Zhou and Minister for Immigration and Border Protection (Migration)

Zhou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2386 (27 November 2017)
Division:GENERAL DIVISION
File Number: 2017/5605
Re:Hong Zhou
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:27 November 2017
Place:Sydney

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – spouse visa – Applicant failed to pass the character test due to a substantial criminal record – whether there is another reason why the original decision should be revoked – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
27 November 2017
Decision under review

On 29 March 2017, the Class BC, Subclass 100 (Spouse) visa (the visa) held by the Applicant, Ms Zhou, was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). That is a mandatory visa cancellation provision where a person is serving a specified sentence of imprisonment.
On 5 April 2017, the Applicant applied to have that mandatory cancellation decision revoked pursuant to s 501CA(4) of the Act.
On 14 September 2017, a delegate of the Respondent made a decision that he/she was not satisfied that there is another reason why the original decision to cancel the Applicant’s Class BC, Subclass 100 (Spouse) visa should be revoked as required by s 501CA(4)(b)(ii). The consequence of the reviewable decision was that the mandatory cancellation decision was not revoked.
The Applicant seeks the review of the decision made on 14 September 2017.
The law
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory visa cancellation decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the decision-maker is satisfied:
(i) that the person passes the character test (as defined by s 501); or
(ii) that there is another reason why the original decision should be revoked.
When determining whether there is another reason why the cancellation decision should be revoked, the Tribunal must take into account considerations in Part C of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).
Relevantly, Direction 65 states that the “primary considerations” are:
·the protection of the Australian community (cl 13.1);
·the best interests of any minor children (cl 13.2), and
·the expectations of the Australian community (cl 13.3).
The Tribunal must also determine whether any of the “other considerations” set out in cl 14 of Direction 65 are relevant and, if so, take them into account.
Direction 65 sets out the objectives of the Act and of the direction itself, principles to take into account, guidance about exercising the discretion, and the weight to be given to them. Primary considerations should generally be given greater weight than the other considerations.[1] One or more primary consideration may outweigh other primary considerations.[2]
[1] Direction 65, cl 8(4).
[2] Ibid, cl 8(5).
The issues to be determined
The Applicant made representations in accordance with s 501CA(4)(a) of the Act. She does not dispute that she does not pass the character test (s 501 of the Act). That is because she has a substantial criminal record (s 501(6)(a) of the Act) on the basis of s 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of full-time imprisonment (s 501(3A)(b)).
Therefore the issue that the Tribunal must determine is whether there is another reason why the original decision should be revoked.
Background
The Applicant was born in China in 1964 and is a citizen of that country. She married Mr Rek, an Australian citizen, on 24 November 2008 and arrived in Australia on 25 February 2009. The offences relevant to this decision were committed at the end of November/beginning of December 2013.
Records of the NSW Department of Corrective Services and the Applicant’s written Statement of Facts, Issues and Contentions show that the Applicant was in custody from 10 December 2013 until released on bail on 11 April 2014. The Applicant pleaded guilty to the two offences on the first day of her trial, 7 June 2016. She was again admitted into custody on being sentenced on 18 November 2016 and released on 16 September 2017 when she was transferred to immigration detention where she remained as of the hearing of this matter.
The Applicant’s criminal record
The Applicant was convicted of two offences and sentenced on 18 November 2016 as follows:
·Possess >3 unregistered firearms, 1 is prohibited/pistol-si; imprisonment 2 years commencing 17 July 2016 concluding 16 July 2018 non parole period with conditions : 12 months commencing 17 July 2016 concluding 16 July 2017 release subject to supv;
·Intentionally import prohibited tier 2 goods without approval; imprisonment 2 years to serve 1 year then released on entering recognizance $500 for 1 year. The sentence was to begin on 17 September 2016 and end on 16 September 2018.
The first offence is a State offence and the second is a Commonwealth offence. Ten “Possess or use a prohibited weapon without permit – t2” offences were taken into account on sentence for the first offence pursuant to s 32 Crimes (Sentencing Procedure) Act 1999 (NSW).[3]
Consideration
[3] G Documents, G6, pp 49-50.
Primary considerations
Protection of the Australian community
The Tribunal takes into account the principle that the Government is committed to protecting the Australian community from harm as a result of the activity of non-citizens.[4] It also takes into account that 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.
The nature and seriousness of the conduct
[4] Direction 65, cl 13.1.
The following is a summary of the Agreed Sentencing Facts dated 8 June 2016.
·On 28 November 2013, the police executed search warrants at an industrial warehouse in western Sydney where the Applicant’s spouse worked, and at the home of the Applicant and her spouse.
·It was not suggested by the Crown that the Applicant had any involvement in the possession of the items found in the industrial warehouse. It was accepted that the Applicant’s spouse was the principal of the over-arching enterprise being conducted by him and the Applicant.
·The following items were found at the warehouse:
o41 BB firearms replicating various styles of pistols and other prohibited firearms;
o171 electronics stun control devices concealed as mobile phones, torches and electric shavers;
oeight extendable batons;
o11 butterfly knives;
o1 slingshot;
olaser pointers;
o4 capsicum sprays concealed as lipstick;
oone flick knife;
otwo firearm magazines; and
otwo 2 boxes of ball bearings for use as ammunition in the firearms.
·The police located and seized the following items inside the home;
o6 BB firearms replicating various styles of pistols and other prohibited firearms;
o319 knuckle dusters;
o162 electronics stun control devices;
ohunting slings;
osix extendable batons; and
o48 butterfly knives.
·Many of the items seized were located in communal areas of the home, including the hallway and lounge room.
·A van registered to the Applicant’s spouse was also at the home and searched. The police located and seized the following inside the van;
o18 BB firearms replicating various styles of pistols and other prohibited firearms;
oseven knuckle dust;
ofive electronic stun control devices;
ofour hunting slings;
o48 extendable batons; and
o16 butterfly knives.
·The Applicant’s spouse was arrested and participated in an electronically recorded interview. He was found to be in possession of $20,000 in cash, refused bail and was thereafter in custody.
·In his record of interview, the applicant’s spouse made admissions as to his importation and possession of the items seized at the warehouse and in his home, including in the van, as well as the ongoing sale of those items.
·Investigations established that a large shipment of items had departed Hong Kong on 24 November 2013 and was due to arrive in Sydney on 5 December 2013 by sea. The Applicant was the nominated consignee of the container. There was a false declaration as to the contents of the container.
·On about 7 December 2013, the container was searched in Sydney and found to contain the following
o24 model bolt action rifles;
o213 model/replica pistols of various kinds;
ofour boxes (120 packets) of 5mm metal BB pellets;
othree boxes of plastic BB pellets;
o71 handheld electronic stun control devices;
o200 anti-personnel sprays;
o50 extendable batons; and
o60 knuckledusters.
·A comparison of those items and the items taken from the Applicant’s residence on 28 November 2013, show that the items were of similar brands, styles and colours.
·On 10 December 2013, police arrested the Applicant at her home. A further search warrant was executed and one additional airsoft pistol was located.
·With respect to the importation charge, the Applicant’s involvement was in joint commission with her spouse and, at his general direction, she had a role in the price negotiation and ordering of the items the subject of that importation, and allowed that importation to be placed in her name. Following her spouse’s arrest, the Applicant used the internet to monitor the shipping process of the importation and intended to accept delivery of the consignment.
·The applicant had joint possession with her spouse of the firearms that were located in both the home and the van.
·The Applicant was in sole possession of the firearm found in her home on 10 December 2013.
The sentencing judge carefully considered the subjective and objective features of the offending. He commented that it would be important for any court that considered the seriousness of the offences to look at the photographs tendered. He commented on the realistic appearance of several of the firearms.
He did consider the options of a suspended sentence or an intensive corrections order or home detention. He found that the State offence was a serious offence, although he regarded it as “just slightly above the lowest range of objective seriousness”. He observed that the Applicant possessed the items for financial gain. He took into account the number of firearms in the Applicant’s possession. He took into account that the maximum penalty was 20 years in custody. He did not consider it appropriate that the two-year sentence be served “other than by way fulltime custody”.
The sentencing judge observed that the Commonwealth offence had a lesser maximum penalty, 10 years imprisonment, than the State offence, but found it to be as serious as the State offence. He said:
The maximum penalty is just one of the guideposts on sentence, but to import all these items into Australia for the purpose of what the offender was doing was, again, a particularly serious form of this particular offence.
The sentencing judge commented:
It is a concern that this was a deliberate attempt clearly by the offender and Mr Reck [sic] to smuggle goods which they knew were illegal into Australia. It is abundantly clear by mislabelling what the goods actually were, bottles, that there was no doubt that (the Applicant) who was the person named on the consignment, was of the aware that they were bringing items into Australia that were illegal.
The Tribunal takes into account how the sentencing judge structured the sentences.
The Tribunal finds that, while the offences were not violent or sexual crimes or against vulnerable members of the community or government representatives or officials, the offences were serious. In making that finding, it has taken into account the maximum sentences for both offences and that the sentences imposed were at the lower end of the range of sentence, but gives significant weight to the sentencing judge’s assessment of the seriousness of the offences.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal takes into account the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable.[5]
[5] Direction 65, cl 13.1.2.
Should the Applicant engage in further criminal conduct, the nature of the harm to individuals or the Australian community arises from the nature of the firearms and weapons that are the subject of the offences. If the illegal firearms and other weapons were sold, which was the objective of the Applicant and Mr Rek, they could be used for illegal or legal purposes. They replica firearms could be used as pretend real weapons. In relation to the Commonwealth offence, the sentencing judge observed that the devices imported included handheld electronic devices designed to administer an electronic shock on contact, anti-personal sprays, and extendible batons and knuckledusters.
The evidence and submissions on behalf of the Applicant raise the following matters as demonstrating that there is negligible risk to the Australian community of the Applicant committing further offences:
·The sentencing judge found the Applicant:
oto be a person of good character,
oto have excellent prospects of rehabilitation; and
oexcellent prospects of not re-offending.
·The Australian community requires no protection from Ms Zhou.
·She was involved in a singing group which did a lot of charity work.
·She was on bail for three years which shows that she was not regarded as a risk to the community.
·Her emphatic evidence was that she would not reoffend.
·She did not bring the firearms into the house, Mr Rek did. Her possession offence was a technical, strict liability offence.
·Mr Rek had told her that what they were doing was legal.
·Ending up in gaol for two years was a strong disincentive to obeying her husband in future.
·The importation offence was a strict liability offence.
·Having endured the time in prison which was difficult for her, she would not want to endure that again. She has also been in immigration detention.
The Tribunal finds that the Applicant has little if any insight into her offending and it does not accept that she has shown any remorse or contrition. The sentencing judge did not accept the Applicant’s denial in the pre-sentence report that she was aware of the contents of the container which she pleaded guilty to importing. Nor does the Tribunal.
The sentencing judge took into account that she assisted her husband at his request and accepted, with some reservations, that in her culture, women are obliged to abide by their husband’s wishes. He noted that she continued to be involved in the importation offence after the police had come to their home and Mr Rek had been arrested and refused bail. He referred to the submissions made by the Applicant’s legal representative about Mr Rek’s overbearing nature.
Having heard from Mr Rek and read the various statements he provided in support of the Applicant’s case, the Tribunal accepts that is an accurate description of his nature. However that matter and the evidence that culturally, the Applicant is obliged to abide by his wishes, are matters of concern.
The Applicant continued to deny knowledge of the illegality of the dealing with the firearms and the importation at the hearing and claimed that her husband had told her what they were doing was legal. She also claimed that she had no idea of what was in the container which, given her plea of guilty, the Tribunal does not accept. That finding is reinforced by Mr Rek’s evidence that his wife’s Chinese language skills were “priceless” in the running of their business because most of the goods they imported were from China. If he finds something interesting, he asks her to contact the factory and asks questions he cannot.
The container was imported from Hong Kong. The Applicant monitored the importation after he was taken into custody.
The Tribunal has difficulty accepting her claim not to know that the goods were illegal in Australia. She and her husband were selling other items that they imported at weekend markets but not the firearms or weapons which were located in her home as described in the Agreed Facts on Sentence. During cross-examination, when asked when she knew what they were doing was illegal, she replied when she noticed her husband did not sell the goods in an open way and in particular when the police came.
She said that she would not commit the offences again because she knows it is illegal. She also said that she would check on the internet to find out if something was illegal. Given her apparent limited English, the Tribunal does not find that evidence persuasive. She was assisted during the hearing by an interpreter.
During cross-examination, the Applicant agreed that she accepted some responsibility for what took place, but that is inconsistent with most of her evidence.
The evidence shows that the Applicant has claimed that she pleaded guilty because her husband told her to and because her legal representative told her to do so. Mr Rek claims her lawyer told her to plead guilty and that he had only pleaded guilty on the understanding that no action would be taken against the Applicant.
The Tribunal found a pattern in the Applicant’s evidence of denying responsibility for her actions, not limited to the criminal offending.
The Applicant was evasive when giving evidence. For example, when asked whether she knew about the knives, sling shots and other weapons, she said the bullets were made of plastic. That answer was not a response to the question.
The only criminal offending by Mr Rek that is before the Tribunal is that relating to the firearms and weapons. It appears from the remarks of the sentencing judge in the Applicant’s case, that Mr Rek was only dealt with for an offence of possession and not importation, although the possession included all the items in the warehouse as well as those in the house.
Mr Rek’s sentence was for two years and seven months with a non-parole period of 18 months. He told the Tribunal that he was on remand for 22 months and was in prison for two years, nine months and 16 days and was released from prison on about 16 September 2016.
Mr Rek told the Tribunal that he was responsible for the offending but denied that they imported any illegal goods. He claimed that he has a website and lots of people ask him for help with suppliers in China. He said that he does not speak Chinese. He claimed that the shipping agent had made a mistake and that the container was supposed to go to a person in Greece. He also said that his wife’s son had received a letter from the agent apologising for that. No such letter was before the Tribunal or the sentencing judge.

Mr Rek made other claims that the Tribunal found difficult to accept. He claimed that he had been approached by an “agent provocateur” to help him import heroin for $250,000 two weeks after he had purchased the BB guns from another person and that he had made requests under the New South Wales government information public access legislation about that which had been rejected.
The Tribunal found Mr Rek to be an unreliable witness and does not accept his evidence.
Taking into account the available information and evidence, the Tribunal does not accept that the likelihood of the Applicant reoffending is as low as she and her representative claimed. Of particular concern to the Tribunal is her lack of contrition and insight into her offending, her reluctance to accept responsibility for her actions, Mr Rek’s overbearing nature and her obedience to him. They are committed to each other, to the extent that Mr Rek will return to China with the Applicant if she returns.
Considering the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences, the Tribunal finds that the protection of the Australian community weighs significantly in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Best interests of minor children in Australia affected by the decision
The Applicant has two grandchildren living in Australia who are aged one and four years. They are her son’s children. The Tribunal accepts that for at least 18 months while the Applicant was on bail, she lived with her son’s family. The younger child was born in May 2013 before she went into custody and the other in January 2016 while she was on bail. The Applicant was on bail for a period of two years and seven months, from 11 April 2014 until 18 November 2016.
The Tribunal accepts their father’s evidence that the Applicant helped with the housework, cooking, and caring for the children when she lived with them. It accepts that he and his children tried to visit her each week while she was in prison, but usually they visited once a fortnight. The Tribunal accepts his evidence that before the criminal offending, he and his wife did not live far from the Applicant, whom they saw a few times a week.
The Tribunal accept the Applicant’s evidence that she helped her son and his wife when the older child was born.
The Applicant’s son said that the plan had been that the Applicant would look after the children to enable her son and his wife to go to work. At the moment, their children go to childcare twice a week, which he considers to be early education for them. His wife is currently looking for work. If successful, the children will attend childcare more frequently.
The older child has had a longer relationship with the Applicant than the younger child, although the nature of the Applicant’s care for each of them is the same. They saw her on average about once a fortnight when she was in prison. The Tribunal infers that they continue to see her in immigration detention on a similar basis.
While not a parent, the Tribunal takes into account that the Applicant would care for the children during the day while their parents are at work until they go to school full-time. The Tribunal finds that the two days a week childcare/ early education will continue until each of them goes to school, given the importance her son attaches to their early education and that the Applicant does not speak English. The Tribunal accepts that she is a caring grandmother. Although not explicitly addressed, the Tribunal accepts that she may care for the children at times before and after school in the future. It is more than 13 years until the older child turns 18 and almost 17 years until the younger child turns 18.
To the extent that the children have been exposed to visiting prison and immigration detention to visit her, the Applicant’s conduct has had a negative impact on the older child. The younger child is probably not old enough to have been negatively impacted by the visits.
The children will not see the Applicant in person regularly if she returns to China because it will be difficult for the young family to afford the trip. They will be able to use the telephone and internet to maintain contact with her.
The Tribunal does not have evidence of the views of the children, apart from their father’s assessment that they would miss her terribly.
The Tribunal finds that revocation is in the best interests of both of the Applicant’s grandchildren. It gives less weight to this consideration because the Applicant is in a non-parental relationship to the children.
Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached the laws of Australia and been convicted, as set out above. Given the nature of the offences, the Tribunal finds that the Australian community would expect that the Applicant should not hold a visa.
The Tribunal does not accept the submission made on behalf of the Applicant that the Australian community would not expect that the Applicant be removed from Australia when Mr Rek cannot be.
Other considerations
The Tribunal considers that the other relevant considerations in Direction 65 in this case are strength, nature and duration of ties, and extent of impediments if removed.[6]
Strength, nature and duration of ties
[6] Direction 65, cll 14.2 and 14.5(1) respectively.
The Applicant came to Australia in 2009 when she was 44 years of age because she married an Australian citizen. She brought her adult son with her. He is married and has two children, as discussed above. Her husband has said that he will go to China with her if she returns.
The Applicant offended within five years of arriving in Australia.
She claims to have established close ties and friendship in her choir and the nursing homes where she performs. The Tribunal finds that the Applicant got involved in the choir while she was on bail awaiting trial. There was no supporting evidence from any choir members or anyone else in the community.
The Tribunal finds that the Applicant does not have ties to the Australian community outside her immediate family. It accepts that her husband is an Australian citizen and her son and her grandchildren are permanent residents. Her husband claims that he will go to China with her if she returns. Her son and his family will remain in Australia and will miss her and her assistance if she returns to China.
Extent of impediments if removed
Clause 14.5(1) of Direction 65 is concerned with impediments the Applicant may face if returned to China, in establishing herself and maintain basic living standards, in the context of what is generally available to other citizens of that country.
The Applicant is now 53 years old. She claims that she takes iron tablets and medications for diabetes and cholesterol. The only medical evidence about her health condition is a medical certificate dated 1 January 2017 from a Visiting Medical Officer General Practitioner to a correctional facility. It certified that she has high grade uterine prolapse which is worsened by walking and standing and that she is completely unable to do any light or heavy duties and should be given a job where she can sit while doing it. This certificate was for the purpose of her management as an inmate of the correctional centre. At the hearing, the Applicant claimed to have tumours near her nose.
In short, she claims that she may not get proper medical care in China. The Tribunal takes into account that there are public and private medical facilities in China.
The Applicant taught music in China for 25 years. She claimed she could no longer do so because she cannot stand for 45 minutes in front of a class.
The Tribunal finds that there are no cultural or language barriers facing the Applicant is she returns to China, having lived there for 43 years of her life and worked as a teacher for 25 years.
Her mother, sister and brother live in China. She has friends in China. She said that they will not give her money, that her brother has a big role looking after their mother, and that her sister will be coming to Australia because her child is here. She also claimed that her sister was supporting her mother financially and would not assist her. The Tribunal takes into account that the evidence shows that she will have the support of her husband if she returns because he will go with her, although they both claim he will not be able to earn a living there.
The Tribunal accepts that the Applicant will face some hardship on return to China, including missing her son and his family. It gives little weight to her loss of association with the choir here or activities in nursing homes. She is well-equipped to undertake such activities in China.
The Tribunal does not accept that the difficulties are as great as the Applicant claims. She was able to assist her husband in a business activity in Australia using her Chinese language skills. The Pre-Sentence Report dated 17 October 2016 stated that she had provided her Australian Business Register information for verification of business registration. She worked at the weekend markets with him. She has those business and language skills as well as her teaching skills. The Tribunal finds that any hardship will diminish with time and that she is well-equipped to re-establish herself in China with the support of her husband, family and friends, and will attain a living standard at least that of other Chinese citizens.
In coming to that conclusion, the Tribunal has taken into account the evidence about the Applicant’s husband’s medical conditions, lack of Chinese language skills and the claimed impossibility of his living and working in China, to the extent that they impact on the Applicant’s capacity to establish herself there and maintain basic living standards.
Conclusion
The Tribunal finds that the considerations favouring non-revocation of the mandatory visa cancellation decision, that is the protection of the Australian community and the expectations of the Australian community, outweigh the best interests of the Applicant’s grandchildren and the relevant other considerations in Direction 65 for the reasons set out above.
The Tribunal is not satisfied that there is another reason why the original decision should be revoked.
In coming to its conclusion, the Tribunal has considered the several authorities referred to by the Applicant’s legal representative but did not find them of assistance to the consideration it has to undertake pursuant to the Act and Direction 65.
Decision
The reviewable decision is affirmed.

I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................
Associate
Dated: 27 November 2017

Date(s) of hearing: 15 November 2017

Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers

Solicitors for the Respondent: Mr L Dennis, Minter Ellison

[2017] AATA 2386

27 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	15 November 2017
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Mr L Dennis, Minter Ellison