary consideration contained in paragraph 8.1.1 of Direction 110, the nature and seriousness of the applicant’s conduct was addressed.
The applicant acknowledges that the nature of harm to individuals or the Australian community should he engage in similar, or the same criminal or other serious conduct would be serious. He contends however, that such risk is remote, is genuinely remorseful and contrite and has genuinely reformed.[12]
[12] Paragraph 39 of his Statement of Facts, Issues and Contentions is referred to. Submissions to the same effect were also made in paragraph 27 of a submission made on his behalf to the delegate on 25 July 2019. G14, 103. Submissions to a similar effect, were formidably made by Mr Dobbie in closing addresses.
The applicant to his credit, when in the witness box, acknowledged the harm that drugs cause. He was asked what he understood to be the impact of drugs on the community. He explained that most of the inmates he came across when in prison still had a drug addiction and simply couldn’t get rid of their habit. Inside prison he observed them purchasing drugs and continuing to use them. Apart from that, the applicant stated that he observed that their overall health was “horrible”. He also stated that the health of so many of these drug addicted prisoners was so bad that he was sure many will not live to complete their sentences. He then said, “Unfortunately, I contributed to it.” He was then asked what his contribution was. His response, which was very candid, was “I was the one that was basically supplying drugs to street level dealers who could sell to people who had the habit. I was the source of this evilness.” The Tribunal would observe that this evidence from the applicant was a recognition of the dreadful effect and harm caused by drugs on the Australian community. It is also relevant in terms of the applicant’s remorse, insight into his offending and most likely, a development of a higher level of maturity with respect to these matters.
As the respondent contends, there would be serious physical, economic and psychological harm to the Australian community were the applicant to again commit the crime of manufacturing prohibited drugs such as methylamphetamine. Reference was made to a report that was tendered entitled “The Australian Methylamphetamine Market-The National Picture” which was prepared by the Australian Crime Commission in 2015.[13] It is worthwhile reproducing some extracts of that report as it does provide an accurate and compelling analysis of the harm inflicted on Australian society by the methylamphetamine trade. The report stated:
[13] RTB, 218.
“Of all illicit drugs, the ACC assesses that methylamphetamine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community. The following factors all support this conclusion:
The rapid growth of the methylamphetamine problem across cities, regional and remote communities.
The harms methylamphetamine poses to the individual, including psychosis and other long-term psychological and behavioural problems.
The links between methylamphetamine use and other crime types including violent crimes against the person and property crime.
The harm to the community (including families of users, innocent bystanders and road users, front-line staff in hospitals, law-enforcement and emergency services, and non-governmental organisations).
The economic impact to governments and the community, and redirection of finite resources away from other harmful activity.
The impact on legitimate industry sectors (such as the pharmaceutical, chemical and transport sectors) through diversion of chemicals and transport of illicit substances.
The significant profit to be made by organised crime groups in the importation, domestic manufacture, sale and distribution of methylamphetamine.
The presence of both importation and domestic manufacture of methyl amphetamine, unlike other illicit drugs.”
As has been noted in other decisions, the link between methylamphetamine use and psychosis was addressed in more detail in another part of that report which also warrants reproduction as follows:
“A recent Australian study concluded that users of crystal methylamphetamine are five times more likely to suffer psychotic symptoms while taking the drug than when they were abstinent. The research studies 278 methylamphetamine users from Sydney and Brisbane between 2006 and 2010 and excluded anyone with existing psychotic tendencies. The incidence of psychosis increased sharply from 7% to 48% as a consequence of the quantity of metal amphetamine used by the subjects.”
In another section of that report there were further comments on future impacts resulting from the increased prevalence of methylamphetamine use in the Australian community. It also warrants reproduction as follows:
“The addictive nature of methylamphetamine, combined with increasing user numbers, will likely create an increased burden on law enforcement and the health sector. Violent behaviour associated with methylamphetamine use, particularly crystal methylamphetamine use, is likely to involve non-users, such as first responders, hospital staff and members of the community. The increase in addiction -related crimes such as burglaries and violent assaults and drug impaired driving will also place an increased burden on law enforcement agencies, and increase public concern”
When considering the nature of the harm caused if the applicant were to reoffend, this Tribunal is prompted to recall its observations on the topic of drug trafficking in another matter some years ago, when sitting as a Senior Member of the Administrative Appeals Tribunal.[14] They are as relevant and applicable today as they were when first made. There are as follows:
“The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue, which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.”
[14] SCJD AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2018] AATA 4020 AT [81] TO [83].
By way of example, if one speaks to a police officer from a police station located geographically close to any public hospital with a casualty ward in Australia, they will inform you that almost invariably during any shift there will be a call to such casualty ward to deal with a patient posing a threat to staff present at that hospital due to their methylamphetamine intake. Similarly, ambulance officers frequently report the necessity of having to call for police assistance to handcuff a drug addled patient suffering the effects of methylamphetamine consumption, before treatment can be administered.
Finally, if one needed reminding about the nature of the harm to individuals or the Australian community caused by methylamphetamine abuse, the report of the sentencing of a criminal convicted of the manslaughter of a 28-year-old police constable in the Western Australian Supreme Court on 3 July 2025 is apposite. It is worthwhile reproducing the very first 2 paragraphs from the ABC report:
“A meth-addled drug addict who ran over and killed a police officer after a high-speed car chase through the streets of Perth has been sentenced to more than 15 years in prison.
Regan Chown reversed the stolen car over Constable Anthony Woods who was trying to apprehend him in June 2023.”[15]
[15] Australian Broadcasting Corporation News website 3 July 2025. The defendant was said to be "high on meth" at the time he offended. It was a tragic and unnecessary waste of an exemplary young life.
Remorse and insight into offending
The applicant relies on several factors to contend that he is a low risk of reoffending and has genuinely reformed and rehabilitated. He also points to what he says is evidence of his genuine remorse for the crimes he has committed and the insight into such offending that he has gained. They will be noted and as such are in no particular order of priority or emphasis.
There is the evidence of the applicant himself. In both statements that were in evidence before the Tribunal and whilst in the witness box, the applicant emphasised several matters. He stated that during his lengthy time in prison there was not a day where he did not reflect deeply on his criminal actions and its consequences. Emphasis was placed by him on those consequences for his wife and son, for whom it was evident that he has deep love and affection. In the witness box he gave evidence expressing his remorse and explaining the pain that his offending has caused him. Such pain, he explained came from the separation over many years from his wife and son. Also, there was the realisation that his actions had left his wife to look after her son on her own, and of course left his son without a father. He considered this a most basic need of his son. The Tribunal considers that this evidence was genuinely given.
Reference has already been made to the applicant’s evidence when considering the nature of harm to individuals or the Australian community earlier in these reasons, about the impact of drugs on the community and what he observed of drug taking by inmates in prison. Also, his contribution to the drug trade and him being the source of such evilness. Those prescient observations by the applicant are referred to and repeated and are further evidence of his remorse and insight into his offending.
Another aspect of the applicant’s evidence concerning remorse and insight into his offending that arose in his evidence, which is acknowledged by the Tribunal, is that at all times he took full responsibility for his offending. From the time that he first had contact with the police he made full admissions. He did so in a recorded record of interview with detectives, with whom he was totally cooperative, and of course during the ensuing criminal trial process. It was noted by the sentencing judge that the applicant gave “candid interviews” which seemed to him to be a very good indicator of an attempt by the applicant to facilitate the course of justice. It is fair to say, as the applicant contends, he never sought to deny, justify or otherwise downplay his offending. He entered a guilty plea to the charges at an early opportunity which further demonstrates his remorse and insight. The sentencing judge stated, quite properly, that the applicant should have been given the full utilitarian value of such plea, which he clearly was. The Tribunal accepts that these matters are indicative of genuine remorse on the part of the applicant and a reflection of the insight that he has gained into his offending.
The applicant’s motivation or reason for his offending was explored in his evidence. As was noted by the sentencing judge and is referred to in other parts of these reasons from time to time, the applicant started his own café which rapidly failed approximately 6 months after it opened. He was financially embarrassed. In this setting, the applicant stated that his “Greed and ego got in the way. I turned to the wrong people for help not long after”.[16] In the witness box he was probed about this on several occasions. Prior to being arrested, he explained that his priorities were always financial. In his view, his offending was motivated by financial circumstances.
[16] G15, 127.
Ms Geddes, A Forensic and Health Psychologist, who assessed the applicant and prepared a report which was in evidence before the Tribunal dated 30 April 2025, recorded that the applicant informed her that he met a man and engaged in discussions about manufacturing methylamphetamine and the potential financial rewards associated with this.[17] She stated that the applicant was drawn to the idea of a “Hollywood type lifestyle”. He was probed on this observation when in the witness box. He stated that he mentioned this because he wanted a better life. He thought that coming to Australia was supposed to bring him a better life. He didn’t in his view, do much better than he had expected, and ultimately set himself such a high standard that he could not meet. In this context his offending was undertaken in his view for “financial selfish reasons.”
[17] ATB, 6.
At this stage of the applicant’s evidence the Tribunal asked the applicant to explain his offending, given as the sentencing judge had observed, he is an intelligent and educated man. The applicant responded by saying that from a young age he had been financially protected by his mother. He in effect had an unrealistic attitude towards money. That attitude carried into his marriage. He stated that he “easily cracked” as he didn’t have experience. He felt that he did not have a clear idea of managing finances. He said, “I had an idea where I should have been in the world. I would put it down to greed. I was fully aware all the way through that it was wrong”.
The Tribunal concludes that this evidence from the applicant concerning greed as a factor in his offending, was given by him candidly. It does reflect both a level of remorse and genuine insight and understanding as to how and why his offending occurred.
Further significant factors relied on by the applicant, as further establishing his remorse and insight to his offending, are other comments on the topic made by the sentencing judge in the District Court of New South Wales.
The applicant wrote a letter to the sentencing judge in the District Court of New South Wales expressing remorse for his offending.[18] The judge took that letter to be genuine. Amongst other things, the judge recorded the applicant acknowledging that he had made a poor choice, took an easy way out in terms of the solution, that he has witnessed the effects of methylamphetamine on people he is seen in prison now realises the impact it has on the community and is truly sorry for what he did. Further, the Tribunal having had the opportunity to read and consider the letter concerned would also observe that the applicant stated that seeing firsthand the effects of methylamphetamine and the misery and agony it causes, it had made him realise the seriousness of his actions and the deep impact it has on the community. He expressed sorrow at this fact. The applicant in that letter also stated that since his arrest there had not been a day that had passed that he did not feel regret for what he had done.
[18] That letter was in evidence before the Tribunal and has been read and considered by it. RTB, 60.
At the plea and sentence hearing before the judge the applicant gave evidence before him. The judge found from such evidence that the applicant was genuinely contrite and remorseful. He also found the applicant to be a candid and genuine witness, who had gained an insight into the commission of the offences. It was also found by the judge that the applicant had learnt significantly from his lesson, and he considered him unlikely to reoffend.
Notwithstanding these observations by the sentencing judge, as noted earlier, with which the Tribunal concurs, the applicant is a relatively intelligent and educated man. The trial judge further observed that he always found it somewhat curious that people need to go to jail to gain insight into the fact that society condemns the use and manufacture of methylamphetamine. One must agree with this observation. The applicant, not to mention his associates in the criminal enterprise of manufacturing methylamphetamine, knew exactly what they were getting themselves into. Whilst the applicant’s misuse of alcohol and drugs may give some contextual explanation for his offending, it in no way excuses it. It is most unfortunate indeed that the applicant did not use his intelligence before he embarked upon his offending to realise the potential gravity of it and the consequences that would inevitably follow if it was detected, as inevitably it was.
Ms Geddes, as already noted, a Forensic and Health Psychologist, assessed the applicant and prepared a report which was in evidence before the Tribunal dated 30 April 2025. The contents of that report were adopted by her in the witness box as being true and correct. She recorded that the applicant demonstrated insight into his current situation and expressed regret for the offending, recognising the impacts on himself, family and the broader community. At the time of her assessment of the applicant, she stated that he was well able to speak to the consequences of his offending. By that time, she observed him to have a deeper connection not only to the consequences of his offending but also what she described as a cognitive appreciation of it.
In this context, Ms Geddes also noted that during his incarceration, the applicant observed drug-addicted individuals, noting their desperate behaviour and how substance use had ruined their lives. He acknowledged to her the broader impact of substance use on the health system and the community. Additionally, she noted the applicant described how drug manufacturing contributed to a negative environment that prevents people from living fulfilling lives. He also expressed sympathy for drug-affected individuals, which he reported to her had changed his perspective and behaviour. He noted to her also that this would in his view influence future choices and decisions, as he now better appreciated how much substance use ruined lives and communities. There seems no reason to the Tribunal not to accept these observations from Ms Geddes.
There were also several witnesses who gave evidence in support of the applicant who have known him and attested to how remorseful he is about his offending and the insight that he has gained into it.
Firstly, of course there was his wife. Apart from the fact that clearly the applicant recognises the considerable effect his offending has had upon her, not to mention his young son, the separation from them has clearly been profound and constituted a monumental wake-up call to him. She has made several statements in support of revocation of the mandatory cancellation of the visa.[19] In those statements she has made a number of observations on this topic.
[19] G19, 247, G19, 250, G25, 303, G29, 312, ATB, 4.
During his lengthy time in prison, the applicant’s wife stated that he had expressed his sincere remorse for his offending, not to mention the damage and stress that it caused his wife, son and extended family. He has expressed regret to her for his offending many times since he was imprisoned. It was emphasised by her in the witness box that the applicant was committed to making amends for his behaviour and had taken full responsibility for his actions both in terms of its criminality and the lasting damage it had caused his family. The extended time span that the applicant has not had contact with his son was emphasised by his wife in her evidence. She gave compelling evidence about the reactions of her son to the applicant’s continued absence. He has been profoundly affected by not having a father present in the family as other of his schoolmates do. She says that he has repeatedly expressed his sorrow for what he did and his regret. She contends that he has taken full responsibility for his offending. Further she considers that he has reformed and if released into the Australian community will make a positive contribution.
His brother has supported him throughout the legal process after he was arrested, charged, sentenced, imprisoned and on his return to China. He gave evidence and has also made statements that were considered by the Tribunal.[20] They have clearly remained close to one another throughout the applicant’s time in prison and after his return to China. [21]Amongst other things, he has emphasised the needs of his wife and son to have him permitted to be able to live again in Australia. As for remorse and rehabilitation, his brother considers that he has genuinely reformed. It is recognised by him in his opinion that the applicant realises the gravity of his offending. The applicant has expressed his regret and genuine remorse to for his offending and the effect it has had on his family. His brother considers that the applicant would not be a risk to the Australian community in the future.
[20] RTB, 211, ATB, 9.
[21] The continuing close relationship between the applicant and his brother is addressed in more detail later in these reasons when primary consideration 8.3, The strengths, nature and duration of ties to Australia, is addressed.
An aunt made a statement in the support of the applicant.[22] She too emphasised the significant effects of the applicant’s imprisonment and separation has had on his wife and son. She has observed the strain in particular on his wife, which she observed led to, or contributed to her own mental health issues, having been diagnosed with anxiety and depression. On that question she also expressed the opinion that the return of the applicant to Australia would assist with sharing the burden of raising their son, who as noted earlier, suffers from ADHD. The applicant’s aunt stated that the applicant’s son has maintained a close emotional bond with him. She has observed the son speaking favourably about his father. She also recorded that the applicant had expressed deep remorse for his offending and the harm that it is caused most of the Australian community and his family. Additionally, she expressed the opinion that the applicant has made significant efforts towards rehabilitation and gained some practical skills during his time in prison. She considers he poses no risk to the Australian community and if he were allowed to return here would readily obtain gainful employment and make a positive contribution to Australian society.
[22] Applicant’s aunt’s statement is dated 22 May 2025.
The applicant’s uncle by marriage made a statement in support of the applicant.[23] He had recently visited China and personally met with the applicant. They have known one another for many years including for a period when the applicant lived with his family whilst studying in Sydney. He spoke highly of the applicant’s qualities as a person. According to the applicant’s uncle by marriage’s evidence, the applicant has many times expressed to him how sorry he was for the offences he committed and the mistakes he made. Additionally, the applicant has told him that he understands the seriousness of what he did and how it hurt others. The applicant has told in that whilst in prison he has acquired new skills and is confident that if he is returned to the Australian community, he would be able to find gainful employment and make a positive contribution. He believes the applicant will not reoffend again and deserves a second chance. In particular he emphasised the struggles that the applicant’s wife and son have faced due to his absence. These struggles include the anxiety and depression which the applicant’s wife now suffers from, coupled with the burden of raising their son on her own and dealing with the demands of his ADHD.
[23] Applicant’s uncle by marriage’s statement is dated 22 May 2025.
A cousin of the applicant also made a statement in support of the applicant.[24] They have known one another most of their lives having grown up together in Beijing as children. They both maintained contact when they subsequently moved to Sydney. This contact has continued following the applicant’s imprisonment. The applicant’s cousin stated that over that time when they have discussed the matter the applicant has expressed sincere remorse for his offending. Additionally, he considers the applicant is aware of the gravity of the offending and is committed to reform and rehabilitation. He also believes that the applicant, if he returned to the Australian community would readily obtain gainful employment and make a meaningful contribution to Australian society. Finally, as with the other witnesses, he corroborated much of the evidence about the challenges that have been faced by the applicant’s wife and son in his absence. It need not be repeated as it was along the same lines of other witnesses. It is noted by the Tribunal.
[24] Mr The applicant’s cousin’s statement is dated 22 May 2025. He also lodged statements with the respondent in support of the application for revocation of the mandatory cancellation of the visa dated 10 July 2019 (G21, 259) and 14 May 2021 (G21, 261).
A sister-in-law of the applicant also made a statement in support.[25] She canvassed a range of matters in her evidence. She addressed what she described as “Demonstrating Rehabilitation and Commitment to the Community” on the part of the applicant. She stated that the applicant has expressed profound remorse for his offending, and she considers he fully appreciates the gravity and consequences of such offending. Additionally, she expressed the belief that the applicant is of no risk to the Australian community, or of reoffending. She emphasised his rehabilitation and reform that has been achieved, both whilst in custody and subsequently, on his return to China. At all times during those phases of his life, he has according to her, endeavoured to acquire practical skills that when added to his existing experience and qualifications, would enable him to gain meaningful employment as a productive member of society if he is permitted to return to Australia.
[25] Applicant’s sister-in-law’s statement is dated 22 May 2025.
The applicant’s sister-in-law in her statement also emphasised the difficulties that the lengthy term of incarceration, and now time spent in China, have caused the applicant’s wife and son. She, like many other witnesses, emphasised the continual struggle that his wife has faced since he was arrested. The struggle has been financial, emotional and to some degree medical, due to the mental health conditions she experiences. These struggles or difficulties, in her opinion, are amplified to some degree due to the son’s specific difficulties with ADHD, which have been touched on in other parts of these reasons. She expressed a further opinion that the prolonged absence of the applicant from the family unit has affected the son’s upbringing.
A friend of the applicant, Mr YL also made a statement in support of the applicant.[26] He has known the applicant since 2009. According to Mr YL, he believes the applicant has made efforts to rehabilitate himself since his imprisonment and is genuinely remorseful for his actions. The impression he has gained of the applicant is that he has gained insight into the consequences of his past behaviour and is committed to making positive changes. Based on his personal observations he concluded that the applicant poses a low risk to the Australian community. Mr YL, as many of the other witnesses did, emphasised the effect of the applicant’s imprisonment and subsequent return to China, on his wife and family. The needs of the applicant’s son, not to mention his wife, he considered would be advanced if he is permitted to return and live in Australia. Emotional stability of the son he contended would be contributed to by the presence of his father living as part of a combined family unit. There is a certain and clear logic in this contention.
[26] ATB, 13.
A friend of the applicant Mr G also made a statement.[27] He stated that the applicant has turned his life around and is in a position to become what he described as a functioning member of society. Like other witnesses, he also emphasised the emotional and practical hardship, as he described it, not only on the applicant, but particularly his wife and son that has been experienced due to his imprisonment and subsequent return to China. He also stressed what he described as the importance of a father figure at home to give structure and guidance, notably to his son.
[27] ATB,17.
There were also several other letters of support from these and other persons that were in evidence before the Tribunal.[28] They have been read and considered.
[28] G21.
Given the evidence before the Tribunal as outlined above concerning this topic, it concludes that the applicant is genuinely remorseful for his offending. It clearly is a source of much regret to him both in terms of his offending, but also quite critically, the devastating effect it has had on his wife, son and broader family. Over the many years that he experienced in custody and latterly, upon his return to China, he has taken the opportunity to reflect deeply on the predicament that he has got himself in. Additionally, he has had lengthy and deep discussions with members of his family, friends and others as part of this process. The Tribunal concludes that by reason of these factors, he has gained deep insight into his offending and its consequences, not to mention genuine remorse.
Rehabilitation
The applicant, both in his witness statement and from the witness box, described what steps he had undertaken towards rehabilitation. He explained that this process was multifaceted and included time of deep reflection, many discussions with his wife, members of his extended family and friends, about strategies or tactics that he needs to implement to achieve an appropriate level of rehabilitation. In his view such efforts were instrumental in raising his self-awareness and effectively reinventing himself as a responsible individual able to make a positive contribution to the community in the future.
Some of the evidence referred to above in the section entitled “Remorse and insight into offending” is also applicable to the question of the applicant’s rehabilitation. To the extent that such evidence is referable to the question of his rehabilitation it is referred to and repeated.
Puzzlingly, the applicant stated that he had participated in therapy to address the underlying issues that contributed to his behaviour.[29] No evidence was before the Tribunal about such therapy, including who the therapist was or how many sessions he had undergone with them, and precisely what took place in those sessions. Unfortunately, this was not probed when the applicant was in the witness box. It is surprising indeed. Had the applicant undergone therapy in the way conveyed in his witness statement one would have expected comprehensive details of that therapy to have been provided to the Tribunal in evidence. The only evidence before the Tribunal remotely representing “therapy” attended by the applicant, since he was taken into custody, was an integrated telehealth interview conducted by Ms Geddes prior to the preparation of her report, and an examination conducted on 5 July 2018 by a psychologist Mr Watson-Munro, who subsequently prepared a report which was received in evidence by the sentencing judge in the District Court of New South Wales. He also attended a Drug & and Alcohol awareness course early in his term of imprisonment which is addressed in more detail later in these reasons. The Tribunal is unable to conclude that any of these attendances constituted “therapy” as the applicant sought to convey by reference to that topic in paragraph 8 of his witness statement of 7 May 2025. To this extent the Tribunal concludes that the applicant’s evidence concerning “therapy”, as recorded in his witness statement, was given with a degree of embellishment or exaggeration.
[29] Paragraph 8 of the applicant's witness statement of 7 May 2025 ATB 2.
The evidence from the applicant as to his efforts at rehabilitation, as outlined above, were to a large degree, save for the question of him undergoing “therapy”, corroborated and supported by the other witnesses who gave evidence in support of him, referred to earlier in these reasons in the section addressing his “Remorse and insight into offending”.
Reference should also be made to the evidence of Ms Geddes, both in her report and from the witness box. In short, she stated that the applicant has come to terms with the facts and consequences of his actions in a way that she considered could be optimal for his self-awareness and behavioural change. This in essence led to a far more improved internal sense of responsibility. In her view he had taken significant steps towards reform and rehabilitation. In her report, and in the witness box, she also highlighted a factor contributing to his rehabilitation being his strong work ethic, which in her view suggested an internal sense of responsibility. Also, in terms of his sense of responsibility, Ms Geddes emphasised that the applicant had not taken any substances or drugs since he had been in custody, notwithstanding that he had previously a substance abuse problem. She described it is a prognostic sign, in that if he had access to substances and didn’t partake in them it represents an element of self-control, presumably demonstrable of his steps taken towards rehabilitation.
The applicant has undertaken several courses and participated in a in certain programs whilst he was in custody. His evidence on this topic does raise some level of concern. He was probed in cross examination. The applicant stated that during his first year in prison he was able to attend a Stage 1, Drug & and Alcohol awareness course. Initially, when probed on this course he stated that due to the circumstances, he faced when in prison at that time he was unable to complete Stage 1. As far as he was able to recall it, he attended between 5 and 10 sessions. Later his evidence shifted to say that he on reflection he believed he finished Stage 1, but did not have a certificate. It was intended that he proceed to Stage 2, however, he was unable to do so. He readily conceded that Drug & Alcohol, and like courses were available to him throughout his time in custody. Several reasons were offered by him to explain why he did not attend any others.
For much of his time in custody the applicant stated that he was in one of the worst maximum-security jails in New South Wales, namely Long Bay, a prison of some notoriety. According to the applicant, there were stabbings and riots on a regular basis which caused the prison to be locked down, prisoners confined to their cells for extended periods and vocational or self-improvement courses such as those offered for Drugs & Alcohol to be suspended. This is probably the case. It was not disputed in cross examination. The inability for him to attend more courses of this type is unfortunate given the obvious problems concerning this issue that he has faced.
When it was put to the applicant that he had been in prison for 8 years, he conceded there were more courses that he could well have participated in of this type, and particularly those addressing Drug & Alcohol abuse, which had been a problem for him in the past. However, in a somewhat bold fashion, he then stated that as time progressed, he realised he didn’t need courses to deal with those problems. As some kind of reinforcement, or corroboration for this view that he expressed, he emphasised that prison is a place where drugs are readily available.[30] He explained that in such a prison environment, “It is like a friend asking you to go to the pub. I turned them down. The prison does urine tests, I had no positive tests, and it shows me clean in that environment.”
[30] At this point of the applicant's evidence, it did prompt an exchange between the Tribunal and the lawyers representing the parties wherein the Tribunal observed that it is well-known that drugs are readily available in prisons.
The applicant was probed further and acknowledged that treatment for such conditions had been recommended. He was further asked in the light of that recommendation why he did not seek treatment. His response was, “I have been clean and am very confident that I will stay that way for the rest of my life which I have proved by my actions when inside”.
The probing of the applicant then addressed some aspects of his assessment undertaken with Ms Geddes. The applicant conceded he had recently seen her. It was put to him, as recorded in her report, that he had no plans to engage in treatment. His response was that was correct, and he didn’t think he needed such courses. It was then further put to the applicant that Ms Geddes said he would benefit from the development of a robust relapse prevention plan. He was asked whether he agreed with that recommendation. His response was, “I do agree with that. If it was a requirement, I would be more than happy to do so. It definitely rings some truth for me, I would do it if it would help me.”
It was then put to the applicant that he had been clean as a result of abstinence, to which he replied “yes”. Then he was asked if he believed that abstinence was sufficient. He replied that yes, it was. The applicant was then asked if he would accept that his abstinence had been untested in the community, to which he agreed. He was then asked how he would deal with being tested by being released into the community where there would be temptations leading to relapse. His response was that he believed that the risk of him taking it up again (drugs) and the actual decision to do so are 2 different things and that he had already made his mind up not to do so. The inference being from such evidence that he would not yield to such a temptation.
This exchange in cross examination outlined in some detail in the last few paragraphs, was given the applicant’s history of alcohol and drug abuse, coupled with his propensity to associate with, as Ms Geddes described them, “problematic peers” (ultimately causing him the significant trouble that he got himself into) reflects a remarkably cavalier, if not overconfident attitude to these issues. It is a cause of much concern, and it is relevant to assessing the risk of him reoffending. This level of hubris on an important matter could well be the platform for possible future relapse. He just might be too overconfident in his capacity to maintain the level of abstinence that he should.
In 2019 the applicant undertook the subject SIS30315 Certificate 111 in Fitness, (Group Exercise Instructor) offered through the Tamworth Campus of New South Wales TAFE. This is to his credit.[31]
[31] G18, 243.
There were in evidence before the Tribunal documents created by the New South Wales Department of Corrective Services referred to as “Case Note Report.[32] This document is a business record maintained by that Department which records details of various events and circumstances occurring throughout a person’s time in custody. An examination of the Case Note Report for the applicant reveals several things. He also quite actively attended a number of programs offered to prisoners whilst in custody. The evidence recorded in these documents indicates that he satisfactorily completed these programs. Amongst others, these programs included “Health Survival Tips”, “Cycle of Change and Self Worth”, “Motivation and Cost & Benefit analysis”, “Limiting beliefs”, “Core Skills Assessment”, “Maths”, “Reading” and “First Aid”.
[32] G22, 271.
The Case Note Report also recorded that the applicant had been employed as a wing sweeper and office sweeper for some time in the prison. It was noted that he performed his duties to the best of his abilities and worked well with other inmates. It was also observed that he was well trusted to clean the office area and respected the officers’ area at the same time. He was highly recommended for further employment opportunities in the prison system.
Later, at the Macquarie Correctional Centre it was noted that he was working in “Heavy Engineering” and doing well in that role. Also, whilst engaged in Heavy Engineering he was said to be always polite and worked well, with a good attitude to any changes in the work program, and assisted new inmates to fit in. Subsequently, when he was an inmate of the Geoffrey Pearce Correctional Centre he worked as a librarian. Likewise, the entries in the document make favourable observations of him. He was described as an organised worker, with a calm manner who maintained positive relationships with all inmates who visit the library. He was said to be gaining good work reports.
In the witness box the applicant confirmed the matters recorded in the Case Note Report concerning his present employment. He emphasised also that most of his prison jobs were given to him because he was a very trusted inmate. By way of example, he pointed out that as a sweeper he had access to the building after all inmates had left. As the librarian he had access to a computer which most other inmates did not. In his last job whilst in prison he had access to cutlery, including knives, which are highly restricted in a prison environment because they can be used as weapons, which are of course prohibited. It is not unreasonable to infer that this does demonstrate the applicant’s level of trust in the prison system. It is also further evidence of the steps he has taken to rehabilitate himself.
In January 2019 the applicant’s Case Note Report, also recorded that he had been referred to participate in the EQUIPS Foundation and EQUIPS Addiction Programs. There is no evidence that the applicant attended these programs. The Tribunal infers that he did not. These programs are well recognised as being highly beneficial to individuals with a history of drug and alcohol abuse issues. It is puzzling to the Tribunal that the applicant did not follow up on these references and of concern in assessing the risk of him reoffending. As an intelligent, educated and articulate man one would have thought he might have seen the benefit to him of following up these recommendations, both in terms of the personal benefit to him of doing so but also to advance his prospects of successfully establishing to this Tribunal in this application that he had pursued every available avenue of rehabilitation for what is on any view a significant Drug and Alcohol problem he had.
As already noted, there was no evidence of the applicant taking any drugs whilst in prison. Drugs are frequently available in prison, and it is not uncommon for inmates to take them from time to time. Regular urine samples are taken of prisoners to test whether or not they have been consuming drugs. It is to the applicant’s credit that he has avoided this temptation. It is certainly further evidence of his rehabilitation.
During his time in custody overall, as is evident from the details referred to above, the applicant has been a quite well-behaved prisoner. Apart from one incident recorded in the prison records for damaging or destroying property on 6 Fairbury 2019 and ordered to pay $13.05 compensation, his record as otherwise been unblemished. The Tribunal considers that in the scheme of things this incident should not count against the applicant. He has behaved well whilst in prison, which of course is a harsh environment for any inmate, but probably more so for the applicant given the language and cultural differences he faced and that he did not come from a more hardened, long term career criminal background.
Given all the matters that were adduced in evidence before the Tribunal in this application concerning the applicant’s steps towards rehabilitation, overall, it does reflect well on him.
Risk of reoffending
The Tribunal is guided by the language of paragraph 8.1.2 (1) of Direction 110 that in considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Clearly, were the applicant to engage in the manufacture of a prohibit to drug, namely methylamphetamine in the future, as outlined above, there would be serious potential harm caused. Therefore, the Tribunal has several concerns about the potential risk to the Australian community posed by the applicant.
It is acknowledged that Ms Geddes conducted a risk assessment of the applicant. Details of how that risk assessment was conducted are referred to in her report in the section headed “Risk Assessment”.[33] She used the “The Level of Service/Case Management Inventory (LS/CMI)”. In her evidence she explained that the LS/CMI is a structured management tool. It is designed to evaluate an offender’s risk for general recidivism, and according to her has the most extensive research literature of any offender classification instrument. She concluded that the applicant’s overall risk of general reoffending was rated as low. The applicant, she stated revealed during the interview she conducted for the purposes of applying the LS/CMI identified few factors indicative of potential general reoffending.
[33] RTB, 35-36.
However, notwithstanding this assessment, it cannot be said that there is no risk. Ms Geddes, when in the witness box, readily conceded that this is indeed true. On several occasions when in the witness box, quite fairly she conceded that given the applicant’s history with drugs and alcohol there is always a risk of a relapse. She also conceded that were the applicant to relapse into drug use it would increase the risk of him committing offences of a similar kind in the future. At another point during her evidence, she acknowledged that substance use is a risk factor identified in research as linked to offending. Similarly, she addressed the financial motivations, and financial difficulties that played a role in the applicant’s offending. She was asked if the applicant were to incur financial difficulties in the future would it increase the risk of him reoffending. Ms Geddes responded that given the applicant’s past behaviour there would be an increased risk. She acknowledged that difficulties with finances were identified as a historical risk factor.
Reference should be made to the evidence given by the applicant concerning his consumption of alcohol. Since his release from prison and return to China he stated that he doesn’t drink other than in moderation. His drinking is confined to usually one or two glasses of wine or beer. The beer glass is a “schooner” size. He said he doesn’t drink often. They are rare occasions such as a festival in China, including the Chinese New Year and the Full Moon Festival. His estimation was that presently he drinks alcohol approximately 5 occasions annually.
When the applicant was imprisoned his wife and son visited him as much as they could. For the first 2 ½ years of his imprisonment they endeavoured to visit the applicant weekly. There was also intermittent telephone contact. Subsequently, the applicant was moved to a prison that was much further away and contact was usually confined to the telephone. The applicant has spent the majority of his son’s life in prison. Since his return to China contact has usually been by video link. His son has visited him twice since he returned to China, having spent a total of almost 3 ½ months there. During those visits it appears that a father-son relationship has developed somewhat.
A matter that is highly relevant concerning the applicant’s son when addressing this primary consideration arises because he has been diagnosed with ADHD of a mixed type. In evidence before the Tribunal were letters or medical reports from Dr Peng, a Consultant Paediatrician, who has been treating the applicant’s son since 2019.[37] He is taking medication for the condition. In the most recent report from Dr Peng several things emerge. In the section entitled “Progress” it recorded that his son had visited China for two months. Reference was then made to feedback from school advising that the son is unable to focus in class. Additionally, there had also been some impulsive behaviour in the school playground. His mother observed the same issues at home and on weekends. In the section of her report under the heading “Management plan”, Dr Peng expressed concern that the son’s ADHD symptoms have significantly impacted on his learning, function and social skills.
[37] Those reports from Dr Peng are at pages 65, 66, 68 and 70 ATB and G17 page 144 of the G documents. They have been read and considered by the Tribunal. In her letter of 26 July 2019 addressed “To whom it may concern”, Dr Peng recorded the applicant’s son as having ADHD, with a request that it be taken into consideration when assessing his “father’s eligibility for his residential Visa in Australia”.
The applicant’s wife in her evidence stated that it had been extremely difficult for her to raise her son in the absence of the applicant. The difficulties in raising her son on her own have, she said, been amplified by reason of the son’s ADHD condition. She described his mood swings, difficulty in concentrating on tasks such as homework and generally challenging demeanour.
Amongst the documentary evidence before the Tribunal in this matter were a number of school progress reports and associated material concerning the applicant’s son’s progress at school.[38] That material has been considered by the Tribunal. Whilst the contents of those documents speak for themselves, they generally reveal that he is progressing quite well. Usually, he achieves a satisfactory level of competence in the processes and skills that he undertakes. Several teachers have observed that he works consistently, makes progress in all areas of the curriculum and takes pride in his work and achievements. This is a testament to both his son, and of course his wife who has been raising their son in clearly difficult circumstances.
[38] G17.
Further, in her evidence the applicant’s wife did canvass the prospect of returning to China so as to reunite the family unit. However, she had decided against this course for several reasons. Both she and their son are Australian citizens. She also felt that the level of care, treatment and assistance that the son had received in Australia for his ADHD condition would not be available in China. Also, she emphasised that his son has grown up in contemporary Australia, it would be fairly unrealistic for him to move to China and transition to life there on a day-to-day basis. Her son only knows Australia. It would be a significant upheaval for him at any time, but particularly at this time of his life, approaching adolescence with the condition of ADHD which he has. This is quite understandable. The Tribunal would also add that given her son’s progress at school, the friends and social interaction he has experienced from his school, to suddenly be uprooted to another country with a substantially different culture and language to that with which he is familiar would be extremely challenging for him, and overall, probably not beneficial.
The son when being interviewed by the Clinical Psychologist, Ms Martens commented that he had enjoyed visiting his father in China.[39] He also informed Ms Martens that he had missed his father when he was in jail and continued to miss him when he is in China. Further, he informed her about wishing to have Father’s Day activities with his father. He expressed to her feeling sad at times, especially on big occasions such as when he is performing at school and his father was not present to watch him, presumably as other fathers were. Ms Martens also recorded his son as informing her that he would be sad if his father could not return to Australia.
[39] ATB, 43.
Ms Martens was, when instructed, requested to express an opinion on the harm, if any, that his son is experiencing as a result of the applicant not being able to live with him in Australia. In response to this question Ms Martens canvassed several matters.
She pointed out that this was not a case where the applicant had been abruptly removed from the family home and displaced overseas. His son has resided primarily within his mother’s care since the age of 2. His life has, effectively, almost always involved his father being absent to some extent and this has become normal for the son. She acknowledged that the son had, however, during that time frequent contact with his father in custody. She stated that on the information available to her it suggested that the son had formed a bond with his father, feels connected to him and desires a relationship with him. She considered that the separation of the son from his father, initially via imprisonment, and now by reason of his presence in China, following the cancellation of the visa, has prevented his son from benefiting from a natural and meaningful relationship with his father.
Ms Martens also considered that the reduced contact between the father and son is likely to result in a distancing of their relationship, an increased sense of loss for the son, and as the son becomes more cognizant of the reasons for his father’s visa cancellation, he may become more distrustful with authority, and angry or upset with his circumstances. She conducted a review of academic literature on the topic and as a result of that examination, noted that the full impact of the applicant’s incarceration and cancellation of the visa, may not manifest itself with his son until he ages. The son would be more likely to experience mental health concerns and a distanced relationship with his father as a result. She also noted additionally, that if the applicant is not permitted to re-enter Australia, his son’s loss and sadness is likely to intensify. This is especially because the information she had suggested that his son was hopeful of his father returning.
Amongst other things, with specific regard to the impact of parental deportation on an adolescent, Ms Martens also observed that it has been identified in the professional literature, that adolescents who are separated from a parent due to deportation have increased risk of engaging in alcohol use, aggression and suicidality.
Ms Martens also made some further comments concerning the son’s ADHD diagnosis. That condition has, she opined, associated difficulties with executive functioning with regard to impulse control, attention focus and planning. Such a diagnosis, she stated, increases his vulnerability to developing other mental health concerns such as anxiety or depressed mood, and could also limit self-regulation and coping skills during periods of increased stress or difficulty.
It is appropriate by way of completion to address the factors enumerated in paragraph 8.4 (4) of Direction 110 in considering the best interests of the applicant’s son, who is a minor affected by the decision.
The nature and duration of the relationship between the father and the son (sub paragraph 8.4 (4) (a)) has been addressed in the forgoing analysis. One would observe that there have been lengthy periods of separation due to the applicant’s imprisonment and subsequent return to China. The nature of the relationship as detailed by both the child’s mother and in the report prepared by Ms Martens, is referred to and repeated.
Overall, the Tribunal considers that, as it is required to do by subparagraph 8.4 (4) (b) of this primary consideration, the applicant is likely to play a positive parental role in the future. There is the evidence both from Ms Martens and his wife which has been addressed earlier in these reasons. Clearly, the very physical presence of a father living as part of a family unit will be of benefit to the child. In the case of this child there are the additional demands posed by reason of him having ADHD as discussed. In addition to the benefit to the child, it would also of course relieve the burden that the applicant’s wife has had to shoulder for many years during his absence. In so relieving such a burden, it seems more probable than not, that this would also lead to additional benefits to the child. The observations of Ms Martens in her report about the potential for a positive parental contribution from the applicant is also noted.
The impact of the applicant’s prior conduct, as required by subparagraph 8.4.4 (4) (c), which in this case involves his offending, details of which have been articulated in some detail above is referred to and repeated. In short, it was appalling conduct towards a vulnerable child which should be robustly condemned.
As for the applicant’s future conduct and whether it will have a negative impact on his son, is difficult to assess. In reaching any conclusions on this question much depends upon whether or not the applicant remains totally abstinent from alcohol and drugs. It also does some significant degree depends upon the applicant avoiding associations with inappropriate peers, as he has done in the past. Were he to relapse into drug and alcohol use and/or recommence peer associations with more undesirable types, there is a distinct and real risk, as articulated above, that the family unit would be disrupted, having consequential adverse effects on the son, and possibly reoffending. It should not be underestimated.
Subparagraph 8.4.4 (4) (d) of Direction 110 requires the Tribunal as decision-maker, to consider the likely effect that any separation from the applicant would have on his son, taking into account their ability to maintain contact in other ways. Overall, the evidence before the Tribunal, both from lay and expert witnesses, leads one to conclude that there would be an adverse effect on the son. The report of Ms Martens has already been touched on earlier in these reasons concerning the likely effect of continued separation from the applicant. That analysis is referred to and repeated. It will not be in the son’s best interests. The detriment to the son, by reason of the separation from his father, is in several respects likely to be more amplified due to his ADHD condition. That detriment was articulated in Ms Martens report several aspects of which were referred to above. Those observations made by Ms Martens are referred to and repeated. The observations concerning any potential separation on the son made by the applicant’s wife are also acknowledged when addressing this subparagraph.
As for contact being maintained in other ways if the applicant were not to return to Australia, it is likely to be, as it has for some time, certainly since his return to China. Various forms of video link or Internet communications are used and there is the possibility, as has occurred already, of periodic visits to China by his wife and son. As already noted, the applicant’s son has had 2 visits to China since his return. They have gone well and have obviously been beneficial for both father and son.
Insofar as whether there are any other persons who fulfil a parental role as required by subparagraph 8.4.4 (4) (e), in relation to the applicant’s son, save for his mother, no one else fulfils such a role. It is apparent from the totality of the evidence before the Tribunal it has been a significant burden for her to shoulder, which has been perhaps a greater burden than would normally be the case, due to the son’s ADHD condition.
Subparagraph 8.4.4 (4) (f) of the Direction requires considering any known views of the child, with those views being given due weight in accordance with the age and maturity of the child. Once again, the Tribunal takes into account the professional observations made by Ms Martens on this topic. The son expressed a clear view to her that he wishes his father would return to Australia. It seems a view that was understandable, and would be accorded considerable weight given his age, and the obviously careful assessment that Ms Martens made of those expressions by the son to her. Additionally, the applicant’s wife gave evidence to a similar effect. The Tribunal sees no reason not to accept that evidence, both as being accurately given by her and, further, properly reflecting the wishes of her son. Save as aforesaid, there was no other evidence before the Tribunal concerning known views of the applicant’s son
The Tribunal is required under subparagraph 8.4.4 (4) (g) to consider any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the noncitizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally. There is no evidence of any family violence committed by the applicant towards his son. However, reference has been made in several parts of these reasons previously to the exposure of the applicant’s son to methylamphetamine due to the applicant’s criminal activities in manufacturing prohibited drugs. Those references are referred to and repeated. It was chronic neglect of his son, as contemplated by this subparagraph of Direction 110. Such neglect by the applicant must be roundly condemned. Also, by reason of the applicant’s offending, which led to his imprisonment, his son has had an absent father for many years. This is unfortunate. These factors weigh against the applicant.
Finally, subparagraph 8.4.4 (4) (h) of Direction 110 requires the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the noncitizens’ conduct. There has been no physical trauma. It is difficult to say categorically that the applicant’s son has suffered emotional trauma.
Reference should be made to the report of Ms Martens concerning the effect of the applicant’s conduct on his son. She does not specifically conclude that the applicant’s son has suffered or experienced any emotional trauma. She does record, as noted earlier, that the son misses his father and felt sad at times. In a section of her report in which she undertook a “Literature Review”, Ms Martens records that several journal articles specific to that area, state that the breaking of familial bonds is one of the most significant psychosocial stressors that a child can be subjected to.[40] Further, she observed that the literature supports the conclusion that detention or deportation of a parent can result in a wide variety of impacts for a child. This can extend to emotional disturbances such as fear, stress, sadness and anger, behavioural issues including problems with sleeping and appetite, and poor school achievement.
[40] Paragraph 47 of Ms Martens’ report. ATB, 54.
Ms Martens in her consideration of the “Literature Review”, considered the impact of parental deportation on an adolescent.[41] It should be recalled that the applicant’s son is approaching adolescence. She observed that it has been identified that adolescents who are separated from a parent due to deportation have increased risk of engaging in alcohol use, aggression and suicidality. Additionally, it is further suggested that the mental health consequences of parental deportation can be especially challenging during adolescence due to dealing with puberty and body changes, and when experiencing initial romantic relationships.
[41] Paragraph 48 of Ms Martens’ report. ATB, 55.
The applicant contends that having regard to all the facts and evidence before the Tribunal concerning this primary consideration, that it must weigh strongly in favour of revocation of the mandatory cancellation of the visa.
On the other hand, the respondent contends that whilst this primary consideration may weigh in favour of the applicant, it should be afforded very limited weight. Several grounds are relied upon. It is acknowledged on behalf of the respondent that the evidence establishes that the applicant’s son greatly misses him, that he has desire for normalcy and there are a number of relevant factors that have been identified concerning his son articulated in Ms Martens report and evidence.
However, the absence of the applicant as submitted on behalf of the respondent, has become the norm because the applicant was imprisoned when his son was merely 18 months old. A section of Ms Martens report was emphasised by the respondent, wherein she observes that the applicant was not abruptly removed from the family home and displaced overseas. Additionally, it has been contended by the respondent that notwithstanding his imprisonment and subsequent return to China he has still been able to form and maintain a relationship with his son. This has included prison visits electronic communications and 2 visits to China since his return.
Another dimension to the respondent’s contention that limited weight should be attached to this primary consideration arises from the applicant’s offending itself. Much has been touched on earlier in these reasons about his son being exposed to and ingesting methylamphetamine as a result of his clandestine drug making activities. There is some considerable force in this contention. Finally, the respondent also targets the impacts on his son were he to reoffend.
The Tribunal is persuaded by the totality of the evidence before it that, as contended by him, that this primary consideration weighs strongly in favour of revocation of the mandatory cancellation of the visa.
Primary consideration 8.5 of Direction 110 - Expectations of the Australian Community
Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non-citizen to enter or remain in Australia.
It is also provided in paragraph 8.5(2) of Direction 110 that in addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind, amongst others:
(i)acts of family violence; or
(k)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is also provided in paragraph 8.5(4) of Direction 110 that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[42] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”.[43] As Charlesworth J also explained, the clause imputes or ascribes 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.[44] These expectations are established and are to be applied as norms.
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[45] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[45] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of the Ministerial Direction itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by the Ministerial Direction is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[46]
[46] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97]. It should, for the sake of completeness, be noted that this decision addressed a different Ministerial Direction. However, it contained a primary consideration in the same language as Direction 110.
The applicant submits that having regard to the norm established in this primary consideration, it is accepted that it does weigh against revocation of the mandatory cancellation of the visa. It is, in the view of the Tribunal correctly contended that the weight to be given to this primary consideration is a matter for the Tribunal.
Understandably, the respondent submitted that the applicant has failed to meet the expectations of the Australian community to obey its laws. Reliance is placed upon the severity of the applicant’s offending, being the manufacture of a significant quantity of prohibited drugs, exposure of his son to such drugs and the lengthy term of imprisonment that his offending attracted. Therefore, the Australian community would expect that the applicant should not hold a visa.
The respondent contends that significant weight should be attached by the Tribunal to this primary consideration against revocation of the mandatory cancellation of the visa.
Reference should be made to a question asked of the applicant about this primary consideration when he was in the witness box being cross examined. He was asked what he thought the Australian community’s view of him would be. Candidly, his response was, “I do believe that they would think that I have done something horrible.” It is an observation that one would have to agree with.
In undertaking an assessment of what weight to attach to this primary consideration, the Tribunal as decision-maker is guided by the provisions of paragraph 5.2 “Principles” of Direction 110. The safety of the Australian Community is the highest priority of the Australian Government as articulated in subparagraph 5.2 (2) of Direction 110. The threats to public safety caused by the applicant’s offending were commented on by the sentencing judge in the New South Wales District Court and have been referred to above. The applicant by his offending placed public safety at significant risk. He also placed his young and vulnerable son at significant risk.
As stated in subparagraph 5.2 (3) of Direction 110 noncitizens who having engaged in criminal or other serious conduct should expect to be denied the privilege of staying in Australia. One has to classify the applicant’s offending as serious criminal conduct. It triggers this expectation.
Subparagraph 5.2 (8) of Direction 110 refers to the inherent nature of certain conduct being so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community. It seems to the Tribunal in all circumstances and given the evidence before it the application of this subparagraph of Direction 110 is also triggered. The concerns of the Tribunal arise from the nature and seriousness of the applicant’s offending in terms of public safety posed by the risk of fire and use of unstable chemicals, the exposure of his son to methylamphetamine, the danger to the wider Australian community from the scourge of methylamphetamine use and abuse, and the fact that the applicant has not had treatment for mental health and other drug and alcohol issues (with particular emphasis on a robust relapse prevention plan) as recommended by two mental health professionals who have conducted assessments on him.
Similar considerations apply with respect to subparagraph 8.5 (2) of Direction 110. The Tribunal considers that non-revocation of the mandatory cancellation of the visa is appropriate simply because the nature of character concerns that have been raised on the material before it is such that the Australian community would expect that the applicant should not be permitted to continue to hold a visa. The serious character concerns have already been addressed previously. However, subparagraph 8.5 (2) (c) prescribes that these concerns arise by reason of the crime that the applicant committed in exposing his son to methylamphetamine as he did.
Finally, with respect to this primary consideration, the Tribunal notes that subparagraph 8.5 (3) of Direction 110 prescribes that the above expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community. In any event, the applicant has not met the Australian community’s expectation that he will obey the laws of this country. The Tribunal has addressed the question of risk of the applicant reoffending particularly in the light of him not receiving treatment for drug and alcohol problems and mental health issues as has been recommended by suitably qualified professionals. It cannot be said that there is no risk of the applicant reoffending. The nature of such offences he might commit were he to reoffend triggers the concerns identified with respect to this primary consideration. The Tribunal considers notwithstanding his remorse, the insight into his offending that he has gained and his steps towards rehabilitation, nonetheless by his actions, he exhausted the Australian community’s tolerance, and it would expect that he is not permitted to remain or return here.
Accordingly, the Tribunal accepts the respondent’s contention that significant weight should be placed on this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 9.1 of Direction 110 – Legal consequences of the decision
No claim or submission was made by the applicant concerning the legal consequences of the decision. The Tribunal accepts the contentions of both parties that this other consideration is not applicable to this matter.
Paragraph 9.2 of Direction 110 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
As previously noted, the applicant is presently 41 years of age. There was no evidence before the Tribunal to indicate that he experiences anything other than good health.
He has returned to China. His parents reside in China, and upon his return he lived with them. Approximately 9 months ago he secured an affordable rental apartment which rent is met from his wages earned there. It appears he has a reasonably broad social network there. There are no language or cultural barriers to him reintegrating in the Chinese community.
There is nothing before the Tribunal to indicate that he would not be able to avail himself of all social, medical and/or economic support available to other citizens in that nation. He has been able to find work since his return to China in January last year. This seems no reason why he would not be able to continue to engage in gainful employment there and rebuild his life. The evidence was that since his return to China he has been working on a pig farm which he said in his evidence is just getting started. From his earnings at the pig farm by arrangement with his mother he sends money to Australia for his wife and son. Usually, he sends between $1,000 and $2,000 Australian every month. He appears to have developed some agricultural skills by reason of this experience. It is also apparent that he has been on the front foot and got on with his life over there adapting to a different environment from the one he had become used to in Australia. Although working on a farm, he has been actively looking for other work utilising the skills and qualifications that he obtained in Australia. Overall, it appears that he has adapted to life in China reasonably well. This is hardly surprising.
Mr Dobbie on behalf of the applicant did not really push this other consideration. Candidly, he submitted that impediments are really not an issue. He also acknowledged that the applicant is fit.
The respondent contends that in circumstances where the applicant departed Australia voluntarily this other consideration should be afforded neutral weight.
Given that the applicant has returned to China and been there for approximately 18 months during which time he has been able to re-establish himself, the Tribunal considers that there is no real evidence before it establishing any impediments, or continuing impediments as contemplated by paragraph 9.2 of Direction 110. Therefore, it will afford neutral or no weight to this other consideration.
Paragraph 9.3 of Direction 110 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. The parties acknowledged that it was not applicable to this application. Therefore, no weight will be attached to it.
Other considerations
Mr Dobbie on behalf of the applicant both in the Statement of Facts, Issues and Contentions lodged on his behalf and in closing submissions stated that the Tribunal is entitled to and should take into account relevant matters that do not fall within the ambit of any of the primary or other considerations enumerated in Direction 110.[47] The Tribunal agrees with this submission.
[47] Paragraph 58 of the applicant's Statement of Facts, Issues and Contentions is referred to.
Several grounds were relied upon by Mr Dobbie in support of this contention. He submitted that the Tribunal should take into account the fact that the applicant is suffering hardship by way of being separated from his spouse and son, and by being unable to help them in a family setting in Australia. He also urged the Tribunal to have regard to the impact on the applicant’s wife. He contended that, “she is doing it tough” and needs her husband to return to Australia to assist with raising her son and by reason of what he described as a general principle of family unity incorporated in an applicable international convention. The circumstances faced by the applicant’s wife, it was contended do not fall neatly within primary consideration 8.3 of Direction 110, being the Strength, nature and duration of ties to Australia. Therefore, the need for his wife to have him in Australia, it was submitted is an additional claim that falls outside the considerations that the Tribunal is otherwise required to take into account. These additional considerations it is contended weigh in favour of revocation of the original decision.
Much has already been referred to earlier in these reasons concerning the effect of the applicant’s absence on both his wife and son. Those observations are referred to and repeated for the purposes of addressing this aspect of the applicant’s submission.
Apart from the applicant’s submission that these other considerations weigh in favour of revocation of the mandatory cancellation of the visa, no submissions were made concerning whether the weight that the Tribunal might attach to them could outweigh any of the primary considerations, where the weight to be attached to them is found to be against the revocation of the mandatory cancellation. The Tribunal does not consider that any weight it attaches to these other considerations, in the absence of Direction 110 saying so, could do so.
Nonetheless, it is prepared to find that insofar as these other considerations have not been addressed in any of the primary considerations enumerated Direction 110 that they do weigh in favour of revocation of the mandatory cancellation of the visa.
CONCLUSION
Extremely heavy weight has been attached by the Tribunal against revocation of the mandatory cancellation of the visa sought under paragraph 8.1 of Direction 110 – ‘Protection of the Australian community.
No weight has been attached by the Tribunal to the primary consideration under paragraph 8.2 of Direction 110 – ‘Family violence committed by the non-citizen’ as there is no evidence of any family violence being committed by the applicant.
Heavy weight has been attached paragraph 8.3 of Direction 110 – ‘The strength, nature and duration of ties to Australia’ in favour of revocation of the mandatory cancellation of the visa.
With respect to paragraph 8.4 of Direction 110 – ‘Best interests of minor children in Australia affected by the decision’, the Tribunal has that this primary consideration weighs strongly in favour of revocation of the mandatory cancellation of the visa.
Significant weight has been attached by the Tribunal against revocation of the mandatory cancellation of the visa sought under paragraph 8.5 of Direction 110 – ‘Expectations of the Australian community’.
With respect to paragraph 9.1 of Direction 110 – ‘Legal consequences of the decision’ the Tribunal has attached no weight to this other consideration.
Neutral or no weight has been attached by the Tribunal with respect to paragraph 9.2 of Direction 110 – ‘Extent of impediments if removed’.
No weight has been attached by the Tribunal on the other consideration contained in paragraph 9.3 of Direction 110 – ‘Impact on Australian business interests’, as both parties agree it is not relevant and has no application to this matter.
It With respect to “Other considerations” not addressed in Direction 110, insofar as they apply, the Tribunal has found that they weigh in favour of revocation of the mandatory cancellation of the visa.
The applicant submitted that when weighing up the relevant considerations that it is accepted that this is a borderline case.[48] That is probably not an unreasonable contention.
[48] Paragraph 60 of the applicant's Statement of Facts, Issues and Contentions and paragraph 50 of the applicant's submission to the respondent's delegate of 25 July 2019 (G 14) are referred to.
The Tribunal has for the reasons explained, after considering all the evidence both documentary and oral together with the parties’ submissions attached weight to each of the relevant considerations that it is obliged to address in Direction 110 with respect to this application. It is mindful, as specified in subparagraph 5.2 (2) of Direction 110 that the safety of the Australian Community is the highest priority of the Australian Government. Further, as specified in sub paragraph 5.2 (4) of the Direction the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they engaged in conduct that raises serious character concerns. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As is apparent from the above analysis, the Tribunal has applied greater weight against revocation of the mandatory cancellation of the visa with respect to primary consideration 8.1 being the protection of the Australian community.
Cumulatively, for the reasons explained the weight that the Tribunal has attached to primary consideration 8.1, being the protection of the Australian community, and primary consideration 8.5, being the expectations of the Australian Community is greater than that attached in favour of the revocation of the mandatory cancellation of the visa being primary considerations 8.3, the strengths, nature and duration of ties to Australia, primary consideration 8.4, the best interests of minor children affected by the decision and other considerations.
The applicant’s offending in manufacturing a prohibited drug and exposing his infant son to such drug does not reflect well upon him. Were he to reoffend in such a way, there would be significant consequences and impacts on the Australian community. The issues concerning risk of reoffending arising out of concerns about the applicant’s consumption of alcohol and untreated mental health conditions are also relevant to this process as has been outlined above.
DECISION
By reason of the foregoing the Tribunal is not satisfied that there is another reason why the mandatory cancelation of the visa should be revoked.
Accordingly, the reviewable decision is affirmed.
- AGLC
- YNGR and Minister for Immigration and Citizenship (Migration) [2025] ARTA 977
- Case
- [2025] ARTA 977
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the applicant passed the character test and, if not, whether there were other grounds to revoke the visa cancellation decision. The Tribunal had to assess the seriousness of the applicant's criminal conduct, their ties to Australia, the best interests of their minor children, and the expectations of the Australian community. The Tribunal also considered the potential impact on the applicant if removed from Australia.
The Tribunal examined the evidence presented, which included the applicant’s criminal history, the nature of their offending, and the submissions made by both the applicant and the Minister. The Tribunal noted the applicant’s significant criminal record, the severity of the crimes committed, and the risk they posed to the Australian community. Despite the applicant’s efforts to present mitigating factors, such as their family ties and the impact on their children, the Tribunal found that the primary consideration of protecting the Australian community from criminal conduct outweighed the other considerations.
The Tribunal concluded that the applicant did not pass the character test due to their substantial criminal record and the nature and seriousness of their offending. Furthermore, the Tribunal found that there were no other compelling reasons to revoke the visa cancellation decision. Consequently, the Tribunal decided to affirm the Minister's decision to cancel the visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Four witness statements from the following people, relied upon by the applicant but not included in the ATB, were separately tendered:(a)The applicant’s sister-in-law;(b)The applicant’s cousin;(c)The applicant’s uncle by marriage; and(d)The applicant’s aunt.THE RELEVENT SECTIONS OF THE MIGRATION ACT Section 501(3A) of the Act, specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1][1] Migration Act 1958 (Cth), s 501(7)(c). Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[2][2] Direction 110 commenced on 21 June 2024.ISSUES BEFORE THE TRIBUNAL There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[3] [3] See, G22 to G30, for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent prior to making the reviewable decision. That material has also been read and considered by the Tribunal. Therefore, two issues remain for determination by the Tribunal as follows:(a)whether the applicant passes the character test; and(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.THE CHARACTER TEST