Zhang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 234

Zhang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 234 (22 February 2024)

Division:GENERAL DIVISION

File Number(s):      2023/9214

Re:Jie ZHANG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:22 February 2024

Place:Sydney

The correct and preferable decision is that the reviewable decision of 30 November 2023, not to revoke the cancellation of the Applicant’s visa is set aside, and in substitution it is decided that the cancellation of the Applicant’s visa is revoked.

..............................[SGD]......................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – the strength, nature and duration of ties to Australia – best interests of minor children - expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision set aside.

LEGISLATION

Migration Act 1958 (Cth) s 499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

22 February 2024

BACKGROUND

1. I note the Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of this matter, much of which has been replicated below.

2. The Applicant is a 35 year old citizen of China. He arrived in Australia in July 2007 as the holder of a Student (subclass 571) visa.

3. The Applicant has remained in Australia since his arrival, apart from the following instances of departure:

   (a)For 13 months between July 2017 and August 2018;

   (b)For 3 months between December 2018 and March 2019; and

   (c)For 6 days between November and December 2019.

4. In January 2020, the Applicant was granted an Offshore Partner (subclass 100) visa.

5. In December 2021, the Applicant was convicted by the Local Court of 5 counts of deal with property proceeds of crime => $100000 – T1 and sentenced to an aggregate term of two years and four months imprisonment, with a non-parole period of 18 months.  

6. The Applicant lodged a severity appeal in the District Court of NSW following the above-mentioned conviction. This appeal was subsequently withdrawn.

7. On 4 April 2022, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) as he had been sentenced to a term of imprisonment of 12 months or more. The Applicant was invited to make representations seeking revocation of the cancellation within 28 days.

8. On 30 April 2022, the Applicant’s representatives made representations seeking revocation of the cancellation decision.

9. On 11 October 2023, the Department provided a copy of Direction 99 and a media article referring to the Applicant’s offending dated 19 August 2020. The Applicant was invited to make any further comments addressing the media article and Direction 99.

10. On 4 November 2023, the Applicant’s representative provided to the Department a letter addressing the media article.

11. On 30 November 2023, a delegate of the Minister decided not to revoke the cancellation decision. The Applicant was notified of the non-revocation decision by an email sent to his representative the same day.

12. On 7 December 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the non-revocation decision.  

    LAW & POLICY

13. The relevant legislation and policy is outlined below.

14. Section 501CA(4) of the Act states:

    (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.

15. In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

16. On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.

17. Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:

    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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

18. Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.

19. Section 8 of the Direction provides that the five primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

    (b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

    (c)The strength, nature and duration of ties to Australia (Primary Consideration 3);

    (d)The best interests of minor children in Australia (Primary Consideration 4); and

    (e)Expectations of the Australian community (Primary Consideration 5).

20. Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:

    (a)Legal consequences of the decision;

    (b)Extent of impediments if removed;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

    ISSUE

21. As it is accepted by both parties that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.

    EVIDENCE

    Evidence of Ms Chen

22. The witness was the wife of the Applicant. She affirmed her statement of 12 January 2024.

23. While she was a Australian Permanent Resident, the Applicant’s two daughters S, aged 7, and M, aged 4 were both are Australian citizens.

24. The witness gave evidence that from 2019 – 2023, their eldest daughter, S, had been in China with her grandmother. She had gone there shortly before the COVID-19 pandemic and had been unable to return until January 2023. This had been very stressful, as her Chinese visa was about to expire.

25. Her evidence was that the day of the hearing was the first time the Applicant’s daughters had seen him in person, in approximately 2 years. She said that his absence had caused the children distress and affected their self-esteem. They had been very excited to see their father and anxious to resume normal family life.

26. The Applicant was said to have been a good father and was very calm with the children. She said that he had been a great help to her, feeding the children and helping them wash up when he came home from work so she could have a break.

27. When asked about what the children knew of the Applicant’s offences, the witness said that the children were both too young to understand, and that the knowledge that their father had gone to prison would lower their opinion of him. The witness had not considered that the children will come to understand the nature of the Applicant’s offences when they are older.

28. The witness said that she had not anticipated that the Applicant’s visa would be cancelled, and that when he was not released into the community following his receipt of parole it had been very disappointing.

29. Her evidence was that she had only been taking care of the youngest child at the time the Applicant was arrested, but since the return of their eldest daughter, had been the sole carer for their two children, and that providing for them gave her no opportunities to rest and she was almost burned out.

30. In particular, the financial burden of paying for the mortgage, bills, groceries and school fees was especially heavy, as she did not speak English well and had limited job prospects. She said that she had a job in her cousin’s restaurant as a kitchen hand, received centrelink benefits and let out rooms in the property, but that she also had to borrow money from family to make ends meet. She said that if she sold the house they’d have no place to live.

31. The witness gave evidence that her experience since her husband’s imprisonment had had a negative impact on her health. She gave evidence that she always felt tired and that the stress was making her nauseous. She had been prescribed Maxilon to help with nausea, and Somac to help her sleep. She said the stress, at times, had made her consider whether her life was worth continuing, but that her responsibility as a mother meant she should not have these thoughts.

32. When asked about her husband’s attitude to his offending, the witness said that the Applicant really regretted his actions because they had impacted the children and his family. Her understanding of the Applicant’s actions was that he was gambling money that he had borrowed. When it was put to her that he had plead guilty to dealing with the proceeds of crime, she said she tried to avoid thinking of these offences, and only had a basic understanding.

33. In relation to the Applicant’s gambling problem, the witness was confident that the Applicant would not gamble again. In her opinion his trouble started when he had been invited by friends to gamble in 2019 while she and the children were in China. Her evidence was that he would no longer gamble because prison was a deterrent but could not identify any steps her husband had taken to address his gambling problem.

34. When questioned about the Applicant’s prospects of employment the witness said that he had previously been employed as gyprocker. She was asked whether the Applicant had also had a contracting business of some sort, but it was unclear whether this was related to his employment in gyprocking.

35. She had accompanied the Applicant on some of his previous travels to China. She said the longest visit was because he was required to return to China to apply for his partner visa.

36. When asked, in the Applicant was removed from Australia, whether she would accompany him to China, the witness said she would not. She had not lived in China for a long time, all of her relatives were in Australia and she would have difficulty finding a job in China. Conversely, the witness said she could no longer be left alone to raise the children.

    Evidence of Tuo Yang

37. The witness was the cousin of the Applicant’s wife. He had provided the Applicant with a character reference.

38. He owned the restaurant where the Applicant’s wife worked.

39. He said that he had known the Applicant for more than 9 years, and that he was close to the Applicant’s wife. His evidence was that their children went to the same school.

40. He was aware that the Applicant had gone to prison, but only had a brief understanding of the Applicant’s offences. He said that he spoke to the Applicant often and that in his opinion the Applicant regrets his actions.

41. The witness gave evidence that the Applicant would often call him and request that he check in on the Applicant’s family, as he was concerned for Ms Chen’s wellbeing.

42. His evidence was that the Applicant’s imprisonment had been very hard on his family, and that the Applicant’s wife would often break down in tears if her husband was mentioned. He said that, emotionally and financially, she was suffering a lot of hardship. He said that because she was embarrassed about not being able to afford it, she was refusing to come out to restaurants, even when he offered to pay.

43. The witness had provided a lot of support to the Applicant’s family while he had been imprisoned. He said that because the Applicant’s wife did not speak English well, he assisted her with various things, such as communicating with Centrelink, enrolling the children in schools and paying electrical bills. He said that his family also provided emotional support to the Applicant’s wife when she was stressed.   

44. He said that he and his family had been providing as much support as they could over the last two years, but that nobody could replace the position of the Applicant as breadwinner for his family. He said that he didn’t know how much longer he could sustain this level of support, because he has his own family, with their own needs. He said that other family members were not in a position to provide as much support.

45. In his opinion the relationship between the Applicant and his children was very close. He said they ran to their father to hug him when they saw him earlier.

    Evidence of the Applicant

46. The Applicant was 35 years old, he had lived in Australia for the past 17 years.

47. He had been in immigration detention for the last 6 months, following his incarceration for 18 months.

48. The Applicant said at the start of the pandemic he had become addicted to gambling, and that it had led him into criminal activity. At the time he started gambling he was living alone because his wife had gone to China. He understood that by pleading guilty to his offences, he had admitted his guilt.

49. The Applicant said that he spent a lot of time thinking about his family. The Applicant was in regular contact with his daughters and wanted to live with his family again.

50. Prior to being imprisoned the Applicant said that he had been closely involved in the care of his eldest child, S, until she went to China. The Applicant said that the children did not know the reason he was away from them, and that they had been told he was working outside Australia. He said that the day of the hearing was the first time he had seen S since she had left for China in 2019, and M since he had gone to prison.

51. The Applicant said that he no longer had a gambling addiction. The Applicant said that he had ‘learned his lesson’, and that he would not gamble again.

52. The Applicant had undertaken a number of training courses, most of which related to vocational training. He had an offer of work if he released into the community, which he intended to accept.

53. The Applicant gave evidence that all of his extended family lived in Australia and that his wife’s family also lived in Australia. He said that the family was close.

54. The Applicant said that if he were returned to China his wife would not go with him. He said that he spoke Mandarin, and that he would be able to work in China, although it would be very difficult for him to actually find a job. However, he had no friends in China, and although his mother lived in China he would be unable to live with her.

55. The Applicant’s evidence was that he regretted his offences, and the impact it has had on his family. He said that because of his imprisonment his wife has had to take all responsibility for the children.

56. The Applicant agreed with the facts of his money laundering convictions.

57. In relation to previous explanations the Applicant had given, for the amount of money he had gambled with, the Applicant said that he didn’t remember what he had previously said, and that all he was thinking about was his family and children.

58. The Applicant’s evidence was that he didn’t remember how he began gambling.

59. In relation to rehabilitation, the Applicant said that he had attended two group sessions in relation to the harms of gambling.

60. When he was asked why, under the ‘positive contributions to Australia’ section of his personal circumstances form, the Applicant did not write anything, his evidence was that his lawyer didn’t give him any advice relating to that. He said he previously donated $30 weekly to an animal protection charity, and that he paid his tax as required by law.

61. He said that he did not have any diagnosed mental conditions, or require any medication.

    DISCUSSION

62. Turning now to the relevant considerations under Direction 99.

    PRIMARY CONSIDERATION 1 - PROTECTION OF THE AUSTRALIAN COMMUNITY

63. In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.

64. There are two limbs to this consideration:

    (a)The nature and seriousness of the conduct of the non-citizen; and

    (b)The risk to the Australian community should the non-citizen re-offend.

    Nature and seriousness of the conduct:

65. The Applicant was convicted of 5 counts of dealing with proceeds of Crime <=100000 by the Central Local Court on 20 December 2021. Apart from those offences the Applicant had not been found guilty of any other serious offending.

66. It was put to the Tribunal on behalf of the Applicant that the fact that the Applicant’s trial was in the Local Court, rather than the District Court, meant that the offences should be seen as less serious than if they had been tried in the District Court.

67. It was also put to the Tribunal on behalf of the Respondent that the remarks of the District Court Judge, in relation to the severity appeal which was withdrawn by the Applicant, should be given weight.

1. At the hearing, it was explained that the Tribunal cannot go behind the Applicant’s convictions and, that although the remarks of the court can be of relevance in looking at the Applicant’s offending it is ultimately a matter of weight. In particular, remarks made in dealing with a possible appeal would not necessarily carry the same weight as the remarks of the sentencing Judge in a criminal trial.

2. In the opinion of the Tribunal, the Applicant’s crimes must be seen as objectively serious. An amount of approximately $3 million was involved and it is well understood that money laundering facilitates serious crime.

3. When the police searched the premises of the Applicant a large amount of cash was found. The Applicant did not provide any satisfactory explanation as to how he came to have such a large amount of cash in his home.

4. It was put to the Tribunal on behalf of the Applicant that his offending did not involve violent crime of the type prescribed by Direction 99, and accordingly should be viewed as less serious. Although the Tribunal accepts that the Applicant’s offending may not be at the most serious end of the scale, the Tribunal does not accept the suggestion that offences not described in Direction 99 are to be considered less serious and regards the Applicant’s offending as serious.  

   The risk to the Australian community should the Applicant reoffend:

5. There is clearly a risk to the Australian community if the Applicant were to reoffend. Money laundering facilitates criminal activity and is harmful to the Australian economy and community.

6. The Applicant was assessed as being at low risk of reoffending, both by NSW Corrections officers as evidenced in their report of 27 July 2021 and 16 December 2021, and also by Mr Machlin, a clinical psychologist who had written reports in relation to the Applicant in 28 July 2021 and 5 January 2024. In his second report, Mr Machlin stated as follows:

   The current assessment confirms that the principal factors, including the factors considered in the LSI-R point to a low level of recidivist risk. (…) There is no other history of offending of any kind, nor any sign of a disposition towards offending in the form of mental health problems, or antisocial personality style.

7. Mr Machlin noted that the Applicant had participated in therapeutic programs when he had the opportunity and that he was agreeable to further counselling on release. He was said to have good family support and good chances of reintegrating into the community. Mr Machlin went on to say:

   ‘I agree that he is at low risk of offending, and I find he does not present a significant risk to the community’.

8. I also accept that the Applicant has expressed genuine remorse for his offending.  

9. The Respondent raised a number of issues in relation to Mr Machlin’s reports, including that:

   (a)In relation to the first report;

   (i)the initial report of Mr Machlin was written following an approximately 2 hour video-consultation, and Mr Machlin was only prepared to give a preliminary diagnosis as a result; and

   (ii)the report does not adequately deal with the Applicant’s involvement in criminal activity;

   (b)in relation to the second report:

   (i)it was written following a video-consultation and with a ‘co-detainee’ acting as a Mandarin interpreter.

   (ii)the assessment of the Applicant’s risk of recidivism was described as being ‘based on his assessment of what he said about himself, which is not given on oath anywhere, or sworn evidence anywhere, and is self-serving and is quite inconsistent with the behaviour’.

   (iii)Mr Machlin contradicts his initial recommendation that the Applicant does not require gambling counselling.

10. Despite the objections of the Respondent, given the consistency between the report of Mr Machlin and the NSW Corrections officials in their report, I accept the report of Mr Machlin and I give weight to it. It is also consistent with the Applicant’s evidence to the Tribunal. On that basis, I find that the Applicant is at low risk of reoffending. There are also a number of protective factors, including the welfare of the Applicant’s family, which act as a deterrent to future offending.

11. Overall, I give this consideration moderate, tending to heavy, weight in favour of non-revocation, primarily because of the way in which money laundering facilitates serious crime, which is ameliorated by the Applicant’s low risk of reoffending.

    PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

12. The Applicant is 35 years of age and has lived in Australia since the age of 17.

13. He has a history of regular employment in Australia.

14. All of the Applicant’s extended family live in Australia, except for his mother, who lives in China, and with whom he maintains contact. The Applicant’s wife’s family also live in Australia.

15. His children are Australian citizens, and his wife is an Australian permanent resident.

16. His wife is committed to remaining in Australia, and her evidence is that she is suffering under the weight of being the sole carer for two young children. Despite this however, the Applicant’s wife’s evidence was that the children needed to remain in Australia to have the best possible future opportunities.

17. The Applicant has no friends or social connections outside Australia.

18. The Applicant’s relevant work experience is all in Australia.

19. The Applicant speaks Mandarin and his command of the English language is somewhat limited.

20. Considered overall, this consideration weighs heavily in favour of revocation of the delegate’s decision.

    PRIMARY CONSIDERATION 4 - BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

21. The Applicant has two daughters aged 4, and 7.

22. It was quite clear from the evidence at the hearing that the Applicant is very important to the children and that they have suffered because of the absence of the Applicant.

23. The Applicant’s wife gave evidence as to how she has struggled to look after the children both emotionally, and financially whilst the Applicant has been incarcerated.

24. The Applicant has been in regular contact with the children from detention. In addition, Mr Yang gave evidence that the Applicant often contacted him from detention asking if he could go to the children’s home because the Applicant was concerned about his wife’s mental health and the pressures she was facing from work and caring for the children.

25. There is no doubt that the children need the Applicant’s financial support, and his wife gave evidence of the difficulties she was facing meeting mortgage repayments and paying household bills. She has had to borrow money to make ends meet.

26. There was also evidence before the Tribunal that the Applicant’s children were suffering psychological harm as a result of his absence. Although they had not been told the real reason for his absence, the evidence was clear that they wanted him at home with them, and that his absence was having an adverse effect on their psychological wellbeing. 

27. There was no evidence before the Tribunal to suggest that the Applicant was other than a loving parent, who was committed to his children.

28. I give this consideration heavy weight in favour of revocation of the reviewable decision.

    PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY:

29. Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185, where the Full 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 set out in direction 99 at paragraph 8.5.  

30. There was very little excuse for the Applicant’s offending. He seemed to have fallen into a habit of gambling whilst his family were away, and then turned to crime, through money laundering, to finance his gambling addiction.

31. There is very little excuse for his behaviour, and the Australian community is entitled to expect that visa holders do not engage in money laundering activities which are likely to facilitate other serious crime.

32. Overall, I give this consideration heavy weight in favour of non-revocation.

    OTHER CONSIDERATIONS:

    Legal consequences of the decision:

33. The Applicant raised at the hearing the possibility that if he were returned to China he may be targeted by third parties, to whom he owed money. This matter had not previously been raised at any time.

34. There was no evidence as to why the Applicant made this claim, or how it would engage Australia’s international obligations.

35. Accordingly, I give this consideration neutral weight.

    Extent of impediments to removal:

36. The Applicant is a relatively young man and his evidence was that he was not suffering from any mental or physical health issues.

37. The Applicant could be expected to have the same access to health and other supports as other Chinese citizens.

38. The Applicant’s mother lives in China, although the Applicant said he would not be able to live with his mother.

39. The Applicant would face no cultural barriers living in China.

40. There was considerable confusion at the hearing as to whether the children would in fact be able to live in China if the Applicant were to be returned to that country. In any event the evidence was clear that the Applicant’s wife and children would not live in China because their lives were in Australia. Given Mr Machlin’s report, it is reasonable to assume that the Applicant would most likely suffer from mental health consequences if he were to be returned to China and separated from his family.

41. Although the Applicant may have relevant work experience and speaks Mandarin, I accept his evidence that it would be difficult for him to find employment in China. At least initially, he would also be likely to face difficulties in securing accommodation, especially if he were unable to live with his mother.

42. Overall, I give this consideration moderate weight in favour of revocation of the delegate’s decision.

    CONCLUSION

43. In considering all of the circumstances of this matter, especially the best interests of the children, I am of the opinion that the correct and preferable decision is that the reviewable decision of 30 November 2023, not to revoke the mandatory cancellation of the Applicant’s visa is set aside, and in substitution it is decided that the cancellation decision is revoked.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 22 February 2024

Date(s) of hearing:	13 February 2024
Counsel for the Applicant:	Mr Chuan Ng
Solicitors for the Applicant:	Ms Hannah He Chen
Solicitors for the Respondent:	Mr Liam Dennis