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

Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5363 (23 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/6460
Re:Zheng Yi Zhang
APPLICANT

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

DECISION
Tribunal:Deputy President J W Constance
Date:23 December 2020
Date of written reasons: 12 January 2021
Place:Sydney

The reviewable decision made 8 October 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of Mr Zhang’s Class BB Subclass 155 Five Year Resident visa, is set aside.
In substitution it will be decided that the decision to cancel Mr Zhang’s Class BB Subclass 155 Five Year Resident visa made on 5 April 2019, is revoked.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory cancellation – where offending very serious – supply prohibited drug of not less than a large commercial quantity – protection of the Australian community – where low risk of reoffending – where best interests of minor children in Australia affected by the decision weigh in favour of revocation – expectations of the Australian community – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs and Another [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
12 January 2021
A: INTRODUCTION
A contentious issue
I urge anyone who wishes to comment on the decision in this application to read these reasons for the decision before doing so.
The cancellation of the visa of a person who is a resident of Australia is a contentious issue and one which arouses public interest and invites public comment. The Tribunal’s decisions in this jurisdiction are regularly subjected to public scrutiny. This is how it should be. However, in fairness to the parties in such proceedings, the public comment should be well-informed.
I have no doubt that some in the Australian community will disagree with the decision I have reached, but it is the task of the Tribunal to apply the law and to exercise any discretion given to it in accordance with the law. Contrary to the views often expressed in the media, it is not the law of this country that every visa holder who commits a serious offence should be deported. Had Parliament intended such a result it would have said so.
Findings of fact
Unless stated otherwise, findings of fact in these reasons are based on the evidence of Mr Zhang. I am satisfied of the facts found on the balance of probabilities.
Events leading up to this application
Mr Zhang was born in the Peoples Republic of China in 1994. He is a citizen of that country.
When Mr Zhang was two years old his parents separated and in 1998 his mother migrated to Australia, leaving him in the care of his father and, later, his grandparents. In 2007 Mr Zhang travelled to Australia and lived with his mother and stepfather for three months before returning to China.
In February 2012, at the age of 18, Mr Zhang again entered Australia.[1] He has resided here since that time, initially as the holder of a Five Year Resident Return visa.[2]
[1] Exhibit R1 at 321.
[2] Exhibit R1 at 8.
On 14 May 2015, Mr Zhang was arrested as he was in the act of supplying 1,996.9 grams of methylamphetamine (ice) to another.[3] He has been detained in custody, prison or immigration detention ever since.
[3] Exhibit R1 at 29.
On 18 May 2018 Mr Zhang appeared before the New South Wales District Court and pleaded guilty to the offence of supplying a prohibited drug, not less than a large commercial quantity. He asked the Court to take into account a further charge of knowingly participate in a criminal group and direct activities.[4]
[4] Exhibit R1 at 29.
Mr Zhang was sentenced to a term of imprisonment of seven years and eight months commencing on 14 May 2015. The non-parole period was set at five years and six months.[5]
[5] Exhibit R1 at 40.
By reason of his sentence being for 12 months or more, on 5 April 2019 Mr Zhang’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[6] This decision is referred to in the Act as “the original decision”.
[6] Exhibit R1 at 67.
On 8 October 2020, a delegate of the Minister decided not to revoke the original decision.[7] The decision of 8 October 2020, referred to as the “reviewable decision”, is the subject of this application for review.
[7] Exhibit R1 at 11.
The reviewable decision was made on the basis that the delegate was satisfied that Mr Zhang did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
Mr Zhang was released from prison in November 2020. He was immediately transferred to immigration detention where he was being held at the time of the hearing of this application.
For the reasons which follow, the reviewable decision will be set aside and in substitution it will be decided that the cancellation of Mr Zhang’s visa be revoked.
B: BACKGROUND
Mr Zhang provided three statements, one undated[8] and two dated 28 April 2019[9] and 13 August 2020[10] respectively. He gave evidence at the hearing.
[8] Exhibit R1 at 74.
[9] Exhibit R1 at 59.
[10] Exhibit R1 at 220.
Mr Zhang was about four years old when his mother migrated to Australia, leaving him in the care of his father and his paternal grandparents. His father was an alcoholic and treated Mr Zhang badly when he visited, at times physically beating him.
When Mr Zhang was about eight his father suffered a stroke and was partially paralysed. His father then moved in with Mr Zhang and his grandparents as he was unable to care for himself.
From about the age of eight, Mr Zhang was sent to boarding school, returning to his grandparents’ home for weekends. He says that when he was about 11 he was “kicked out”. He then went to live with his maternal grandparents.
Mr Zhang was subject to corporal punishment at boarding school, he says for misbehaviour and failing to answer questions. When he told his mother that he had suffered an injury to his arm while being disciplined, she travelled to China, took him from school and returned with him to Australia.
Mr Zhang lived with his mother, stepfather and half-brother in Australia from December 2007 until February 2008; he was 13 at the time. Difficulties arose between Mr Zhang and his stepfather and Mr Zhang returned to live with his relatives in China.
On his return Mr Zhang was sent to a boarding school which imposed strict, military style discipline. He finished his schooling at the end of his second year at Junior High School. He then trained and worked as a hairdresser.
When Mr Zhang returned to Australia in 2012 he had just turned 18. He lived with his mother and brother. His stepfather had passed away prior to his return. He commenced working as a hairdresser in Sydney and made friends through his work contacts.
In 2013, when Mr Zhang turned 19, he left his mother’s home and lived with friends in various locations in suburban Sydney. He describes this as “an immature fit of rebellion”.[11] He commenced using ice with his friends at parties. He became an addict. Smoking ice became the solution to all his problems “as long as someone else was paying for it”.[12]
[11] Exhibit R1 at 220.
[12] Exhibit R1 at 221.
Shortly after he left home he formed a relationship with a young woman. He describes that relationship in his statement made 13 August 2020:[13]
…….. I thought I had finally found love – someone I loved and more importantly someone that loved me back. Everything was going great but after a while noticed her lavish, luxurious lifestyle, I just could not afford with my limited income, however I felt like I needed to buy these things, I wanted to maintain my relationship which I had become so reliant upon. In Chinese culture, there are enormous pressures in a relationship for a man to be able to provide or he is considered worthless and [she] made sure I knew it every chance she got. By the time I was 21, I was really struggling, my relationship was a mess, I stopped contact with my family and I could not afford rent or pay the bills causing me to fall further into addiction. I felt depressed and completely overwhelmed with the pressures in my life and felt that ice was the only answer.
Mr Zhang’s financial situation worsened, along with his addiction.
[13] Exhibit R1 at 221.
Mr Zhang describes himself as the “middleman” in the drug transaction. When he gave evidence he said that his level of participation was “quite high” and that without him the transaction could not have happened. He agreed that the prospect of financial gain was a “pretty big” influence on his decision to become involved. He said he needed money for rent, to meet the expectations of his partner and to fund his partying.
Mr Zhang’s criminal record
Mr Zhang’s only conviction is for the offence of supplying a prohibited drug of not less than a large commercial quantity. The second charge against him was taken into account on sentencing for the first.[14]
[14] Exhibit R1 at 27.
Failure to pass the character test
It is not in dispute that, by reason of his criminal record, Mr Zhang does not pass the character test set out in the Act.
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(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.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of Mr Zhang’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 79
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance, subparagraph (1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of Mr Zhang’s visa should be revoked. A copy of Part C is “Annexure A” to these reasons.
In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[15] Primary considerations should generally be given greater weight than the other considerations.[16]
[15] Direction at [6.2(3)] and [8(1)].
[16] Direction at [8(4)].
Paragraph 13(2) provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 32). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.
It is not in dispute that Mr Zhang has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than Mr Zhang’s passing the character test] why the original decision should be revoked”.[17]
[17] Subparagraph 501CA(4)(b)(ii) of the Act.
If I am satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[18]
[18] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1, which include:
·… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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 …;
·[t]he nature and seriousness of the non-citizen’s conduct to date;
·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[19]
F1.1: The nature and seriousness of Mr Zhang’s conduct to date
[19] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
Criminal history
Mr Zhang has no convictions other than that to which I have referred.
Providing false information to the Department of Immigration and Citizenship
It was argued on behalf of the Minister that, in his written statements and in providing a history to Mr Borenstein, Mr Zhang provided false information knowing that it would be submitted to the Department in respect of his application. This included information as to the circumstances of his injuring his arm whilst at school in China and his employment in Australia.
Having considered Mr Zhang’s evidence I am not satisfied that he deliberately provided false information as was suggested. Inconsistencies in his evidence may have resulted from the passage of time and/or language difficulties.
Paragraph 13.1.1 of Direction No.79

Paragraph 13.1.1 provides:
1In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Discussion
Mr Zhang’s conduct must be regarded as very serious. On his own admission, he arranged a drug deal which, but for the vigilance of our Police Forces, could have adversely affected thousands of lives and potentially caused the death of some.
F1.2: The risk to the Australian community should Mr Zhang commit further offences or engage in other serious conduct
The Direction states that I must have regard to the following considerations cumulatively:
(a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[20]
[20] Direction at [13.1.2(1)].
F1.2.1: The nature of future harm
Should Mr Zhang further engage in conduct similar to that in which he has engaged in the past, there would be a significant risk of death or serious physical and/or psychological harm to members of the community and the risk of financial loss. In addition, significant public resources would be expended in dealing with any criminal conduct.
F1.2.2: The likelihood of Mr Zhang engaging in further criminal or other serious conduct
Evidence of Mr Zhang
On many occasions Mr Zhang has expressed his remorse for his offending and has stated that he will not again become involved in criminal activity. When asked by his Counsel why he was sure that he would not re-offend, Mr Zhang said that:
·he has matured since he committed the offences;
·he observed the actions of criminals while he was imprisoned;
·his more than five years in gaol was “torture” for him;
·while in gaol he was employed and took part in courses which have assisted his rehabilitation;
·he has improved his ability to speak English;
·he has been able to see the effects of drug use on others;
·he has not used illegal drugs during the past almost six years;
·he saw the effect his conduct has had on his mother and now realizes how unfair he was in inflicting this on her;
·he wishes to be able to spend time with his mother, brother and other family members in Australia;
·having experienced life as a drug addict he does not want to experience it again.
Mr Zhang’s mental health
When he was assessed by Mr Borenstein in September 2017, Mr Zhang was only two and a half years into his five and a half years non-parole sentence.
Mr Borenstein reported, in part:
Mr Zhang’s childhood and adolescent development is defined by emotional deprivation and physical violence, and has left him with significant emotional scars and an Attachment Disorder. In turn, Mr Zhang feared the loss of a significant attachment.
In my opinion Mr Zhang’s decision to act as the middleman in supplying drugs was made from the position of acute emotional vulnerability fearing the loss of his only significant attachment, namely his girlfriend… Mr Zhang was functioning from a regressed emotional and psychological state which interfered with his decision making and judgement and led him to accept the request and act as middleman in the supply of drugs.
Mr Zhang should undertake intensive psychological therapy, and process his dysfunctional childhood/adolescence, and learn strategies in assisting Mr Zhang become more aware of the nature of his psychological and emotional vulnerabilities and making healthier life choices.
Mr Zhang requires an older male therapist to act as mentor and guide, and assist Mr Zhang develop essential life skills to ensure he does not return to substance use as a form of self medication.
Mr Zhang also needs to develop greater confidence with regards to relationship formation, a necessary focus point of psychological intervention.
The road ahead for Mr Zhang will not be easy. Mr Zhang is thankful his mother remains supportive. His early childhood and adolescent history indicates he has adopted a “no trust” position to life. Mr Zhang will need to develop a trust and experience safety in order to move forward psychologically, to be achieve in long term psychological therapy.
Psychological therapy will involve psychoeducation, emotional support, and implementation of evidence based cognitive behaviour therapy techniques in addition to mood and affect regulation strategies, viz. mindfulness. Mr Zhang will be encouraged to develop healthier habits, structures and routines in his life on the basis of having an improved sense of self and allow him to grow and mature in marked contrast to his life prior to imprisonment. [21]
[21] Exhibit R1 at 86.
Evidence of Ms Y, Mr Zhang’s mother
Ms Y provide a statement dated 19 June 2020[22] and gave evidence. I am satisfied that she was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
[22] Exhibit R1 at 106.
Ms Y expressed sorrow and some responsibility for her son’s situation. She continued to provide financial support for him after she migrated to Australia and he was living in China. She left Mr Zhang in China because his father would not allow him to accompany her to Australia.
Since Mr Zhang has been in prison she has visited him regularly, at times accompanied her younger son, referred to later in these reasons as Mr C. Mr C is Mr Zhang’s half-brother.
She will provide a home for Mr Zhang should he return to live in the Australian community and will assist him in his further rehabilitation. She will arrange for him to be able to consult a psychologist for continuing treatment.
Recently Ms Y has added a coffee shop to her existing business interests. She proposes that Mr Zhang and his younger brother help manage this shop. She has discussed this with Mr Zhang and he is happy with this proposal.
Ms Y says that Mr Zhang has matured since he has been imprisoned and is much more caring towards her and his brother. She has provided for Mr Zhang in her will and has appointed him guardian of his younger brother in the event of her death before he turns 18.
Having heard and observed Ms Y I accept her evidence. I am satisfied that she will assist and support Mr Zhang to reintegrate into the Australian community should he be free to do so.
Pre-sentence report 25 January 2018
It was reported that according to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, Mr Zhang was assessed as a medium risk of re-offending.[23]
[23] Exhibit R2 at 69.
This assessment was repeated in the Pre-release report dated 24 August 2020.[24]
[24] Exhibit R2 at 79.
Sentencing remarks of His Honour Judge King SC on 18 May 2018
Judge King found that Mr Zhang was genuinely remorseful and contrite for his participation in the offence. Although His Honour accepted the pre-sentence report that there was a medium risk that Mr Zhang would re-offend, he ultimately found that he had “a reasonable prospect of rehabilitation and a low prospect of re-offending”.[25] [Emphasis added].
[25] Exhibit R1 at 39.
I note that these remarks were made two and a half years ago and that since that time Mr Zhang has matured and has experienced two and a half additional years in prison and detention.
Pre-release report dated 24 August 2020[26]
[26] Exhibit R2 at 75.
Under the heading Attitudes it was reported:
When discussing his participation in the criminal enterprise, Mr Zhang reported a sense of shame and embarrassment, particularly in relation to the impact it has had on his family. He expressed remorse for his actions and reported that his time in custody has allowed him to develop significant insight into the damage wrought by drugs addiction.[27]
[27] Exhibit R2 at 76.
As to Mr Zhang’s willingness to undertake intervention it was reported that he “has expressed, and demonstrated, his preparedness to participate in relevant interventions. …… Mr Zhang has completed a number of relevant, offence-related, programs in custody with his participation generally described in positive terms.”[28]
[28] Exhibit R2 at 77.
Mr Zhang maintained steady employment in custody when not engaged in programs.
A Pre Release Risk Management Plan has been developed by Community Corrections and the proposed accommodation with his mother has been assessed as suitable.
The overall assessment in the report is that “Mr Zhang has made positive use of his time in custody and has participated in relevant programs to a satisfactory standard.”[29]
[29] Exhibit R2 at 81.
F1.3. Discussion
In considering the evidence I have referred to in the preceding paragraphs, I have had regard to “the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” [30] As I have found, Mr Zhang’s past conduct is very serious.
[30] Direction at [13.1(1)].
Given the potential harm to the community should Mr Zhang again conduct himself in the way he has done in the past, the Australian community’s tolerance for the risk of any such harm normally would be towards the lower end of the scale.
I now turn to the question of the likelihood of Mr Zhang engaging in further criminal or other serious conduct.
Mr Zhang has repeatedly expressed remorse for his past conduct and has assured the Tribunal that he will not re-offend.
Several factors support a finding that Mr Zhang is unlikely to re-offend should he return to live in the Australian community:
(i)his desire to re-establish a close relationship with his family, particularly his mother and only sibling;
(ii)the experience of more than five years in prison;
(iii)the support which will be available to him from his family, including housing and employment;
(iv)the support of a psychologist and a counsellor as recommended by Mr Borenstein and which Ms Y has undertaken to arrange;
(v)his abstinence from illegal drugs over a period of almost six years;
(vi)his continuing parole until November 2022;
(vii)his increased age and maturity;
(viii)his realisation that should he re-offend or engage in other serious misconduct it is likely that his visa will again be revoked.
Despite some inconsistencies in his evidence and that Mr Zhang has been guilty of serious conduct, I accept his evidence to which I have referred. I do not consider that the inconsistencies were significant, particularly in view of the time which has elapsed since some of the events occurred.
I am satisfied that Mr Zhang has a mental disorder which has affected his conduct to some extent. However, this is not to say that it caused him to offend in the way he did. At all times he has been responsible for his actions. It does highlight the importance of his seeking professional help.
Based on the evidence to which I have referred, I am satisfied that it is unlikely that Mr Zhang will engage in further criminal or other serious conduct and that he does not represent an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision
Evidence of Mr C, Mr Zhang’s half-brother
Mr C is 14 years old. He provided a statutory declaration made 19 June 2020[31] and gave evidence. He is a school student.
[31] Exhibit R1 at 103.
Mr C’s father died when Mr C was three years old. Since then he has lived with his mother, and for a short time, with Mr Zhang. He has no other older male figure in his life.
Mr C regularly visited Mr Zhang when he was in prison and in detention. They also spoke by telephone. He is aware of the reason for his brother’s imprisonment.
In his declaration Mr C said, in part:
I would wish please to give him a chance to re-start his life because I really miss and love him and would want to take back all the time that me and him have missed out in the past 5 and a half years, especially we have both lost our fathers and me and him only have our 1 parent, our mother.
I also know that mum always worries if something does happen to her, that my brother and I have to look after each other. Apart from our mum, my brother is the only family I have in the world. I don’t want to apart (sic) with him and I firmly believe he has changed during the past few years’ time. I can’t imagine that one day if our mother left us and my only brother had to stay in another country, I would be left alone by myself in the world. My only family then cannot even stay with me and look after me. It’s so horrible for me to think about that and I don’t dare to picture what my life would be like by then.
Therefore, I sincerely hope the officer can show some mercy on my family and give my brother another chance. I trust him and I’m sure he will become a much better person after he serves his sentences, as he has already realised how stupid he was and he has definitely changed. I really love my brother and need my brother to be in my life and stay with me.[32]
[32] Exhibit R1 at 104.
Evidence of Mr B, Mr Zhang’s cousin
Mr B is 17 years old and is a student. He provided a statutory declaration made 22 June 2020[33] and gave evidence.
[33] Exhibit R1 at 119.
Mr B lives with his mother (Mr Zhang’s aunt) and step-father nearby to where Mr Zhang’s mother lives. He has maintained regular contact with Mr Zhang since he (Mr B) migrated from China four years ago.
Discussion
I accept the evidence of both Mr C and Mr B.
Based on the evidence of Mr C, I am satisfied that it is in his best interests that Mr Zhang be able to return to live in the community with him and their mother. Mr C has strong feelings for his brother, his only sibling, and would benefit from his company.
Although Mr Zhang has committed a serious offence, I am satisfied that he is genuinely remorseful and will be a positive influence on his younger brother who is 13 years his junior.
Although Mr B expressed the wish that Mr Zhang be able to return to live with his family, I am not satisfied on the evidence available that Mr B would be significantly affected if Mr Zhang was required to return to China.
F3: Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
In YNQY v Minister for Immigration and Border Protection,[34] Mortimer J said:
76. In substance this consideration is adverse to any Mr Zhang. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any Mr Zhang who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[34] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[35] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an Mr Zhang …
31. As the Applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[35] [2019] FCA 495.

After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[36] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[36] (2016) 248 FCR 296.
The Full Court gave further consideration to this question in FYBR v Minister for Home Affairs and Another.[37] In that matter the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.
[37] [2019] FCAFC 185.
In his reasons for dismissing the appeal, Charlesworth J said, in part:
[61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.
…
[67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
…
[75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
[Emphasis added]
In agreeing that the appeal should be dismissed, Steward J said, in part:
[90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…
[91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
[92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against [Mr Zhang]. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa Mr Zhang, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[Emphasis added.]
In light of the above, I have come to the conclusion that the expectations of the Australian community should not be given significant weight in view of the interests of Mr Zhang’s brother and taking into account that it is unlikely that Mr Zhang will re-offend or engage in other serious conduct. In reaching this conclusion I have considered the view of the Australian Government that, in circumstances where a visa holder has breached the trust of the community and has disobeyed the laws of Australia by committing a serious crime (as Mr Zhang has), he or she would normally expect that the visa would be cancelled.
F4: Other considerations set out in the Direction
At paragraph 42 of these reasons I have set out paragraph 14 of the Direction, which mandates that I take into account such further considerations as are relevant.
F4.1 Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
By far the most significant factor in determining Mr Zhang’s ties to Australia is his relationship with his mother and brother who are Australian citizens. The Minister concedes that Mr Zhang has ties to Australia.
The weight to be given to the consideration of Mr Zhang’s ties is lessened by the relatively short time between his arrival in Australia and his offence and the fact that he has made minimal contribution to the Australian community.
F4.3 Impact on Australian business interests
Although Mr Zhang has worked in Australia there is insufficient evidence for me to be satisfied that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.
F4.4 Impact on victims of a decision not to revoke the cancellation
Thanks to the vigilance of our Police Officers, the supply of ice arranged by Mr Zhang did not reach its potential victims. The only victims are the Australian taxpayers who have been required to meet the very substantial costs associated with Mr Zhang’s arrest, sentencing, imprisonment, detention and parole.
F4.5 Extent of impediments Mr Zhang may face if he is removed from Australia
I have little evidence of the impediments, if any, which Mr Zhang may face if he is removed from Australia.
On the basis of the evidence of Ms Y I am satisfied that the relatives of Mr Zhang living in China, and who are known to him, may not support him should he be required to return to that country. It is unlikely he would receive the financial support which Ms Y is able to provide to him in Australia, particularly by way of housing and employment. It is uncertain also that he would obtain the professional assistance which Ms Y is prepared to arrange for him.
On the other hand, I take into consideration that Mr Zhang lived in China until he was 18 years old and speaks the language of his home country. He has experience working as a hairdresser and previously worked as such before leaving China.
PART G: THE BALANCING EXERCISE
The Minister contends that “the primary considerations of the ‘protection of the Australian community from criminal or other serious conduct’ and the ‘expectations of the Australian community’ strongly favour the non-revocation of the mandatory cancellation of the Applicant’s visa, and outweigh all other considerations”.[38]
[38] Respondent’s Statement of Facts, Issues and Contentions at [46].
I do not accept the Minister’s contention.
In balancing the various considerations, I accept that the need to protect, and the expectations of, the Australian community weigh in favour of refusing to revoke the mandatory cancellation of Mr Zhang’s visa. The offence of which he has been convicted, involving as it does, his dealing with a large quantity of “ice”, supports this view. However, the weight to be given to these considerations is significantly reduced by the risk of his re-offending being low by reason of his gaining maturity and the support which his mother is prepared to provide for him. Taking those factors into account I conclude that the risk to the Australian community is an acceptable one.
Having weighed up all the relevant considerations, I have decided that the interests of Mr Zhang’s younger brother and the effect his deportation would have on his mother, outweigh the considerations in favour of not revoking the cancellation of his visa and justify not giving significant weight to the expectations of the Australian community. In reaching this conclusion I have considered that Mr Zhang is not in a parental role to either Mr C or Mr B and that Mr B will soon cease to be a minor.
I have taken into consideration also that Mr Zhang’s ties to Australia favour revocation of the cancellation of his visa. The Minister concedes this. Mr Zhang’s immediate family members reside here and are likely to continue to do so. I do not give significant weight to the extent of the impediments he may suffer if he is removed from Australia. I do not have sufficient evidence to support a finding that any such impediments would be significant.
Although I have found that the risk to the Australian community is acceptable, the risk remains. Mr Zhang must realise that if he is able to enjoy the privilege of continuing to reside in Australia, it is the expectation of the Australian community that he will abide by the laws of this country at all times.
PART H: CONCLUSION
The reviewable decision made 8 October 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of Mr Zhang’s Class BB Subclass 155 Five Year Resident visa, will be set aside.
In substitution it will be decided that the decision to cancel Mr Zhang’s Class BB Subclass 155 Five Year Resident visa made on 5 April 2019, be revoked.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..............................[SGD]..........................................
Associate
Dated: 12 January 2021

Date(s) of hearing: 17, 18 and 23 December 2020

Solicitors for the Applicant: T Smith, Australian Capital Migration

Solicitors for the Respondent: M Gao, Australian Government Solicitor
ANNEXURE A
PART C
13. Primary considerations - revocation requests
(1)Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.

13.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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. Mandatory cancellation without notice of ce1iain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) 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.

13.1.1 The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) 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.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. 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);
(b)The extent to which the non-citizen 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;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or
(e)non-citizen's ability to maintain contact in other ways;
(f)Whether there are other persons who already fulfil a parental role in relation to the child;
(g)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(h)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(i)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

13.2 Expectations of the Australian community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.

14.1 International non-refoulement obligations
(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 non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also 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 - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14.3 Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.

[2020] AATA 5363

23 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Appeal

Date(s) of hearing:	17, 18 and 23 December 2020
Solicitors for the Applicant:	T Smith, Australian Capital Migration
Solicitors for the Respondent:	M Gao, Australian Government Solicitor