Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1002

Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1002 (29 April 2020)
Division:GENERAL DIVISION
File Number:2020/0855
Re:Jiang Yu
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 April 2020
Place:Perth

The Tribunal affirms the Reviewable Decision dated 5 February 2020 not to revoke the mandatory cancellation of the Applicant’s Visa. This means that the Applicant’s Visa remains cancelled.
......................[sgd]...........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – drug convictions – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to China – impact of COVID-19 pandemic – detention for an indefinite period if decision affirmed – international non-refoulement obligations – whether Applicant may face harm if returned to China due to drug convictions – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6J), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection
(No 2) [2015] FCA 705
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs
[2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JC v The Secretary of State for the Home Department [2008] UKAIT 00036.
JFSQ and Minister for Home Affairs [2019] AATA 616
Liang and Minister for Immigration and Citizenship [2013] AATA 392
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
QJTT and Minister for Home Affairs [2019] AATA 152
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection
[2014] FCA 673;
(2014) 225 FCR 424

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
XRXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5984
YF v The Secretary of State for the Home Department [2011] UKUT 32
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
DFAT Country Information Report: People’s Republic of China dated 3 October 2019
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79:
Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.1, 14.2, 14.3, 14.5, Part C
United Kingdom Home Office, Country Policy and Information Note

China: Fear of punishment for crimes for which the person was already charged in another country (‘Double Jeopardy’ or re-prosecution)
March 2018
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 April 2020
BACKGROUND

The Applicant is a 31 year old man who is a citizen of China.
The Applicant’s movement records indicate that he first arrived in Australia on 16 April 2004 when he was 15 years and five months old under his mother’s partner visa (G14, page 65). This is why the Applicant’s visa is a Class BC Subclass 100 Spouse visa (Visa).
The Applicant’s movement records indicate that he left Australia between 27 December 2005 and 8 February 2006 and again between 18 July 2007 and 19 September 2007 (G14, page 65) when he returned to China (transcript, pages 22-24).
On 26 October 2018, the Applicant was sentenced in the District Court of Western Australia to a term of 20 months imprisonment for “Possession of Prohibited Drugs with Intent to Sell or Supply” and a further concurrent term of imprisonment of eight months for “Possession of stolen or unlawfully obtained property” (SG3, page 406).
These convictions and terms of imprisonment led to the cancellation of the Applicant’s Visa on 6 December 2018 (G15, pages 66-71) (the Cancellation Decision).

The Cancellation Decision was made under s 501(3A) of the Migration Act1958 (Cth)

(the Migration Act), on the basis that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more (G15, page 66-67).
The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision. He made limited representations (G10 and G11). These included representations that his mother and step-father were in Australia (G11, page 55), that he finished high school in Australia and had worked in the construction industry as a gyprock worker (G11, page 57). He also stated, “I have nothing in China – if sent me back there I will Live on the street ar [sic] end up die!” (G11, page 59).
However on 5 February 2020 a delegate of the Minister decided, under s 501CA(4) of the Migration Act not to revoke the Cancellation Decision (G4, page 12). This is the Reviewable Decision currently before the Tribunal.
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated

7 February 2020 (G2, pages 6-8). The Applicant signed to acknowledge that he was handed the Reviewable Decision on 10 February 2020 (G20, page 112).
On 17 February 2020, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (G1, pages 1-5). Therefore, the Applicant filed his application for review within the nine day period prescribed by s 500(6B) of the Migration Act.
Subsection 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 10 February 2020, meaning that the Tribunal must hand down a decision with respect to this application by no later than 4 May 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) and 501(7) of the Migration Act; and
(b)
if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision (that is,

the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 7 April 2020.
Following a Directive from the President of the Tribunal His Honour Justice Thomas,

the Tribunal ceased conducting in person hearings from Monday 23 March 2020 due to the risks associated with the COVID-19 pandemic. Consequently, the Applicant, who was self-represented, appeared by video conference from Yongah Hill Detention Centre.

Mr Gerrard, representing the Respondent, also appeared by video conference from his office. The Tribunal thanks the parties for their cooperation in appearing via video conference.
The Applicant was assisted by an interpreter. He gave oral evidence and was cross-examined. He did not call any witnesses.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Respondent’s Statement of Facts Issues and Contentions dated 17 March 2020 (Exhibit R1);
(b)
Section 501 documents (G documents) numbered G1 to G20, comprising

112 pages (Exhibit R2);
(c)Supplementary Relevant Documents comprising 409 pages (Exhibit R3).
Oral submissions were made at the hearing regarding the impact of COVID-19 pandemic on this application, following a request from the Tribunal to do so prior to the hearing.
At the hearing, the Tribunal asked for further written submissions from the parties in relation to any double jeopardy issues or harm the Applicant may face due to his Australian drug convictions if returned to China. The Tribunal also permitted the Respondent to file further evidence, for example country information, because the Applicant would not be able to do so due to the operation of the 2 day rule in s 500(6J) of the Migration Act. Accordingly, the Respondent made written submissions, and filed further evidence, on 15 April 2020. The Applicant was given leave until 20 April to file submissions, but he did not do so.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister 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.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)   would be the reason, or a part of the reason, for making the original decision; and
(b)   is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)   give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)   the person makes representations in accordance with the invitation; and
(b)   the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that

non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above, on 26 October 2018, the Applicant was sentenced in the District Court of Western Australia to a term of 20 months imprisonment for “Possession of Prohibited Drugs with Intent to Sell or Supply” and a further concurrent term of imprisonment of eight months for “possession of stolen or unlawfully obtained property” (SG3, page 406). Consequently, the Applicant does not pass the character test under s 501(6)(a) and

s 501(7)(c) of the Migration Act.
As the Applicant does not pass the character test, the Tribunal must now consider whether there was “another reason” why the Cancellation Decision should be revoked

(s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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 13.1(2) of Direction No 79 then provides:
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.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s History for Court – Criminal and Traffic shows that between 2009 and 2018, the Applicant was convicted of 22 offences comprising (SG3, pages 406-409):
(a)Nine Drug convictions including “Possess a Prohibited Drug (MDMA)” in 2009 and 2011, “Possess a Smoking Utensil” in 2011 “Sold a Prohibited Drug (Methylamphetamine)” in 2014, “Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)” in 2014, “Possess Drug Paraphernalia containing prohibited drug/plant” in 2014, “Possession of Prohibited Drugs with Intent to Sell or Supply” in 2018 and two convictions for “Possessed a prohibited drug” in 2018;
(b)Dishonesty offences including three convictions for “With Intent to Defraud Utters a Forged Record” in 2014; a conviction for “Possessing stolen or unlawfully obtained property” in 2014; and a conviction for “Possession of stolen or unlawfully obtained property” in 2018;
(c)Five driving convictions comprising two convictions for “No Authority to Drive – (Fines Suspended)” in 2013; a conviction for “No Authority to Drive – Never Held” in 2013; and two further convictions for “No Authority to Drive – (Suspended)” in 2014; and
(d)“Breach of Bail Undertaking” committed on 20 November 2013, with the date of conviction being in 2014;
(e)A conviction for “Hinder Police (under Part V) Misuse of Drugs Act 1981” in 2018, as well as a conviction for “Give False Personal Details to Police” in 2018.
It was the Applicant’s convictions for “Possession of Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)” and “Possession of stolen or unlawfully obtained property” on 26 October 2018 that resulted in the Cancellation Decision. The facts on which the Applicant was sentenced were set out by the Sentencing Judge, Prior DCJ (Exhibit R2, pages 25. His Honour stated:
In summary, the facts are on Sunday evening 11 March 2018, you were stopped by police driving a Honda sedan on Beaufort Street, Perth. They subjected you and the vehicle to a search. During the search, the police found a clipseal bag of 3.35 grams of methylamphetamine at 81 per cent purity secreted in a cigarette packet in the centre console of the vehicle.
You declined to make a comment about that substance. You were personally searched and the police located $905 in the right-hand pocket of your pants. You advised police you were given the money by a friend, but would not disclose the reason why. You were also in possession of a Samsung edge mobile phone which you declared to be yours and supplied police with the PIN code required to unlock the phone.
Offices located more than 20 conversations between you and others during which the sale of prohibited drug was discussed and arrangements made for you to supply these drugs to other participants of those conversations. [The prosecutor] has identified one of those specific conversations involving selling two balls of methylamphetamine. You were conveyed to Perth Police Station and during the conveyance you attempted to destroy another clipseal bag containing 2.11 grams of methylamphetamine with 80 per cent purity which had been secreted in your underwear.
So the total amount of methylamphetamine found in your possession was 5.46 grams of methylamphetamine at 80 to 81 per cent purity.
Prior DCJ further stated that (G7, page 26):
You were selling drugs to support your own use of methylamphetamine. You have a number of previous convictions for drugs, dishonesty and road traffic offences. You are therefore not a person of previous good character. Back in September 2014 in this court you were sentenced to 21 months’ imprisonment for offences of possession with intent to sell or supply methylamphetamine and selling methylamphetamine.
His Honour further stated that the Applicant was commercially selling methylamphetamine (G7, page 27):
… the material found by the police on your mobile telephone indicates you were commercially selling amounts of methylamphetamine to a number of people over a period of time. The State prosecutor suggests at least eight persons.

I therefore cannot sentence you on the basis this was a one-off, isolated incident of offending in relation to methylamphetamine found in your possession and as I stated, personal deterrence is required in your sentencing.
In sentencing, Prior DCJ also noted the seriousness of the type of drug offending committed by the Applicant’s (G7, page 27):
Methylamphetamine as I am sure you’re aware is viewed by State Parliament and the courts in this State as a very serious drug. Offending by way of dealing in methylamphetamine to sell or supply it to others is a serious offence. That is even the case when people who sell or supply methylamphetamine to another do it to support their own addiction to this drug. Often people commit serious offences to fund their purchases of methylamphetamine.
Similar remarks were made by Her Honour Braddock DCJ in sentencing the Applicant for the offences of “Sold a Prohibited Drug (Methylamphetamine)” and “Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)” on

2 September 2014. Her Honour stated that (G9, page 40):
You know probably better now than many people the damage that methamphetamine[*] can do to people’s lives, to people’s health. People end up in gaol, people commit crimes. It is at the present time a real scourge in our community. You were, in effect, right in the middle of it and knew what you were doing. You are not, however, the main man. You were not the dealer.
In my view, even considering all the other possibilities in these circumstances, the seriousness of the offence and your role and the potential for harm is such and the necessity of deterring other people from assisting drug dealers in any way is such that a term of imprisonment immediately to be served is the only reasonable option available to me…
[*The Tribunal notes that the sentencing transcript refers to the drug as “methamphetamine”, whereas the charge was for the possession of “methylamphetamine”. The Tribunal has retained the spelling from the transcript.]
The facts of these offences were described by Braddock DCJ as follows (G9, pages 37-38):
…your role in this was that you were effectively looking after the drugs for your friend; that is to say, the drugs in count 1 for your friend, whose room you were in.
You knew that he was dealing in methamphetamine. The drugs were in bags - in a bag that was readily visible, and there was also a larger - twice as large a bag of a cutting agent also visible. And the reward that you were to have for, as it were, looking after his supply was to be able to have some of it - a small quantity for your own use, a smoke I think it was said.
The 15.5 grams were 65 per cent pure. That together with the amount of the cutting agent that was found there would indicate that the drugs were going to be cut down for the purposes of sale, and indeed that the friend was selling the drugs at a lesser quality or lesser concentration.
And clearly his operation was a commercial operation and you facilitated that by, as it were, letting him have the peace of mind of being able to go out without having to take his drugs with him and without having to worry about them being at home or worry about walking around with them. So you were assisting him in that way which is quite significant.
Also somehow it must have been that you were known to have a contact or contact, and hence Ms [name omitted], who’s been referred to as the customer, who was also at the place when the Police came round, was introduced by you to your friend who supplied her with the 5.4 grams just before the police arrived because you’d arranged for her to come round and meet your roommate - or your housemate. So although you were not, as it were, the shopkeeper, you were a party to that, in that you made the sale happen by introducing her to your friend the dealer.
It is of significance that a large amount of cash was also found at the premises. You were also looking after that. You knew it belonged to your friend. And there were also a number of items which have been spelt out this morning that I connected with the trade of selling methamphetamine. And those will now be destroyed.
So it is accepted and I accept that you were effectively an introductions man or a go-between as far as the sale was concerned and that you were assisting the dealer by being his watch person over the drugs, minding the drugs, as I’ve put it, and you were, as it were, unfortunately for your point of view but perhaps fortunately as you now realise, there when the police came around in relation to another matter.
Braddock DCJ also stated that (G9, page 39), “dealing in or being associated with facilitating, assisting in the dealing in methamphetamine is a very serious criminal offence”.
Direction No 79 provides that violent and/or sexual crimes are viewed very seriously (Paragraph 13.1.1(1)(a) of Direction No 79). Paragraph 13.1.1(1)(b) of Direction No 79 further states that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant has not been convicted of any of these types of offences. However, the Direction is not exhaustive, and other crimes can nevertheless still be regarded as serious.
One such example is driving offences (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and

Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45]).
Although the Applicant’s offending that is of principal concern to the Respondent is the Applicant’s drug related offending,

the Respondent submitted that the Applicant’s driving offences (including driving unlicensed and while under suspension) should be regarded as serious (transcript, page 4). The Tribunal agrees that these offences are of a serious nature because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users. However, the penalties imposed by the courts were fines and suspensions, and in the Tribunal’s opinion, the Applicant’s driving offences are less serious than his drug offences.
In the Applicant’s circumstances the remarks of the Sentencing Judges outlined above are indicative of the seriousness of his drug offences. Prior DCJ referred to methylamphetamine as being “a very serious drug”, and stated that dealing in methylamphetamine as being a “serious offence” (see paragraph [43] above). Braddock DCJ referred to assisting in the dealing in methamphetamine being “a very serious criminal offence” (see paragraph [46] above), as well as referring to the damage methylamphetamine can do to people’s lives and health and it being “a real scourge in our community” (see paragraph [44] above). Consequently, the Tribunal finds that the Applicant’s drug offences are serious offences.
Paragraph 13.1.1(1)(c) of Direction No 79 provides, in part, that crimes committed against vulnerable members of the community or government representatives or officials in the performance of their duties are serious. Although the Applicant has two convictions for hinder police and of giving false personal details to police, they do not fall within the category of offending contemplated by this section of the Direction, which would include, for example, assaults against public officers. Consequently, this section of the Direction is not applicable.
Paragraph 13.1.1(1)(d) of Direction No 79 also provides that in considering the seriousness of an applicant’s offending the Tribunal must have regard to the sentences imposed by the Courts. The Applicant has been sentenced to several terms of imprisonment as follows:
(a)He was first sentenced to a term of imprisonment on 2 September 2014 for “Sold a Prohibited Drug (Methylamphetamine)” and “Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)” for which he received a total term of imprisonment of 21 months (SG3, page 408). The Applicant was eligible to be considered for parole after serving 10 and a half months (SG2, page 270).
(b)The Applicant was sentenced to a second term of imprisonment on 24 September 2014 for breach of bail undertaking, possessing drug paraphernalia, possessing stolen or unlawfully obtained property, and for three counts of “With Intent to Defraud Utters a Forged Record”. His sentence was for a total term of 13 months consisting of concurrent and cumulative terms, amounting to an effective sentence of eight months (SG3, page 407).
(c)
On 26 October 2018, the Applicant was sentenced to a total term of 20 months (comprising a head sentence of 20 months and a concurrent sentence of

eight months) for “Possession of Prohibited Drugs with Intent to Sell or Supply” and possession of stolen or unlawfully obtained property, with eligibility to be considered for parole after serving 10 months (SG2, page 303).
These sentences of imprisonment are a reflection that the courts regarded these offences as being serious enough to warrant custodial sentences.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant committed his first offence in 2009 (possession of MDMA), and subsequently committed five driving offences, dishonesty offences and further drug offences up until March 2018. The Applicant’s offending is frequent and consistent, but does not show an overall escalation in seriousness.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant has been convicted of 22 offences (with five of those being driving offences). He has served three terms of imprisonment, as outlined above.

This repeat offending over a period of approximately nine years would have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
On 30 March 2016 the Applicant received a written warning that he may face cancellation of his Visa in the future if he were to reoffend (G13, page 64) (paragraph 13.1.1(1)(h) of Direction No 79). The letter stated that although the decision maker had decided to revoke a decision to cancel the Applicant’s Visa on 27 July 2015, “the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you” (G13, page 62). After receiving this warning the Applicant committed six further offences approximately two years later, for which he was convicted on 26 October 2018 and sentenced to a 20 month term of imprisonment. This, in the Tribunal’s opinion adds to the seriousness of the Applicant’s offences which formed the basis of the cancellation of his Visa.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention. This is not applicable to the Applicant.
Based on the analysis above, and in particular the serious nature of the Applicant’s drug offences (as reflected in the Sentencing Judges’ remarks), the sentences imposed, the frequency of the Applicant’s offending, its cumulative effect and the Applicant committing further offences after receiving a written warning, supports an overall finding by the Tribunal that the Applicant’s offending is serious. Consequently, paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)

A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in

Tanielu v Minister for Immigration and Border Protection
[2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.

Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68] that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”.
The harm that could result to members of the public (including innocent road users and pedestrians) if the Applicant commits further driving offences includes physical injuries or loss of life, and possibly psychological harm.
The nature of harm if the Applicant were to commit further drug offences is varied,

but serious overall. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes involving violence and theft, increased property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
The Tribunal will now consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
In a Parole Assessment undertaken by Adult Community Corrections following an interview with the Applicant on 19 November 2018, the following assessment of the Applicant was stated (SG1, page 116):
Mr Jiang has been assessed with a moderate risk of generalist re-offending and complex criminogenic needs. The triggers and high risk situations that contributed to his offending behaviour appear to be his entrenched addiction to methamphetamines, associations with negative peers in the community and a lack of consequential thinking skills.
The Parole Assessment also noted that the Applicant had not been assessed during his current term of imprisonment for any prison programs, but that in 2015 he was assessed as requiring the Think First Program (focussing on cognitive skills) and the Pathways Program (focussing on addiction and offending). However these programmes were not available during his prison term (SG1, page 115; see also SG1, page 171).
When asked at the hearing about the programmes he had completed, the Applicant stated that he had attended five or six sessions of Narcotics Anonymous during his most recent prison term. However, when asked what he had learnt the Applicant stated that the sessions were run by a prisoner, were not “proper” or “professional” and were “a waste of time” (transcript, pages 17-18).
The Applicant also stated that he had undertaken counselling through Cyrenian House

(an alcohol and drug treatment service) during a previous prison term in 2014.

He estimated having four or five one hour counselling sessions every two weeks (transcript, page 18). The Applicant described this program as being “good” (transcript, page 30), but agreed under cross examination that the counselling did not stop him from resuming methylamphetamine use within approximately two months following his release from prison (transcript, pages 30-31).
The recommendation of the author of the Applicant’s Parole Assessment was that the Applicant’s release to parole was not supported because he was unable to supply a viable release plan (SG1, page 117). The reasons for the decisions of the Prisoners Review Board (the Board) in 2014 and 2018 are not before the Tribunal. However, the Applicant’s evidence was that he did not get parole in 2014 because he had not completed the Pathways Program, and that he did not get Parole in 2018 because his Visa had been cancelled (transcript, page 19). If the Applicant was not released on parole in 2014 due to not having completed the Pathways Program, it tends to suggest that the Board regarded the Applicant as being an unacceptable risk to the safety of the community due to having unmet treatment needs in the area of substance abuse. The contents of the Applicant’s 2018 Parole Assessment tend to suggest that it was not the fact of the Applicant’s Visa cancellation that was the likely basis for the denial of parole, but rather the Applicant’s lack of a viable parole plan. Again, this tends to suggest that the Board was of the opinion that there was a risk of the Applicant re-offending, even during a period of parole supervision with conditions.
At the hearing the Applicant confirmed that he had a significant drug problem in the past. He admitted to using drugs over approximately a 12 year period. Specifically, he admitted to using drugs “heavily” for the last six or seven years leading up to his most recent term of imprisonment, with his methylamphetamine habit costing up to $600 per day (transcript, page 27). He conceded that by the time he went to prison for the first time he had a daily methylamphetamine habit. Although he “detoxed” during his first term of imprisonment (followed by immigration detention), when he was released in approximately March 2016 he agreed that he became “heavily addicted” to methylamphetamine again, forming a daily habit “a couple of months” after his release from immigration detention (transcript, pages 27-28). He stated that this was because he went back to associating with his old drug using friends because he was too ashamed to seek help from his family (transcript, pages 6 and 32).
The Applicant was also found guilty of being in possession (on or around 28 February 2019) of four Tramadol tablets which were found during a routine search of his cell (SG1, pages 119-122). At the hearing, the Applicant denied that the tablets were his, stating that he thought they belonged to a previous occupant of his cell, but that he was found guilty because he was the only prisoner occupying the cell at the time of the search. The Applicant stated that he had undertaken two urinalysis tests several weeks apart following the discovery of the tablets and that they were negative (transcript, pages 7-8).
Even if the Tribunal accepts that the Tramadol did not belong to the Applicant, and that he did not use any drugs in prison (see also the Parole Assessment which states that the Applicant previously tested negative to illicit substances following urine tests on 23 May 2018 and 15 November 2018 – SG1, page 115), the Tribunal is concerned that there remains a likelihood that the Applicant may relapse to drug use if he is released into the community. As outlined above, the Applicant had a significant daily methylamphetamine habit which he resumed after a prison sentence during which he undertook counselling with Cyrenian House. He also continued to use drugs and reoffended after having his Visa cancelled and being released following approximately six months in immigration detention and receiving a written warning that he could be reconsidered for visa cancellation on character grounds in the future if he committed further criminal offending. The Applicant also attended Narcotics Anonymous during his most recent prison term but, as noted above, said it was a “waste of time” (transcript, page 18). He was assessed as requiring intensive treatment programs for consequential thinking and substance abuse in 2015 but they were not available to him. Thus it appears to the Tribunal that the Applicant has unmet treatment needs in relation to substance abuse, and accordingly, there is a likelihood of him committing further drug related offences.
It was difficult for the Tribunal to ascertain whether the Applicant had insight into his offending because he declined to comment on his criminal history and drug offences when asked (transcript, pages 16-17). He did however, seem to appreciate that associating with drug using peers played a role in his offending. Specifically, at the hearing the Applicant stated that his plan was to move to Sydney to live with his mother who could provide him with food and accommodation while he looks for a job (transcript, page 34). He stated that as long as he did not see his old group of drug using friends in Perth again, “I’m sure I won’t be using drugs again” (transcript, pages 20). Whilst obtaining a job and moving to Sydney to be near his mother (and to be away from his old drug using friends) may be protective factors, the Applicant has no plans to engage in drug counselling or programs if he is released into the community. The Tribunal is concerned that given the Applicant’s history of drug use and repeat drug-related offending that the Applicant currently does not have a comprehensive enough plan in place to reduce the likelihood of his relapsing to drug use and further drug related offending.
The Tribunal finds that there is a likelihood of the Applicant committing further drug and other general offences if he is released into the Australian community. Very little appears to have changed following the Parole Assessment in November 2018, which noted that the Applicant was “a moderate risk of generalist re-offending” (SG1, page 116). Based on this assessment, as well as the various other factors relevant to the Applicant’s likelihood of reoffending discussed above, the Tribunal finds that there is a moderate risk of the Applicant re-offending. Given the substantial harms that can result to the community from drug related offending, particularly due to methylamphetamine, the Tribunal finds that a moderate risk of re-offending is a factor weighing strongly against the revocation of the Cancellation Decision.
When both parts of the first primary consideration are considered, the Tribunal finds that this primary consideration weighs strongly against the revocation of the Cancellation Decision.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2(1) of Direction No 79 provides that “Decision-makers must make a determination about whether revocation is in the best interests of the child”.
The Applicant does not have any biological children, nor did he identify any other children as potentially being relevant to consider. Therefore this primary consideration is not applicable.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Until recently there was a lack of clarity concerning the interpretation of this primary consideration. For a time, the accepted position was that of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76]-[77]. However, subsequently, two decisions of the Federal Court adopted slightly different approaches in YNQY (DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR)).
This ambiguity was clarified by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) where the plurality generally agreed with the approach adopted by Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY). In YNQY Mortimer J stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes.

In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature
. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
The plurality of the Full Court in FYBR (FC) followed Mortimer J’s characterisation of the community expectations primary consideration. Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79 as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal), when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
FYBR (FC) confirmed that the community expectations primary consideration operates as a kind of deeming provision
(see Charlesworth J [at 61] and Stewart J [at 89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J [at 67], “It is not for the decision maker to make his or her own assessment of the community expectations…”

And further, as noted by Stewart J at [91], ‘“community expectations” as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different’.
Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at [89] ‘“community expectations” as expressed by the Government do not speak to the outcome in any particular case’. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at [79], “In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour non-revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at [75] and Stewart J at [97]) and it is up to the decision-maker to determine the weight to be applied to this consideration (Charlesworth J at [76]-[77] and Stewart J at [102]).
The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at [101]):
…community expectations are simply, and informally, expressed as follows: “If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke the cancellation decision.
The Tribunal has found that the Applicant’s offending, particularly his drug offences to be serious. The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that, “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.” Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. However, as discussed above, it is not just crimes of a violent or sexual nature that can be regarded as serious. As discussed above, driving and drug offences can cause serious harm to the community, and the Tribunal regards the Applicant’s repeated drug offences, in particular, to be serious. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would be that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.

These considerations include (but are not limited to):
a)   International non-refoulement obligations;
b)   Strength, nature and duration of ties;
c)   Impact on Australian business interests;
d)   Impact on victims;
e)   Extent of impediments if removed.
International non-refoulement obligations

No claims of harm were raised by the Applicant (paragraph 14.1 of Direction No 79). However, at the hearing the Tribunal raised the issue of whether, if returned to China,

the Applicant may face harm in the form of further punishment due to his drug convictions in Australia. As noted above, the Tribunal gave the parties the opportunity to file further submissions on this issue.
The Respondent referred to relevant articles of the Criminal Law of the People’s Republic of China (PRC) which is cited in a March 2018 Country Policy and Information Note from the United Kingdom Home Office titled, China: Fear of punishment on return for crimes committed in other countries (‘Double Jeopardy’ or re-prosecution) (Home Office Information), paragraph [3.1]. They are as follows:
Article 7
This law is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three-year fixed-term imprisonment for such crimes, may not be dealt with.
This law is applicable to PRC state personnel and military personnel who commit the crimes specified in this law outside PRC territory.
Article 10
Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.
Article 7, in summary, provides that persons who have committed crimes with a stipulated sentence of less than three years “may not be dealt with” (that is, prosecuted or punished). Article 10, provides that a person who has already received a criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment. There was, as the Respondent noted in written submissions,

no expert evidence regarding the operation of these Articles, and particularly Article 10 (paragraph [4] of Respondent’s submissions dated 15 April 2020). However, the Articles appear to guide the exercise of discretion as to whether or not a person who has already been punished outside of China should be prosecuted or punished again under Chinese law.
Further, paragraph 5.46 (titled “Double jeopardy”) of the DFAT Country Information Report: People’s Republic of China dated 3 October 2019 (DFAT Report) filed by the Respondent, states:
Articles eight to 12 of the Criminal Law outline provisions against double jeopardy. In practice, Chinese citizens convicted and punished for offences abroad may face punishment for the same offence on return to China. Authorities are less likely to pursue those who have committed offences overseas carrying a sentence in China of three years or less. Those convicted of offences that are more serious are more likely to be re-sentenced on return, depending on the offence and the severity of punishment served overseas: more severe punishment overseas would likely attract a lesser punishment on return.
(Emphasis added.)
The Respondent also referred to paragraph [3.2.1] of the Home Office Information which states:
According to the UK Foreign and Commonwealth Office (FCO) in 2005,

the circumstances in which a person would be punished in China for a crime committed in another country, for which he had been punished in that country, are not stipulated. The Chinese authorities are most likely to take this action if the crime had received a lot of publicity in China, if the victims were well-connected in China, if there was a political angle to the original crime or if the crimes were of a particular type that the authorities wanted to make an example of. As of July 2005, the British Embassy in Beijing is unaware of any such instances.
The specific inclusion in the Criminal Law of ‘exemptions’ from second punishment in China for crimes committed abroad suggests that the authorities would not take further action against those convicted abroad for ordinary criminal offences.
(Emphasis added.)
In XRXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5984 (XRXL), Senior Member O’Donovan summarised with approval relevant factors from the United Kingdom Upper Tribunal decision in YF v The Secretary of State for the Home Department [2011] UKUT 32 (YF). YF confirmed an earlier decision of the United Kingdom Asylum and Immigration Tribunal in JC v The Secretary of State for the Home Department [2008] UKAIT 00036. Senior Member O’Donovan, at [118], summarised these United Kingdom Tribunal decisions:
…as concluding that although there is a risk of re-prosecution under Article 10, the use of that provision is discretionary and extremely rare. Although that risk is a question of fact, it is more likely where:
(a)there has been a substantial amount of adverse publicity within China about a case;
(b)the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas;
(c)the offence is unusually serious;
(d)political factors (which may include the importance attached by the Chines [sic] authorities to cracking down on drugs [sic] offenders) may increase the likelihood of prosecution or re-prosecution; and
(e)the Chinese Government is also particularly concerned about corruption of Chinese officialdom.
There is no evidence before the Tribunal that any of the above factors are present in the Applicant’s case.
Other decisions that have considered the application of Article 10 include FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294 (FRVT) in which Member Eteuati found that there was a real risk that the Applicant would be prosecuted in China because his Australian drug importation offences included activity within the territorial jurisdiction of China (at [306] and [308]; see also Liang and Minister for Immigration and Citizenship [2013] AATA 392 (Liang) at [147] and [148], discussed in FRVT at [304]-[305]). However, the Respondent submitted (paragraph [9] of Respondent’s submissions dated 15 April 2020) and the Tribunal agrees, that the Applicant’s situation is different. This is because, unlike those in FRVT and Liang, there is no territorial nexus between the Applicant’s offending and China, so there is no likelihood of the Applicant being re-prosecuted on that basis.
In conclusion, there is no evidence that the Applicant would face a risk of

further punishment or re-prosecution if he is returned to China due to his drug convictions in Australia. Accordingly, the Tribunal does not give this consideration any weight in determining whether to revoke the Cancellation Decision.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(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.
As noted above, the Applicant’s movement records indicate that he arrived in Australia on 16 April 2004 under his mother’s spouse/partner visa (G14, page 65). At this time, the Applicant was 15 years and five months old. There is, however, some conflicting information before the Tribunal regarding the Applicant’s age when he came to Australia. At the hearing, the Applicant stated that, “I came to Australia roughly in 2003 or 2004, I was roughly 13 or 14, I was with my mother” (transcript, page 13). The Applicant agreed that he came to Australia on 16 April 2004 when he was referred to his movement records during cross-examination (transcript, page 23).
The delegate who made the Reviewable Decision referred to the Applicant relocating to Australia with his mother when he was 13 years of age (G3, page 11). The delegate then continued on to refer to attached judicial sentencing remarks concerning the Applicant. The Tribunal notes that Prior DCJ’s sentencing remarks dated 26 October 2018 refer to the Applicant being raised by his grandparents until he was 13 years of age and relocating to Australia with his mother, before moving to Western Australia when he was 16 years of age (G7, page 26). Braddock DCJ also made similar remarks when sentencing the Applicant on 2 September 2014. For example Her Honour stated that, “you were raised by your grandparents until you were 13, when you were able to come over to Australia” (G9, page 38). Before making these remarks, Her Honour stated that, “I’ve had the benefit of reading the pre-sentence report about you which gives something of your background” (G9, page 38). The pre-sentencing report is not before the Tribunal, however, it appears to the Tribunal that an error regarding the Applicant’s age when he arrived in Australia may have been made in the pre-sentence report relied upon in sentencing in 2014 which was also taken up in the 2018 sentencing remarks.
The Tribunal finds that the most reliable record of the Applicant’s age and date of arrival are his movement records. These confirm that he was aged approximately 15 years and five months of age when he arrived in Australia. Thus, as the Applicant is currently 31 years of age, he has resided in Australia for approximately 16 years. Upon arrival in Australia, the Applicant attended school in New South Wales until approximately year 11 (transcript, page 14). He committed his first offence on 3 January 2009 when he was approximately 20 years old. This was approximately four years and eight months after he arrived in Australia, and only two years after he turned 18 years of age.
There is minimal evidence of positive contributions made by the Applicant. The Applicant’s evidence was that after he finished school he moved to Perth and obtained work in the construction industry as a gyprock worker (G11, page 57). He stated that he worked for approximately four years in that industry before he became involved in drugs and started to work “on and off” (transcript, page15). When asked if he had done any community work by the Tribunal, the Applicant mentioned undertaking some rubbish collection from the street and the park when he was at school (transcript, page 15).
The Applicant’s mother lives in Australia, and he also has a step-father in Australia.

He is an only child and does not have any children himself. His evidence was that his father is deceased, as are his grandparents, and he does not have any relatives in China (transcript, page 21). There is minimal evidence regarding the effect of a decision not to revoke the Cancellation Decision on the Applicant’s mother and step-father. They did not provide any statements to the Tribunal, and the extent of the Applicant’s relationship with his mother and step-father, and the effect of any decision not to revoke the Cancellation Decision on them, is uncertain. The Applicant’s evidence was that his mother was having some health issues (tumours around her neck area and breathing difficulties so she cannot fly in an aeroplane) (transcript, page 13) but there is no independent medical evidence, or evidence from the Applicant’s mother, to verify this. The Applicant was fearful that if he were returned to China that he would not see his mother again. The Applicant has not referred to, nor are there any statements from any other persons in the community such as friends or other support persons before the Tribunal.
The Tribunal finds that the Applicant has some ties to Australia, by virtue of having resided in Australia since he was a teenager, and his mother and step-father residing in Australia. The Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
There is no impact on Australian business interests if the Cancellation Decision is not revoked, and so paragraph 14.3(1) of Direction No 79 is not relevant.
Impact on victims
There are no specific victims of the Applicant’s offending, and so paragraph 14.4(1) of Direction No 79 is not relevant.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)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.
The Applicant is now 31 years of age, and there is no evidence of his having any health issues. At the hearing when asked about his health, the Applicant stated, “my health is okay” (transcript, page 20).
There are no substantial language or cultural barriers that would be impediments to the Applicant being returned to China. The Applicant lived in China until he was approximately 15 years and five months of age, and returned there twice between 27 December 2005 and 8 February 2006 (when he was approximately 17 years old) and again between

18 July 2007 and 19 September 2007 (when he was approximately 18 years and eight months old) (G14, page 65). At the Tribunal hearing the Applicant was assisted by a Mandarin interpreter, and when asked about how he would describe his level of Chinese language skills, the Applicant stated that “my Chinese is okay, better than my English” (transcript, page 20).
The Applicant may encounter some difficulties establishing himself and securing employment in China because he has lived in Australia for the last 16 years, having left China as a teenager. His skills as a gyprock worker may help him to find employment. However the impact of the COVID-19 pandemic, although uncertain, may result in the Applicant having difficulty obtaining employment and establishing himself in China.
The Applicant is likely to experience some psychological distress if he is removed from Australia because of the length of time he has resided in Australia and the fact that he may not see his mother and step-father again. He also stated that he was worried about what to do if he is returned to China including how to find accommodation and employment (transcript, page 49). The Applicant further stated that he was worried that whilst his mother could provide him with some financial assistance if he remains in Australia, she would not be able to do so to the same extent if the Applicant was returned to China because of the high cost of living there (including the high cost of rent) (transcript, page 49).
The Applicant’s evidence was that he has no family to support available to him in China, as his father and grandparents are now deceased (transcript, page 21). When the Applicant visited China in 2007 he described catching up with old friends, however the Applicant’s evidence was that he had lost their contact details (transcript, page 24). It is unclear to the Tribunal whether the Applicant would have any social support from friends if he were returned to China.
As discussed above, it does not appear that the Applicant would face harm

in the form of further punishment or re-prosecution due to his drug convictions in Australia if he were returned to China.
However, a further complexity is that there may be a delay in the Applicant being returned to China until the COVID-19 pandemic abates. This is discussed separately below.
Overall, the Tribunal concludes that the Applicant may face some difficulties establishing himself and maintaining a basic standard of living if he is returned to China.

This consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Detention until removal is reasonably practicable
If the Tribunal affirms the Reviewable Decision, s 198 of the Migration Act requires the Applicant to be removed from Australia as soon as is reasonably practicable. Due to the COVID-19 pandemic and associated restrictions in international travel, it is uncertain as to when it would be reasonably practicable to remove the Applicant to China, which may result in the Applicant being detained in immigration detention for an uncertain period of time. However, to quote Member Eteuati in FRVT at [299]) “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus… subsides”.
The Tribunal finds that this factor weighs slightly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under ss 501(6) and 501(7) of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79).
(b)The risk to the Australian community should the Applicant commit further offences also weighs strongly against the revocation of the Cancellation Decision (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs strongly against the revocation of the Cancellation Decision
The primary consideration of the best interests of minor children (paragraph 13.2 of Direction No 79) is not applicable.
In relation to the other considerations that are applicable:
(a)Regarding international non-refoulement obligations (paragraph 14.1 of Direction No 79), the Tribunal has found that the Applicant is not likely to face a risk of punishment or re-prosecution (on the basis of his Australian drug convictions) if he is returned to China.
(b)The strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weigh moderately in favour of the revocation of the Cancellation Decision.
(c)The impediments the Applicant would face if returned to China weigh moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79).
(d)The uncertain period of detention that the Applicant may face until the COVID-19 pandemic subsides weighs slightly in favour of the revocation of the Cancellation Decision.

The Tribunal has found that that the expectations of the Australian community (paragraph 13.3(1) of Direction No 79) would be that the Cancellation Decision should not be revoked. In determining the weight to be applied to this consideration, the Tribunal has considered the relevant primary considerations, including the serious nature of the Applicant’s offences, and his moderate risk of re-offending, both of which strongly weigh against the revocation of the Cancellation Decision. The Tribunal has balanced these considerations against the considerations which weigh in the Applicant’s favour. Specifically, these are: the strength, nature and duration of the Applicant’s ties to Australia and the hardship the Applicant would face if he were returned to China (which weigh moderately in his favour). Additionally, the Tribunal has considered the amount of time the Applicant may potentially be detained for until he can be returned to China due to COVID-19 related travel restrictions (which weighs slightly in favour of the revocation of the Cancellation Decision). After balancing these considerations, the Tribunal finds that the expectations of the Australian community would nevertheless weigh strongly against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
The Tribunal finds that the primary considerations of the protection of the Australian community, and the expectations of the Australian community substantially outweigh the other primary considerations of the Applicant’s strength, nature and duration of ties to Australia, the extent of impediments if removed, and his detention for an uncertain period until he can be removed.
Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is not to revoke the Cancellation Decision.
DECISION
The Tribunal affirms the Reviewable Decision dated 5 February 2020 not to revoke the mandatory cancellation of the Applicant’s Visa. This means that the Applicant’s Visa remains cancelled.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........................[sgd]............................................
Associate
Dated: 29 April 2020

Date of hearing:

7 April 2020

Representative for the Applicant:

Representative for the Respondent:

Solicitor for the Respondent:

Self-represented

Mr A Gerrard

The Australian Government Solicitor