Zhao and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 635
•28 May 2025
Zhao and Minister for Immigration and Citizenship (Migration) [2025] ARTA 635 (28 May 2025)
Applicant/s: Runbang Zhao
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/7256
Tribunal:General Member J. Cipolla
Place:Sydney
Date:28 May 2025
Decision:The Tribunal affirms the Reviewable Decision not to revoke the cancellation of the Applicant’s Subclass 155 Resident Return visa.
Statement made on 28 May 2025 at 2:23pm
Catchwords
MIGRATION – cancellation of Applicant’s Class BB Subclass 2155 Five Year resident Return visa – substantial criminal record – Child Abuse – decision affirmed
Legislation
Migration Act 1958 (Cth) s 501CA(4)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
Mr Runbang Zhao (the Applicant) was born in the People’s Republic of China in 1994 and is 30 years old.
The Applicant relocated to Australia with his mother in 2010. The Applicant’s father remained in China and relocated to Australia in 2022 to support the Applicant after his offending, and subsequently, his incarceration.
The Applicant completed his secondary school studies in Sydney and undertook post graduate studies in property law and commercial cookery.
Prior to his incarceration the Applicant was working as a personal assistant for a mortgage broker.
The Applicant engaged in a de-facto relationship with the mother of his son and co-offender. The Applicant’s son K was born in June 2021. As the Applicant’s son was the victim of the Applicant’s offending, K has been removed from the care of his parents and K is currently in the care of the Department of Communities and Justice in NSW.
OFFENDING HISTORY
The Tribunal has a copy of the Applicant’s offending history in Australia (see page G6 of the G documents). The history indicates that the Applicant had an appearance in the Downing Centre Local Court for common assault (DV) on 16 March 2021. No conviction was recorded, and the Applicant was placed on a Conditional Release Order (CRO) for two years commencing on 16 March 2021 and concluding on 15 March 2023.
The offending history indicates that on 10 November 2021 the Applicant was dealt with by the Sutherland Local Court for contravening prohibition/restriction in AVO (Domestic) for which no conviction was recorded and the Applicant was subject to a CRO for 12 months commencing on 10 November 2021 and concluding on 9 November 2022.
On 3 April 2023 the Applicant was convicted in the Downing Centre District Court with possess child abuse material-T1 and use child under 14 years to make child abuse material-S1. The Applicant was convicted to a term of imprisonment of two years commencing on 3 March 2023 and concluding on 2 March 2025 with a non-parole period of one year and three months commencing on 3 March 2023 and concluding on 2 June 2024.
SENTENCING ASSESSMENT REPORT 29 MARCH 2023
The Tribunal has had regard to a sentencing report contained in the summonsed material, which was completed by Amanda Lawson, a Community Corrections Officer with the Sutherland Community Corrections Office dated 29 March 2023.
The report notes with respect to the Applicant’s sex offending that the “pre-sentence consultation case note authored by CSNSW Psychologist indicate Mr Zhao’s potential dynamic risk factors may include hostility to women, impaired problem solving and sexual deviance”.
The report notes that the Applicant had seen a psychologist on seven occasions since 7 June 2022 in an attempt to address his offending behaviour and that the psychologist had advised Community Corrections that the Applicant “minimised his offending and lacked insight into the impact of his offending on the victim”.
In terms of an assessment and recommendation the report notes that Mr Zhao had been assessed at Low/Medium risk of reoffending according to Level of Service Inventory-Revised (LSI-R). Mr Zhao has been assessed as above average risk of sexual reoffending according to Static 99, administered by the CSNSW Psychologist. Community Corrections has overridden Mr Zhao’s overall risk of re-offending to “T3/high pending the result of the Sex Offender Supervision Assessment”.
The report noted that as a consequence of the Applicant being assessed at the T3/High risk of reoffending, he would be subject to community supervision that would require the Applicant reporting to the Sutherland Community Corrections Office every week.
The Tribunal notes that the summonsed material indicates that prior to the Community Corrections Report that the Applicant was assessed by Jennifer Barton, a psychologist on 15 March 2023. Ms Barton, in testing the Applicant, applied a number of risk assessment tools which included the Static 99R test which was a multi-faceted risk assessment that assists in identifying the Applicant’s dynamic risk factors. Ms Barton’s report notes that hostility to women was one identified risk factor due to the domestic violence offending in 2020 and 2021. Impaired problem-solving skills was identified as another risk factor. An example of this was the Applicant’s compliance with his ex-partner in taking the 4 photographs of their child that led to the child abuse material charges. The report notes in this respect that “he said his partner had a temper and when she wanted to take the pictures he was ‘obedient’ for harmony”. Ms Barton noted that sexual regulation factors and sexual deviance may be a risk factor, and this finding was made based on the Applicant’s description of the offending behaviour being engaged in for fun “which may be a cognitive distortion related to deviance”.
In her summary and recommendations Ms Barton concluded that “Mr Zhao has been assessed as being ABOVE AVEREAGE risk of sexual re-offending based on actuarial assessment. Potential dynamic risk factors have been identified as hostility to women, impaired problem solving and sexual deviance”.
SENTENCING COMMENTS DISTRICT COURT OF NEW SOUTH WALES
The Tribunal has had regard to the sentencing comments of Judge Smith in the District Court of New South Wales dated 3 April 2023, that can be located at G7 of the G documents.
Judge Smith notes that the Applicant was before the court having pleaded guilty to the offence of using a child under 14 years of age for the production of child abuse material, and for the offence of possession of child abuse material.
Judge Smith notes that at the time of the offending the Applicant and his former partner (the co-offender) were in a de facto relationship and that the victim of the offending was their biological son. Judge Smith notes that at the time of the offending the victim was just short of being one month old. Judge Smith notes that since the offending the victim K had been removed from the Applicant and his former de facto partner’s care.
The sentencing comments note that on 9 April 2022, the Applicant and the co-offender had an argument, and the police were called. The Applicant’s de facto partner was arrested, and she was taken to a police station where she supplied images to the police that were contained on her mobile phone and participated in an interview. The images contained on the co-offender’s phone were 4 photographs of the Applicant and the victim with his infant son K taken in 2021 and which she had retained on her mobile phone and shared with the Applicant. Judge Smith noted that the images were considered to be images which are illegal within the State of New South Wales and noted that they did not fit within ‘category 1’ of offending which “includes images of a real, prepubescent child and the child is involved in a sex act, witnesses a sex act, or the material is focused on the anal or genital region of the child”.
Judge Smith goes on to describe the four images. Image 1 is a picture of the Applicant wearing a top and loose pants lying in a bed with his legs spread like “frog’s legs”. The Applicant’s exposed and erect penis was appearing from the zipper or button area of his pyjama pants and the infant victim was lying on his stomach and the victim’s hand was placed/positioned on the tip of the erect penis of the offender. The victim’s face was very close to the offender’s penis. The victim’s other hand was on the offender’s groin.
The second image is the Applicant sitting in an upright position with the victim’s face facing the Applicant’s penis with the victims back of head to the camera. Neither the victim’s face nor the Applicant’s penis is visible in this image. The offender was holding the back of the victim’s head, and the offender looked to be laughing in the image or to be in pain.
In image 3 the Applicant is in an upright position on the bed looking at the camera with his erect penis being exposed from the zipper/button area of his pants. Once again, his legs are bent like “frog’s legs” and his hands are behind the victim’s head. Once again, the offender is described to be either laughing or to be in pain. The third image is described as similar to the second image where the victims face is close to the Applicant’s penis and the penis is visible.
In image 4 the Applicant is cradling the back of the head of the victim and the victims head is close to the offender’s groin and seems to have been raised or held closer to the offender. The Applicant is looking down at the victim, the Applicant’s penis is not visible as it is blocked by the victim’s head.
Judge Smith notes that with respect to images 2, 3 and 4 that the Crown could not prove beyond a reasonable doubt that the offender’s penis, made contact with the victim’s face or cheek.
The evidence indicates that in late March and early April 2022, the co-offender, the Applicant’s former de facto partner sent the Applicant the images with messages and exchanges in Mandarin. The evidence indicates that the exchanges related to the images taken on 8 July 2021 with characters in Mandarin saying, “play with big dick”, “want to play with Dad”, and “Dad will be there shortly.” Various emoji’s were ascribed to the images.
Judge Smith refers to the Applicant’s interview with the police which notes that the Applicants de facto partner pushed the infant towards the Applicant and that he was trying to stop her and that the baby grabbed his penis and was there for two seconds before he lifted the baby off and up. The Applicant stated that with respect to image 1 that his ex-de facto was taking the photograph and that the infant grabbed his penis when she was taking the photo and the Applicant is recorded as saying “so, he just grab it and try to eat it and on stop, stop, he K,K,K,K, keep his mouth away and I try to my best because otherwise, you know, he gonna bite it or S,S,suck it, it’s very hurt”, and “Yeah, because you know, so, so I just try to stop it and, and say if you wants to do that, just, just take a picture and hurry and I’ll take the, the B,B, baby away”.
Judge Smith notes that the relationship between the Applicant and his former de-facto partner was “at least tumultuous”. Judge Smith found that there was no evidence of planning in relation to the offence. Judge Smith notes that the child used in the creation of the material was the Applicant’s biological child and that the offending itself occurred over a short period of time, the child was fully clothed, and the images contained on the co-offender’s phone were limited in number. Judge Smith stated that based on the evidence that it could only be established that the victim made contact with the Applicant’s penis in one of the four images. Judge Smith found that there was a limited risk of other people seeing the material. Judge Smith accepted that there was no physical harm to the victim.
Judge Smith noted that “to the extent that the offender said or submitted that there was no sexual component or similar to the offence, I reject it. I am satisfied beyond reasonable doubt based on the facts, including the photographs and, in particular, the location and placement of the child in them, that his penis was erect and exposed to the point that there was a sexual element to that which occurred. In context, the objective seriousness of the offence is below the mid-range but not at the bottom of the range.”
Judge Smith noted that the Applicant had two non-conviction CRO’s on his record both of which were breached as a result of the offending before him.
Judge Smith noted that the Applicant had engaged with both a psychologist and psychiatrist. Judge Smith noted that the Applicant derived support from his parents which Judge Smith described were “an important factor, in my view, in terms of his likelihood of re-offending and his prospects of rehabilitation.”
Judge Smith accepted that the Applicant was remorseful with respect to his offending behaviour and accepted that the Applicant “has reasonable prospects of rehabilitation and is unlikely to reoffend”. Judge Smith stated that he was able to make this finding on the basis of the opinion of the Consultant Psychiatrist Dr Olaf Nielssen, the Applicant’s age, the Applicant’s plea of guilty, the Applicant’s work history, strong family support provided to the Applicant by his parents, with Judge Smith concluding that “there is everything to indicate, in my view, that he is unlikely to commit further offences, but particularly offences of the kind here”.
CANCELLATION UNDER SECTION 501(3A)
The Department proceeded to cancel the Applicant’s visa under s.501(3A) of the Migration Act 1958 (Cth) (the Act) on 2 June 2023. At the time of the cancellation of the visa the Applicant was represented by JB Solicitors who made a submission to the Department on 30 June 2023 with respect to revocation of the mandatory cancellation of the visa having regard to Direction 99 which was in force at the time.
SUBMISSIONS TO DEPARTMENT OF HOME AFFAIRS SEEKING REVOCATION OF CANCELLATION
The Applicant sought revocation of the decision of the Department of Home Affairs to cancel his visa through submissions to the Department by his then lawyer from JB Solicitors dated 30 June 2023 and 17 October 2023.
The submission notes that the Applicant lodged a severity appeal with the New South Wales Supreme Court, Court of Criminal Appeal on 5 April 2023 with respect to his sentencing in the District Court.
The submission notes that the Applicant conceded that he failed the character test by virtue of s.501(3A)(a)(ii) of the Act.
The submission refers at G11 of the G-Documents to the subjective circumstances of the Applicant. The submission notes that the Applicant’s parents provided affidavits to the District Court with respect to the Applicant and his offending. Evidence was provided by the Applicant’s mother with respect to what was described as the dysfunctional nature of the relationship between the Applicant and his ex-de facto, the co-offender. The submission notes that the Applicant’s father relocated to Sydney in 2022 to provide support to the Applicant. The submission notes that prior to being taken into custody the Applicant had obtained qualifications in conveyancing, had a solid work history, and had recently been employed as a personal assistant to a director of a large mortgage provider.
The submission notes that the Applicant was assessed by a Consultant Psychiatrist, Dr Olav Nielssen on 13 February 2023 and a report was provided on 25 February 2023 and tendered to the District Court. The report notes that the Applicant did not have any sexual deviance in relation to children and was only interested in pornography depicting “adult women of Asian heritage”.
The Applicant reported to the psychiatrist during his assessment that it “is absolutely impossible that I would have sexual desire for my own biological child” whilst accepting that he “failed to live up to my responsibility as a father” on the day of the incident.
The submission notes that Dr Nielssen opined that there was no evidence that the Applicant had a disorder of abnormal sexual interest such as paedophilia.
The submission noted the Applicant had no record of prior convictions, that he had good prospects of rehabilitation with respect to his age, his plea of guilty and acceptance of responsibility, his education work history and strong familial support. The submission notes that the Applicant was unlikely to reoffend particularly having regard to the powerful deterrent effect of the loss of contact with his son because of his son’s removal by the State.
Reference was made to the sentencing remarks of Judge Smith.
Reference was made to the relevant considerations under Direction 99 applicable at the time of the submission. With respect to protection of the Australian community the submission makes reference to the seriousness of the Applicant’s offending but states that there is evidence that indicates that it would be unlikely for the Applicant to engage in further criminal or other serious conduct in the future.
With respect to family violence the submission notes that the only offence of the Applicant relating to family violence was an offence of common assault, committed on 20 November 2020. The submission notes that the Applicant contravened an AVO and described the breach as an ‘isolated incident’ and that there were good rehabilitation prospects for the Applicant and there had been no repeated acts of family violence since the AVO and the breach.
With respect to the Applicant’s ties to Australia the submission notes that the Applicant’s son is an Australian citizen by birth and that the Applicant’s parents are both Australian permanent residents. The submission notes that the Applicant has been ordinarily resident in Australia from the age of 15 and that his first offending occurred on 20 November 2020 some 11 years after his arrival in Australia.
With respect to the best interests of minor children the submission notes that the Applicant’s son was removed from the Applicant and his former de facto partner’s care and placed into the responsibility of the Secretary of the Department of Community and Justice in New South Wales. The Applicant’s parents have been given approved visits to the child on a weekly basis. The submission notes that the Applicant and his ex-de-facto were presently incarcerated and neither of them have been given access to their child since their incarceration. The submission notes that the Applicant is the subject of an AVO with respect to his son as a result of his offending behaviour for a period of 2 years expiring on 25 January 2025.
The submission notes that the Applicant is the biological father to his son from the time of his birth on 11 June 2021 until the child’s removal on 11 April 2022. The submission notes that the ongoing separation of the Applicant from his son would be difficult.
With respect to expectations of the Australian community the submission notes that the Applicant’s offending would be viewed very seriously by both the Australian government and the Australian community but posits that the Australian community would still expect the Applicant to be accorded the privilege of holding permanent residence due to the insight that he has demonstrated with respect to his offending conduct, his contrition, and the evidence with respect to the likelihood of re-offending.
With respect to other considerations the submission noted that the Applicant’s de-facto was a co-offender with respect to the child abuse offending and that if the Applicant’s visa was cancelled and he was removed from Australia it would “create difficulties for the Crown to secure and preserve the probative value of any evidence given by him in Ms A’s matter”.
The Tribunal notes that additional submission was made on behalf of the Applicant dated 26 January 2024 to the Department with respect to revocation of the Applicant’s visa having regard to Ministerial Direction 99. The submission was provided and was to be read in conjunction with and supplementary to the submission made to the Department dated 30 June 2023 and 17 October 2023.
The submission notes that “for the Minister not to revoke his decision to cancel my client’s visa, the Minister must have a probative basis to make the assertion that there is in existence of the risk of Mr Z reoffending. The Minister must make enquiries or produce evidence which shows the likelihood of Mr Z re-offending and of a resultant risk to the community. In Mr Z’s favour, the sentencing judge stated that Mr Z is unlikely to reoffend”.
The submission notes that with respect to protection of the Australian community that the Applicant’s offending was very serious, however, consideration should be given to the sentencing remarks of Judge Smith in the District Court that the Applicant had reasonable prospects of rehabilitation and was unlikely to offend. Further to this that the decision-maker needed to have regard to the report of the consultant psychiatrist Dr Olav Nielssen who in his assessment stated that the Applicant had a low probability of further offences of a similar nature.
With respect to the best interests of a minor child the submission notes that it was in the Applicant’s child’s best interests for the Applicant to be involved in his child’s life with respect to the child’s emotional development, cognitive development, social development, behavioural patterns, identity issues, academic development, mental health issues, long-term relationships, resilience and coping skills and a sense of security.
With respect to expectations of the Australian community that despite the nature of the offending the Australian community would expect that the Applicant be given a second chance or what can be described as a “fair go” and the removal of the Applicant from Australia would contradict the expectations of the Australian community and Australian values.
With respect to the extent of impediments if removed, the submission notes that the Applicant’s Chinese passport had expired, his Chinese national ID card had expired, the Applicant has no residence in China, no assets, no family members, no work prospects, no access to social security, no access to Medicare, and that his Chinese language skills were substandard.
With respect to links to Australia the submission notes that the Applicant’s parents are permanent residents of Australia and that his son is an Australian citizen.
In summary the submission notes that:
The nature of Mr Z’s offence is very serious for which he is being rightfully punished. He is remorseful. There is very limited to no evidence/material based on which the Minister would come to the conclusion that Mr Z will offend again or that he will be a risk to the Australian community. His removal from Australia will be devastating to his baby son, his parents and himself. I respectfully urge the Minister to favourably consider revoking his decision to cancel Mr Z’s visa taking all the above into account pursuant to sect 501CA(4)(b)(ii) of the Migration Act at your earliest convenience”.
CANCELLATION DECISION
On 2 September 2024, a delegate of the Minister proceeded to cancel the Applicant’s visa under s.501CA of the Act. The delegate applied the relevant Ministerial Direction in force at the time of the decision, Direction 110.
With respect to the nature and seriousness of the Applicant’s conduct, the delegate found the Applicant’s offending to be very serious and that it had the potential to cause significant psychological and/or physical harm to members of the Australian community and this consideration was given significant weight against revocation.
With respect to risk to the Australian community the delegate found that the Applicant’s conduct was very serious and using a young child to make child abuse material had the potential to cause significant psychological and physical harm to members of the Australian community. The delegate noted that “on balance, I consider there to be a low likelihood that Mr Z will reoffend. Nevertheless, I consider that should Mr Z engage in similar conduct again it may result in psychological and/or physical harm to members of the Australian community, including vulnerable children, and any degree of risk of such conduct is unacceptable. Accordingly, I have given this significant weight against revocation of the cancellation of Mr Z’s visa”.
With respect to family violence, the delegate noted the history of family violence between the Applicant and his ex-de-facto and found that it was serious family violence conduct and accordingly significant weight should be given against revocation of Mr Z’s visa.
With respect to the strength, nature and duration of ties to Australia the delegate noted that the Applicant’s parents were both permanent residents and that his son was an Australian citizen. The delegate also noted the time the Applicant had spent in Australia and determined that these considerations weighed somewhat in favour of revocation of the mandatory cancellation.
With respect to best interests of minor children the delegate made reference to the offending conduct which involved the Applicant’s child. The delegate noted that the child had been removed by authorities in New South Wales and was in foster care. The delegate concluded that this consideration should be given some weight in favour of the decision to revoke the cancellation of the Applicant’s visa.
With respect to the expectations of the Australian community the delegate determined that the Australian community’s general expectations about noncitizens, as articulated in Direction 110 were applicable in the circumstances of this case and the delegate stated that significant weight against revocation of the cancellation of the Applicant’s visa should be applied with respect to this consideration.
With respect to other considerations specified in Direction 110, the Applicant claimed in submissions to the Department that he would face the possibility of being detained again in China for a period of up to 5 years without trial for the offences he committed in Australia. The Applicant also referenced a report detailing the treatment of prisoners in the Chinese prison system. As to the basis of his belief that he would be detained by the Chinese authorities upon his return, the delegate noted that it was open to the Applicant to make an application for protection visa and for any prospective protection claims to be duly assessed. The delegate noted that if the Applicant did not lodge a protection visa that he would be removed under s.198 of the Act. The delegate also noted that if the Applicant made a protection visa application and was not granted a protection visa that he faced the prospect of an extended period of immigration detention. The delegate referenced the decision of the High Court of Australia relating to the lawfulness of indefinite detention which included a provision for the grant of the visa to affected persons who cannot be removed from Australia in the reasonably foreseeable future.
The delegate noted that the Applicant had no known health issues and was a young man. The delegate found that the Applicant did not have significant language barriers. The delegate noted that there was no evidence that had been provided with respect to the Applicant being able to renew his Chinese identity documents. The delegate noted that the Applicant owned a property in Australia which could generate an income to support the Applicant. The delegate noted that the Applicant would face emotional hardship as a result of the separation from his son and that having regard to these factors, determined that some weight should be given in favour of revocation.
The delegate concluded that “on balance, I find the factors that weighed against revocation of the cancellation decision outweigh the factors in favour of revocation”.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Applicant’s representative’s made submissions to the Department on behalf of the Applicant dated 30 June 2023 and 17 October 2023 with respect to revocation of the Applicant’s visa having regard to the applicable Ministerial directive at the time, Ministerial Direction 99. A further submission was provided by Mr Bruce Bian of Sydney Law dated 26 January 2024.
The submission of 26 January 2024 notes that:
For the Minister not to revoke his decision to cancel my clients visa, the Minister must have a probative basis to make the assertion that there is in existence of the risk of Mr Zhao reoffending. The Minister must make enquiries or produce evidence which shows the likelihood of Mr Zhao re-offending and of resultant risk to the community. (Splendido) In Mr Zhao’s favour, the sentencing judge stated Mr Zhao is unlikely to reoffend”.
In summary that submission concludes that:
the nature of Mr Zhao’s offence is very serious for which he has been rightfully punished. He is remorseful. There is very limited to no evidence/material based on which the Minister would come to the conclusion that Mr Zhao will offend again or that he will be a risk to the Australian community. His removal from Australia will be devastating to his baby son, his parents and himself.”
APPLICANT’S STATEMENT
The Applicant provided a submission to the Tribunal dated 20 November 2024.
In his submission, the Applicant claims that the evidence with respect to the risk of him reoffending is insufficient and is speculative and that there is not sufficient information or material which would give any basis to make a finding that the Applicant would reoffend or would be at risk to the community.
With respect to the offending the Applicant states that “on 8 July 2021 when my son [Redacted] was about one month old, the four photos showing me and my son were taken by Ms [Redacted]. The four photos were subsequently found to be Category Two child abuse material”.
The Applicant stated that as a consequence he was charged with using a child under 14 years to make child abuse material and a further charge of possess child abuse material. With respect to these two charges the Applicant states that he pleaded guilty at the earliest opportunity and was accorded a 25% discount with respect to sentencing for his early plea that he made in the Local Court of New South Wales on 15 December 2022.
With respect to his sentencing by Judge Smith in the District Court of New South Wales, the Applicant notes that he was sentenced to a term of imprisonment of two years commencing 3 March 2023 and expiring on 2 March 2025 with a non-parole period of one year and three months. The Applicant stated that he initially lodged a severity appeal against the sentence in the District Court but due to financial constraints the appeal was withdrawn.
The Applicant claims that when he was in prison, he was a model prisoner and was released on parole on 2 June 2024 after serving his non-parole period of one year and three months.
The Applicant has asked the Tribunal in his statement to consider the circumstances in which the offending occurred. The Applicant stated that the offending occurred in a very short period being one to 2 minutes. This is confirmed by the date stamps on the four images in question. The Applicant stated that his child was fully clothed. The Applicant stated that the photographs were taken by his former partner and the mother of their child Ms Meng An and they were stored in her iPhone. The images were still images and not videos. The Applicant stated that his erect penis was only visible in two of the four images. The Applicant stated that the Crown was only to establish at his trial that his son, the victim of his offending made contact with his penis in one of the four images. The images were taken on 8 July 2021. They were not sent to the Applicant by his ex-partner until a later point in time, with respect to image one on 29 March 2022, and with respect to image three on 10 April 2022. The Applicant states that there is no evidence that he requested copies of the four images taken by his former partner and stored in her iPhone at any time.
The Applicant claims that the offending was unplanned and lacked sophistication. The Applicant states that there was no violence or threats of violence involved in the offending or with respect to his son, the victim being distressed or in pain from the incident. The Applicant stated that the images taken by his ex-partner were not intended for distribution beyond what he describes as “unsolicited distribution by the co-offender to me almost 8 months later”. The Applicant states that the images were not taken for voyeuristic or sexual gratification purposes and the Applicant states that the weight of the evidence indicates that he has no sexual interest in minors. The Applicant claims that an explanation as to how the offending occurred is contained in paragraph 9 of the agreed facts produced by the Crown. The Applicant claims however that the Crown was not able to contradict the fact that the Applicant did not accept this explanation. The Applicant submits that the offending falls towards the lower end of objective seriousness for offences of this kind.
The Applicant stated that he had a solid upbringing in China and that his parents were hard-working. The Applicant gives a narrative with respect to his immigration history noting that he migrated to Sydney from China with his mother in February 2010 and completed his secondary schooling in Australia before he entered the workforce. The Applicant stated that he went on to live a life of good character until being involved in the commission of domestic violence offences against his ex-partner on 20 November 2020 and 1 March 2021 for which no convictions were recorded.
The Applicant notes that his mother described his former relationship with his ex-partner as being dysfunctional and tumultuous. The Applicant states that after his offending and his interaction with the criminal justice system that his father relocated to Sydney from China and the Applicant states that he has close and unwavering support from both of his parents in Australia and this is a relevant consideration with respect to prospects of his rehabilitation.
The Applicant notes that prior to being taken into custody he had obtained tertiary qualifications in conveyancing, had a solid work history and had been employed as a personal assistant to a director of a large mortgage provider before his incarceration. The Applicant described himself as an Australian taxpayer, a property owner, and claims that apart from the offending that led to his incarceration that he had led a responsible life in Australia.
The Applicant makes reference to the assessment conducted of him Dr Olav Nielssen on 13 February 2023 with a report with respect to this assessment made on 25 February 2023. The Applicant notes that Dr Nielssen found he and his ex-partner had not produced sexually explicit videos or images before and that the Applicant was only interested in pornography that depicted adult women of Asian heritage. Dr Nielssen, in his report noted that the Applicant did not have any sexual desire for his own biological child and that the Applicant accepted that he failed to live up to his parental responsibilities on the day of the incident.
The Applicant stated that he has had no contact with his infant son since his arrest on 10 April 2022 and that he is unlikely to have any contact with his infant son for the foreseeable future given that his son had been removed by child welfare authorities in New South Wales. The Applicant notes that Dr Nielssen, in his report, indicates the anxiety and great distress caused to him as a consequence of loss of contact with his son and with respect to being charged with the offending that led to his incarceration. The Applicant stated that Dr Nielssen concluded that there was no information before him to indicate that he has a disorder of abnormal sexual interest. The Applicant noted that apart from being assessed by Dr Nielssen he had also been receiving treatment from Ying Huang, a psychologist, since 10 June 2022, treatment that ended up being discontinued when he was incarcerated. The Applicant also notes that Dr Nielssen assessed him as having a low probability of further offending of a similar nature going forward and that the charges, conviction, and subsequent incarceration of the Applicant had acted as a very strong deterrent effect on the Applicant.
The Applicant claims that other factors relevant to reasons for revocation include the fact that he has no record of prior convictions, acceptance of responsibility for the offending, along with his education and work history and his strong familial support.
The Applicant claims the loss of contact with his infant son has acted as a very powerful deterrent with respect to ever reoffending in any capacity. The Applicant stated evidence of his remorse and insight into his offending is established in the report of Dr Nielssen and affidavits provided by his parents.
The Applicant makes reference to the sentencing remarks of his honour Judge Smith in the District Court of New South Wales who concluded that the Applicant was remorseful and was unlikely to reoffend. Judge Smith accepted that it was reasonably possible that the four images in question were produced at the request of his co-accused.
The Applicant notes that since he had been in detention, he dedicated himself to self -improvement by attending classes such as Bible studies. The Applicant claims to be a reformed individual who poses no threat to the Australian community. The Applicant further claims that he attended domestic violence courses whilst incarcerated.
The Applicant stated that he has been convicted of family violence namely an offence of common assault committed on 20 November 2020 and with respect to the contravention of an apprehended violence order. The Applicant describes this family violence offending as being an isolated incident and occurred within the context of a tumultuous relationship with his ex-partner. The Applicant reiterates that whilst he was incarcerated, he completed domestic violence sessions and was issued with a letter of attendance by Corrective Services New South Wales dated 29 March 2023.
The Applicant states that he has strong ties with Australia having lived in Australia since the age of 15 along with the fact that he has an Australian citizen son born on 11 June 2021 and that his parents are both Australian permanent residents.
The Applicant notes that after being released from his full-time custodial sentence in prison that he was transferred to the Villawood Detention Centre.
The Applicant claims that when he was in the centre an officer from the Department of Home Affairs spoke to him and advised him that the daily cost of his detention was expensive and would accumulate over time and that the Applicant would be liable for these costs in due course. The Applicant stated that the officer from Home Affairs hoped that the Applicant would agree to leave Australia and return to his home country, China, to reduce the burden upon Australia and that she assured the Applicant that his departure from Australia would not affect the outcome of the character cancellation decision whether he was onshore or offshore. The Applicant stated that as a consequence of this advice, he departed Australia to China on 24 August 2024. The Applicant stated that on 3 September 2024, he received a letter from the Department refusing to revoke his visa cancellation.
The Applicant stated that the best interests of his son were that the visa cancellation be revoked. The Applicant stated that he will do his level best to obtain custody and access of his child going forward. The Applicant claims that he believes there is a real possibility that he will be assessed by the relevant authorities in New South Wales as being suitable for restoration of parental responsibility. The Applicant stated that his parents have supported him with respect to obtaining insight around the negative impact of his conduct on his infant son. Once again, the Applicant stated that he was reliant on the report provided by Dr Nielssen and the sentencing comments of Judge Smith. The Applicant identified the many ways that he hopes that he will be able to be a father figure to his son throughout the balance of his son’s childhood, his teenage years and into adult hood.
With respect to the expectations of the Australian community the Applicant accepts that his criminal offending would be viewed seriously by the Australian Government and the Australian community, however the Applicant claims that this is counterbalanced with respect to the insight that he has exhibited around his offending conduct, his contrition, and the reports of the unlikelihood of reoffending in the future.
The Applicant made reference to the fact that he has strong family ties in Australia namely his parents and his biological son, the Applicant stated that since he departed Australia to China that he has found it difficult to reintegrate into Chinese society given that he has not lived in that country since age 15, and that it had been challenging to find a job in China in order to support himself and that the current unemployment rate in China was high. The Applicant at the time of the statement indicated that with respect to his predicament in China that he had no residence, no assets, no family members to support him and no access to Medicare.
The Applicant provided a further submission to the Tribunal that is dated 9 January 2025. This statement has been duly considered. The statement appears to have been collated with the assistance of the Applicant’s mother.
The Applicant states that the evidence with respect to his risk of reoffending is insufficient and nothing more than speculative. The Applicant stated that the sentencing judge in the District Court found that he was unlikely to reoffend. The Applicant posits that if the respondent is unable to prove that he will reoffend that it follows that he will not reoffend and will not pose a threat to Australian society.
In the submissions the Applicant states that he pled guilty to the offending behaviour that led to his imprisonment at the earliest opportunity and was accorded a full 25% discount for his early guilty plea. The Applicant stated that he was of good conduct during his period of imprisonment, and he was released on parole on 2 June 2024 after serving one year and three months in prison.
With respect to determining the objective seriousness of the offending the Applicant stated that the offending occurred over a short period of time being 1 to 2 minutes. The Applicant stated that his son was fully clothed at the time. The Applicant stated that the photographs were taken by his ex-partner and stored on her iPhone and that the images were still images not videos. The number of images taken were limited to four in total. The Applicant states that his erect penis was only visible in two of the four images. The Crown only established that the Applicant’s son made contact with his penis in one of the four images, being image one. The Applicant states that there is no evidence that the images were sent to him on 8 July 2021 and indeed were forwarded to the Applicant via his social media application ‘We-chat’, image one on 29 March 2022, and image three on 10 April 2022. The Applicant stated that there is no evidence that he requested copies of any of the four images at any time. The Applicant claims that the facts are silent with respect to his erect penis and what led to his penis being exposed from the zipper/button area of his pyjama pants. The Applicant stated that the offending was unplanned and lacked sophistication. The Applicant stated that there was no violence or threats of violence used in the offending. The Applicant claims that his son was not distressed or in pain from the incident and that the images were not intended for distribution beyond what the Applicant describes as “unsolicited distribution by the co-offender to me almost 8 months later”. The Applicant states that there were no financial benefits with respect to the images and no other people have seen the images and that the images were not taken for voyeuristic purposes or sexual gratification purposes. The Applicant stated that there is no evidence to support a finding that he has a sexual interest in minors. The Applicant submits that the offending falls towards the lower end of objective seriousness.
With respect to risk of harm to the Australian community the Applicant again notes that he was assessed by a psychiatrist Dr Olaf Nielssen on 13 February 2023 with a finding that he was only attracted to adult females and that there was no evidence that the Applicant and his co-offender had ever produced sexually explicit videos or images prior to the offending and that the Applicant’s interest in pornography only extended to pornography depicting adult women of Asian heritage. The Applicant notes that he reported in his psychiatric session that he would not have any sexual desire for his own biological child and at the same time the Applicant noted that he failed to live up to his parental responsibilities to his child on the day of the incident. The Applicant stated that Dr Nielssen determined that there was no evidence before him to indicate that he had an abnormal sexual interest. The Applicant states that Dr Nielssen concluded that he had a ‘low probability’ of further offending of a similar nature and noted the impact of the charges and sentencing and term of imprisonment along with loss of contact with his son.
The Applicant states that he has solid support from his parents and noted that his father had relocated from China to Sydney. The Applicant notes that he has no record of prior convictions. The Applicant states that Judge Smith in his sentencing comments noted that he was remorseful and was unlikely to reoffend. The Applicant states that Judge Smith also accepted that it was reasonably probable that the images that were produced were done so at the request of the co-accused. Whilst not attempting to downplay the seriousness of the offending the Applicant states that the child abuse material offences were on the lower end of seriousness. The Applicant noted that with respect to 2 previous domestic violence offences no conviction was recorded with respect to those offences.
The Applicant states that the period of imprisonment that he served was not just to punish but also to give a criminal an opportunity to think about his crime, understand his wrongdoing and to improve his legal awareness, reform himself and become a good person.
The Applicant stated that during his period of incarceration he dedicated himself to self-improvement by attending a number of classes and attending Bible studies. The Applicant believes that the courses that he has attended have helped him to become a better person.
With respect to strength, nature and duration of ties to Australia the Applicant notes that he had been ordinarily resident in Australia from the age of 15 and had contributed positively to the Australian community through gainful employment. The Applicant notes that he had contributed to Australia through his employment the Applicant reiterated that he had strong support from his parents going forward. The Applicant stated that all of his family are in Australia namely his parents and his child. The Applicant stated that his ongoing removal from Australia will have an adverse impact on his parents as they are both Australian permanent residents and have both settled in Australia in their post-retirement.
The Applicant noted that his son was currently in the care of the state and that his parents have been given approved visits to his son on a regular basis. The Applicant states that he is the biological father of his son and that his son was in his care from the time of his birth on 11 June 2021 through to 10 April 2022. The Applicant acknowledged the existence of current orders restricting his contact with his son and notes that the existence of these orders does not mean that going forward he will not be able to play a positive parental role in the life of his child. The Applicant stated that he would be prepared to be assessed for the restoration of parental responsibility. The Applicant states that his absence from his son’s early childhood will have a lasting impact on the well-being and development of his only child. The Applicant states that he had been approved to visit his son up to 6 times per year after 25 January 2025, when the final apprehended domestic violence order expires.
The Applicant stated that after he was released from prison that he went to the Villawood Detention Centre and that somebody from Home Affairs had talked to him about the cost that he would incur being kept in detention which ran at hundreds of dollars a day. The Applicant stated that he was assured by representatives and from immigration officials that if he was to leave Australia that it would not affect the result of the revocation of his visa cancellation. The Applicant stated that as a consequence of these assurances and due to the accumulating costs, that he would face from an extended period of detention, that he left Australia on 24 August 2024.
The Applicant acknowledged that the offence for which he had been convicted was serious. The Applicant stated that the four offending images would not have been produced at all if it was not at the behest of the co-offender his ex-partner. The Applicant stated that there is limited evidence and material on which the respondent would be able to conclude that the Applicant would not offend again or that he would be at risk to the Australian community going forward.
RESPONDENT’S STATEMENT OF FACTS, ISSUES AND CONTENTONS
The Tribunal received a statement of facts, issues and contentions (SFIC) dated 19 December 2024. The SFIC has been duly considered by the Tribunal.
The submission makes reference to the Applicant’s immigration history in Australia noting that the Applicant first arrived in Australia at the age of 15. The submission also makes reference to the Applicant’s offending history noting that on 3 April 2023, the Applicant was convicted of use child under 14 years to make child-abuse material for which he was sentenced to 2 years imprisonment.
The submission notes that on 2 June 2023 the Minister’s Department notified the Applicant that his visa had been mandatorily cancelled under s 501(3A) of the Act. On 30 June 2023 the Applicant sought revocation and on 2 September 2024 a delegate of the Minister decided not to revoke the visa cancellation under s 501CA(4).
The submission notes that the issue for consideration by the Tribunal in the review is firstly whether the Applicant passes the character test and secondly whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act having regard to the consideration set out in Direction 110.
With respect to protection of the Australian community the submission makes reference to the nature and seriousness of the Applicant’s conduct with respect to his offending noting that the Tribunal was confined to the consideration of one conviction in these proceedings and that is the conviction for use child under 14 years to make child-abuse material.
The submission makes reference to the Applicant’s offending with respect to this conviction. The submission describes the Applicant’s offending as “an appalling abuse of a sexual nature against his then four-week-old son”. The submission notes that the Minister submits that the Applicant’s offending involving sexual abusive behaviour against his infant son occurred in circumstances where the Applicant abused his position of trust and power as the child’s father such that the Tribunal should also find that the offending comes within the parameters of family violence and should be viewed very seriously on that basis. The submission notes that the seriousness of the Applicant’s offending is demonstrated by the fact that he was sentenced to 2 years imprisonment. The submission notes that “to the extent that the Applicant alleges that the photos were just for fun, and the prosecution could not prove why his penis was erect and exposed, the sentencing judge noted that the statements were plainly without merit. Further, the sentencing judge was satisfied beyond reasonable doubt that the Applicant’s penis was erect and exposed, and that there was a sexual element to the images themselves”.
With respect to the risk of harm to the Australian community the submission notes the Tribunal needed to consider the nature of the harm to individuals if the Applicant were to reoffend and the serious psychological harm which can be inflicted on victims of child sexual abuse and with respect to the potential proliferation of child-abuse material.
The submission notes that with respect to the likelihood of the Applicant reoffending the following factors should be considered. That the Applicant pleaded guilty to the offending and expressed remorse for his offending and that the sentencing judge accepted that the Applicant was remorseful and had failed to live up to his parental responsibilities. The submission notes however, that the Applicant has shown little insight or understanding of his offending maintaining the offending occurred only for “fun” and that his son was young and would not remember the offence committed. Further that the Applicant appeared to apportion most of the blame on his ex-partner rather than accepting his own culpability. The submission notes that the Tribunal should find “that the Applicant remains at a real risk of reoffending” and that any slight risk of reoffending is unacceptable. The submission concludes that with respect to this consideration the safety of the Australian community is the Australian governments highest priority and accordingly it should be given significant weight against revocation.
The submission states that the Applicant’s offending came within the ambit of ‘family violence’ as it involved violent or threatening behaviour by a person who coerces or controls a member of the persons family and that it includes sexually abusive behaviour. The submission posits that this consideration should weigh heavily against revocation of the Applicant’s visa.
With respect to the strength, nature and duration of ties to Australia the submission notes the following factors. The Applicant has been resident in Australia since he was 15 years old and has contributed to Australia through gainful employment and the payment of taxes. The submission notes that the Applicant’s parents both reside in Australia and are Australian permanent residents and that the Applicant’s son resides in Australia and is an Australian citizen. The submission notes that the Applicant’s parents support him remaining in Australia. The submission concedes that with respect to this primary consideration it weighs in the Applicant’s favour but the weight that should be attributed should be limited.
With respect to the best interests of minor children the submission notes that the Applicant’s son is presently three years old and is an Australian citizen and that he resides in Australia under the care of the New South Wales Department of Communities and Justice and that there is an apprehended violence order in place that prevented the Applicant from having any contact with his son until January 2025. The submission notes that with respect to the nature of the offending along with the fact the Applicant has had limited contact with his son since his removal by the New South Wales authorities, that limited weight should be given to this factor in favour of revocation.
With respect to the expectations of the Australian community the submission notes that Direction 110 is premised on the fact that the Australian community expects that a non-citizen will obey Australian laws and not engage in serious conduct. The submission notes the Applicant’s submission that the community would expect a person to be a given a second chance and a fair go. The submission notes however, that the Applicant did engage in serious conduct and did breach this community expectation. The submission notes that the nature and seriousness of the Applicants offending namely a sexual crime against a child and family violence should lead the Tribunal to find that this consideration weighs very heavily against the revocation of the Applicant’s visa.
With respect to other considerations the submission notes that the Applicant is not a person to whom Australia owes protection obligations. The submission notes that the Applicant has asserted that he may be at risk of detention in China because of the crimes he has committed in Australia and states that this is risk is countered by the fact that the Applicant voluntarily returned to China and that as he is outside Australia, he does not engage Australia’s protection obligations.
With respect to the extent of impediments if the Applicant is removed from Australia the submission notes that the Applicant speaks Mandarin, that he resided in China for the first 15 years of his life, that there is no evidence that the Applicant would be precluded from renewing his passport to enable him to access healthcare and welfare in China.
The submission acknowledges that the Applicant would face some emotional hardship as a consequence of being separated from his parents and his son and that with respect to the extent of impediments if removed that this consideration should be given weight in favour of revocation of the cancellation of his visa.
WITNESS STATEMENTS
The Tribunal has had regard to a witness statement from the Applicant’s mother, dated 24 March 2023. The Tribunal has considered this statement which indicates the following.
The statement indicates that the witness and the Applicant moved to Australia from China in 2010, and the Applicant completed the balance of his studies in Australia.
The witness stated that her son did well academically in primary school, however, his academic performance in secondary school was average. The witness stated that the Applicant is her only child.
The witness provided an assessment of the Applicant’s relationship with his former partner and the mother of her grandchild. She described the relationship as not being harmonious and that there were constant quarrels over money. She stated that despite the disharmony that existed between the Applicant and his ex-partner they were both deeply committed to the care of their child.
The witness confirmed that the Applicant’s son was now in the care of the state and that she had access to her grandson on a weekly basis.
With respect to her sons offending, she was aware of the serious nature of the offending relating to child abuse material because of depraved photos of the Applicant and his son. The witness stated that her son had expressed his sorrow and regret over the offending and always believed that the photographs were just a private joke between he and his ex-partner.
The witness stated that prior to his offending and incarceration her son had completed a conveyancing course at Macquarie University along with a Certificate IV in commercial cookery. She described her financial situation as being sound, and noted that her husband retired in 2022, and has relocated to Australia to reside with her.
The witness stated that her son who had been an atheist had engaged post offending with religious beliefs and prior to his departure to China had been visiting a local Buddhist temple on a regular basis. The witness stated that her son has advised her that in the event that he is able to parent his son in the future, that he will be well looked after and well-treated.
The Tribunal has had regard to a witness statement from the Applicant’s father, dated 24 March 2023.
The witness stated that he was born in China and that he was educated to university level and had been successful in China. He advised that he was overjoyed to learn that the Applicant, his only son, had become a father to a son K in 2021. The witness described how his wife had contacted him to advise him of the Applicant’s offending and how shocked he was by it. The witness arrived in Australia in October 2022 and spoke to the Applicant to ask him about his offending conduct. The witness stated that his son acknowledged that the offending was inappropriate and that he thought the photographs were harmless jokes between his son and his son’s ex-partner. The witness stated that his son had repeatedly apologised for his offending and the witness advised that he had formed a view that his son had developed insight into the seriousness of his offending.
As discussed, there is no evidence that during the incident of July 2021, the Applicant’s son who was 27 days old at the time experienced physical trauma.
The evidence as discussed indicates that the Applicants son was removed from the Applicant’s care on 11 April 2022, and this extended to removal from the care of his mother (a co-offender) in the criminal conduct. The Tribunal finds that the Department of Communities and Justice have in their assessment deemed that it be in the Applicant son’s best interests for him to be placed in permanent foster care. They have also allowed K to have access to his paternal grandparents and it is clear that they play an important familial and cultural role with respect to K, that are not able to be served by K’s parents. The Tribunal also finds that no-one can replace biological parents, however if a child is in an environment where they are subjected to any risk then their best interests are clearly served by them being removed from that environment.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of the minor child in Australia affected by this decision should be given some weight in favour of the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 is given some weight in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct that commenced in June 2021 and continued until June 2023 at which time he was incarcerated.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 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.
Paragraph 8.5(3) of the Direction provides that 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.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places significant weight on the fact that the Applicant has committed an act of a sexual crime against a vulnerable child, an act that brings his offending within the ambit of family violence.
This Applicant’s criminal conduct in Australia raises serious concerns with respect to the Applicant’s character. Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community, particularly given the community’s abhorrence for any form of sexual crimes involving a vulnerable child or with respect to family violence, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence before the Tribunal of any non-refoulement obligations arising in this matter and during the time that the Applicant was resident in Australia, he has never attempted to seek to engage Australia’s protection obligations. The Applicant voluntarily sought to be removed from Australia to China. The Applicant has contended that he would be at risk of detention in China as a consequence of the offending he committed in Australia. The evidence indicates that this has clearly not come to fruition as the Applicant has been back in China for 9 months and is living freely in that country with friends and has managed to find employment in the construction sector. Accordingly, the Tribunal does not consider this consideration to be relevant in the circumstances of this case.
(b) Extent of impediments if removed
The Applicant is 30 years old and has worked in a range of occupations in Australia and has acquired English language skills and work experience. The Applicant has managed to find employment in China since he returned there 9 months ago.
The evidence is such that the Applicant would not suffer any language or cultural barriers in China as he was born in that country in 1994 and continuously resided there until 2010. The Applicant has claimed that his Mandarin language skills were not well developed. The Applicant requested that the whole of the review hearing be conducted through a Mandarin interpreter and over a day and a half of hearing there was no issue raised by the Applicant or the interpreter with respect to the Applicant’s fluency in Mandarin.
The Tribunal is satisfied that the Applicant has obtained employment in China. The Applicant is residing with friends in China indicative of a social network in China and the Applicant owns a property in Burwood NSW Australia which will provide him with an additional source of income going forward.
Given these factors the Tribunal gives limited weight to the extent of impediments upon the Applicant if he is removed. The Applicant has successfully re-established himself in China and has accommodation and employment and indeed an Australian income source, namely his property in Burwood Sydney which could form an additional income stream for the Applicant.
(c) Impact on Australian business interests
This consideration is not relevant as there is no evidence of impact on Australian business interests.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 weighs against the revocation of the cancellation of the Applicant’s visa.
(c)Primary Consideration 3 is given some weight in favour of the revocation of cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is given some weight in favour of the revocation of cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations are given moderate weight in favour of the revocation of the cancellation of the Applicant’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 2, 3, 4, and 5. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations.
The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the Australian community. The Tribunal is satisfied that the safety of the community is best served without the Applicant being a part of it.
Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant’s visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the Reviewable Decision not to revoke the cancellation of the Applicant’s Subclass 155 resident Return visa.
DECISION
The Tribunal affirms the Reviewable Decision not to revoke the cancellation of the Applicant’s Subclass 155 Resident Return visa.
Date(s) of hearing: 6 & 7 May 2025 Applicant: In person (MS Teams) Solicitors for the Respondent: Mr M. Burnham, Sparke Helmore
0