HYMC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2879 (11 August 2020)
Background Facts
1. 20 March 2006 – arrival date of HYMC who is a citizen of the People’s Republic of China (China) and has lived in Australia ever since then.
2. 11 February 2009, HYMC, his wife and his two children made an application for Protection Visa but it was refused
3. 11 November 2009 – RRT was satisfied that his two children were found to be refugees because they were members of a social group known in China as ‘black children’. Because they were born in contravention of China’s family planning laws and so it would seem because they were born out of wedlock. As a member of the family unit to the children, HYMC and his wife met the requirement of protection visa and the case was remitted back to the Department
4. 18 February 2010 – He obtained his Subclass 866 Protection visa.
5. 14 October 2015 – HYMC was convicted and sentenced to 7 years imprisonment for the offence of conspiracy to import into Australia a commercial quantity of pseudoephedrine, an essential ingredient in the manufacture of methamphetamine (more commonly known as ‘meth’, ‘ice’ or ‘crystal’), during the period 17 January 2012 and 21 March 2012 (offence). HYMC’s sentence, as will be seen later in these reasons, gave him what is known to the Act, as a ‘substantial criminal record’.
6. 18 December 2018 – the Minister was required under ss.501(3A) to cancel the visa because he was satisfied that HYMC had a substantial criminal record.
7. 14 January 2019 – applied for revocation of his visa cancellation
8. 21 May 2020 – delegate of the Minister decided to refuse to revoke the mandatory cancellation of the visa decision
9. 25 May 2020 – HYMC applied to the Tribunal asking the Tribunal to set aside the Decision and instead substitute a decision revoking the mandatory cancellation of the Visa because he claims that is the correct or preferable decision
Whether the offence is serious?
10. The first matter to consider is the offence. The sentence-imposed indicates that the offence is objectively a very serious one. HYMC was sentenced to 7 years imprisonment for an offence that carried with it a maximum term of imprisonment for 25 years.
11. The offence was also very serious because of the inevitable consequences of its commission: ultimately the manufacture of methamphetamine for commercial distribution. The consequences of methamphetamine for its users are well documented in decisions of this Tribunal and elsewhere and hardly need to be recorded one more time: it is now notoriously known as a drug that ruins lives and devastates families, friends and others of those involved in its use. Its manufacture, distribution and use comes at a very considerable social cost.
12. There is other conduct to be considered: such as the ‘false’ and ‘misleading information’ provided to the Department by HYMC when he applied for visas to come to Australia twice in 2005 found by the RRT; the false information he gave when he arrived in Australia by reason of the fake passport he used and the false information he gave on the boarding pass about his name and the reason for his visit; his conduct between a greater part of the period from March 2006 to February 2009 which involved him being in Australia unlawfully indicate a consistent pattern of dishonesty.
13. In light of the above, Tribunal members find that HYMC’s conducts were very serious.
Remorse and lack of acknowledgment
14. he Minister referred to HYMC’s attempt ‘to downplay his role in the conspiracy and to shift responsibility, and blame, onto others’ as being indicative that there was a real risk that HYMC would re-offend in the future. The Minister referred to the representations made to him by HYMC and to the findings of Judge Harbison as demonstrating a lack of remorse and lack of rehabilitation.
15. Psychologist report indicates that the lack of acknowledgement which included ‘a person downplaying or minimising their conduct’ was a relevant factor in assessing the risk of recidivism but a ‘relatively minor one overall’.
Best interests of minor children in Australia affected by the decision
16. The relationship with each of the children is father and daughter and father and son who are of minor age. There is an existing relationship between each of the children and HYMC, although that is presently affected by HYMC being in detention. HYMC has had limited contact with them since he was incarcerated on 12 December 2014. The contact since then has been usually by way of telephone and ‘WeChat’, a social media messaging platform not dissimilar to FaceTime. The children have visited him during school holidays whilst he was incarcerated in Victoria and have visited him since he has been in detention. I do not think much can be made of the fact that has only been on 9 occasions given both the evidence about the almost daily contact by telephone and other ways, but also having regard to the fact that for much of that time, HYMC was incarcerated in a different State. HYMC’s evidence that he has a close relationship with his children is corroborated by his wife who said he would telephone the family daily. His evidence that he has a close relationship with his children was also corroborated by LH, a friend of HYMC who has known him since his arrival in Australia in 2006.
17. The Tribunal accepted that he has a close paternal relationship with each of the children, and it is in the best interest of his minor children for the cancellation decision to be revoked.
Expectations of the Australian Community
18. expectations of the Australian community’ requires consideration of the length of time HYMC has been making a positive contribution to the Australian community and the consequences for minor children and other immediate family members of non-revocation. These are the countervailing considerations, or at least some of them, that are referred to as conceivably being relevant because of the reference to the phrase ‘countervailing considerations’ in the fourth principle.
19. The fact that he participated in church is relevant to consideration of this aspect.
20. For his contribution to the Australian community, Tribunal found the seriousness of offence to be a fairly significant factor weighing against revocation. However, theses were given less weight because of the consequences to his wife and minor kids.
Conclusion
21. The Tribunal has found that although protection of the Australian community and the seriousness of the HYMC offending were in favour of non-revocation, there were countervailing considerations (i.e. his wife and minor kids) weigh substantially in favour of revocation.
22. In light of the above, the tribunal sets aside the decision to cancel HYMC’s Subclass 866 visa and substitute a decision revoking the decision to cancel that visa.
What can we learn from this case?
23. The best interest of the minor kids is very substantial tool in requesting for revocation of visa cancellation although other factors in Ministerial Direction 79 may indicate in favour of non-revocation.
24. It is also important to include third party verifiable evidence such as psychological assessments, letter from church, professional support services, the frequency the Applicant keeps in touch with his partner and kids while in prison and immigration detention, etc.
How Can Agape Henry Crux Help
At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters. You can book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian, and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.