Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2163
•7 July 2021
Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2163 (7 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2330
Re:Hankun Zhang
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:7 July 2021
Place:Sydney
The decision under review is affirmed.
..........................[SGD]...................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa - Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - applicant’s credibility – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children – other considerations – extent of impediments if removed – links to the Australian community – potential breach of Australian International Treaty Obligations – decision under review affirmed.
LEGISLATION
Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
7 July 2021
INTRODUCTION
1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 6 May 2005 on a subclass 573 (Student) visa.
2. The Applicant does not pass the character test as a result of convictions which led to the Respondent not revoking the mandatory cancellation of the Applicant's Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa.
3.
The Respondent has set out in a table the various factual aspects of this case which provide a framework for the evidence which was given in the hearing and which found the Tribunal’s decision. Set out in the table below are the relevant facts which are not relevantly in dispute:
Date Event/ Offence 1 March 1983
The Applicant was born in China. His parents continue to reside in China.
6 May 2005
The Applicant arrived in Australia as a student aged 22 years old.
2010
The Applicant began working as a manager at a foreign exchange market company.
2011
The Applicant met his partner who is a permanent resident.
19 April 2012
The Applicant and his partner married.
2013
The Applicant began working as a manager at a transport and logistics company.
17 July 2013
The Applicant and his wife’s first child was born.
7 May 2015
The Applicant was fined $400, and his licence disqualified for 6 months for middle range drink driving committed on 1 January 2015.
2015
The Applicant began working as a sales and marketing director at a Chinese organisation which provides cross-border e-commerce solutions.
3 April 2016
The Applicant and his wife’s second child was born.
April 2018~
The Applicant and his wife separated but continued to reside in the same property for financial reasons.
7 April 2019
The Applicant committed a common assault (DV).
12 September 2019
The Applicant was convicted and sentenced for the offence on 7 April 2019. He received a conditional release order – conviction: 12 months commencing 12 September 2019.
The Court made an AVO prohibiting the Applicant from, amongst other things going to his former partner’s home or work addresses.
24 November 2019
The Applicant contravened a prohibition/ restriction in the AVO (domestic).
25 November 2019
The Applicant was convicted and sentenced to a 16-month community corrections order for the offence on 24 November 2019. He also received a 16-month community corrections order for the offence on 7 April 2019.
9 March 2020
The Applicant is arrested and taken into custody for:
1. intentionally choking etc a person without consent (DV)-T1; and
2. two counts of contravening prohibition/ restriction in AVO (domestic)
24 August 2020
The Applicant was convicted and sentenced for the offences of 9 March 2020 and received:
1. an imprisonment sentence of 2 years with a non-parole period of 8 months;
2. an imprisonment sentence of 8 months; and
3. a 2-year community corrections order.
11 September 2020
The Applicant’s visa was cancelled because he did not pass the character test.
9 October 2020
The Applicant requested revocation of the visa cancellation.
14 December 2020
The Applicant’s imprisonment sentence was reduced to 15 months with a non-parole period of 8 months.
29 March 2021
The AVO made on 12 September 2019 is varied to extend until 28 March 2026. The names of the applicant and children are removed from the AVO.
14 April 2021
A delegate of the Respondent decided not to revoke the visa cancellation.
15 April 2021
The Applicant applied to the Administrative Appeals Tribunal for review of the decision on 14 April 2021.
ISSUES
4. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
5. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.
RELEVANT LEGISLATION AND POLICY
6. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
7. Section 501CA(4) provides that:
(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.
8. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
9. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
10. The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
11. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
12. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
(b)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 (paragraph 5.2(2));
(c)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 (paragraph 5.2(3));
(d)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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));
(e)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 8.4(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 measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
13. Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
14. Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
15. These principles are of course dependent upon the facts and circumstances of each case.
16. The primary considerations are:
(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)The best interests of minor children in Australia (Primary Consideration 3); and
(4)Expectations of the Australian community (Primary Consideration 4).
17. The Tribunal must also take into account other considerations insofar as they are relevant.
18. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Extent of impediments if removed;
c) Impact on victims;
d) Links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
THE CHARACTER TEST
19. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined in s 501(7) of the Act.
20. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
21. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.
EXERCISING THE DISCRETION
22. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
Primary Consideration 1 – Protection of the Australian community
23. Paragraph 8.1 of Direction No. 90 provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
24. Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant's conduct to date
25. Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
a) without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) 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).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
26. Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
27. Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
Offending history
28. The Applicant was convicted of a serious common assault offence which was related to domestic violence on 7 April 2019.
29. The details of that assault a contained in a police incident report which outlines the following facts:
About 10:00am on Sunday the 7th of April 2019 the victim went into her bedroom, the victim and accused have slept in separate bedrooms for about 12 months, the accused followed her into the bedroom and shut the bedroom door. The victim attempted to leave the bedroom and the accused grabbed hold of the victim on her arm and dragged her to the bed which is only a short distance from the bedroom door. The accused forced the victim onto the bed, with the victim landing on her back with the lower section of her body hanging off the side of the bed. The accused forcefully held the victim down on the bed by gripping both her wrists and using pressure downwards towards the bed. The victim struggled to try to free herself from the hold of the accused but was unable to. The victim said to the accused "don't do it" but the accused continued to hold the victim downwards on the bed. The accused used one hand to pull downwards at the waistband of the pants of the victim but was unable to pull them down due to the victim continuing to struggle. The accused used the same hand to rub the victim in the genital area on the outside of the pants for a few seconds.
The victim begun to scream and yell out to her mother who also resides at the location. As the victim heard her mother approaching the bedroom the accused let go of the victim and the victim ran towards the doorway. The accused and the victim became involved in a verbal argument about the incident.
30. The second relevant offence was committed on 24 November 2019, the circumstances of which are set out in a police incident report and which again involved a domestic violence incident:
The Victim informed Police that [at] about 7pm on the 24th November 2019 she was asleep up stairs in her room. The Victim explained she woke and saw the Accused standing in the bedroom. . The Victim advised Police she said to the Accused “ why are you here “ and asked him to go out of the room. . The Accused was not willing to get out and he begun trying to lay down on the bed. The Victim states she was pushing him saying go go and called out to her father but there was no answer. . The Victim has ran outsideand [sic] went to a park that the Victim knows her parents take the children to.
The Victim has come back with her parents and the Accused was still inside the house. The Victim has again asked him to go but the Accused did not leave and the Victim states she asked him several times to leave but he didn't . The Victim has tried to get into her car to drive to the Police Station but the Accused has stood in front of the car. . The Victim has gotten out of the car and walked around the block with her father. .
About half an hour later the Victims mother text her and said the Accused had gone so the Victim and her father returned back home. . About 820pm the Accused has come back. The Victim alleges she was sitting in the living room with her daughter and the Accused was standing behind her. The Accused has not left again so the Victim has gone back out to her car, locked herself in and called Triple Zero. . The Accused had left when Police attended the scene the first time.
The Victim opted to provide a statement with regards to the incident above. . Police sighted the text message sent from the Victims mother to her. This message was in mandarin however the Victim was able to get her phone to convert to English. This message shows a text stating " he drove off". This text would be consistent with the Victims version of events that her mother informed her the Accused had gone. . The Victim informed Police that her mother and father both saw the Accused in the house. . Police were making arrangements for an interpreter to attend the Police Station to assist with statements from the mother and father, when the Victim has contacted Police saying the Accused was back again at......... ......... .
Police have re attended and located the Accused talking with the Victim out the front about 1100pm on the 24th November 2019. Body Worn Video was activated and the Accused was cautioned. He denied the Victims version of going into the house, but then made admission to going in to the garage of the house.
On 9 March 2020 the Applicant again committed an offence that involved domestic violence. From the police report the following appears:
About 3:00pm on Monday the 9th of March 2020, the Victim was alone at her address in Illawong preparing to pick her eldest child from Alfords Point Public School. At this time the Accused has entered the house using a key to open the front door of the premises and walked to the upstairs sitting area where the Victim was standing. The Victim believed that the Accused was affected by intoxicating liquor as she could smell the liquor on his breath and has started arguing with the Victim about picking their children up. The Accused continued to state, "What exactly do you want?" . The Victim stated to the Accused she had to pick up their daughter from school and started walking out of the sitting area towards the stairs to go downstairs.
The Accused has pushed the Victim backwards onto the lounge and grabbed her around the throat with a firm grip and keep holding downwards pressure holding the Victim on the lounge unable to get up. . The Victim felt the Accused pushing his thumb and fingers into her throat which was causing her pain. The Victim has found her mobile phone in attempt to take photos of the Accused and the actions he was carrying out. The Accused has seen the actions of the Victim and became more enraged and had placed his left open palm over the Victims mouth and nose and applied further pressure. . At this time the Victim has become increasingly more worried and believed the Accused was attempting to stop her breathing and was afraid she was going to die. The Accused held his hand over the Victim mouth and nose for about two minutes. . The Accused has grabbed some items of clothing and a cushion and placed these items over the Victim mouth and nose. The Victim attempted to break free but was not able due to exhaustion and the Victim was finding it more difficult to breathe. . The Victim has attempted to plead with the Accused and after one minute the Accused has relaxed his grip and stop applying downwards force. The Victim stated she need to go and pick up the kids and the Victim would attempt to stand up, but the Accused would pull her back down.
The Victim has eventually been able to stand up and moved downstairs and attempt to leave the premises only to be blocked by the Accused. The Victim has continued to plead with the Accused to pick up the children from school and the Accused stated, "I can't let you go because if you leave I will be in trouble, so I can't let you go." . The Victim has negotiated with the Accused for them both to attend the children's school and they have walked together.
While walking on Brushwood Drive the Victim has seen the garage of a friend's house open. The Victim sensing an opportunity to escape, ran towards the garage of .........
......... and went inside where she asked for help from her friend ......... and her husband. . ......... has closed the garage door to keep the Accused out of the house and the Accused remained standing on the driveway of the premises telling the Victim if she left the premises he would return her mobile phone. ......... then attended Alfords Point Primary School to ensure the Victim's daughter would not be placed into the Accused[‘s] care.
…
About 6:30pm Police were contacted by a member of the Public stating that the Accused was present at the Victims [sic] premises. The accused was observed to enter the premises through the front door and shortly after the garage door opened and the Victim’s white Ford Territory SUV exited from the driveway. Numerous Police resources attended this location in an attempt to locate the Accused and the Victims [sic] vehicle was located parked and unattended on Coachwood Crescent near Narnia Park. Patrolling Police have observed the Accused to be pacing around behind the clubhouse building. … When being searched a set of keys for the Victim[’s] motor vehicle were located.
31. It is relevant also to refer to the factual matters which the Applicant seeks to be taken into account:
The court found the following facts: that the Appellant had attended the former matrimonial home at Alfords point contrary to an existing AVO. The Appellant pushed his wife onto a lounge within her home , applied a grip to the victims [sic] throat and applied pressure , put his hands over her mouth and nose making it difficult for her to breathe, he then put either [a] cushion or clothing over her face and pressed down and again the victim found it hard to breathe. The Appellant released the victim following pleading from her relating to the need of the victim to pick up their children.
32. It was necessary to state fully the circumstances of the commission of these offences which demonstrate an extremely worrying and determined behaviour by the Applicant in respect of domestic violence against his partner from whom he was estranged. The conduct is serious, the conduct escalated, and children were impliedly involved in the Applicant's behaviour all of which, in the Tribunal’s view, make the Applicant's conduct particularly serious even without reference to Direction No. 90 and the requirements of that Direction to consider this type of conduct.
33. Not only does the Tribunal regard the Applicant's conduct as increasingly serious but cumulatively, that conduct is also particularly serious.
34. It is relevant to note that the Applicant did not disclose a drink driving offence when completing an incoming passenger card. The Tribunal finds the Applicant's explanation for this failure as unacceptable.
35. The Applicant gave evidence in the proceedings. The Tribunal was satisfied that the Applicant had a good understanding of the English language but needed to resort to the use of an interpreter on occasions. The Applicant completed an MBA in Australia which was conducted in the English language. The Applicant had no apparent difficulty in understanding questions which were asked of him in the English language.
36. The Applicant gave evidence of his rehabilitation, remorse and recognition that alcohol was a real factor in his offending behaviour.
37. When giving evidence of the circumstances surrounding the common assault offence in April 2019, the Applicant gave an entirely novel version of events which denied certain crucial aspects of his behaviour on that occasion. His counsel conceded that that had not been put before the Tribunal in any form before and was, therefore, a novel version.
38. The Tribunal regards the Applicant being deliberately untruthful on this topic and therefore regards the Applicant's assertions as to remorse, rehabilitation and the abandonment of the use of alcohol with scepticism. This, in turn, has ramifications when considering the issue of future risk of offending.
Risk of committing further offences
39. There is some evidence which is in the Applicant's favour relevant to the assessment of risk of future offending, particularly that of the psychologist who was called on the Applicant's behalf.
40. The Applicant was also assessed by the NSW Department of Corrective Services in August 2020 and March 2020, placing particularly some degree of reliance on the fact of the concern for the Applicant's blatant disregard for Apprehended Violence Orders against the Applicant and his breach of those orders. The Tribunal places considerable weight on the Applicant's past behaviour to provide some reasonable indication of the likelihood of the Applicant's future conduct. In the Tribunal’s view, it seemed that the Applicant was quite unstoppable, even in the face of Court Orders, in his behaviour to the victim of these domestic violence offences.
41. Whilst the Applicant's behaviour may properly be regarded as situational in respect of a single victim and the domestic relationship between the parties in the past, the persistent offending in the face of orders by the Court suggest strongly to the Tribunal that the Applicant, despite what is said in his favour about remorse and rehabilitation, should the facts, circumstances and stressors combine and the Applicant may commit offences of the domestically violent kind.
42. This is discussed further below.
43. The Tribunal, on this topic, also notes with concern that the Applicant continued to offend even after having attended courses that were meant to assist him in his domestic violent behaviour. Again, the demonstration by his past conduct suggests a real likelihood that he will continue to offend.
44. The Applicant has not been in the community to demonstrate any changed behaviour in a real-life situation. Taking all those facts and circumstances into account, including that the Tribunal accepts the genuineness of the Applicant’s determination not to offend and a genuine desire to rehabilitate, nonetheless, the Tribunal is of the view that there is a real likelihood that the Applicant will continue to offend.
45. The psychologist, Mr Pignataro, provided evidence on the Applicant's behalf. The opinion of the psychologist was supportive of the Applicant’s case and particularly supportive of the low risk of the Applicant re-offending. The report contained the following:
29. Hankun is without a positive attitude towards crime, personality characteristics of manipulating others, impulsivity, detachment from emotions and feelings of inadequacy, alcohol and drug problems, physical aggression towards others and the influence of negative friends. He is insightful of his functioning and demonstrated remorse at interview for what had occurred with his wife.
30. Hankun is without a criminal orientation, psychopathy and a history of aggression to person and property. He has protective factors that include reflective capacity, empathy and family support. In my opinion, the risk of violent recidivism is low. The possibility of violence towards a future partner cannot be solely predicated on the experience of the second marriage alone as his first marriage was without violence. The second marriage was characterised by significant partner alienation and passive aggressivity. He did endure challenging marital conditions with an impaired capacity to cope. The breaches of apprehended violence orders in 2019 and 2020 were reportedly due to a lack of access to his daughters. He has a significant desire to remain connected to his daughters, which was articulated by him throughout this assessment. A lack of contact with his daughters would have a detrimental effect on him as well as his daughters.
46. The Tribunal notes and accepts the various references and testimonials by the Applicant’s friends that he is regarded by them highly and, in effect, someone who is likely to be of much better behaviour in the future.
47. The Tribunal accepts the Applicant has a number of protective factors referred to by the psychologist including his capacity to reflect on his own behaviour, empathy and family support, together with the fact, which the Tribunal accepts, that the Applicant has undertaken a number of courses helpful to his rehabilitation and helpful to his likely ability to avoid further criminal conduct.
48. A positive factor which is in the Applicant’s favour and supports, to some extent, the claim of rehabilitation is that the Applicant behaved well in undoubtedly trying circumstances both in prison and in immigration detention.
49. The Tribunal notes, however, that the psychologist referred to “the second marriage was characterised by significant partner alienation and passive aggressivity. He did endure challenging marital conditions with an impaired capacity to cope”.
50. This passage by the writer of the psychological report seems to allow for some blame on the part of the victim. Whether this is so or not, it does not diminish the frightful violence the Applicant perpetrated on the victim.
51. Furthermore, although the psychologist seems to suggest that as the Tribunal has already referred to the Applicant's violent behaviour was situational in respect of his second wife, nonetheless, the Tribunal is satisfied on all the evidence because of the Applicant’s past behaviour, despite the Applicant's protestations of rehabilitation and a new appreciation of his past conduct and protective factors and family support, that there is, nonetheless, because of that past violent conduct, unimpeded by Court Orders that grew to extreme violence by the last offence, a real likelihood that the Applicant will commit further offences either against the original victim or some other person with whom he forms a relationship.
Summary of risk of future offending
52. There are a variety of competing factors and evidence on this topic. In the Applicant's favour, the following are relevant:
·The protective factors of the Applicant's intellect, empathy and appreciation of the consequences of future offending leading to almost certain deportation, that is the sword of damocles referred to by the Applicant's counsel;
·The prospect of a job which the Tribunal accepts is a genuine offer by his friend Mr Chen;
·The Applicant’s undoubted love and affection for his children and the prospect of losing contact with them should he be deported; and
·The report of the psychologist Pignataro, whose opinion expresses a low risk, at the highest of the Applicant re-offending. In relation to this witness is evidence, however, the Tribunal is of the opinion that the psychologist’s report displayed some partiality to the Applicant, with an underlying view that the former wife and victim was somewhat to blame for the Applicant's conduct and was provocative of it. This diminishes the value of the report, in the Tribunal’s view, and the Tribunal, overall, prefers the report undertaken, although somewhat earlier, approximately 12 months ago, by Corrective Services of NSW. That report considered the Applicant was at a medium risk of re-offending.
53. The Applicant says that he is remorseful, he has rehabilitated and given up alcohol. Having regard to the truthfulness, in the Tribunal's opinion, of evidence given by the Applicant referred to above, the Tribunal places little weight on these assertions by the Applicant.
54. The Tribunal accepts that the Applicant has undertaken educational courses related to his conduct and specifically to alcohol and the deleterious effects of it on his conduct. Although this is a positive factor in considering the question of risk, the Tribunal also notes that the Applicant had undertaken such courses in the past prior to the very serious offences committed in March 2020.
55. Furthermore, although an Apprehended Violence Order was in force, the Applicant breached that order in November 2019 and March 2020. The Tribunal considers the breaches of that order of particular concern and is evidence, in the Tribunal’s view, against the Applicant that this past conduct may well be indicative of future offending.
56. Although the Tribunal accepts that there are a number of factors and submissions made by the Applicant's counsel in favour of regarding the Applicant as a negligible, or at the most a low risk of re-offending, the Tribunal is ultimately of the view that it cannot be satisfied that the Applicant is only a negligible or low risk of re-offending.
57. In summary, in relation to this primary consideration, the Tribunal is not satisfied that the Applicant is a negligible or low risk of re-offending. What weighs extremely heavily in the Tribunal’s view in relation to this consideration is the quality and seriousness of the Applicant’s past offending, including breaches of Apprehended Violence Orders. The last offending in March 2020 was particularly serious, although it involved no weapon. Nonetheless, the seriousness of the entirety of the Applicant’s offending taken cumulatively means that, in the Tribunal's opinion, this consideration weighs extremely heavily against the Applicant.
Primary Consideration 2 – Family violence committed by the non-citizen
58. Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
59. Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
60. Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
61. Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
62. Many of the relevant factors in relation to this consideration have already been discussed above.
63. It is relevant to note, and the Tribunal takes into account, that the level of offending is not the most serious type of offending that is seen and dealt with by the courts. However, the domestic violence in this case, cumulatively, is particularly serious.
64. On the first occasion in April 2019, the Applicant denied throwing a spoon at the victim, his former wife, and having regard to the view expressed above as to the Applicant's credibility, the Tribunal does not accept that this did not occur. However, in the scheme of things, this is a relatively minor factual matter compared to the violence perpetrated by the Applicant in March 2020 which included attempted choking. The Applicant's behaviour was not controlled by court Apprehended Violence Orders. This is of particular concern, in the Tribunal's opinion.
65. The Tribunal does not find, nor is the Tribunal prepared to infer, that the children have been affected by the Applicant’s conduct to his ex-wife.
66. Nonetheless, on all the facts relating to the Applicant's behaviour in this context and in this consideration, the Tribunal regards this consideration as weighing heavily against the Applicant.
Primary Consideration 3 – Best interests of minor children in Australia
67. Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
68. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).
69. Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
70. Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
71. The Applicant has two minor children whose interests are relevant to this consideration: Child OA, born in 2013 and child OB, born in 2016. The Tribunal accepts that in the past, the Applicant has provided for the children and has acted as an appropriate parental carer, providing meals and doing those normal things associated with parental responsibilities, for example, reading to the children before bedtime.
72. Although the Applicant has not seen the children since the commencement of his incarceration, he has had relevantly continuous contact with the children by written and electronic means. On the evidence, he is the only male parental figure in their lives.
73. The Tribunal infers that the children will be deeply and negatively affected should the Applicant be returned to China and likewise, the Applicant will be similarly affected in respect of the children.
74. In the Tribunal’s view, it is absolutely in the interests of those children that the Applicant remains in Australia normally.
75. The Respondent submits that because of the violence committed by the Applicant in the past and evidence that the oldest child experienced indirectly some of the Applicant’s violent behaviour to his wife, that fact should count against the Applicant.
76. The Tribunal rejects that submission as it does the submission by the Respondent that because there are Family Court proceedings on foot, or soon to be on foot, instigated by the Applicant, that there is, because of the past violence, no prospect or little prospect of the Applicant having contact, much less residence of the children. In the Tribunal’s view, it is not at all clear because of the Applicant’s past conduct, which has been shown to be violent, that that would necessarily disqualify the Applicant from having contact at least with the children. The fundamental principle in relation to proceedings of this nature in the Family Court is that the children have a right to know both parents. In the Tribunal’s view, there is still, on the evidence, at the very least, a likelihood that the Applicant will be able to have some contact, in a physical sense, with his children by order of the Family Court.
77. Ultimately, this consideration in relation to the children's best interests weighs heavily in favour of the Applicant.
Primary Consideration 4 – Expectations of the Australian community
78. Paragraph 8.4(1) of Direction No. 90 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
79. Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
80. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
81. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
82. This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
83. It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
84. The Applicant’s counsel accepts that the community expectations will always weigh against the Applicant but submits the extent to which they will do so, will depend on the Tribunal's assessment of the other relevant factors. The Tribunal accepts that this is a proper statement of principle.
85. Taking into account all those factors which may be taken into account in the Applicant’s favour, including the length of time spent in Australia and the presence of minor children, because of the seriousness with which the Tribunal views the Applicant’s past violent conduct and the Tribunal’s view of the possibility of future conduct of the same kind, in the Tribunal's opinion, this consideration weighs heavily against the Applicant.
OTHER CONSIDERATIONS
86. A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations
87. The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
88. There is no evidence to indicate that this consideration is relevant to this review.
Extent of impediments if removed
89. Paragraph 9.2(1) of Direction No. 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen 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.
90. The Applicant came from China in 2005 and has maintained contact with China and his family who reside there. His parents and other family members, including his grandmother, live there. The Applicant clearly speaks Cantonese and would have no language barriers should he be returned to China. The Applicant is apparently healthy and no issues have been raised in this respect. The Applicant has tertiary education and has worked for Chinese businesses in Australia.
91. It may be supposed because of the Applicant’s education and business experience, that he will eventually be able to find work in China although this may not be particularly easy. The Tribunal also accepts that the Applicant, although he may be able to live with his parents initially if returned to China, may have difficulties finding suitable accommodation which of course, would be related to his ability to find work.
92. The mere fact that the Applicant has lived in Australia since 2005 means that there will likely be emotional, psychological and economic difficulties in the Applicant being returned to China.
93. All these factors mentioned above means that there are recognised, by the Tribunal, some impediments to the Applicant’s removal from Australia to China should that occur, and in this way, this consideration weighs in the Applicant's favour.
Impact on victims
94. Paragraph 9.3(1) of Direction No. 90 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…
95. Although a relevant victim in this matter is the Applicant’s former wife, there is no direct or relevant evidence concerning the impact on her of the Applicant’s behaviour. This consideration, therefore, carries no weight in the Tribunal’s consideration.
Links to the Australian community
96. Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
9.4.1. The strength, nature and duration of ties to Australia
1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, 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.
97. The Applicant has resided, apart from a period in China for some 18 months, permanently in Australia since 2005. He completed his tertiary education here and has worked here very successfully in an important financial position for Chinese business interests. He has, therefore, contributed to Australian society and of course, has participated in, the Tribunal infers, the Australian taxation system. The Applicant has made friendships here and most importantly, his children live here, although he has had recent difficulties continuing a relationship with those children because of his ex-wife's attitude to contact with those children. The Applicant has commenced Family Court proceedings.
98. It may be supposed that for all of these reasons, the Applicant has strong ties to Australia and the Tribunal is prepared to accept that. The Applicant has been offered a job in Australia should he be allowed to remain.
99. On all the evidence, therefore, on this topic, this consideration weighs strongly in the Applicant's favour.
9.1.2
Impact on Australian business interests
3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
100. There is no relevant evidence in relation to this aspect of the consideration to this review.
CONCLUSION
101. Although there are a number of factors which weigh in the Applicant’s favour, the Tribunal has concluded that the seriousness of the Applicant’s offending, its cumulative qualities, the increasing seriousness of offending and the failure by the Applicant to have his behaviour curtailed by relevant Apprehended Violence Orders, together with the expectation of the Australian community, which weigh against the Applicant, together outweigh all other considerations in the Applicant’s favour.
102. There is not another reason, in the Tribunal’s opinion, to reverse the original decision.
103. The Tribunal is entirely satisfied, therefore, that the decision not to revoke the mandatory cancellation should be affirmed.
Order
104. The decision under review is affirmed.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
...............................[SGD].................................
Associate
Dated: 7 July 2021
Date(s) of hearing: 28 June 2021 Counsel for the Applicant: Mr Leonard Karp, Chalfont Chambers Solicitor for the Respondent: Mr Jamie Watts, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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