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Chai and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 151 (18 February 2005)

Last Updated: 21 February 2005

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2004/1613

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN NAM YUNG CHAI

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

The Hon R N J Purvis Q.C., Deputy President

Date 18 February 2005
Place Sydney

Decision

The decision under review is affirmed.

[Sgd] The Hon R N J Purvis Q C.
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Applicant held Transitional Permanent Visa – involvement in international drug dealing as a principal – effect of involvement in drug related crimes on community – disregard for insidious effects of illicit drugs – sentencing observations – no admissions made by Applicant at trial – Applicant now says he knew what he was doing was wrong – motivated by greed – no contrition or realisation of possible consequences of conduct – adverse health considerations – hardship to family – Applicant has substantial criminal history - decision affirmed

Migration Act 1958 section 499, 501

Ministerial Direction 21

REASONS FOR DECISION

18 February 2005	The Hon R N J Purvis Q.C., Deputy President

THE APPLICATION

1. On 14 December 2004 Mr John Nam Yung Chai ("the Applicant") applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 30 November 2004. By the latter mentioned decision, the Respondent cancelled the Transitional (Permanent) Visa held by the Applicant pursuant to section 501 (2) of the Migration Act 1958 ("the Act").
2. The ground upon which the Respondent relied in so cancelling the visa was that the Applicant did not pass the character test, he being a person who has a substantial criminal history, as defined by section 501 (6) (a) and (c) of the Act, having been sentenced to a term of imprisonment of 12 months or more. The available discretion was not exercised in his favour.
3. In the reasons given for the above decision the delegate, amongst other matters, stated:

"...
[25] Mr Chai was sentenced on the basis of him being a high level principal in an international drug transaction.
...
[35] Some of the offences committed by Mr Chai are listed as serious in the Direction. They have caused serious disruption to the Australian community. The Government has a strong interest in deterring others from committing offences of this nature.
...
[37]... The nature of these offences are such that the Australian community expects non-citizens who breach Australian laws while in Australia and commit these crimes to have their visa cancelled.
...
[74] I consider that Mr Chai’s drug related offence is extremely serious. He was a high level principal in a conspiracy to import 69 pounds of heroin.
[75] The nature of Mr Chai’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.
...
[78] I consider that there is some risk that Mr Chai may reoffend. I placed moderate weight on this factor.
[79] In considering whether the cancellation of Mr Chai’s visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect. I considered that this was not a significant factor and overall placed little weight on this consideration.
...
[80] I also gave primary consideration to the expectations of the Australian community. In accordance with the Government’s view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia."

4. Whilst making the above indicated observations referrable to the primary considerations, the Respondent also took into account the extent of disruption that would be caused to the Applicant and his family, the bonding that exists between the Applicant’s wife, son and daughter and himself, his health issues, considerable hardship to the Applicant himself should the decision be affirmed and he be required to relocate to Hong Kong and hardship that would be caused to Mrs Chai and to their two children. In reaching the decision to cancel the visa the Respondent "concluded" that the seriousness of Mr Chai’s offences, the disruption these offences have caused others and the expectations of the Australian community outweigh all other considerations above.

ISSUES

5. The Applicant does not pass the character test on account of his substantial criminal record having been sentenced on 6 March 1991 to a term of imprisonment of 24 years with a non-parole period of 16 years in respect of drug-related offences, admitted by his legal representative as being very serious and "abhorrent and completely unacceptable to the Australian community". The issue remaining is whether the Tribunal should exercise its available discretion not to cancel the relevant visa.

THE HEARING

6. At the hearing of the application, the Applicant was represented by Mr Christopher Levingston, solicitor and the Respondent by Ms G Bennett, solicitor of Clayton Utz Lawyers.
7. The documents lodged with the Tribunal pursuant to the provisions of the Administrative Appeals Tribunal Act 1975, and the Act, were admitted into evidence and marked G1 to G25. The Applicant caused additional documentary material to be tendered, which was also admitted into evidence and marked accordingly:

Exhibit No	Description	Date
A	Statutory Declaration of John Nam Yung Chai	28 January 2005
B	Statutory Declaration of Stella Chai	31 January 2005
C	Statutory Declaration of Zacary Yuet Chai	30 January 2005
D	Statutory Declaration of Jessica Chai	31 January 2005

The Applicant, his wife Mrs Stella Chai, his daughter Ms Jessica Chai and his son Mr Zacary Chai were each cross-examined on their written statements of evidence.

CHRONOLOGY

8. A chronology of relevant factual events not at issue between the parties is as follows:

1952, 5 August Applicant born in Hong Kong

1954, 7 October Applicant’s wife born

1976, 17 May Applicant first arrived in Australia

1977, 2 August Applicant marries

1978, 14 March Applicant became a permanent resident of Australia

1978, 6 May daughter Jessica born

1979, 18 September son Zacary born

1980, 20 December Applicant charged with offences relating to stating false name, being an unlicensed driver and exceeding speed limit – convicted and sentenced 15 January 1981

1982, 28 September Applicant charged with playing an unlawful game, sentenced and convicted 12 October 1982

1982, 11 October Applicant charged with playing an unlawful game, convicted 25 October 1982

1981 – 1985 Applicant convicted of exceeding speed limit, being an unlicensed driver (twice), supplying false information

1987, 1 May – 30 June Applicant commits acts constituting a conspiracy to import a commercial quantity of heroin

1989, 14 April Applicant charged with being found in a gaming house, convicted 7 November 1989

1989, 25 May Applicant charged with conspiracy to import a commercial quantity of heroin and supply heroin

1991, 6 March Applicant convicted of conspiracy to import a commercial quantity of heroin, sentenced to 24 years imprisonment with a non parole period of 16 years

1994, 1 September Applicant granted, as a result of the introduction and operation of the Migration Reform (Transitional Provisions) Regulations, a Transitional (Permanent) Visa

1996, 17 September Mrs Chai becomes an Australian citizen

2004, 1 July Notice of intention to consider cancellation of visa

2004, 30 November Respondent cancelled Applicant’s visa

RELEVANT LEGISLATION AND DIRECTION

9. Section 501 of the Act provides that the Respondent may cancel a visa that has been granted to a person if inter alia the Respondent reasonably suspects that the person does not pass the character test and the person does not satisfy the Respondent that he does in fact pass the character test. For the purposes of section 501 a person does not pass the character test if, inter alia, the person has a substantial criminal record as defined in section 501 (7). The latter mentioned subsection provides that:

"(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;..."

10. Under section 499 (1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act with which, in accordance with section 499 (2A) the person or body must comply. The Minister has accordingly issued Direction No 21 relating to visa refusal and cancellation under section 501. It is noted that the preamble to the Direction states that it:

"...provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act)."

The Direction thus provides guidance as to the application of the character test and the considerations or factors to which decision-makers must have regard when exercising the discretion to decide whether or not a non-citizen should be permitted to enter or remain in Australia.

11. As relevant to these reasons Ministerial Direction 21 ("the Direction"), by paragraph 2.2, provides that a decision-maker should have regard to three primary considerations and a number of other considerations stating:

"Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."

The primary considerations are:

"2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."

12. Paragraph 2.4 states that:

"The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community..."

13. Instances of serious offences are set out in paragraph 2.6, which relevantly includes:

"...

(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

• persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
• the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
• offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community."

14. Paragraphs 2.10 and 2.11 of the Direction refer to whether there is a likelihood that the conduct may be repeated; that is a risk of recidivism and general deterrence; that is the likelihood that visa refusal or cancellation would prevent or inhibit the commission of like offences by others.
15. Paragraph 2.12 of the Direction and provides:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.... "

16. The Tribunal is required to take into account a number of other considerations; which are to be given less individual weight than the primary considerations. These other considerations, as here relevant, include the extent of disruption that the visa refusal or cancellation would cause to the non-citizens family; the degree of hardship caused to immediate family members; the family composition of the non-citizens family both in Australia and overseas; any evidence of rehabilitation or any recent good conduct; and whether the application is for a temporary visa or permanent visa.

RELEVANT FACTUAL SITUATION - GENERALLY

17. As earlier noted, the Applicant came to Australia on a visitor visa in 1976 at the age of 23 years. He married the following year. Two children were born to the marriage. The Applicant then lived with his family until May 1989, and his arrest in respect of the drug related charges. His children were, at the time he committed the drug related offences, approximately nine and eight years of age.
18. It was only three years after his marriage in 1977 that he committed the offences for which he was convicted on 15 January 1981; namely stating a false name, being an unlicensed driver and speeding. Two years later he was convicted of playing an unlawful game; in 1984 and 1985 he was charged with being an unlicensed driver and exceeding the speed limit and in April 1989 he was charged being found in a gaming house. The following month he was charged with the drug related offences in respected of which he was indicted to stand trial.
19. Between July 1978 and January 1984 the Applicant departed and returned to Australia on eight occasions. He visited Hong Kong, Japan, the United States of America, Macao, Taiwan, China and Thailand. He says that from 1981 he earned his living as a cook and "a steady gambler". By 1985 he was able to support himself and his family solely by gambling.
20. Subsequent to the Applicant being sentenced and placed in detention, Mrs Chai and her children, having lost their home, lived with her father. Her mother had passed away in 1989. She has remained living in her father’s home to this day. The daughter is still living with her mother in her grandfather’s home, the son renting accommodation nearby to his work.
21. Since becoming aware in 1995 of their father being in jail, the daughter and son have, with their mother, visited him on a regular weekend basis. They each anticipated until informed otherwise by the Respondent that on the completion of the term of his imprisonment, the Applicant would be able to return to live with them.
22. Whilst in jail the Applicant has attended a number of educational courses. There is not anything adverse recorded against him as to his conduct whilst serving his sentence. In his statement, tendered to the Tribunal, he says:

"...I accept responsibility for what I have done and I have borne my imprisonment over the last 16 years with the intention of leaving prison a better person than when I came in. During my time in prison I have done everything I can to stay out of trouble and not withstanding my health problems I feel that overall the experience of prison has improved me. During my time in prison I have taken advantage of every course offered to me and they include occupational health and safety courses and Numeracy and Literacy courses. Certificate in English language literacy, Writing skills for work and Job seeking skills. I know that with my health and my age and my criminal history that the chance for me to get a job is poor but I will do what I can and my desire to improve myself over the last 16 years."

CRIMINAL RECORD OF THE APPLICANT AND INTRINSIC NATURE OF IT

23. The convictions recorded against the Applicant in Australia are (G1/6):

Date	Offence	Sentence
15. 1. 81	(i) State false name (ii) Unlicensed driver (iii) Exceed speed	(i) and (ii) on each charge $100 or 4 days hard labour (iii) $250 or 10 hard labour. Licence disqualified for 3 months
12.10.82	Play unlawful game	$40 or 48 hours hard labour
25.10.82	Play unlawful game	$30 or 48 hours hard labour
7.11.89	Found in gaming house	Fined $150
6. 3. 91	Conspiracy to import a commercial quantity of heroin	24 years imprisonment with a non-parole period of 16 years

24. An appreciation of the circumstances in which the Applicant became involved in the drug related offence and the intrinsic nature of it may be seen in the observations made by the Court when sentencing the Applicant on 6 March 1991. Amongst other matters the following appears (G22/96-106):

"HIS Honour:
The prisoner was convicted after his trial on a count of conspiracy to import into Australia a quantity of heroin in excess of the commercial quantity applicable to that substance contrary to s233B of the Customs Act. The maximum penalty prescribed for such offence is penal servitude for life.
...
The prisoner was an Australian resident and his participation in the conspiracy was as buyer of the sixty-nine pounds of heroin involved.
...
Banking documents placed into evidence revealed remittances linked to the conspiracy of approximately $1,000.000. That was well short, however, of the agreed purchase price of the heroin of $60,000 per pound, reflecting a total in the order of $4,000.000.
... The experience of this case, if of no other case, reveals the wisdom of the strict banking requirements now in force concerning cash transactions and the use of the banking system. There can be no doubt that that system has been utilised and abused by persons such as the prisoner in recent years and has facilitated the enormous importation into this country of the evil drug heroin which has posed such a threat to the community.
The prisoner has made no admissions in relation to the offence and he has disclosed no information concerning it. His case remains that he was not party to any conspiracy but that he was a longstanding friend of Mrs Ling and became innocently caught up by agreeing at her request, to assist her, for a commission, in collecting moneys owed to her by one or more residents of this country.
...
the jury were satisfied beyond reasonable doubt that this version was quite untrue.
The prisoner stands for sentence as a high level principal in an international heroin dealing on a vast commercial scale...
Proof of actual profit to him was unnecessary. It is evident that he entered the conspiracy with the expectation of earning substantial moneys for himself and did so regardless of the consequences to the rest of the community.
The prisoner knowingly joined the present conspiracy as the buyer and intended importer. His actions were designed to unleash on to the Australian market an exceedingly large consignment of heroin.
Although it is possible to conceive of worse cases, the present clearly is objectively so serious as to justify a sentence in the very top range and, in my view, little exists in the circumstances, subjective or otherwise appropriately taken into account, requiring any other conclusion.
...[the Court] must impose a sentence which effectively punishes the offender for the devastation his trade brings to the community, and it must demonstrate that the court has the will and the means to drive away others who are minded to organise or to control similar activities. In a case as serious as the present, the option of imposing the maximum sentence must seriously be in contemplation.
...
Clearly salutary sentences of imprisonment are required to dissuade individuals standing for sentence from re-offending and to deter others, no matter where they may reside, from entering into arrangements to bring into this country heroin.
Additionally, I take the view that nothing other than a substantial term of imprisonment would be appropriate in the present case, having regard to the enormous quantity and the value of heroin involved and the central role of the prisoner as a principal and as the importer.
...
...I take the view that in the absence of prior convictions for similar offences as that which now brings him before the court, his prior character may be regarded as satisfactory, that the prospects for rehabilitation are reasonable, and that the fact of his conviction and sentence will have a significant deterrent effect on him for the future.
The matter of his prior character, of course, is of relatively little weight for a serious drug offence, since most drug offenders are similarly well placed in the community and abuse their positions of trust, influence and reputation to avoid detection...
he is disentitled to any mitigation of sentence which would have been afforded for a plea of guilty or an offer to assist. By the course he has taken, he has failed to demonstrate any form of contrition."

25. Even so the Applicant now says in his statement (Exhibit A, paragraphs 19 to 21):

"When I was arrested by the police and went into custody in 1989 I took and received legal advice concerning the state of the evidence and decided to plead not guilty...ultimately the case against me was overwhelming and that not withstanding my plea of not guilty and my decision to not give any evidence I would be convicted.
The decision to become involved in this crime was mine but the decision not to give evidence against others was induced by the failure of the prosecution case of other people. Overall I transferred about $1,000,000 overseas with the expectation that I would receive 4% of the total amount transferred. I had no idea what the total was to be transferred and I though that 4% was a reasonable charge for the risk that I was taking. I was gambling on not being caught.
As it turns out the only money I saw was that which I was asked to give Choy. My involvement during the conspiracy was at the direction of other persons who were able to avoid conviction. Although it was never said I clearly understood that the price to pay for my involvement was to accept my punishment and to keep silent. The failure to keep silent would have had very serious consequences for my young family."

26. He appealed to the New South Wales Court of Criminal Appeal against his conviction. The appeal was dismissed. An application for special leave to appeal to the High Court was refused.
27. The Applicant now gives his version of events as detailed in paragraphs 14 and 15 of his statement. In effect he says that he was approached by a number of people to arrange the transfer of money from Australia to Hong Kong by various means and in effect be a party to a money laundering scheme. He says that he knew at the time that what he was doing was wrong but he was motivated by greed and wanted to earn money that "was a sure thing without having to risk money on gambling". He realised during the course of the coming into effect of the criminal enterprise that the money being transferred was as a result of the trafficking in drugs and that he was playing a role in a conspiracy to import heroin into Australia.
28. Nowhere in the Applicant’s statement tendered to the Tribunal or in his representations to the Respondent or in his evidence before the Tribunal did the Applicant express remorse for or a realisation of the possible harm that may be caused to members of the Australian community as a consequence of trafficking in heroin. He may have expressed sorrow to his wife and children for his being in jail and they being deprived of his support and comfort but he does not show, in his evidence, awareness of the consequences of his behaviour and participation in the enterprise upon the Australian community and more especially younger members of that community.

HARDSHIP TO WIFE AND CHILDREN

29. There is evidence before the Tribunal that the Applicant has an offer of employment in a restaurant on release from jail and that he plans to live with his wife, daughter and father-in-law on release. Alternatively he may live with his son. He has the support of his wife and children.
30. Mrs Chai says that her ties are in Australia and that "it will be a tragedy for our family if my husband’s entitlement to remain here with us after his release from prison is taken away" (G7/40). The daughter and son say that they were very young when their father was convicted and that it was not until 1995 that they were told of his being in jail. The son, Zacary Chai, is an Australian citizen and is currently engaged as a research assistant in the Diabetes Transplant Unit at Prince of Wales Hospital. He says that he loves his father and would do what he can to help him. This responsibility, he maintains, is "big...for both myself and my sister and the financial burden for the support of my father is likely to hinder both my capacity and that of my sister to make our way in the world". He has visited his father regularly and says that he would like the family to "stay together". He maintains that his father "deserves another chance". Likewise Jessica, the daughter, says she has visited her father on a weekly basis and that "the trust and the relationship between us has been repaired". She wants her father to be part of her life and says that, during the preceding nine years, her mother, brother and herself have planned for their family to be reunited. She says that, if the visa is cancelled, these plans would be destroyed and "my heart" would be broken. She also says "we have been waiting 16 years and to have all ones hopes destroyed twice is too much to bear". She says that she cannot live in Hong Kong as she is an Australian citizen; she could travel and see her father in Hong Kong but this would be a lot more difficult than if he should remain in Australia.
31. The Applicant’s mother lives in Shanghai with his elder brother. The brother’s wife lives in Canton; their children now 26 and 28 years of age live in New Zealand. If he is required to live in Hong Kong, the Applicant will maintain his marriage. Mrs Chai says that, provided she can arrange for her brother or sister to care for her father, she will live with her husband in Hong Kong. She has an uncle living there and was last in that city herself two years ago.

HEALTH OF APPLICANT

32. The Applicant maintains that his health has deteriorated during the period he has been in prison and that he has developed a number of medical conditions over that time. He says that the main medical problem, so far as he is concerned, in terms of treatment is his high blood pressure and diabetes. Dr Anna Schaefer of the Silverwater Clinic, describing herself as the Applicant’s "treating general practitioner for the past 12-14 months" reports that the Applicant has multiple health problems but they are presently quite stable and well managed. She says that he is well educated about his medical problems and monitors himself. He works very well with his healthcare providers. His current diagnoses are diabetes, diabetic nephropathy with associated anaemia, diabetic retinopathy, hypertension, hyper-cholesterolemia and gastrointestinal reflux oesophageal disease. Dr Schaefer says that the illnesses "sounding like a plethora of illness" are all well controlled by daily medication. She says that the current prognosis for the Applicant is quite good "so long as he can maintain a healthy lifestyle and receive adequate follow up with his GP and specialist care as needed. He would also need to continue his current medications..." She refers to the desirability of his having "good family support".

CHARACTER

33. The Applicant is, by reason of the provisions of the Act, a person not of good character. He does not pass the character test on account of his having a substantial criminal record (section 501 (7)). He was convicted of conspiracy to supply a quantity of heroin and sentenced as earlier indicated.

DISCRETIONARY FACTORS

34. It was submitted, on behalf of the Applicant, that he has accepted responsibility for what he has done and, be it "he cannot fix the past", he can demonstrate by his current behaviour that he will not re-offend. He will remain under supervision of parole officers for the eight year parole period and be subject to the provisions of the Act as a non-citizen. It is submitted that he has embraced the notion of rehabilitation, has rebuilt himself in prison and expressed genuine shame.
35. It is further maintained, on his behalf, that the Applicant’s criminal conduct although very serious, is not overall indicative of a propensity for criminal conduct. There is no issue in this matter that the conduct was very serious. There is evidence before the Tribunal that the Applicant had engaged in less serious acts of criminality prior to the 1989 events. There is evidence before the Tribunal of the Applicant, at his trial, denying complicity in the alleged criminal activities and at this time admitting the falsity of the representations then made and of the statement that he made before the jury. He was clearly implicit in the conspiracy to import heroin and acted, mindless of the consequences to the community of his conduct. It is said that the risk of recidivism is very low and, having regard to the evidence of his rehabilitation in prison and his incident free conduct over a period of 16 years, there is no risk of his re-offending or of the Australian community being in need of protection. But the Applicant has had little opportunity to demonstrate his likely conduct in the community on release. It is true that his conduct has not been adverse whilst in prison. However, the nature of his criminal behaviour in 1989 and the lack of honesty in his presentation at trial, maintained by his appeal, is not indicative of a person one can be assured would not re-offend. I am satisfied that there is a risk of recidivism.
36. A relevant consideration as already indicated earlier in these reasons, is deterrence; this in the context of the protection of the Australian community. It is true as it was submitted on his behalf, that the Applicant has been sentenced with a non-parole period of 16 years and a period under parole of eight years. It is also true that the possibility of his visa being cancelled was not seemingly taken expressly into account during the sentencing process. However, the cancellation of the visa is contemplated by the Act and is a consequence of the conviction. The Act provides for cancellation where section 501 (7) comes into operation or is enlivened. Accordingly, I do not agree with the submission made on behalf of the Applicant to the effect that the Applicant would, if his visa be cancelled, then be exposed to the risk of "double punishment". The one is a consequence upon the other.
37. I am mindful of the confidence displayed by the son and daughter in their father not re-offending. I understand the bonding that has developed between the children and their father and the confidence that they display in him. However, the Tribunal can not be unmindful of the events that occurred in 1989 and in 1991 and the complete absence of appreciation or recognition on the part of the Applicant of the consequences of his conduct upon the Australian community.
38. I have no doubt, if the consequence of the Applicant’s conduct so far as sentence and cancellation of visa are concerned becomes known to others, who may be tempted to engage in similar conduct, that the same should have a deterrent effect.
39. The Applicant contends that the Australian community would not expect a visa to be cancelled in circumstances the like of this matter. It is said to be repugnant to ordinary community expectations of fairness "where the Applicant had no prior notice that his conduct was capable of enlivening a cancellation of his visa". The possible cancellation of the visa is a statutory provision contained in legislation of the Commonwealth; with an adage that a person is expected to know the law is trite. However, it is the reality. The Applicant and his wife have maintained a relationship of 26 years, over the last 16 of which they have lived separate and apart. There is affection between the children and their father. However, having in mind the nature of the offence for which he was sentenced and the possible consequences to the community of his conduct, the Tribunal is of the opinion that the Australian community could be supportive of a visa being cancelled in such circumstances.
40. There is an expectation in the community that residents should respect and abide by Australian laws. The Applicant did not respect and abide by Australian laws and, by reason of his criminal conduct, after trial was convicted and sentenced. It was submitted on behalf of the Applicant that cancellation of the visa would further cause disruption to the family and that the Tribunal should be mindful of the desirability of protecting the family relationship; of maintaining an ongoing relationship between a husband and wife and children. The Tribunal is mindful of this desirable outcome, provided other factors do not impede its implementation. The two children of the Applicant are both Australian citizens, they would have their father available to them to offer emotional and physiological support. On the evidence one may doubt whether this support would be forthcoming. The children are both now over the age of 18 years. It is the hardship that they would experience in the event of their father living outside of Australia to which the attention of the Tribunal is to be directed.
41. Hardship will be experienced by Mrs Chai and the two children should the Applicant be required to relocate to Hong Kong. The hardship will be real on each of these three people. Mrs Chai has said that provided she can make arrangements for her father, she will live with her husband in Hong Kong. Each of the children has said that there would they visit their father. He has a mother and a brother living in mainland China; Mrs Chai has an uncle in Hong Kong. It is true that they have not lived in that place for many years, even be it Mrs Chai travelled to Hong Kong two years ago. It would seem that Mr Chai, prior to his conviction, was not an infrequent visitor to China. The Tribunal, whilst conscious of the evidence before it as to the health of the Applicant, is confident that appropriate facilities are available in Hong Kong.
42. The Tribunal is satisfied on the basis of the evidence tendered before it that the primary considerations referrable to the protection of the Australian community and the expectations of the Australian community are such as to override and outweigh the other relevant factors and considerations. Accordingly, the decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed: A. Krilis Associate

Date/s of Hearing 3 February 2005
Date of Decision 18 February 2005
Solicitor for the Applicant Mr C Levingston
Solicitor for the Respondent Ms G Bennett

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1.	On 14 December 2004 Mr John Nam Yung Chai ("the Applicant") applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 30 November 2004. By the latter mentioned decision, the Respondent cancelled the Transitional (Permanent) Visa held by the Applicant pursuant to section 501 (2) of the Migration Act 1958 ("the Act").
2.	The ground upon which the Respondent relied in so cancelling the visa was that the Applicant did not pass the character test, he being a person who has a substantial criminal history, as defined by section 501 (6) (a) and (c) of the Act, having been sentenced to a term of imprisonment of 12 months or more. The available discretion was not exercised in his favour.
3.	In the reasons given for the above decision the delegate, amongst other matters, stated:

6.	At the hearing of the application, the Applicant was represented by Mr Christopher Levingston, solicitor and the Respondent by Ms G Bennett, solicitor of Clayton Utz Lawyers.
7.	The documents lodged with the Tribunal pursuant to the provisions of the Administrative Appeals Tribunal Act 1975, and the Act, were admitted into evidence and marked G1 to G25. The Applicant caused additional documentary material to be tendered, which was also admitted into evidence and marked accordingly:

14.	Paragraphs 2.10 and 2.11 of the Direction refer to whether there is a likelihood that the conduct may be repeated; that is a risk of recidivism and general deterrence; that is the likelihood that visa refusal or cancellation would prevent or inhibit the commission of like offences by others.
15.	Paragraph 2.12 of the Direction and provides:

17.	As earlier noted, the Applicant came to Australia on a visitor visa in 1976 at the age of 23 years. He married the following year. Two children were born to the marriage. The Applicant then lived with his family until May 1989, and his arrest in respect of the drug related charges. His children were, at the time he committed the drug related offences, approximately nine and eight years of age.
18.	It was only three years after his marriage in 1977 that he committed the offences for which he was convicted on 15 January 1981; namely stating a false name, being an unlicensed driver and speeding. Two years later he was convicted of playing an unlawful game; in 1984 and 1985 he was charged with being an unlicensed driver and exceeding the speed limit and in April 1989 he was charged being found in a gaming house. The following month he was charged with the drug related offences in respected of which he was indicted to stand trial.
19.	Between July 1978 and January 1984 the Applicant departed and returned to Australia on eight occasions. He visited Hong Kong, Japan, the United States of America, Macao, Taiwan, China and Thailand. He says that from 1981 he earned his living as a cook and "a steady gambler". By 1985 he was able to support himself and his family solely by gambling.
20.	Subsequent to the Applicant being sentenced and placed in detention, Mrs Chai and her children, having lost their home, lived with her father. Her mother had passed away in 1989. She has remained living in her father’s home to this day. The daughter is still living with her mother in her grandfather’s home, the son renting accommodation nearby to his work.
21.	Since becoming aware in 1995 of their father being in jail, the daughter and son have, with their mother, visited him on a regular weekend basis. They each anticipated until informed otherwise by the Respondent that on the completion of the term of his imprisonment, the Applicant would be able to return to live with them.
22.	Whilst in jail the Applicant has attended a number of educational courses. There is not anything adverse recorded against him as to his conduct whilst serving his sentence. In his statement, tendered to the Tribunal, he says:

26.	He appealed to the New South Wales Court of Criminal Appeal against his conviction. The appeal was dismissed. An application for special leave to appeal to the High Court was refused.
27.	The Applicant now gives his version of events as detailed in paragraphs 14 and 15 of his statement. In effect he says that he was approached by a number of people to arrange the transfer of money from Australia to Hong Kong by various means and in effect be a party to a money laundering scheme. He says that he knew at the time that what he was doing was wrong but he was motivated by greed and wanted to earn money that "was a sure thing without having to risk money on gambling". He realised during the course of the coming into effect of the criminal enterprise that the money being transferred was as a result of the trafficking in drugs and that he was playing a role in a conspiracy to import heroin into Australia.
28.	Nowhere in the Applicant’s statement tendered to the Tribunal or in his representations to the Respondent or in his evidence before the Tribunal did the Applicant express remorse for or a realisation of the possible harm that may be caused to members of the Australian community as a consequence of trafficking in heroin. He may have expressed sorrow to his wife and children for his being in jail and they being deprived of his support and comfort but he does not show, in his evidence, awareness of the consequences of his behaviour and participation in the enterprise upon the Australian community and more especially younger members of that community.

29.	There is evidence before the Tribunal that the Applicant has an offer of employment in a restaurant on release from jail and that he plans to live with his wife, daughter and father-in-law on release. Alternatively he may live with his son. He has the support of his wife and children.
30.	Mrs Chai says that her ties are in Australia and that "it will be a tragedy for our family if my husband’s entitlement to remain here with us after his release from prison is taken away" (G7/40). The daughter and son say that they were very young when their father was convicted and that it was not until 1995 that they were told of his being in jail. The son, Zacary Chai, is an Australian citizen and is currently engaged as a research assistant in the Diabetes Transplant Unit at Prince of Wales Hospital. He says that he loves his father and would do what he can to help him. This responsibility, he maintains, is "big...for both myself and my sister and the financial burden for the support of my father is likely to hinder both my capacity and that of my sister to make our way in the world". He has visited his father regularly and says that he would like the family to "stay together". He maintains that his father "deserves another chance". Likewise Jessica, the daughter, says she has visited her father on a weekly basis and that "the trust and the relationship between us has been repaired". She wants her father to be part of her life and says that, during the preceding nine years, her mother, brother and herself have planned for their family to be reunited. She says that, if the visa is cancelled, these plans would be destroyed and "my heart" would be broken. She also says "we have been waiting 16 years and to have all ones hopes destroyed twice is too much to bear". She says that she cannot live in Hong Kong as she is an Australian citizen; she could travel and see her father in Hong Kong but this would be a lot more difficult than if he should remain in Australia.
31.	The Applicant’s mother lives in Shanghai with his elder brother. The brother’s wife lives in Canton; their children now 26 and 28 years of age live in New Zealand. If he is required to live in Hong Kong, the Applicant will maintain his marriage. Mrs Chai says that, provided she can arrange for her brother or sister to care for her father, she will live with her husband in Hong Kong. She has an uncle living there and was last in that city herself two years ago.

34.	It was submitted, on behalf of the Applicant, that he has accepted responsibility for what he has done and, be it "he cannot fix the past", he can demonstrate by his current behaviour that he will not re-offend. He will remain under supervision of parole officers for the eight year parole period and be subject to the provisions of the Act as a non-citizen. It is submitted that he has embraced the notion of rehabilitation, has rebuilt himself in prison and expressed genuine shame.
35.	It is further maintained, on his behalf, that the Applicant’s criminal conduct although very serious, is not overall indicative of a propensity for criminal conduct. There is no issue in this matter that the conduct was very serious. There is evidence before the Tribunal that the Applicant had engaged in less serious acts of criminality prior to the 1989 events. There is evidence before the Tribunal of the Applicant, at his trial, denying complicity in the alleged criminal activities and at this time admitting the falsity of the representations then made and of the statement that he made before the jury. He was clearly implicit in the conspiracy to import heroin and acted, mindless of the consequences to the community of his conduct. It is said that the risk of recidivism is very low and, having regard to the evidence of his rehabilitation in prison and his incident free conduct over a period of 16 years, there is no risk of his re-offending or of the Australian community being in need of protection. But the Applicant has had little opportunity to demonstrate his likely conduct in the community on release. It is true that his conduct has not been adverse whilst in prison. However, the nature of his criminal behaviour in 1989 and the lack of honesty in his presentation at trial, maintained by his appeal, is not indicative of a person one can be assured would not re-offend. I am satisfied that there is a risk of recidivism.
36.	A relevant consideration as already indicated earlier in these reasons, is deterrence; this in the context of the protection of the Australian community. It is true as it was submitted on his behalf, that the Applicant has been sentenced with a non-parole period of 16 years and a period under parole of eight years. It is also true that the possibility of his visa being cancelled was not seemingly taken expressly into account during the sentencing process. However, the cancellation of the visa is contemplated by the Act and is a consequence of the conviction. The Act provides for cancellation where section 501 (7) comes into operation or is enlivened. Accordingly, I do not agree with the submission made on behalf of the Applicant to the effect that the Applicant would, if his visa be cancelled, then be exposed to the risk of "double punishment". The one is a consequence upon the other.
37.	I am mindful of the confidence displayed by the son and daughter in their father not re-offending. I understand the bonding that has developed between the children and their father and the confidence that they display in him. However, the Tribunal can not be unmindful of the events that occurred in 1989 and in 1991 and the complete absence of appreciation or recognition on the part of the Applicant of the consequences of his conduct upon the Australian community.
38.	I have no doubt, if the consequence of the Applicant’s conduct so far as sentence and cancellation of visa are concerned becomes known to others, who may be tempted to engage in similar conduct, that the same should have a deterrent effect.
39.	The Applicant contends that the Australian community would not expect a visa to be cancelled in circumstances the like of this matter. It is said to be repugnant to ordinary community expectations of fairness "where the Applicant had no prior notice that his conduct was capable of enlivening a cancellation of his visa". The possible cancellation of the visa is a statutory provision contained in legislation of the Commonwealth; with an adage that a person is expected to know the law is trite. However, it is the reality. The Applicant and his wife have maintained a relationship of 26 years, over the last 16 of which they have lived separate and apart. There is affection between the children and their father. However, having in mind the nature of the offence for which he was sentenced and the possible consequences to the community of his conduct, the Tribunal is of the opinion that the Australian community could be supportive of a visa being cancelled in such circumstances.
40.	There is an expectation in the community that residents should respect and abide by Australian laws. The Applicant did not respect and abide by Australian laws and, by reason of his criminal conduct, after trial was convicted and sentenced. It was submitted on behalf of the Applicant that cancellation of the visa would further cause disruption to the family and that the Tribunal should be mindful of the desirability of protecting the family relationship; of maintaining an ongoing relationship between a husband and wife and children. The Tribunal is mindful of this desirable outcome, provided other factors do not impede its implementation. The two children of the Applicant are both Australian citizens, they would have their father available to them to offer emotional and physiological support. On the evidence one may doubt whether this support would be forthcoming. The children are both now over the age of 18 years. It is the hardship that they would experience in the event of their father living outside of Australia to which the attention of the Tribunal is to be directed.
41.	Hardship will be experienced by Mrs Chai and the two children should the Applicant be required to relocate to Hong Kong. The hardship will be real on each of these three people. Mrs Chai has said that provided she can make arrangements for her father, she will live with her husband in Hong Kong. Each of the children has said that there would they visit their father. He has a mother and a brother living in mainland China; Mrs Chai has an uncle in Hong Kong. It is true that they have not lived in that place for many years, even be it Mrs Chai travelled to Hong Kong two years ago. It would seem that Mr Chai, prior to his conviction, was not an infrequent visitor to China. The Tribunal, whilst conscious of the evidence before it as to the health of the Applicant, is confident that appropriate facilities are available in Hong Kong.
42.	The Tribunal is satisfied on the basis of the evidence tendered before it that the primary considerations referrable to the protection of the Australian community and the expectations of the Australian community are such as to override and outweigh the other relevant factors and considerations. Accordingly, the decision under review is affirmed.