Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2228

Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2228 (9 July 2021)
Division:GENERAL DIVISION
File Number:2021/2515
Re:Xiaoli Zhuang
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:9 July 2021
Place:Perth

The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 13 April 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.

.......[Sgd].................................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences of money laundering and possession of stolen/unlawfully obtained property – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 37-year-old man who arrived in Australia as a 16-year-old – extent of impediments if returned to China – reviewable decision affirmed
LEGISLATION
Criminal Code 1913 (WA) – ss 417, 563A
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Phan v The State of Western Australia [2019] WASCA 163
Tan v The State of Western Australia [2019] WASCA 112
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(2), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.1(2), 9.3, 9.2, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member S Burford
9 July 2021
INTRODUCTION

The Applicant is a 37-year-old citizen of the People’s Republic of China (China). He arrived in Australia on a student visa in April 2000, when he was 16 years old.[1] He was granted permanent residency in or around 2007[2] and was granted his most recent visa, a Class BB Subclass 155 Five Year Resident Return visa (the Applicant’s Visa) on 11 May 2017.[3]
[1] R2, G15, page 171.
[2] A2, page A28.
[3] R2, G6.
On 28 February 2020 the Applicant was found guilty by a jury in the District Court of Western Australia of two counts of ‘Laundering Property/Money from Proceeds of Major Offence’[4] (Laundering Offences) pursuant to s 563A of the Criminal Code 1913 (WA) (the Criminal Code). On 9 March 2020 he was sentenced to terms of imprisonment of two years for each count (to be served cumulatively).[5] He was also convicted of two counts of another offence on the same day, being ‘Possession of stolen or unlawfully obtained property’ (Possession Offences). His total effective sentence for all convictions was five years’ imprisonment. The total effective sentence was increased to seven years on appeal by the State.[6] The Applicant is currently incarcerated in Western Australia and will be eligible for parole in February 2025.[7]
[4] The Cancellation Decision also refers to these offences as ‘[d]ealt with money that was the proceeds of an offence’: R2, G6, page 47.
[5] R2, G4; G6; R3, pages 5–6.
[6] R3, pages 5–6; State of Western Australia v Zhuang [2021] WASCA 56 (the Court of Appeal Decision).
[7] Court of Appeal Decision, para [209].
On 27 May 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Visa Cancellation Decision).[8] The Applicant requested revocation of the Visa Cancellation Decision on 24 June 2020.[9]
[8] Migration Act ss 501(6)(a) and 501(7)(c); G6.
[9] R2, G7.
On 13 April 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Visa Cancellation Decision (the Non-Revocation Decision). The application before the Tribunal is for review of the Non-Revocation Decision.
The Applicant signed an acknowledgement of receipt of the Non-Revocation Decision on 19 April 2021.
The Applicant lodged his application for review of the Non-Revocation Decision on 22 April 2021.[10] His application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to

s 500(6B) of the Migration Act and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[10] R2, G2.
The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[11] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.[12]
[11] Migration Act s 501CA(4)(b)(i).
[12] Migration Act s 501CA(4)(b)(ii).
For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.
BACKGROUND
As noted above, the Applicant arrived in Australia as a student from China in 2000 when he was 16 years old.[13] He first studied English, then completed a Victorian Certificate of Education (VCE) through Taylors College and then studied applied sciences at university.[14] The Applicant is now 37 years of age.
[13] R2, G15, page 171.
[14] A2, page A28.
In 2001, the Applicant met Ms Xin Zeng online. They commenced a relationship and in 2003 Ms Zeng moved to Australia. They were married in 2006 and had two children together: Mstr S in 2010[15] and Ms B in 2012.[16] Mstr S and Ms B are now 11 and nine years old respectively. The children are Australian citizens.[17] The Applicant and Ms Zeng separated in 2013 and divorced in 2015.[18]
[15] R2, G8, page 97.
[16] R2, G8, page 100.
[17] R2, G8, pages 102–3.
[18] A2, page A28.
In 2013, the Applicant met his current partner, Ms Qun Xu online.[19] He visited her several times in China[20] and she moved to Australia on a student visa in 2014.[21] She initially lived in Newcastle and the Applicant split his time between Melbourne and Newcastle. Ms Xu moved to Melbourne in 2016. [22] They had a child together, Mstr C, in December 2019.[23] The Tribunal notes that no documentary evidence of Mstr C’s citizenship was provided, however the Tribunal accepts that he is also an Australian citizen based on his birth in Australia and the fact that his parents where permanent residents at the time of his birth.[24]
[19] A2, page A29.
[20] Transcript, page 22.
[21] A2, page A29.
[22] A2, page A29.
[23] R2, G8, page 99; A2, page A29.
[24] A2, page A29.
The Applicant’s mother moved to Australia in 2011 and his father came several years later in around 2017.[25]
[25] A2, page A30.
As noted above, on 9 March 2020, the Applicant was convicted in the District Court of Western Australia of two counts of ‘Laundering Property/Money from Proceeds of Major Offence’ and two counts of ‘Possession of stolen or unlawfully obtained property’. He was sentenced to two years’ cumulative imprisonment for each of the laundering offences, nine months for one of the possession offences and 12 months for the other. His total effective sentence was 5 years’ imprisonment to be served from 7 February 2020.[26]
[26] R2, G4; R3, pages 5–6.
On 27 May 2020, the Applicant’s Visa was mandatorily cancelled.[27] The Applicant was notified of the decision on the same day and was advised that he could make representations to seek revocation of the Visa Cancellation Decision.[28] The Applicant requested revocation of the Visa Cancellation Decision on 24 June 2020.[29] He made representations in support of his revocation request on the same date.[30]
[27] R2, G6.
[28] R2, G6.
[29] R2, G7.
[30] R2, G7, pages 56–72, 78–168.
On 1 April 2021, the Court of Appeal of Western Australia allowed an appeal by the State against the Applicant’s sentence. The Court found that the Applicant’s sentence was manifestly inadequate and resentenced the Applicant as follows:[31]
(a)five years and three months’ imprisonment for one of the Laundering Offences and five years and nine months’ imprisonment for the other Laundering Offence, with both sentences to be served concurrently;
(b)six months’ imprisonment (reduced from 15 months) for one of the Possession Offences and nine months’ imprisonment (reduced from 18 months) for the other Possession Offence. The Court noted that the sentences for these two offences were ‘reduced in the application of the totality principle’ and that they were to be served cumulatively.
The total effective sentence imposed by the Court of Appeal was seven years’ imprisonment to be served from 7 February 2020.
[31] The Court of Appeal Decision, paras [206]–[207].
On 16 April 2021, the delegate decided not to revoke the Visa Cancellation Decision.[32] The Applicant was notified of the Non-Revocation Decision by letter dated 16 April 2021 emailed to his representative on the same date. He signed for by hand delivery of the notification at Acacia Prison on 19 April 2021.[33]
[32] R2, G3.
[33] R2, G18.
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 9 July 2021.
THE HEARING
The hearing was held on 18 June 2021 at the Commonwealth Law Courts Building in Perth. The Applicant appeared in person. The Applicant was represented by Mr Adam McBeth of Counsel. Mr McBeth was instructed by Ms Claire Tan of Wiin Lawyers. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Mr Burgess appeared in person. Mr McBeth appeared by videoconference from Melbourne.
The hearing was conducted with the assistance of an accredited interpreter in the English and Mandarin languages. Initially Mr McBeth indicated that the Applicant’s preference was for all aspects of the hearing to be interpreted for the Applicant. However, the Applicant frequently answered questions in English prior to the questions being interpreted for him. Shortly into the Applicant’s cross examination, Mr McBeth indicated that his instructing solicitor raised a concern that one of the Applicant’s responses in Mandarin had not been accurately interpreted. The Tribunal discussed this with the parties to determine whether the hearing should proceed or whether the hearing should be adjourned to enable another interpreter to be engaged. The Tribunal noted that in the event an alternate interpreter could not be obtained for the hearing that day it would be likely the hearing would have to proceed on a different day with the Applicant appearing by videoconference, as there was limited availability of hearing rooms at the Commonwealth Law Courts.
Following the short adjournment, Mr McBeth indicated that the Applicant wished to proceed with the existing interpreter. Mr McBeth requested that as the Applicant was fluent in English the questions be translated for the Applicant and if the Applicant was comfortable answering in English he would do so. If he was uncertain or had any questions, he would use the interpreter, and if he was concerned about whether he was being interpreted accurately, he would raise that with the Tribunal. The Applicant confirmed he was happy to proceed on that basis. The Tribunal proceeded on the basis that the Applicant appeared to have a good command of English and had spontaneously answered questions in English previously. The Tribunal encouraged the Applicant not to hesitate to use the interpreter if needed, which he did on several occasions. The Applicant himself did not raise any issues with the interpreting services during the hearing and the Tribunal was satisfied that the Applicant was able to understand and fully participate in the hearing.
At the hearing, the Applicant made submissions via his representative, gave evidence and was cross-examined. The Applicant submitted a number of witness statements but did not call any witnesses to testify. The Respondent indicated that they did not wish to cross-examine any witnesses.
The following documents were admitted into evidence:
·Applicant’s Statement of Facts, Issues and Contentions, dated 21 May 2021 (Exhibit A1);
·Applicant’s bundle of documents, filed with the Tribunal 21 May 2021 (Exhibit A2);
·Respondent’s Statement of Facts, Issues and Contentions, dated 4 June 2021 (Exhibit R1);
·section 501G documents, labelled G1 to G18 and comprising pages 1 to 195 (Exhibit R2); and
·Respondent’s tender bundle, filed with the Tribunal 14 June 2021 (Exhibit R3).
Written submissions, additional statements, letters and other supporting material were submitted to the delegate prior to the Non-Revocation Decision being made.[34] This material was admitted into evidence as part of the G Documents[35] and the Tribunal has also had regard to these statements.
LEGISLATIVE FRAMEWORK
[34] R2, G7–G14.
[35] R2, G7–G14.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)); or …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[36] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[37]
[36] Migration Act s 501CA(3).
[37] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(d)would be the reason, or a part of the reason, for making the original decision; and
(e)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(f)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(g)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(h)the person makes representations in accordance with the invitation; and
(i)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.

On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) under s 499 of the Migration Act. Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79), which was revoked on the same date.[38]
[38] Direction No 90 paras 2–3.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[39] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[40]
[39] Direction No 90 para 5.1(4).
[40] Direction No 90 para 6.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[41]
[41] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[42]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[42] Direction No 90 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[43]
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[43] Direction No 90 para 9.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENCES
The convictions for which the Applicant was sentenced on 9 March 2020 are his only recorded convictions.
According to the Sentencing Judge’s remarks, the Applicant was convicted following a trial for ‘four serious offences arising from four discrete trips’ he made to Perth from Melbourne in July and August 2017 ‘to collect large sums of cash’.[44] The Applicant was arrested, along with his co-accused, during the course of the fourth trip on 22 August 2017. They were found to be jointly in possession of $1,608,920 on that occasion.[45]
[44] R2, G5, page 35.
[45] R3, pages 9–11.
In relation to the two Possession Offences, the amounts concerned were $467,000 (Count 2) and $998,900 (Count 4). The offences were committed on 26 July 2017 and 3 August 2017 respectively. In relation to the two Laundering Offences, the amounts concerned were $1,420,000 (Count 5) and $1,608,920 (Count 7). The offences were committed on 16 August 2017 and 22 August 2017 respectively. This brought the total criminal activity the Applicant was charged with to a value of $4,492,820.[46]
[46] R2, G5, page 35; Court of Appeal Decision, paras [5]–[9].
For the two Possession Offences, the Sentencing Judge noted that the jury were necessarily satisfied beyond reasonable doubt that the Applicant and his co-accused possessed money that was ‘objectively reasonably’ suspected of being unlawfully obtained and that each accused person failed to prove that they had no reasonable grounds for suspecting that the money was unlawfully obtained.[47]
[47] R2, G5, page 36.
For the two Laundering Offences, the jury were necessarily satisfied beyond reasonable doubt that the Applicant and his co-accused dealt with money in Western Australia that was the proceeds of an offence and that each failed to prove ‘at the very least’ that they did not have reasonable grounds to believe or suspect that the relevant money was the proceeds of an offence.[48]
[48] R2, G5, page 36.
In the context of sentencing Troy DCJ stated:
I am quite satisfied that the money in counts 5 and 7 was derived by criminals and/or criminal organisations from criminal activities on a very significant scale. Your role was to launder that money. I am satisfied beyond reasonable doubt that each of you believed that the money was the profits of criminal enterprise in Australia and your role was to assist in moving it to Victoria.
The Court of Appeal Decision notes that it was the State’s case at trial that in August 2017 the Australian Criminal Intelligence Commission began a covert operation ‘investigating a large scale money laundering syndicate based in Victoria’.[49] The Court recorded the State’s case as follows:[50]
[49] Court of Appeal Decision, para [19].
[50] Court of Appeal Decision, paras [20]–[28].
Mr Zhuang and Mr Li, who resided in Victoria, were involved in the syndicate as cash collectors. On four separate occasions during July and August 2017, Mr Zhuang and Mr Li travelled from Victoria to Perth by commercial aircraft for the sole purpose of collecting cash. Another member of the syndicate, Xixuan Huang, made the travel arrangements. Mr Zhuang hired motor vehicles for the purpose of collecting and transporting the cash.
When they were in Perth, Mr Zhuang and Mr Li were involved in clandestine meetings with unidentified “cash sources”. A member of the syndicate, known as Jackie, organised and facilitated those meetings. Jackie acted as an intermediary between Mr Zhuang and Mr Li, on the one hand, and the cash sources, on the other. Mr Li received instructions from Jackie.
Upon meeting, each of the parties to the meeting confirmed the other's legitimacy through the use of an arranged token, being the serial number on a five or ten dollar note. Mr Li photographed the note. Jackie supplied the photograph to the cash source before the meeting.
During the meetings, Mr Zhuang and Mr Li were involved jointly in receiving substantial amounts of Australian currency. Apart from the fourth collection, the subject of count 7, Mr Zhuang and Mr Li transported the cash to Victoria, either by motor vehicle or commercial aircraft.
Upon arrival in Victoria, Mr Li delivered the cash to Ms Huang and another or others. Ordinarily, Ms Huang then supplied the cash to Xiao Tang, who offset the cash by means of a series of online banking transactions in Yuan to various Chinese bank accounts. The details of the recipient bank accounts were supplied by Jackie to Mr Li, who then forwarded those details to Mr Tang. After the transactions were carried out, Mr Tang took screenshots of the transaction records and gave them to Ms Huang. Ms Huang then sent the screenshots to Mr Li, who acted as the 'go between' to Jackie, to verify the transfers.
On the evening of 22 August 2017, Mr Zhuang and Mr Li were in Perth. They were driving a hired motor vehicle. Representatives of the Australian Criminal Intelligence Commission stopped their vehicle. Shortly afterwards, Mr Zhuang and Mr Li were arrested by police. Their vehicle was searched by police, who located and seized two suitcases containing $1,608,920 cash in total. The cash was packaged in vacuum sealed blocks of $100,000 wrapped with elastic bands.
Police also located and seized three mobile telephones from Mr Zhuang and Mr Li. Analysis of data on the telephones revealed a significant number of communications from a variety of applications, including “WeChat” and “WhatsApp”, in the form of text, image and audio files. Almost all of the communications were in Mandarin. The text and audio in Mandarin were translated into English.
Between 19 and 25 May 2017, Mr Li and Jackie exchanged a series of text and audio communications. During those communications, Mr Li and Jackie negotiated the terms of a business arrangement for the collection of money. Jackie asked Mr Li to act as his general agent in Australia.
The syndicate was structured so as to provide anonymity to those higher in the chain of command and to distance the origin of the cash from its intended destination. The collection of the cash was clandestine and protected by the use of tokens and an intermediary to facilitate the handover.
(Paragraph numbers omitted.)
At trial, the Applicant maintained that he did not know or suspect that the cash was the proceeds of an offence. The Applicant maintained that he was merely assisting his friend and he did not know or have reason to suspect the cash was the proceeds of an offence or unlawfully obtained.[51]
[51] Court of Appeal Decision, paras [30]–[32].
Before the Tribunal, the Applicant maintained that he did not know that he was carrying cash with respect to the first two trips which gave rise to the Possession Offences and with respect to cash which was the subject of the two Laundering Offences, he did not know where the money came from and did not suspect it arose from criminal activity. He maintained throughout the trial and proceedings before the Tribunal that he was merely transporting the suitcases to help a friend (his co-accused).[52]
[52] A2, page A27.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant has accepted that he does not pass the character test.[53]
[53] A1, para [1].
The Tribunal may revoke the Visa Cancellation Decision if it is satisfied that the Applicant passes the character test.[54]
[54] Migration Act s 501CA(4)(b)(i).
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[55]
[55] Migration Act s 501(7)(c).
The Applicant was sentenced to a term of imprisonment of seven years on

1 April 2021 for each of the Laundering Offences and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
The Tribunal is not satisfied that the Applicant passes the character test.[56]
[56] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE VISA CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Visa Cancellation Decision should be revoked.
Protection of the Australian community
The first primary consideration focuses on the protection of the Australian community. Paragraph 8.1(1) of Direction No 90 provides that:[57]
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
[57] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to:[58]
[58] See also Direction No 90 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s offences are detailed above at paragraphs [41]–[49].
The Applicant submitted that:[59]
… the factors that the Tribunal must consider in cl 8.1.1 as to the nature and seriousness of the conduct, when viewed in the proper context of the types of conduct emphasised by the Ministerial Direction to justify non-revocation, weigh in favour of revocation in this case, with the possible exception of the length of sentence in cl 8.1.1(1)(c).
[59] A1 at [37].
The Applicant further submitted, in summary, that:
(a)the Applicant’s crimes were not violent, noting that Direction 90 ‘emphasises’ crimes of violence. When contrasted with the types of offending that are the ‘focus’ of Direction 90, the Applicant’s offending was not ‘of the sort that weighs against revocation’;[60]
(b)with regard to the spectrum of property laundering offences, the sentenced imposed was ‘towards the higher end of the spectrum’ primarily due to the amount of money involved, but the sentence was nevertheless well below the statutory maximum;[61]
(c)the question facing the Tribunal is ‘whether the offence is very serious in terms of the protection of the Australian community, consistent with the examples of very serious offences set out in [Direction 90]’;[62]
(d)other factors to be considered including the frequency and cumulative effect of the offending were not a feature of the Applicant’s offending and therefore weighed in favour of revocation;[63] and
(e)the lack of reoffending after he was made aware that his visa may be cancelled and the lack of any false or misleading information provided to the Department also weigh in favour of revocation.[64]
[60] A1 at [26]–[29].
[61] A1 at [30]–[31].
[62] A1 at [30].
[63] A1 at [32]–[33].
[64] A1 at [34]–[35].

The Respondent contended that the Applicant’s offending should be viewed as very serious, having regard to the relevant factors in Direction No 90, and particularly in light of:[65]
(a)the length of the sentence of imprisonment imposed, having regard to the fact that prison is a sentence of last resort; and
(b)the cumulative effect of the Applicant’s repeated conduct ‘had a deleterious impact on the Australian community’.
[65] R1 at [29.1]–[29.2].
In sentencing the Applicant, Troy DCJ remarked that the offending on all counts was serious, involving a very significant amount of cash.[66] His Honour also noted that the case represented ‘a very serious example of a property laundering offence’.
[66] R2, G5, page 42.
The Court of Appeal noted with regard to the seriousness of the Applicant’s offending:[67]
Mr Zhuang’s overall offending on the counts in the indictment of which he was convicted was also very serious, although less serious than [his co-accused’s] overall offending. The very serious nature and circumstances of his offending overall offending are readily apparent from His Honour’s findings of fact and other facts that were not in contest at the sentencing hearing. … The objective facts and circumstances of the offending, viewed as a whole, were very serious.
[67] Court of Appeal Decision, para [177]–[178].
In discussing the adequacy of the sentence imposed by the District Court, the Court of Appeal noted the importance of general deterrence with respect to the offences for which the Applicant and his co-accused were convicted. Their Honours noted:[68]
The laundering of the profits of criminal enterprises is an essential aspect in the achievement of the objectives of organised crime, especially the objectives of those at or towards the top of the criminal hierarchy.
[68] Court of Appeal Decision, para [172].
This Tribunal is obligated by Direction No 90 to take into account of a range of factors including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[69] Particularly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[70] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they do not contribute to the assessment of the Applicant’s offending as serious.
[69] Paragraphs 8.1.1(1)(a) and (b)
[70] Direction No 90 para 8.1.1(1)(a)
In determining the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[71] crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such;[72] and any crime committed by the Applicant while in immigration detention.[73] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they also do not contribute to an assessment of the Applicant’s offending as serious.
[71] Direction No 90 para 8.1.1(1)(b)(i).
[72] Direction No 90 para 8.1.1(1)(b)(ii).
[73] Direction No 90 para 8.1.1(1)(b)(iv).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing his prior criminal offending.[74] There is no evidence before the Tribunal that the Applicant has done so.
[74] Direction No 90 para 8.1.1(1)(f).
While the Tribunal finds that the above-mentioned considerations do not contribute to an overall assessment of the seriousness of the Applicant’s offending, the Tribunal does not accept the Applicant’s submission that the absence of these features in the Applicant’s conduct or offending weigh in favour of revocation. Paragraphs such as 8.1.1(1)(b) of Direction No 90 prescribe that certain crimes or conduct are considered to be serious. However, Direction No 90 is clear that the categories or offending specified in such paragraphs are not an exhaustive or exclusive list. Rather, the paragraphs have the effect of directing that certain types of offending shall be considered to be serious, or very serious, ‘without limiting the range of conduct that may be considered serious’.[75]
[75] Direction No 90 paras 8.1.1(1)(a) and 8.1.1(1)(b).
The Tribunal finds that this reflects the seriousness with which those particular categories of offending are to be viewed such that in applying those provisions, offences which may not otherwise have been characterised as ‘very serious’ or ‘serious’ will be characterised as such.
However, it is uncontroversial that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious property and financial crimes. Nothing in Direction No 90 suggests that the characterisation of serious offending or conduct should be reserved only for violent crimes or restricted to crimes against victims falling within a category highlighted by the Direction.
Further, the Applicant’s submission that the fact that a consideration does not apply to the Applicant’s offending should be taken to weigh ‘in favour of revocation’ adopts a flawed view of the Tribunal’s task and of the operation of Direction No 90. The Tribunal’s role is to determine whether there is ‘another reason why’ the decision to cancel the visa should be revoked. The Direction acts as a guide in exercising powers under s 501CA of the Act.[76] While the seriousness of the Applicant’s offending is required to be considered in making that assessment, nothing in Direction No 90 suggests, for example, that the mere fact that the offences or conduct engaged in were not committed against a vulnerable member of the community should weigh in favour of revocation. In the Tribunal’s view, to construct Direction No 90 in this manner misconstrues its intention and ignores clear language that all criminal offending and serious conduct must be considered or weighed without excluding any type of criminal offending from characterisation as ‘serious’ or ‘very serious’.
[76] Direction No 90 para 5.1(4).
Paragraph 8.1.1(1)(c) of Direction No 90 requires the Tribunal to have regard to the sentences imposed by the courts. The Tribunal accepts the Respondent’s submission that sentences of imprisonment are a last resort in the sentencing hierarchy,[77] which is reflected in the comments of the Sentencing Judges in the Applicant’s circumstances. In the Tribunal’s view, the sentence imposed for the Applicant’s offending reflects the Court of Appeal’s assessment of the very serious nature of the offending. While the Applicant submitted that the sentence predominantly reflected the amounts of money involved in the charges and a comparison to like cases, it is clear from the comments of Court of Appeal that the total effective sentence, applying the totality principle, reflects:[78]
… the overall criminality involved in all the offences … viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentence imposed in comparable cases.
[77] R1 at [28.1].
[78] Court of Appeal Decision, para [106].
Thus, comparable case sentences are merely one part of the sentencing assessment. With respect to the assessment of the inadequacy of the original sentence, the Court of Appeal considered all the relevant facts and circumstances of the offending, including the seriousness and facts of the offending, the maximum penalty, the importance of general deterrence and any aggravating and mitigating circumstances.[79] Their Honours noted, in increasing the Applicant’s sentence, that the total effective sentence imposed by the District Court failed to adequately reflect the seriousness of the Applicant’s offending in relation to the Laundering Offences. The Court of Appeal further stated that significant weight had to be given to general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were very serious.[80]
[79] Court of Appeal Decision, para [173].
[80] Court of Appeal Decision, para [179].
While the Tribunal accepts that the Applicant received less than the maximum sentence for his offences, the Tribunal considers that his seven-year effective sentence can only be properly described as a significant custodial sentence, particularly given that these were the Applicant’s first offences. The fact that the Court of Appeal chose to increase the Applicant’s previous five-year effective sentence on the basis that it was ‘manifestly inadequate’ highlights the serious nature of the offending and the significance of the sentence ultimately imposed by the Court. The Tribunal therefore considers that the Applicant’s seven-year effective custodial sentence of imprisonment is an indication of the very serious nature of his offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.[81] The Applicant submitted that the offences were all committed over a discrete period in 2017 and that prior to that, the Applicant did not have any history of offending. The Applicant also noted that he did not reoffend while he was in the community on bail for an extended period. The Tribunal notes the Applicant’s prior lack of offending, which the Sentencing Judge commented would have been useful to the with which he was engaged. The Applicant’s lack of prior offending weighs in his favour.
[81] Direction No 90 para 8.1.1(1)(d).
However, the Tribunal notes that the Applicant committed four serious offences within a period of just over a month. His offending ceased because of his detection and arrest. While he contended that he merely carried suitcases for a friend, the Sentencing Judge found that he was principal offender.[82] Troy DCJ also noted that the Applicant’s offending could not be regarded as a ‘result of naivety’ or as ‘as an isolated lapse in judgement’.[83]
[82] R2, G5, page 40.
[83] R2, G5, page 42.
In the Tribunal’s view, the offending in that period must be regarded as frequent and, given the nature of the offending, the Tribunal regards that as contributing to the seriousness of the offending. The Tribunal also notes that the convictions indicate a fairly rapid increase in the amounts of money being transported, as reflected in the convictions for the initial Possession Offences and the latter Laundering Offences. In the Tribunal’s view, this does reflect a trend of increasing seriousness, which might be said to have arisen from the Applicant’s increased involvement in the organised criminal enterprise. Again, because of the nature of that criminal conduct, the trend towards more serious offending increases the assessment of the overall seriousness of the offending.
With respect to the cumulative effect of repeated offending,[84] The Tribunal accepts the Respondent’s submission that the fact that the offending was facilitating organised criminal activity should be seen as cumulatively having a deleterious impact on the Australian community. However, the Tribunal considers that this factor contributes less to the overall assessment of the seriousness of the Applicant’s offending, given the Applicant’s offending was detected and the laundering operation disrupted only a month into the operation following four instances where money was moved.
[84] Direction No 90 para 8.1.1(1)(e).
It cannot be said that the Applicant’s offending is not to be viewed as serious merely because it lacked a quality of violence or any other features specifically identified in para 8.1.1(1). The Applicant engaged in repeated offending designed to facilitate the activities of organised crime. He laundered significant amounts of money, which the Courts have found that he knew beyond a reasonable doubt was unlawfully obtained. In the Tribunal’s view and following the comments and assessment of the offending by the courts, the Applicant’s offending was very serious.
In sentencing, Troy DCJ quoted the observations of the courts in Tan v The State of Western Australia [2019] WASCA 112 and Phan v The State of Western Australia [2019] WASCA 163:[85]
[85] R2, G5, page 41
In Tan it was said and cited with approval in Pham(?) [sic]:
Money laundering is vital to the functioning of organised criminal syndicates and the money launderer is an important cog in the wheel of organised crime. Thus money laundering is an offence in respect to which general deterrence is given significant weight.
It was said in Pham [sic]:
The last of these principles warrants some elaboration. The laundering of the proceeds of criminal activity is the lifeblood of organised crime.
To state the obvious the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities.
The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. This underscores the importance of general deterrence in sentencing for offences of this kind.
Overall, and having regard to para 8.1.1(1) of Direction No 90, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 90 states, in part:[86]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[86] See also Direction No 90 para 8.1(2)(b).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[87]

It also requires an assessment of the likelihood of reoffending.[88]
[87] Direction No 90 para 8.1.2(2)(a).
[88] Direction No 90 para 8.1.2(2)(b); see also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 444–5 [94]–[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at 124–5 [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[89]
[89] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
While these cases were considering character ground visa cancellations in the context of precursors to Direction No 90, the same considerations and principles apply to the present case, given the similarity in the wording of the various relevant Ministerial Directions.
The Applicant’s representative submitted that the Applicant presented a ‘very low – indeed negligible – risk of reoffending’ having regard to:[90]
(a)the assessment of the Sentencing Judge;
(b)the Applicant’s previous good character;
(c)the fact that upon release from prison, the Applicant would no longer be useful to the criminal enterprise as he would no longer be a person ‘not on the radar’;
(d)the Applicant’s remorse and his awareness of the consequences of reoffending, particularly in relation to the potential separation from his children and elderly parents;
(e)the fact that the Applicant did not reoffend when in the community on bail between August 2017 and February 2020; and
(f)the fact that the nature of harm which would be suffered if the Applicant were to reoffend in a similar way was not violent or directed against individual victims.
[90] A1, pages A6–A7 at [41]–[53].
The Applicant contended that the protection of the Australian community consideration weighed in favour of revocation of the Non-Revocation Decision or alternatively that the consideration should be given little weight in light of the ‘extremely low risk’ the Applicant would reoffend.[91]
[91] A1, page A7 at [53].
The Respondent submitted that the nature of the harm that would be caused if the Applicant were to reoffend is very serious given that the Applicant’s offending enabled organised crime. The Respondent contended that the result of such reoffending would be likely to involve ‘significant physical, psychological and financial harm to members of the Australian community such that the Australian community would have little tolerance for any likelihood of reoffending and future harm’.[92] The Respondent submitted that there was insufficient evidence that the Applicant had rehabilitated, including a lack of expert evidence as to the likelihood of the Applicant reoffending. The Respondent further submitted that the Sentencing Judge noted that the Applicant had not shown any remorse for his behaviour and that support from the Applicant’s family had not been a protective factor against his offending in the past.[93]
[92] R1, pages 9 at [32].
[93] R1, pages 9–10 at [33]–[35].
Accordingly, the Respondent submitted that the Applicant presents an unacceptable risk to the Australian community and that the consideration of the protection of the Australian community, with regard to the risk of harm to the Australian community, weighs very heavily against revocation of the Visa Cancellation Decision.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[94]
[94] Direction No 90 para 8.1.2(2)(a).

The Applicant has been convicted of serious offences relating to the proceeds of criminal conduct. It was accepted by the Sentencing Judge and the Court of Appeal that the details of the criminal offences which had been committed in order to obtain such significant amounts of money which the Applicant had possessed or laundered could not be known. However, Troy DCJ noted:[95]
The criminality involved in obtaining the $3 million that gives rise to counts 5 and 7 can only have been serious. … It is also to be expected that in prosecutions of this type often little or nothing will be known as to the offence or offences from which the money is derived.
[95] R2, G5, page 41.
However, as noted earlier, the Court of Appeal observed that laundering of the profits of criminal enterprises ‘is an essential aspect in the achievement of the objectives of organised crime’.[96]
[96] Court of Appeal Decision, para [172].
In written submissions to the Department, the Applicant accepted that ‘financial crimes affect the Australian economy through loss of revenue’. The submissions cited an Australian Transaction Reports and Analysis Centre report stating:[97]
Money laundering threatens Australia’s prosperity, undermines the integrity of our financial system and funds further criminal activity which impacts on community safety and wellbeing.
The Applicant conceded in these submissions that the nature of harm to the community if he were to reoffend was significant.
[97] R2, G7, pages 87–8 citing Money laundering in Australia 2011, last updated on 17 July 2019, Source: 2011#:~:text=Money%20laundering%20is%20a%20critical,arms%20trafficking%20and%20corrupt%20practices.
Before the Tribunal, the Applicant contended that as the criminal activity which was the source of the money possessed or laundered by the Applicant could not be identified, it could not be said that the harm caused by offending in a similar manner would result in any specific kinds of harm, such as drug offences or violent crime. The Respondent contended that the inference could be drawn by the nature of the offending that it facilitated serious criminal activity including drug offending and property crime.
In RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[98] McKerracher J noted at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
This passage of his Honour’s decision was recently cited with approval by Colvin J in JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[99]
[98] [2021] FCA 266.
[99] [2021] FCA 762 at [43]–[45].
In the present case while it might be that the Applicant’s criminal activities did not cause harm of the kind which was directly identifiable, or had no apparent or identifiable victim, that does not diminish the serious harm which may flow from the offending, harm which the offences are designed to protect against: in this instance organised crime and the unlawful activity that generates its profits. In the Tribunal’s view, and adopting the approach of the authorities, it does not assist the Applicant that the specific criminal activity facilitated by his offending cannot be identified. As noted by the Court of Appeal and the Sentencing Judge, the obscuring of the source of the funds and hiding the identity of those involved in the criminal enterprise is effectively the purpose of criminal activity which gives rise to the offences. In that way, the offences for which the Applicant was convicted cause harm to the community, by enabling organised criminal networks to flourish and avoid detection by authorities. That activity attracts serious criminal sanction because of the risk of harm to the community that it represents.
As the courts in this instance observed, the amounts of money involved in the offences stands as a mark of the serious nature of the criminal activity which generated it. The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner, though involvement in facilitating the activities of organised crime, would be very serious.
Likelihood of the non-citizen engaging in further criminal or other serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[100]
[100] Direction No 90 para 8.1.2(2)(b).
The Sentencing Judge found that the Applicant had not established, on the balance of probabilities, that he was remorseful for his offending.[101] However, his Honour Troy DCJ accepted that the Applicant (and his co-accused’s) ‘risk of reoffending in a like way is low and in each case, the prospects of rehabilitation are good’.[102] His Honour acknowledged the Applicant’s lack of antecedents, noting that the Applicant’s previous good character was ‘useful’ in the context of the offending because it meant he was not a person who would be ‘particularly on the radar’.[103] The Court of Appeal agreed with this assessment.[104]
[101] R2, G5, page 38.
[102] R2, G5, page 38.
[103] R2, G5, page 39.
[104] Court of Appeal Decision, para [65].
Troy DCJ also noted that the Applicant’s offending could not be regarded as a ‘result of naivety’ or as ‘as an isolated lapse in judgement’.[105]
[105] R2, G5, page 42.
In the Applicant’s favour, the Tribunal acknowledges the Applicant’s good antecedents, which demonstrated that he was, prior to the offences, of good character. He had no recorded offences for the first 17 years he was in Australia which weighs in his favour. The Tribunal also accepts that the Applicant spent a period of more than two years in the community on bail and did not reoffended during that period. This also weighs in the Applicant’s favour and suggests the Applicant has the capacity to live a prosocial life in the community. However, as the Applicant was on bail during the later period of non-offending and therefore was subject to the threat of imprisonment if he breached his bail conditions (including by reoffending), the Tribunal gives slightly less weight to that period of nonoffending in assessing the likelihood the Applicant would reoffend when not subject to the same supervisory constraints. The Tribunal accepts that the threat of further visa cancellation should he reoffend would also act as a protective factor against the Applicant reoffending.
In his witness statement, the Applicant expressed ‘regret’ for his offending as follows:[106]
I very much regret having agreed to transport cash when my friend asked me to. I would certainly not do so if I had my time again.
However, the Applicant maintained at the hearing that he did not suspect that there was anything illegal about the suitcases he was transporting, and that in the case of the two Possession Offences, he did not know what was in the suitcases.[107] Further, when asked whether he now accepted that the money probably came from some type of crime, he said that having been shown evidence, which he did not know at the time, he now understood that ‘he’ (presumably his co-accused) was ‘doing something – like criminal stuff’. He went on to say ‘so, now, of course, I feel bad for it’.[108] He reiterated that he regretted transporting the suitcases.[109]
[106] A2, page A27.
[107] Transcript, pages 18, 26.
[108] Transcript, page 26.
[109] Transcript, page 27.
The Tribunal notes that the jury found the Applicant guilty of the two Possession Offences. As noted in the Sentencing Judge’s comments, having regard to the elements of the offences, this meant that following a trial in which the Applicant pleaded not guilty:[110]
… the jury were necessarily satisfied beyond reasonable doubt that [the Applicant] possessed money that was objectively reasonably suspected of being unlawfully obtained and that each of [the Applicant and his co-accused] failed to prove that [they] had no reasonable grounds for suspecting that the money was unlawfully obtained.
[110] R2, G5, page 36; see also Criminal Code s 417.
Further, for the Laundering Offences, the jury were necessarily satisfied beyond reasonable doubt that the Applicant dealt with money in Western Australia that was the proceeds of an offence. The jury also found that the Applicant failed to prove that he did not have reasonable grounds to believe or suspect that the relevant money was the proceeds of an offence. These are not findings which it is open to, or appropriate for, the Tribunal to go behind.[111]
[111] HZCP v for Immigration and Border Protection [2019] FCAFC 202, [68], [194].
The Sentencing Judge commented at some length on the Applicant’s evidence at trial noting that there were passages of his evidence which his Honour was satisfied that the Applicant knew ‘was complete nonsense’.[112] He also noted with respect to the Applicant’s claimed cooperation with authorities following his arrest:[113]
He has not provided or did not provide any information about any other alleged offenders. The submission that he demonstrated honesty, cooperation and assistance to law enforcement at the higher end of the scale only has to be stated in my view to reveal its inherent absurdity.
[112] R2, G5, page 37.
Troy DCJ found that:[114]
I am quite satisfied that the money in counts 5 and 7 was derived by criminals and/or criminal organisations from criminal activities on a very significant scale. Your role was to launder that money. I am satisfied beyond reasonable doubt that each of you believed that the money was the profits of criminal enterprise in Australia and your role was to assist in moving it to Victoria.
The Tribunal is not persuaded that there is any basis on the evidence before it to go behind those findings of the Sentencing Judge, which were made on the basis of his Honours observation and assessment of the evidence presented at trial and which were made in the context of the sentences which result in the Visa Cancellation Decision.[115]
[114] R2, G5, page 39.
[115] HZCP v for Immigration and Border Protection [2019] FCAFC 202, [68], [194].
In any event, the Sentencing Judge’s findings were consistent with the Tribunal’s assessment of the evidence before it, including the Applicant’s evidence at the Tribunal hearing. While the Applicant expressed regret at carrying the suitcases, he continued to deny knowledge of the source of the funds, or even a suspicion that the money was the proceeds of criminal activity. He maintained that he would not risk his immigration status for a mere ‘200 to $300’ which was the amount he was to be paid for transporting the money, pointing to his solid financial and personal circumstances. The Sentencing Judge’s comments indicate that the benefit the Applicant received from participation in the criminal activity was unable to be determined. While the benefit gained remains unclear, the Tribunal does not accept on the evidence that the Applicant did not know he was carrying more than $4 million dollars in the course of the offences, or that he was unaware the money was the proceeds of criminal activity. He did not offer any explanation for having engaged in the activity other than that he was helping his friend. The Tribunal does not accept that claim to be credible given the findings of the District Court regarding the Applicant’s guilt and the state of his knowledge in the commission of the offences.
Several character references were submitted to the Department attesting to the Applicant’s good character and the witnesses surprise at his convictions.[116] These statements do not refer to the detail of the Applicant’s offences however several characterise his actions as merely helping a friend.[117] While the Tribunal accepts this statements as evidence of the regard the witnesses hold for the Applicant and his commitment to his family, as they do not indicate detailed knowledge of the nature of the offences consistent with the findings of the jury and Sentencing Judge the Tribunal does not place significant weight on them as evidence the Applicant would not reoffend.
[116] R2, G13, page 141 (statement of Wenbo Lu); page 142 (statement of Yujun Wu); page 140 (statement of Jiechaun Lu); pages 138-139 (statement of Haiwei Chen).
[117] R2, G13, page 141 (statement of Wenbo Lu); page 142 (statement of Yujun Wu); page 140 (statement of Jiechaun Lu).
In the Tribunal’s view, the Applicant’s evidence at the hearing was not consistent with either a demonstration of genuine remorse for his offending or an acknowledgement of the role he played in facilitating what the courts described as ‘serious criminal activity’. The Tribunal considers his denials to be at odds with his convictions. The Applicant’s denials also demonstrate both a lack of remorse and a tendency by the Applicant to minimise his offending. In the Tribunal’s view, the Applicant’s continued denials demonstrate a lack of insight into his offending which calls into question his claimed rehabilitation and causes concerns regarding his likelihood of engaging in further criminal conduct.
There was no evidence that the Applicant had undertaken any courses or counselling designed to address the causes of his offending such as may be considered to further reduce the risk of reoffending. Submissions to the Department refer to the Applicant undertaking educational courses in prison in carpentry and art. No evidence was provided in support of these submissions and, in any event, they do appear to have been directed towards rehabilitation. However, the Tribunal notes that no particular causes of the Applicant’s offending or program interventions to address a risk of reoffending are identified in the material before the Tribunal. As such, the Tribunal does not place significant weight on the fact the Applicant has not undertaken such programs.
The Applicant pointed to the support of his family and his commitment to his children, partner and parents as protective factors against any future reoffending. The Respondent submitted that these factors were present when the Applicant offended previously and cannot be relied upon as protective factors against reoffending. The Tribunal agrees that the Applicant’s family supports were insufficient to prevent him offending in the past. This causes a concern regarding the likelihood of reoffending, particularly where the Applicant was unable to provide a credible account or reasoning for his past offending and where that offending demonstrated a disregard for the laws of Australia. However, the Tribunal accepts that the prospect of removal from Australia and separation from his family may act as a deterrent to reoffending in the future lessening the likelihood of such conduct.
There was no evidence before the Tribunal of psychological or other risk assessments of the Applicant relevant to reoffending undertaken in a sentencing or custodial context. Relying on the assessment of the Sentencing Judge, which was adopted by the Court of Appeal in resentencing, and the evidence before it, the Tribunal considers that the Applicant’s risk of reoffending in a similar manner is low. However, the Applicant has not demonstrated any efforts to address the causes of his offending, be they attitudinal or otherwise. Indeed, his continued denial of responsibility for his own part in serious criminal conduct suggests to the Tribunal that it cannot have confidence that the Applicant’s risk of reoffending has changed from the time of the Sentencing Judge’s assessment. That is to say, there is no evidence to suggest that the Applicant’s risk is something less than a low risk as was contended in submissions.
Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be low. Given the significant impact of organised crime on the Australian community. the Tribunal regards that even a low risk of reoffending cannot be discounted and is unacceptable. If the Applicant does engage in offending consistent with his previous offences, there is a risk of significant harm to the community. On balance this weighs against the Applicant.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 90 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal that the Applicant has engaged in acts of family violence.
The Applicant submitted that this meant that the family violence primary consideration weighs in favour of revocation of the Visa Cancellation Decision. The Tribunal does not accept this submission. It does not follow from the fact that an Applicant’s conduct or offending does not fit within a category or consideration specifically identified in Direction 90 that the category or consideration in question would therefore weigh in favour of revocation of a cancellation decision. This is clear from the introductory paragraphs to
Part 2 of Direction No 90 which indicate that that the considerations identified in para 8 (primary considerations) and para 9 (other considerations) must be taken into account ‘where relevant to the decision’. In the Tribunal’s view, where there is no evidence of family violence, the consideration relating to ‘Family violence committed by the non-citizen’ is not relevant to the decision pertaining to that applicant.
Accordingly, this consideration is not relevant in the Applicant’s circumstances and the Tribunal gives it no weight.
Best interests of minor children in Australia affected by the decision
Paragraph 8.3 of Direction No 90 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child affected by the decision:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

The fourth primary consideration requires the Tribunal to weigh the expectations of the Australia community. Paragraph 8.4 of Direction No 90 states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, 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 is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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.
In general terms, para 8.4 of Direction No 90 is a more expansive expression of the community expectations than expressed in previous ministerial directions relating to visa cancellations and refusals under ss 501 and 501CA.[159] Direction No 90 also encapsulates the case law which developed around the previous directions, and in particular the findings of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR (FC)), where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying the community expectations consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Minister’s directions.[160]
[159] See for example Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 65) and Direction No 79.
[160] Considering the corresponding provisions in Direction No 65.
Thus, the Tribunal must give effect to the ‘norm’, stipulated in para 8.4(1) of Direction No 90, that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[161]
[161] Direction No 90 para 8.4(1).
The majority in FYBR (FC)[162] agreed that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration, but rather a decision-maker is to identify the government’s view regarding community expectations, as articulated in the relevant direction, and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately in determining the exercise of the decision-maker’s discretion, taking into account all relevant primary and other considerations.
[162] Charlesworth and Stewart JJ; Flick J dissenting.
In the Tribunal’s view, having regard in particular to the Court’s characterisation of the expectations of the Australian community as adopted by and expressed in Direction No 90 as ‘a norm’, the guidance provided by the Full Court in FYBR (FC) concerning the application of the community expectations primary consideration in considering decisions under ss 501 or 501CA remains relevant to decision-makers applying para 8.4 of Direction No 90.[163] Indeed, the Court’s approach is reflected in the wording of para 8.4(4) of Direction No 90.
[163] See NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143; Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208; VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045.
Further detail about what the Australian community’s expectations are with respect to certain types of conduct is then given in para 8.4(2) of Direction No 90. That paragraph states simply that the nature of the character concerns or offences is such that the community would expect that person would not hold a visa. The paragraph directs that, in particular, the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.4(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very serious’ or ‘serious’. Paragraph 8.4(2) directs that where certain conduct is engaged in, the community expects that a visa would be refused or cancelled,
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.4(3) arguably further qualifies the ‘norm’ expressed in para 8.4(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged where serious character concerns are raised through the persons conduct or offending.
With respect to the Applicant, the expectation of the Australian community would be that the Applicant must obey Australian laws whilst he is in Australia. Although the Applicant has not committed offences that raise character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f), the Applicant has committed very serious offences designed to facilitate organised criminal activity. There is a measurable risk of those offences being repeated. Given the likelihood of reoffending in the context of the serious nature of the harm which may be caused, the Tribunal has found that risk to be unacceptable.
The expectation of the Australian community where such conduct has been engaged is that the Applicant’s Visa should remain cancelled.[164]
[164] Paragraph 8.4(1) of Direction No 90.
In weighing this consideration the Tribunal is also guided by the principles in para 5.2 of Direction No 90. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.4(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
However, the Tribunal is also further guided by the principle contained in para 5.2(4) of Direction No 90, which provides that the community would afford a higher degree of tolerance to those who have lived in Australia for their whole life or from a young age. The Applicant has lived in Australia since he was a teenager. In the Tribunal’s assessment he would be afforded a higher degree of tolerance in this regard, though not as high as someone who came to Australia as a young child.
Having considered the above principles, the Tribunal finds that the expectations of the Australian community weigh moderately against revocation of the Visa Cancellation Decision.
Other considerations
Paragraph 9 of Direction No 90 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
International non-refoulement
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal.[165]
[165] Direction No 90 paras 9(1)(a) and 9.1.
A non-refoulement obligation is an obligation ‘not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’.[166] Australia has obligations under the 1951 Convention relating to the Status of Refugees[167] as amended by the 1967 Protocol Relating to the Status of Refugees[168] (together called the Refugees Convention), under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[169] (CAT) and under the International Covenant on Civil and Political Rights[170] and its Second Option Protocol[171] (ICCPR).[172]
[166] Direction No 90 para 9.1(1).
[167] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[168] Opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
[169] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[170] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[171] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
[172] Direction No 90 para 9.1(1).
Direction No 90 requires that decision-makers carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.[173] Direction No 90 notes that in conducting that weighing exercise:[174]
… decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
[173] Direction No 90 para 9.1(2).
[174] Direction No 90 para 9.1(2).
However, the Tribunal notes that the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) commenced on 25 May 2021. That Act makes significant amendments to the Migration Act with respect to ss 197C, 197D and 441 and also introduces a new s 36A relating to ‘protection findings’ in the context of removal. However, those amendments do not appear relevant to the Applicant’s circumstances both because of the findings made by the Tribunal (below) and because the Applicant is not prevented from making a protection visa application.
The Applicant submitted that this consideration was not applicable to his circumstances as he did not assert that his removal to China would breach Australia’s international non-refoulment obligations.
On the basis of the evidence before it, the Tribunal is not satisfied that an issue of non-refoulement obligations arises with respect to the Applicant’s return to China in the event that the Visa Cancellation Decision is not revoked. Accordingly, the Tribunal finds that this consideration is not relevant to the Applicant’s circumstances.
Extent of impediments if removed
Direction No 90 requires the Tribunal to consider the extent of any impediments the Applicant may face, if removed from Australia to China, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the Applicant’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to him in China.[175]
[175] Paragraph 9.2 of Direction No 90.
The Applicant submitted that his immediate family members are now all in Australia and that his partner and children would remain here if he is removed to China. The Applicant contended that although he had visited China periodically and speaks the language, he did not have any experience living in China as an adult, including experience in how to establish a life or career there. The Applicant further contended that without support from his family and the emotional support of having his children with him, the impediments to establish himself in China were significant.[176]
[176] A1, page 15 at [113] – [115].
The Respondent accepted that the Applicant may experience short-term difficulties in re-establishing himself in China due to his residence in Australia but submitted that that these considerations would not preclude resettlement. The Respondent further submitted that the Applicant had frequently travelled back to China since coming to Australia and that there were no cultural or linguistic impediments to his return. The Respondent also submitted that as a citizen of China the Applicant would have the same access to social, medical and economic support as other citizens.[177]
[177] Transcript, page 21; R1, page 12-12 at [49]-[52].
The Tribunal notes that based on movement records and the Applicant’s evidence, he has made twenty-two return visits to China since coming to Australia.[178] The most recent of these was in June/July 2017, around a month prior to his arrest.[179] At the hearing, the Applicant said that the purpose of the travel was to visit relatives, including his aunties and uncles. He said that he had a ‘normal’ relationship with his aunties and uncles.[180] He also said that he travelled less often after his grandparents had passed away and his partner moved to Australia.[181] He indicated that he had visited his partner’s parents once in Sichuan, China.
[178] R2, G15.
[179] R2, G15, page 169
[180] Transcript, page 22.
[181] Transcript, page 22.
The Applicant lived and was educated in China until he was 16 years old. He speaks fluent Mandarin. He indicated that he has extended family including aunts and uncles with whom he has had ongoing contact with, including through in person visits whilst he has been in Australia. His partner’s parents remain in China. The Applicant has operated businesses in Australia and has tertiary qualifications obtained here. He owns a restaurant business which his partner is in the process of selling.
There was no medical evidence before the Tribunal to suggest that the Applicant has any particular health needs. In any event, there is also no evidence that the Applicant would be denied access to the same social, medical and economic supports available to other citizens of China.
The Applicant submitted to the Department that he ‘upholds Australian values and will not be able to fit in in China’. The submissions contend that he is ‘a believer in democratic values’ and will be ‘in excruciating [emotional] pain’ in the event that he is returned to China. These were not issues the Applicant raised in his statement to the Tribunal. However, the Tribunal accepts that having spent a significant period living and working in Australia he would face some challenges re-adjusting to a different system of government and social organisation in China.
The Tribunal finds that the Applicant has some family support in China and has skills which would enable him to obtain an income in China once settled there. The Tribunal accepts that the Applicant is likely to face emotional hardship if he is returned to China. The Applicant’s partner indicated that she intends to remain in Australia with their child if the Applicant is removed to China. As noted above, she applied for Australian citizenship in 2021 and the Tribunal accepts that she is likely to remain in Australia. The Applicant also indicated that his parents, who are permanent residents, would not wish to relocate to China, where they would be separated from their grandchildren.[182] The Tribunal accepts that the Applicant’s parents may choose to remain in Australia if the Applicant is returned to China. The Tribunal accepts that the most likely outcome of non-revocation of the Visa Cancellation Decision would be the separation of the Applicant from his Australian citizen and permanent resident family members.
[182] A2, pages A25 and A30.
Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to China but, given his connections to and familiarity with the country, these difficulties are not insurmountable. The Tribunal also accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members and finds that this would make his resettlement in China more difficult.
Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs only slightly in favour of revocation of the Visa Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There were no identifiable victims of the Applicant’s offending. There is also no evidence about the impact of a s 501 or s 501 CA decision in the Applicant’s case on members of the Australian community more generally, aside from the risks of harm to the community, which are discussed above in the context of the protection of the Australian community.
The Tribunal finds this consideration to be neutral with respect to the Applicant’s circumstances.
Links to the Australian community
This consideration requires the Tribunal to have regard to the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of the Visa Cancellation Decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Applicant arrived in Australia at the age of 16 in 2000. His first offences were committed in 2017.
The Applicant submitted that his removal to China would have a significant impact on his family members including on his current partner, Ms Xu, on his former partner, Ms Zeng and on his mother and father, who are all Australian permanent residents. The decision would also impact his three Australian citizen children. The impact on the children has been discussed above in relation to the primary consideration of their best interests. The Applicant contended that his links to Australia weigh in favour of revocation of the Visa Cancellation Decision.[183]
[183] A1, pages A16-A18 at [120] – [129].
The Respondent accepted that non-revocation of the Visa Cancellation Decision may have an adverse effect on members of the Applicant’s immediate family in Australia. The Respondent also submitted that, however, there was nothing to suggest that those family members would face an insurmountable hardship in the event of the Applicant’s departure. On that basis, the Respondent contended that the links to the Australian community consideration did not outweigh the factors against revocation of the Visa Cancellation Decision.[184]
[184] R1, page 13.
Although the Applicant did not arrive in Australia as a young child, the Tribunal accepts that he arrived as a teenager and has been in Australia for more than half of his life and that he considers Australia to be his home. His offending was limited to one period and the Tribunal accepts that prior to his offending he has contributed to the community through regular employment, the operation of small businesses and raising and supporting his family members.
The Applicant provided letters of support from members of the community to the Department who attested to his interest in literature and music, his readiness to help others and commitment to his family.[185] There was little evidence of other positive contributions to the community.
[185] R2, G13, page 141 (statement of Wenbo Lu); page 142 (statement of Yujun Wu); page 140 (statement of Jiechaun Lu); pages 138-139 (statement of Haiwei Chen).
As noted above, Ms Xu and the Applicant have been together since 2013 and plan to marry upon his release from prison. Ms Xu applied for Australian citizenship in April 2021 and claims that a grant of citizenship would result in her losing her Chinese citizenship. It was submitted that this would result in her losing her right to enter and reside in China. No evidence was offered to support this contention. The Tribunal accepts that dual citizenship is not permitted under Chinese law. However, the Tribunal regards any assessment of the impact this may have on Ms Xu’s ability to enter and reside in China in the event her application for citizenship is successful to be speculative. The Tribunal accepts that non-revocation of the Visa Cancellation Decision would mean that Ms Xu would need to decide whether to return to China with her son or remain in Australia. The Tribunal accepts that this may be a difficult choice for Ms Xu to make and would result in either extended separation from the Applicant or the loss of the benefits she regards herself and Mstr C to have from living in Australia. In any event, the Tribunal accepts Ms Xu may choose to stay in Australia with her son and that this may result in separation from the Applicant.
There is medial evidence before the Tribunal that Ms Xu had suffered from post-natal depression and had been assessed by a psychologist for the purpose of making submissions to the Sentencing Judge.[186] That report suggested that following the birth of Mr Xu’s son, her first child, and the Applicant’s conviction Ms Xu was suffering from ‘Major Depressive Disorder’ with peripartum onset (previously referred to as Postnatal Depression).[187] The report points to tensions between the Applicant’s parents and Ms Xu, particularly concerning the care of Mstr C. The psychologist expresses the opinion that the Applicant’s incarceration ‘will inevitably have a significant impact on Ms Xu’s mental health and, in turn, on her ability to persevere with being a responsible parent to her son’.[188] The report notes that it was previously recommended that Ms Xu receive ongoing mental health treatment but did not assess her as being a threat to her son. Ms Xu’s most recent statement, made more than a year after the report was written, indicates that following the March 2020 visit to the psychologist, she has not been receiving any treatment or counselling from professionals and that she ‘was forced to become stronger’. There is no current medical evidence, or evidence from Ms Xu, to suggest that she is suffering from any ongoing mental health issues. Ms Xu’s current evidence also indicates that she continues to be assisted by the Applicant’s parents in caring for Mstr C.[189]
[186] R2, G9, pages 106-114 (Psychological Report of Mr Jeffrey Cummins, Consulting Clinical and forensic Psychologist, dated 6 March 2020).
[187] R2, G9, page 109.
[188] R2, G9, page 114.
[189] A2, page A23.
The Tribunal accepts that Ms Xu’s separation from the Applicant, particularly in the context of supporting herself and raising a young child, has been extremely challenging. The Tribunal also accepts that non-revocation of the Visa Cancelation Decision would mean that Ms Xu would bear the stresses of separation into the future. However, the Tribunal does not accept based on Ms Xu’s current evidence that she continues to suffer from a Major Depressive Disorder or that she would do so in the future if the Applicant were removed from Australia. In this regard the Tribunal notes that Ms Xu elected to apply for citizenship in Australia following the cancellation of the Applicant’s visa and the delegate’s decision not to revoke the Visa Cancellation Decision. The Tribunal considers that this indicates a desire to remain in Australia regardless of whether the Applicant is removed to China or not.
Likewise, the Tribunal accepts that the Applicant’s parents may choose to remain in Australia to be near their grandchildren. This would be a choice which it is open to them to make. The Applicant submitted that his parents require his presence in Australia to assist with their ongoing support and care, as they are elderly and ill. Medical records submitted to the Department indicated that the Applicant’s mother, who is in her late 60s, suffers from ‘chronic lower back pain, severe R knee pathology awaiting joint replacement and diabetes mellitus’.[190] Records also indicate that the Applicant’s father suffers from ‘chronic neck/back pain and diabetes mellitus’.[191] Both medical reports note that the Applicant’s parents have difficulty ‘doing activities of daily living’. The Applicant also contended that his parent’s relationship with his children may suffer if he is not in Australia. However, the Tribunal notes that his mother’s, ex-wife’s and current partner’s evidence was that his parents continue to have regular contact with his children and to provide support to their parents while the Applicant is in prison. The Tribunal does not accept on the basis of this evidence that this contact would cease because the Applicant was no longer in Australia. Both the Applicant and his parents indicated that they are reliant on him for assistance in negotiating administrative and other tasks due to having limited language skills.[192] The Applicant’s mother indicated that the Applicant’s friends are assisting them while the Applicant is in prison but that they cannot do so indefinitely.[193]
[190] Letter from Dr James Kueh, Box Hill Mall Medical Centre, dated 3 March 2020, R2, G9, page 105.
[191] Letter from Dr James Kueh, Box Hill Mall Medical Centre, dated 3 March 2020, R2, G9, page 105.
[192] R2, G13, pages 136-137; A2, pages A30-A31.
[193] R2, G13, page 136.
While the medical evidence suggests that the Applicant’s parents have some ongoing medical issues for which they are in the care of medical professionals, the evidence does not suggest that the Applicant’s parents are significantly reliant on his care. In any event, the Applicant’s parents are permanent residents and if they remain in Australia would continue to have access to public health care and social welfare support here. The Tribunal accepts that the Applicant’s parents do not want to be separated from their son or their grandchildren and that the Applicant’s removal from Australia would likely prevent them from having regular contact with one or the other. This places them in a difficult position but the Tribunal does not accept on the evidence that these problems are insurmountable.
Ms Zeng indicated that she will suffer financially and emotionally if the Applicant is removed from Australia. The Tribunal accepts that Ms Zeng, Ms B and Mstr S would suffer emotionally from separation with the Applicant and that Ms Zeng would lose the Applicant’s support in actively co-parenting Mstr S and Ms B. The Tribunal does not accept that the Applicant would unable to provide financial support once he settles in China and obtains work there, although the Tribunal accepts that his capacity to do so may be more limited. The Tribunal notes that Ms Zeng and the children live with her parents, as they have done since her separation from the Applicant in 2013. Ms Zeng also has some support in caring for the children from the Applicant’s parents, who have indicated they intend to remain in Australia if the Applicant were to be returned to China. On this basis the Tribunal finds that Ms Zeng would have ongoing financial and emotional support in caring for Ms B and Mstr C in the event that the Visa Cancellation Decision is not revoked.
The Tribunal accepts that the Applicant is committed to maintaining a close relationship with all his children and that this will be much more difficult if he is removed to China, recognising that in person contact would be dependent on the children being able to travel outside Australia to meet him. The Tribunal accepts that this may not be financially possible and, if it is, it would not be frequent. The Tribunal considers that the children’s presence in Australia gives him strong ties to Australia.
The Tribunal also accepts that the Applicant regards Australia as his home.
The Applicant submitted that his removal would further worsen the financial circumstances of his family members, whom he says he will be unable to support if returned to China. The Tribunal accepts that he has been financially contributing to supporting his children when not in prison and that his capacity to do so may be more limited from China.
In summary, the Applicant has close ties to the Australian community because his partner, children and other family members reside in the Australian community. Further, the Applicant has been in Australia for an extended period, since he was a teenager. He has made some positive contributions to the Australian community, primarily through his work. Overall, the Tribunal finds that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2 of Direction No 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has owned and operated a restaurant in Melbourne, however his partner’s statement indicates the business is being sold.[194] The Applicant submitted that he had previously owned businesses in Melbourne and Newcastle and has employed Australian residents and would likely resume doing so upon his release from prison.[195] There was no detail before the Tribunal in relation to the Newcastle business, which was not included in his employment history on the Applicant’s application for revocation of the Visa Cancellation Decision, however the Tribunal accepts that he may have operated a business there for a period.[196] Ms Xu’s evidence was that the restaurant was managed by the Applicant but owned by Mr Jizhong Gan who lives in China.[197]
[194] A2, page A23.
[195] A1, page A18.
[196] R2, G7, page 69. The Applicant lists employment at Hofbrauhaus from 2007 to 2012 and the Ming Pavillion Restaurant from 2013 to 2020.
[197] A2, page A22.
While the Tribunal accepts that the Applicant has operated a restaurant which is being sold, and has operated a previous business, there is no evidence that a decision under s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Therefore, the Tribunal gives this consideration neutral weight in the Applicant’s case.
Conclusion on links to the Australian community
Taking the strength, nature and duration of ties and impact on Australian business interests cumulatively, the Tribunal considers that the Applicant’s links to Australia weigh moderately in favour of revocation of the Visa Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the relevant primary and relevant other considerations in Direction No 90.
In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia.
The Tribunal has considered all the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending, in particular his serious money laundering offences, was very serious. The Tribunal has had regard to the serious risk of harm to the community should he reoffend, albeit the likelihood of such reoffending is low. Considering these factors, the Tribunal has found that the protection of the Australian community weighs strongly against the revocation of the Visa Cancellation Decision.
The Tribunal has also found that due to the serious character concerns arising from the nature of the Applicant’s offences, including their connection to organised crime, the expectations of the Australian community would be that the Applicant’s Visa remains cancelled. Having regard to all the considerations and Applicant’s circumstances the Tribunal regards that while this consideration weighs against revocation, given the Applicant’s circumstances, and in particularly the length of time he has been in Australia, this consideration weighs less strongly than may otherwise be the case. Accordingly, the Tribunal has found this consideration weighs moderately against revocation of the Visa Cancellation Decision.
The Tribunal has considered carefully the best interests of the Applicant’s minor children in Australia. The Tribunal accepts the Applicant has a close relationship with his older children and desires to develop a close relationship with his youngest child on release from prison. The children and their mothers wish for the Applicant to remain in Australia to maintain a close personal relationship with the children. The Tribunal accepts that it is in the best interests of Mstr S, Ms B and Mstr C that the Visa Cancellation Decision be revoked. Having regard to all the circumstances the Tribunal has found that the best interests of the Applicant’s three minor children in Australia weigh strongly in favour of revocation of the Visa Cancellation Decision.
The Tribunal has had regard to the relevant other considerations, including his links to the Australian community and the challenges the Applicant would face if he was returned to China which present impediments to his removal. These weigh in the Applicant’s favour. Having regard to the Applicant’s circumstances the Tribunal found that the impediments the Applicant would face if he were to be returned to China weigh only slightly in favour of revocation of the Visa Cancellation Decision. With regard to his links to the community, the Tribunal found that Applicant has close ties to the Australian community because his partner, children and other family members reside here. Further, the Applicant has been in Australia for an extended period, since he was a teenager, during which time he has made some positive contributions to the Australian community, primarily through his work. Overall, the Tribunal found that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the Visa Cancellation Decision.
The Tribunal had regard to the impact that revocation of the Visa Cancellation Decision would have on the victims of the Applicant’s offending, however, the Tribunal has found this consideration not to be relevant in the Applicant’s circumstances, as the victims of his offending were not identified.
The Visa Cancellation Decision did not raise any issues of non-refoulement in the Applicant’s case.
In weighing these considerations against one another, the Tribunal considers that although there are countervailing considerations which favour revocation of the Visa Cancellation Decision, including the best interests of the Applicant’s children, the Applicant’s links to Australia and the extent of impediments if removed, the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those considerations.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 13 April 2021, not to revoke the cancellation of the Applicant’s Resident Return (subclass 155) visa is affirmed.

I certify that the preceding 220 (two hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

...[Sgd].....................................................................
Associate
Dated: 9 July 2021

Date of hearing: 18 June 2021

Representative for the Applicant: Ms C Tan, Wiin Lawyers

Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

Date of hearing:	18 June 2021
Representative for the Applicant:	Ms C Tan, Wiin Lawyers
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers