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

YTLT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 435 (9 March 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8363
Re:YTLT
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:9 March 2021
Place:Sydney

The reviewable decision made on 15 December 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class EN Subclass 186 Employer Nomination Scheme visa, is set aside.
In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class EN Subclass 186 Employer Nomination Scheme visa on 4 March 2019, is revoked.
...........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – 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
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
9 March 2021
INTRODUCTION

The applicant was born in 1971 and is a Chinese citizen. The applicant and his wife married in China in 2000 and had two children born in 2001 and 2011.
In 2010, the applicant first visited Australia as a holder of a Class UC Subclass 456 Business (short stay) visa. In 2013, the applicant visited Australia as a holder of a Class FA Subclass 600 Visitor visa.
In 2014, the applicant, aged 42, moved to Australia as a holder of a Class EN Subclass 186 Employer Nomination Scheme visa (Visa). He has resided in Australia since this time but has been outside of Australia on a number of occasions.
In July 2017, the applicant was convicted of six counts of Assault with act of indecency (with a further eight counts taken into account on a Form 1). He was consequentially sentenced to imprisonment for an aggregate sentence of five years with a three year non-parole period.
In April 2018, the NSW District Court dismissed the applicant's appeal in respect of the sentences imposed by the Albury Local Court on 27 July 2017.
In June 2018, The NSW Health Care Complaints Commission decided that the applicant is permanently prohibited from providing any health services, in either a paid or voluntarily capacity.
On 4 March 2019, a delegate of the Minister cancelled the applicant's Visa under section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 15 December 2020, a delegate of the Minister made the decision under section 501CA(4) of the Act not to revoke this cancellation decision.
On 17 December 2020, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Reviewable Decision.
THE LAW
As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act given the length of his sentence, the sole issue before the Tribunal is whether, having regard to Direction No. 79 – 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 79), there is ‘another reason’ why the mandatory cancellation decision should be revoked.
There are a number of relevant principles contained in Clause 6.3 of Direction 79 that I have considered as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
Those primary considerations in Direction 79 are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)strength, nature and duration of ties to Australia;
(b)international non-refoulement obligations;
(c)extent of impediments to the applicant if removed from Australia;
(d)impact on Australian business interests; and
(e)impact on victims.
THE ISSUES
It is agreed between the parties that the applicant does not pass the character test as he has been sentenced to a term of imprisonment for an aggregate sentence of five years with a three year non-parole period.
Noting that the applicant does not pass the character test, the sole issue in this proceeding is whether the Tribunal is satisfied that there is another reason why the decision should be revoked, such that the Tribunal may revoke that decision pursuant to section 501CA(4) of the Act.
THE EVIDENCE
The applicant’s evidence
The applicant gave evidence that he was born in China in a province which was coastal and heavily developed. He is now around 50 years old and arrived to live in Australia in 2014 at the age of 42. He met his wife in 1998 and they were married in 2000 in China. He has two children, the eldest born in 2001 who is now 20 and the youngest born in 2011 who is now approximately 10 years old. Both children were born in China.
The applicant gave evidence as to his early life in China where he grew up as part of a Christian family. He had a younger brother and an older brother, and his parents and grandparents are Christian. The applicant said that his family suffered persecution in China because of their Christian faith.
The applicant first came to Australia in 2010 and migrated permanently in 2014. He said that Australia gave him a new life where he could make choices and enjoy democracy and freedom.
In July 2017, the applicant was convicted of some six counts of assault with act of indecency (with a further eight counts taken into account on a Form One) and he was sentenced to imprisonment for an aggregate sentence of five years with a three year non-parole period. The applicant received some counselling and attended a number of courses in prison including the Salvation Army Positive Lifestyle Program, the Prisoner’s Journey Program and Corrective Services NSW Adult Satellite Mentoring Program, Personal Growth Program, which he provided certificates of completion for. He also attended bible study and church services every week. He said that his faith had grown over his time in jail and played a very important part in his life.
The applicant said that he was depressed at the time he committed the offences and that he was under a significant amount of pressure, including concerns about a lack of stable employment. The applicant said that he was truly sorry for the harm that he had caused and that he would never engage in similar conduct. He said that he would never work as a massage therapist again. The applicant said that he had seen two psychologists and a psychiatrist and that he intended to continue with counselling. The applicant highlighted the support he had received in prison from his Pastor and the opportunity he had during this time to deepen his Christian faith.
The applicant said that he had good social skills and a tight network to assist him in finding an appropriate job if he is released into the Australian community. He said that his Pastor would help him in the future with obtaining work. He also had an existing offer of support and employment from his friend who he had worked for prior to his incarceration, who also gave evidence at the hearing. The applicant felt that he had relevant experience to enable him to make a significant contribution to Australian business.
The applicant’s wife and both his sons were very supportive of him. He talked of his love for them and describe himself as the “backbone” of his family. He said his family had regularly visited him whilst he was in jail and had also regularly visited him when it was possible to do so whilst he has been in immigration detention after he had served his sentence. He said that he spoke to his children every two days and there are letters between them on a weekly basis. The applicant said that his wife was suffering from depression and that he was anxious to re-join his family to provide mental and financial support to them. The applicant had a house in Albury and has been involved with the community, especially the church community there.
The applicant said that his parents were still in China. His father was now 76 and his mother 74 and both were not in good health. They would not be able to support him financially if he were returned to China. His brother was in charge of a local Christian church and he also had some uncles in China. He said he would have difficulty getting employment in China, especially as he said that the crimes he committed in Australia had been publicly broadcast in China.
The applicant said that he feared persecution if he were returned to China and that he needed protection, although he had not applied for a Protection Visa in Australia. He said he was fearful of the Chinese Communist party and that he feared being killed if he were returned to China. He said his grandfather had been a member of the National party and had served eight years in prison and his uncle had also been in prison for his political views. He said that his mother had suffered from a forced abortion and was also forcibly sterilised. He said that three of his close relatives had been oppressed because of their political and religious views. Various relatives had been detained because of the Christian faith. He said that when he was young and living in China he had been mocked and teased and called “Jesus” by members of the Communist party. The applicant referred to an anti-Christian movement in China and said that many churches had been destroyed. He said that the Chinese government had ordered that children under 18 were not permitted to attend church or learn about Christianity.
The applicant also said that he had taken part in protests against the Chinese government including at Tiananmen Square. He said he believed that the political system in China was not right, he was concerned that China would never be a democracy and said that he would be harmed if he were to express his political and religious views. Even the threat of death would not cause him to change his political or religious beliefs. His wife and children would stay in Australia if he were to be returned to China.
When cross-examined, the applicant referred to the publication of his crimes in China and said that he was able to supply those articles to the Tribunal, although he has not done so to date.
The applicant was questioned about his movements in and out of Australia, including his visit to China in 2010, which he said was a business trip, through to 2014 when he entered Australia with his family as residents. He subsequently returned to China (about six days later) during which time he said he was looking for investors in a company that he was working with. His family went with him at that time. He returned to Australia in December 2014 and stayed about two months. During this period, he was living in the Gold Coast with his family. When he returned to China his family did not go with him. After he came back to Australia on in May 2015 the family moved to Albury and established themselves there. He said they initially lived in a hotel before buying a home.
The applicant also gave an account of his time working in China as a director and also referred to his uncle being a Chinese billionaire. He said he also had good relationships with some companies in China, which might assist him in raising money for businesses in Australia.
The applicant said that his parents were too old to move from China and that they would not be harassed by the Chinese government because it was “not interested in old people”. The cost of medical treatment in Australia was also a factor.
When cross-examined on the reasons for coming to Australia, the applicant said that he wanted his children to live in a democratic country and that there was a better life with democratic values for them in Australia.
The applicant said that his choice to live in Albury was random and on reflection, he said that his decision had been made quickly and without proper thought. He did not own his house in Albury anymore because of the cost of litigation that he had been involved in. There were also language barriers which affected him.
When questioned about his role in the lives of his children, the applicant agreed that his wife had done a very good job raising their two sons since the applicant’s imprisonment in 2017. His older son in particular had been very successful at school, where he had been school captain and achieved very good academic results.
The applicant said that his younger son had some health issues, although this was getting better, but there was no evidence produced to the Tribunal to support this claim. The applicant further stated that only he could care for his youngest son now because of his wife’s diagnosed depression, as he knew his son best aside from her. Again, no medical evidence was supplied to the Tribunal and the applicant said his wife became angry if he mentioned depression. He said that his relationship with his wife remained close.
The applicant was questioned about his role in the church in Albury. He said that he intended to continue to play an active role in the church and that he was deeply ashamed of his actions and the betrayal of himself, his victims and his family. He admitted that some of his criminal actions were carried out when a child of at least one of his victims was present.
The applicant also accepted that he had initially denied being involved in the crimes for which he was charged and that he had also claimed that the victims were only believed “because they were white”. The applicant also said that he had been disadvantaged as he did not have access to an interpreter at the time. He said that after he was charged, he had been ostracised and vilified in the local community. He felt that if released into the community he probably could not continue to live in Albury.
The applicant accepted that in his pre-release report he had been assessed as being at an average risk of reoffending.
At the end of his cross-examination, the applicant said that he had not cancelled his family registration in China although it was his responsibility to do so. He said that he had been waiting on a reminder which he had not yet received.
The applicant’s wife’s evidence
The applicant’s wife affirmed her previous statements provided to the Tribunal and said that they were true and correct.
She said that she was aware of her husband’s offences and that she felt that he was truly sorry for them. She felt that she had seen positive changes in her husband and that she believes he feels truly sorry for the effect of his behaviour on his victims, herself and his children. She felt he was doing his best to rehabilitate.
The impact of the applicant’s offending had been enormous so far as his family is concerned. Since the applicant has been incarcerated for his offences she has been working hard, trying to run the house and look after their children and also trying to study a course at TAFE NSW, which would enable her to work in the aged care sector. She said her income was low and that she really needed financial assistance. She was also not in good physical condition and said she needed her husband for physical, emotional and financial support.
When questioned about her connection to China, the applicant’s wife said that her parents live in China and that she had gone back to China for short periods to visit them or for dental work.
The applicant’s wife owns her own home in Albury and said that she intends to remain in Albury. She would not go back to live in China if the applicant were returned to that country. She felt she would not be safe living in China. She also felt that visiting him would be difficult because of the cost, her commitment to a course of study and the requirements of the children, for instance their schooling in Australia.
The applicant’s eldest son, who had written a letter to the Tribunal, was school captain and had done well in the Higher School Certificate to secure a place at University in Sydney. When it was suggested that the applicant’s wife had clearly done a very good job as a single parent, she said she found it very challenging without her husband.
Whilst the applicant was in jail, the applicant’s wife had only seen him once or twice a year because of problems caused by the bush fires and COVID-19 visiting restrictions. She said that they had been in regular contact by video conference.

When asked about reports that her relationship with her husband was “tempestuous”, the applicant’s wife said that that referred to a period shortly after her husband had committed his offences and that there had been a great deal of disagreement. The applicant’s wife thought that he was now a better man and that she had seen changes for the better over the last three years. She felt he would be able to get a job and settle back into family life in Albury.
The applicant’s wife said that the applicant was doing his best to take care of the children through continuing connection with them whilst he has been incarcerated via videoconferencing and letters to the children. He spent about an hour a day on the phone with his youngest son whilst in detention. When questioned about her youngest son, the applicant’s wife said that he has a videocall every day with his father. She said that he was missing his father and regularly asks when he will be back. She said the applicant used to participate in outdoor activities with both the sons and pick them up for school when he was living in the Australian community.
The relationship between the applicant’s eldest and youngest son was said to be very good. Their eldest son, who is now approximately 20, helps to take care of the younger son, assisting him with his English and playing games with him. The applicant’s wife thought that her younger son would be very lonely when his older brother went away to University and that she would not be able to help him in the same way as his older brother. The return of his father would help compensate his younger brother for the emotional loss he was likely to experience when his brother left Albury to go closer to a university in Sydney to study.
The applicant’s church connection’s evidence
The applicant’s church Pastor affirmed his statements to the Tribunal and gave evidence at the hearing that he had been a Pastor in the church for over 30 years and that he was also a prison chaplain. He had first met the applicant when he came by his church in Albury and he had become a family friend.
He said that he was aware of the applicant’s offences and that he believed, from his previous knowledge of the applicant, that the offences were out of character. He believed that the applicant needed support, although he did not seek to diminish the importance of what had happened.
He had maintained contact with the applicant when he was at the Junee Correctional Centre and said that the applicant had shown remorse for his crimes from day one. His remorse had become deeper over time.
The applicant’s church Pastor said that the applicant had strong Christian convictions, which had made his crimes more of a surprise. The applicant had confided in him about his crimes. In his opinion, the applicant would not reoffend. He said that the applicant had been under pressure at the time his offences were committed and that he had noticed personal changes in the applicant since 2015. The changes were gradual, and he believed that the applicant had built much firmer foundations in his faith.
The applicant’s friend Mr R’s evidence
Mr R affirmed his statements to the Tribunal. He said he had known the applicant since 2016 as a loyal and understanding friend. Mr R said he would be happy to employ the applicant through his small business, as he saw the applicant as exhibiting excellent skill in tasks and being able to do the “dirty work”. The applicant had previously worked for Mr R doing a variety of odd jobs around his factory and also at his farm prior to his incarceration for about two months.
Mr R gave evidence that the applicant had been very involved with the local church, and he also said he knew of persecution of the applicant’s family within the local community.
He said that he was aware of the applicant’s convictions but felt that there was no chance of him reoffending because of the sorrow and remorse he had exhibited.
The applicant’s friend Mr W’s evidence
Mr W affirmed his statements to the Tribunal. He said he had known the applicant since he first came to Albury in 2013 and that he was aware of the applicant’s offending.
Mr W said he would help the applicant if he were able to remain in Australia and that he would be part of a close knit Chinese ethnic community. Mr W said he knew the applicant’s wife and children and said that he could assist the applicant with employment in the future.
When cross-examined, Mr W said that the applicant had worked for a large retailer in China and that he came to Australia as he felt his wife and family would have a better life in Australia. He also said that the applicant’s elder son had some medical problems, which the applicant thought would be assisted by living in Australia.
Mr W said that the applicant had done volunteer work at the Church. He said he felt that the applicant had changed and that the offences the applicant committed did not reflect the applicant’s true character. He felt that the applicant truly regretted his crimes, even before his trial.
PRIMARY CONSIDERATIONS
Protection from the Australian community
The first primary consideration, namely the protection of the Australian community, requires the Tribunal to consider both the nature and seriousness of the applicant’s conduct and the risk to the Australian community if the applicant were to commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The applicant was convicted of six counts of Assault with act of indecency (with a further eight counts taken into account on a Form 1). He was consequentially sentenced to imprisonment for an aggregate sentence of five years with a three year non-parole period, the length of which reflects the seriousness of the applicant’s offending. The offences occurred whilst the applicant was performing remedial massage on the 14 victims. Because of the nature of the applicant’s work, the women must be considered as vulnerable and it is particularly egregious that in at least one incident the woman’s child, who was five years old, was present in the room at the time of the offending behaviour. I note that paragraph 13.1.1 of the Direction 79 states that serious, violent and/or sexual crimes are viewed very seriously (paragraph 13.1.1(1)(a)), crimes of a violent nature against women are viewed very seriously (paragraph 13.1.1(1)(b)) and crimes committed against vulnerable members of the community are serious (paragraph 13.1.1(1)(c)).
The sentencing Magistrate noted that it was conceded that the offences involved an abuse of trust and the vulnerability of the victims. I have considered the large adverse short-term and long-term consequences to the women as a result of the applicant’s offending conduct, including having to engage in further treatment and counselling to deal with the offences as reflected in the Magistrate’s remarks. The applicant’s offending was frequent, involving 14 women over a period of less than 12 months. The five year sentence imposed was reflective of the seriousness of the crimes. I note that the applicant entered a guilty plea and received a 25% discount in relation to his sentence.
The sentencing Magistrate refused the proposal for the applicant to be subject to a good behaviour bond, an intensive corrections order or home detention because of the seriousness of the applicant’s offences, which the sentencing Magistrate said was “objectively grave behaviour on his part against each and every victim of his abuse” and that the objective seriousness was “above the halfway mark”. The sentencing Magistrate also found that they could not be satisfied that there was a link between the applicant’s depression and his offending.
The sentencing Magistrate also noted that some of the applicant’s victims had protested at the time and that the applicant had in fact apologised to one victim and had asked her not to complain. Clearly the applicant knew the nature of his offending and was found by the sentencing Magistrate to continue to offend “because, quite frankly, he was getting away with it”. The fact that the applicant in response to a complaint by one of his victims asked her not to report the matter makes it quite clear that the applicant was aware that his conduct was unacceptable and that there would be consequences if the matter were to be reported.
I have also considered the findings of the NSW Care Complaints Commission that the applicant poses a risk to the health and safety of members of the public and which permanently barred the applicant from providing health services in either a paid or voluntary capacity.
On the basis of the above, the applicant has been found guilty of very serious crimes against multiple women, including in circumstances were a child was present. This must be viewed as very serious.
Risk of the applicant engaging in further serious conduct
In considering the risk to the Australian community, I have cumulatively considered: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
I note that the nature of the harm in this case should the applicant engage in further criminal or other serious conduct is particularly serious given that his previous offending involved sexual conduct against vulnerable members of the community.
It is of concern that the applicant’s offending conduct took place shortly after his arrival in Australia when the applicant was in his mid-40s. The offences were found by the sentencing Magistrate to have occurred simply because the applicant took advantage of the opportunity to commit multiple offences over a 11 month period. Specifically, the applicant committed 14 assaults against 14 different women within a period of approximately 11 months. He did so against the protestation of at least two of his victims.
The applicant lists circumstances such as his limited English, financial pressures, job crisis and being in a new living environment as factors which exasperated his anxiety and depression at the time of the offending. However, the applicant was married at the time, with minor children of his own. He was also an active member of his local Church and it would appear from the evidence to the Tribunal that he had the support of Church members at the time of the offences.
At the hearing, the respondent’s representative questioned the applicant as to the relationship with his wife, which was at one point described by the applicant when speaking to Dr Clarke, Consultant Forensic Psychiatrist, as “tempestuous”, was clarified by the evidence of the applicant’s wife who said that the relationship was indeed very fraught after the applicant was charged with the various offences, rather than at the time the offences were being committed. Given these factors, it is clear that in the past the applicant’s connections with his wife and sons, as well as his community connections and his Christian faith, did not prevent him from offending.
In his pre-release report May 2020, Community Corrections NSW assessed the applicant as an average risk for sexually reoffending. In this regard, the Department of Corrective Services case notes of 14 November 2018 stated as follows:
When asked about the offence, [the applicant] minimised his actions by stating he wasn't aware that what he was doing was offensive and it wasn't until he was charged by Police that he realised. Initially he reported there was one victim however when author questioned him in regard to the six separate counts of 'Assault with act of indecency' [the applicant] disclosed there were initially 14 victims however he was only convicted of six. When asked to elaborate in regards to the offence, [the applicant] indicated he didn't understand the question (during the interview, this was the first time [the applicant] indicated he didn't understand a question). Author reworded the question several times however [the applicant] continued to state he didn't understand… It is noted, [the applicant] barely acknowledged the victims, instead insinuated his family were the 'casualties' of his offence.
I note also that the applicant, when initially interviewed by police, denied the alleged offences and claimed that the victim was believed because she was “white”.
Dr Clarke diagnosed the applicant in 2017 as suffering from Major Depressive Disorder and noted the following:
(a)       the applicant's depression 'is marked with an impulsivity. He will lose temper very easily; he will bash walls and has considered suicide on several occasions';
(b)       'It is vital that [the applicant] continue in treatment and seek both psychiatric and neurological care';
(c)       'He has attempted suicide in the past and is a classic suicide risk therefore. His depression is persistent and he has not been fully treated' (G2, 239); and
(d)       'it will be necessary for him to attend a psychologist regularly… at least at fortnightly intervals'.
At the hearing, the Tribunal was provided with evidence of the applicant’s efforts to seek treatment. The applicant said that he had undertaken rehabilitation, including the Salvation Army Positive Lifestyle Program, the Prisoner’s Journey Program and Corrective Services NSW Adult Satellite Mentoring Program and Personal Growth Program, which he provided certificates of completion to the Tribunal for. A pre-release report dated 12 May 2020 also confirmed the applicant’s completion of ‘Positive Lifestyles Program’ and Satellite ‘Personal Growth Program’ and the facilitator stated that the ‘inmate has grown markedly during the course – so much more confident and at peace’. The applicant has also attended Bible study sessions and Chapel services whilst he has been incarcerated.
I accept the applicant’s evidence that he has accepted responsibility for his crimes and that he is truly remorseful. This is supported by the evidence of the applicant’s character witnesses who appeared before the Tribunal and in a number of letters sent to the Tribunal, primarily by members of his church group. In particular, the applicant’s wife said that she had seen that the applicant had accepted and acknowledged the seriousness of his crimes. This was also acknowledged by the applicant’s church connections in their evidence. It was further supported by the evidence of the applicant’s local church Pastor, who gave evidence that he had been a Pastor for over 30 years and had also been a prison chaplain. He has known the applicant both before and after his offences were committed. He felt that the applicant’s behaviour was “out of character”. He had had regular contact with the applicant whilst he was in detention and believed that he had shown remorse from day one, which became deeper over time because of his Christian belief. He did not see the applicant ever repeating his crimes and believed that the applicant would receive support from the local church community. The applicant gave evidence that he would never work in massage again.
I find the applicant to be at least a moderate risk of reoffending and find that the impact of any future offending would be serious, given the nature of the harm it could cause to the Australian community. Overall, I find the first primary consideration weighs heavily against revocation of the delegate’s decision.
Best interests of minor children in Australia
The applicant has one minor child who is nine years of age, who provided a written statement to the Tribunal where he confirms his love to his father and his desire for his father to remain in Australia. There were also a number of drawings filed with the Tribunal from the applicant’s children. It was a matter of concern that little evidence was provided to the Tribunal at the hearing in relation to this very important consideration.
At the hearing, I asked the applicant’s wife a number of questions about the role of the applicant in the life of their youngest child, who was the only minor child under 18 years of age. The applicant’s wife said that her youngest son missed his father and regularly asked when he would be coming home. She said that the applicant’s minor child had video calls of up to an hour every day with his father. Further, when the applicant was at home and living in the Australian community, he used to engage in regular outdoor activities with his son and he would pick him up from school.
I note that the applicant has been incarcerated since July 2017 and so has been absent from the family home over the last three and a half years. During this period of incarceration, the child's mother primarily fulfils a parental role in relation to the child.
Since the applicant has been incarcerated, the applicant’s minor son’s relationship with his older brother has also become particularly important. His older brother helps him with his English, plays games with him and looks after him when their mother goes to work. The applicant’s wife was particularly concerned that the younger son would be very lonely and without this important support once his older brother left to attend university. She felt that if the applicant were able to return home it would greatly alleviate the likely emotion distress for their son resulting from this change.
The applicant’s wife said that she would not go to live in China and that because of all the burdens she would face financially or physically as a single mother it would be unlikely that she or the children would be able to visit the applicant in China on any regular basis. She felt that permanent separation would have a very major adverse effect on the children, especially the minor child, including significant loss of financial and emotional support. Whilst the applicant could remain in contact with his child via electronic communications, this is clearly not in the best interests of the child and the applicant will not be able to provide the same emotional, physical or economic support.
It is relevant that the minor child, although being born in China, has spent most of his life in Australia including school years. A stable life in Australia is clearly in his best interests.
The applicant’s wife said she faced significant difficulties as a single mother including juggling work, finances and the care of the children. She also said she suffered from some significant health issues.
Clearly if the applicant were to reoffend this would have a very detrimental effect on the applicant’s minor child, especially as it would appear from the evidence presented to the Tribunal that there has been considerable community backlash in relation to the applicant’s behaviour. It is clearly not in the best interests of the child to be exposed to such behaviour. If, on the other hand, the applicant was to return to the family and play a positive role in the life of the local community, this would be of major benefit to the child. The child is an innocent victim. Especially in the absence of his older brother he will benefit from the support of both of his parents, especially in light of his mother’s many commitments.
Having considered all the evidence, I find this consideration weighs heavily in favour of revocation.
Expectations of the Australian community
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to Direction 79.
The applicant has been convicted of multiple sexual offences and has failed to abide by Australian law. Having regard to the provisions of Direction 79 and the applicant’s multiple sexual offences against women, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.

It is particularly serious that the applicant’s offending behaviour occurred so soon after his arrival in Australia, he was more than 40 years old at the time of his offences, he was married with children of his own and committed the offences against a large number of vulnerable women in a position of trust where his victims were vulnerable. I note the applicant’s conduct came to the media’s attention and there were various articles produced by the respondent, which reflect the seriousness with which the community views these sexual offences.
Given the nature and seriousness of the applicant’s cumulative offences, I give substantial weight to this consideration, which weighs in favour of non-revocation of the delegate’s decision.
OTHER CONSIDERATIONS
Strength, nature and duration of ties
The applicant came to Australia to live permanently in 2014. The respondent’s representative raised the applicant and his wife’s return trips to China, but I accept the explanations that these trips related to business, family or medical/dental issues. It would appear that he began to integrate into the local community fairly shortly after his arrival, in particular by joining a local church group. He appears to have been employed since arriving in Australia although the evidence was not clear.
The applicant said that he bought a house in the country town where the family lived, although that property was sold to meet ongoing legal expenses. The applicant’s wife owns a house in the same country town where the family live and to which the applicant would return.
The applicant also has an offer of permanent work in his local community, which was confirmed in the oral evidence given to the Tribunal by his potential employer.
There was evidence that the applicant had been involved in voluntary work in the community as part of his local Church.
It is of concern that the applicant came to Australia when he was 42 years old and that his offending commenced in February 2016 when he had been physically present in Australia for a period of twelve months or less. The applicant has been incarcerated for a considerable portion of the time he has been in Australia
The applicant’s wife gave evidence that neither she nor her minor son would return to China and that there would be very little opportunity to visit the applicant if he were returned to China. The evidence is that both the applicant’s wife and his sons will continue to live in Australia in the circumstances. The applicant's wife and two sons are Australian citizens or permanent residents residing in Australia, and they would be significantly adversely impacted if the applicant were to have to return to China, particularly emotionally, financially and physically.
In light of all the evidence, I give moderate weight to this consideration in favour of revocation of the delegate’s decision to cancel the applicant’s visa.
International non-refoulement obligations
The applicant claimed that he would suffer significant persecution if he were returned to China because of his Christian faith and because he 'resolutely oppose[s] the Chinese Communist Party and the communism'. He also claimed that he would face punishment and discrimination as a result of his convictions for sex offences, which he said had been widely reported both in news media and on social media in China.
At the hearing, the applicant’s counsel sought to mount an argument that the applicant would have to declare his criminal records if he were to attempt to return to China and that this could result in arrest or other serious consequences. He said that the Australia’s non-refoulment obligations were enlivened because the applicant has been convicted for sex offences in Australia. There were two problems with this argument. Firstly, it had not been raised with the Tribunal prior to the hearing, and secondly no evidence was advanced on behalf of the applicant to support these claims.
In relation to the applicant’s Christian faith, he describes his family as a 'fourth generation Christian family' that has 'suffered a lot in the last 70 years' and that four of his family members were 'persecuted to death'. Whilst a number of the human rights reports produced by the applicant did not mention Christian persecution in China, the Freedom House report the applicant produced to the Tribunal titled ‘Special Report: The Battle for China’s Spirit: Christianity’ of 2017 relevantly stated:
Despite sporadic and at times severe persecution in certain locales, the overall trajectory for Christianity in China has been one of remarkable growth since 1980, including during the decade of Hu Jintao’s leadership. In many parts of the country, cooperative or at least tolerant relations developed between local officials and churches, both registered and unregistered.
Estimates on the number of Christians in China vary widely, partly because people worshiping at unregistered churches are unlikely to confess their true faith in a census or during public opinion surveys. In 2014, the State Administration for Religious Affairs (SARA) reported that China was home to 29 million Protestants and 5.7 million Catholics who were part of congregations registered with the state.17 Available surveys and scholarly research indicate that at least as many people worship in unofficial churches, resulting in estimates of 58 million Protestants and approximately 12 million Catholics.
These totals, which are regularly cited by observers, bring the overall population of Christians to 70 million, making Christianity the second-largest institutionalized religion in China after Chinese Buddhism
At odds with the applicant’s claims of fear of harm are a variety of factors that the respondent raised in cross-examination at the hearing, including the fact that the applicant has voluntarily returned to China after moving to Australia, has claims to have studied at three universities in China, was a director of a publicly listed company in China, claims that his uncle is an entrepreneur and a successful investor who owns many companies and is a self-made billionaire in China, that his parents were present in Australia on visitor visas but elected to return to China and continue to reside there and the fact that the applicant’s wife has regularly returned to China between 2014 and 2019.
Beyond the claim as to his Christian faith, any other material that the applicant’s counsel provided which may be relevant to Australia’s non-refoulement obligations is vague, general and not supported by objective evidence. It is also hard to reconcile such a claim with the evidence referred to above.
Accordingly, in my opinion, there is nothing in the applicant’s circumstances to engage Australia’s non-refoulement obligations. I note that the applicant is able to apply for a protection visa as section 48A of the Act does not prevent the applicant from lodging such an application in circumstances where he has not to date applied for a protection visa, which would enable him to fully expand on any protection claims.
In considering the evidence, I am of the opinion that the applicant’s claims do not give rise to non-refoulement obligations by Australia and I therefore give no weight to this consideration.
Extent of impediments if removed
The applicant is now approximately 50 years of age, having resided in China for the first 42 years of his life. He appears to be in reasonable health, although I accept he suffers from a depressive illness which requires ongoing treatment. I accept that the treatment options for the applicant are likely to be better in Australia, although as a citizen of China the applicant would have access to the same medical support as other citizens of China and there was no evidence presented to the Tribunal in this regard.
Given that the applicant was educated in China, worked in China for many years, including in occupations that allowed him to travel beyond China to a number of different countries, there would appear to be good work prospects for the applicant in China, although I note the claims that his opportunities would be limited because of his Christian faith and record as a sex offender. The applicant would not encounter significant language or cultural barriers if returned to China.
I accept that it would be very difficult for a 50 year old man to be separated from his family in Australia and returned to a country where he has not lived for a reasonably lengthy time and where he may have suffered significant reputational damage. However, I note that the applicant has stated in his statement of 29 January 2021 that:
I have 20 years international trading experience with 16 different countries, such as: Australia, USA, UK, Germany, France, Brazil, Argentina, South Africa, Vietnam, Bangladesh, Japan, South Korea… My last position in China was a director of the board of Xingyuan Environment Technology Co., Ltd, which is an environment protection and investment company, publicly listed in China. I was also a member of the Strategic Committee of the company… The company’s market value was RMB 30 billion when I was working there and we helped clean the major cities’ rivers and lakes… From 1997, I kept studying the price behaviour of the stock and futures market and have accumulated a very rich experience of trading knowledge for world-wide stocks and commodity futures. With 20 years trading and researching experience in the China securities market, I know well the risks and opportunities in such a unique emerging market…
I had worked with some well-known Chinese fund companies. My good relationship with my uncle, scientists and China investors will help me and Australian companies to build business connections between China and Australia…
The applicant claims to have a billionaire uncle in China. His parents and other relatives are also in China and would appear to be able to offer him a level of support, although I note the limitations of age and health.
I have previously referred to the applicant’s claims in relation to his Christian faith and anti-communist beliefs which may constitute an impediment to him returning to China and may mean he is subject to some discrimination in China. However, given the level of generality of the claims alongside the applicant’s claims in respect to his life history in China, it appears that these claims may not be of sufficient weight to allow a clear finding that the applicant could not lead a productive life in China.
There was simply no objective evidence before the Tribunal to indicate that the applicant’s convictions in Australia would prevent him obtaining employment or living a relatively normal life in China. He may indeed face some community disapproval and initial impediments if removed, but from the evidence before the Tribunal this may be no more difficult than the disapproval he faces in his local community in Australia where the offences were committed.
The applicant also raised the difficulty of returning the applicant to China because of COVID-19 and the potential for ‘arbitrary and indefinite detention’ in Australia. The applicant provided no evidence to the Tribunal that a Chinese citizen would be unable to return to China or that Australia’s border closures would prevent a Chinese citizen being removed from Australia. The respondent produced a document from the Chinese government about China’s closures of international borders as applying to foreigners as opposed to nationals. Whilst there might be some logistical difficulties, I am satisified that COVID-19 would not prevent the applicant’s return to China and there is no evidence that the applicant would be subject to arbitrary and indefinite detention in Australia as a consequence of him being prevented from returning to China.
Overall, I give low to moderate weight to this consideration in favour of revocation of the delegate’s decision.
Constitutional issues
The applicant’s counsel raised a range of constitutional issues with the Tribunal. There seemed to be a lack of clarity around these issues, but generally they can be categorised as set out clearly in the respondent’s Statement of Facts, Issues and Contentions as follows:
(a)the Original Decision and the detention decision violated the principle of legality (in that the decisions allegedly ‘abrogated and curtailed the legal rights of the applicant to apply for and be considered for conditional release on parole and a period of supervision and rehabilitation as per the sentencing and parole orders by the Local Court of NSW, upheld on appeal by the District Court of NSW’);
(b)the Original Decision and the detention decision violated the separation of powers doctrine (in that those decisions ‘abrogated and curtailed the independence of the Local Court of NSW at first instance, the District Court of NSW on appeal and the State Parole Authority of New South Wales in the administration of justice’); and
(c)the Original Decision and the detention decision violated the principle of State immunity pursuant to sections 106 and 107 of the Commonwealth Constitution (in that those decisions ‘abrogated and curtailed the independence of the Local Court of NSW at first instance, the District Court of NSW on appeal and the State Parole Authority of New South Wales in the administration of justice’).
The respondent outlined a number of other cases where these considerations had been previously raised by counsel for the applicant.
Overall, the arguments as to constitutionality are of little or no benefit to the Tribunal in reaching my final conclusion. The applicant’s best interests may have been better served if the time spent on constitutional issues had been devoted to the principles set out in Direction 79, especially as many of the cases referred to by the applicant’s counsel have yet to be decided.
CONSIDERATION
I note that the applicant referred to a previous case which I had decided (Jung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 256 (21 February 2020)). However, as the respondent clearly pointed out, the case was readily distinguishable from this case and in any event each case in the Tribunal turns on its own facts in coming to the correct or preferable decision.
In the current case, the applicant’s offences were very serious, as reflected in the length of his sentence. They appeared to be opportunistic, occurred shortly after his arrival in Australia and occurred within a therapeutic setting which made the victims particularly vulnerable. The offences involved 14 different women and occurred over a period of less than 12 months.
The applicant initially denied his offending, although I accept that he showed significant remorse at the hearing. Ultimately, I note that he accepted responsibility for his crimes, showed significant contrition and expressed a great deal of regret for the harm done to his family and the community.
The applicant’s wife has struggled significantly during the period of the applicant’s incarceration and has relied heavily on the applicant’s eldest son to support the family physically and emotionally, particularly with regard to their youngest son. The applicant’s wife is struggling to financially support the family, study in order to gain work in the aged care sector and care for her family. She misses the support of her husband and this impacts adversely on the family. The applicant’s youngest son is missing his father and is likely to suffer significant emotional distress when his older brother leaves to attend university in Sydney, as well as a lack of support in undertaking extracurricular activities, help with school work and getting to and from school. He is likely to suffer physical and emotional isolation which would be alleviated if his father were present. He has lived in Australia for most of his life. I place significant weight on the best interests of the applicant’s minor child in having his father available to provide physical, emotional and financial support, particularly in the absence of his older brother. If this were not the case, I would almost certainly have made a different decision.
This was not an easy decision to make because of the nature and seriousness of the applicant’s crimes, the risk of reoffending and the expectations of the Australian community. It will be up to the applicant to demonstrate that he is indeed capable of reform and making a positive contribution to the Australian community. The consequences of reoffending should be readily apparent.
DECISION
In weighing all of the considerations, I believe that the correct or preferable decision is to set aside the reviewable decision made on 15 December 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class EN Subclass 186 Employer Nomination Scheme visa.
In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class EN Subclass 186 Employer Nomination Scheme visa on 4 March 2019, is revoked.

123. I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

............................[SGD]...........................................
Associate
Dated: 9 March 2021

Date of hearing: 22 February 2021 and 1 March 2021

Counsel for the Applicant: Mr J Williams, Frederick Jordan Chambers

Solicitors for the Respondent: Mr T Aviram, Clayton Utz

[2021] AATA 435

9 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	22 February 2021 and 1 March 2021
Counsel for the Applicant:	Mr J Williams, Frederick Jordan Chambers
Solicitors for the Respondent:	Mr T Aviram, Clayton Utz