Peng and Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs (Migration) [2022] AATA 2279 (24 June 2022)

Division: GENERAL DIVISION

File Number: 2022/2946

Re: Sining Peng

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member George

Date of Decision: 24 June 2022

Date of Reasons: 15 July 2022

Place: Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable
decision made by the delegate of the Respondent dated 1 April 2022 that the mandatory
cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa
not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.

………………….[SGD]..................................
Senior Member George

© Commonwealth of Australia 2022

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444

Special Category (Temporary) visa – where Applicant does not pass the character test –
consideration of Ministerial Direction No. 90 – domestic violence – decision under review
affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24.

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 15

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] AATA 1

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a
mandatory cancellation of a visa under section 501CA

PAGE 2 OF 43
 REASONS FOR DECISION

Senior Member George

15 July 2022

INTRODUCTION AND BACKGROUND

1. Mr Peng (“the Applicant”) is a Chinese citizen who was born in China and, as at the date of
decision, is aged 44 years.1 The Applicant first arrived in Australian on 1 December 1998,
aged 21 years, and he has substantially resided in Australia since despite extensively
traveling to and from China.2 The Applicant was a holder of a Class BB Subclass 155 Five
Year Resident Return visa until 17 January 2020.3

2. On 17 January 2020, the Applicant was notified that a delegate of the Minister (“the
Respondent”) had mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958
(“the Act”).4

3. On 28 January 2020, the Applicant made written submissions to the Respondent requesting
revocation of the cancellation of his visa (“revocation request”).5 On 1 April 2022, the
Respondent decided to not revoke the cancellation. 6

4. On 10 April 2022, the Applicant lodged an application for review of the 1 April 2022 decision
in this Tribunal.7 The Tribunal has jurisdiction to review that decision pursuant to
s 500(1)(ba) of the Act.

5. The hearing proceeded on 19-20 May 2022 in a mixed mode of in-person and audio-visual
means. The Applicant was self-represented. The Applicant and the witnesses appeared in-

1 Exhibit R2, s 501 G-Documents, G49, page 463.

2 Exhibit R2, s 501 G-Documents, G100, pages 837-841.
3 Exhibit R2, s 501 G-Documents, G4, page 15.

4 Exhibit R2, s 501 G-Documents, G110, pages 1721-1727.

5 Exhibit R2, s 501 G-Documents, G11, pages 76-81.

6 Exhibit R2, s 501 G-Documents, G3, page 14.

7 Exhibit R2, s 501 G-Documents, G1, pages 1-6.

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 person. Several members of the Applicant’s family viewed various parts of the hearing from
the public gallery. The Respondent was represented by Ms Laizans of Minter Ellison, who
appeared by audio-visual means.

6. The Applicant gave evidence on 19 May 2022. On 20 May 2022, the Applicant’s father
Mr JP and wife Ms WW gave oral evidence. The Applicant and witnesses were assisted by
interpreters.

7. The Tribunal received the written evidence that is listed in the attached exhibit list, marked
“Annexure A”. Additionally, the Tribunal received a written chronology from the Respondent
in closing submissions.

LEGISLATIVE FRAMEWORK

8. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act.

Relevantly, this provides that the Minister may revoke the original decision under s 501(3A)
if:

(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by s 501); or
(ii) that there is another reason why the original decision should be
revoked.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the
Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory
cancellation of the Applicant’s visa should be exercised if either of s 501CA(4)(b)(i) or
s 501CA(4)(b)(ii) of the Act are met. 8

Does the Applicant Pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass
the character test if they have “a substantial criminal record”. This phrase, in turn, is
relevantly defined in s 501(7)(c), which provides that a person will have a substantial

8 Minister for Home Affairs v Buadromo [2018] FCAFC 151.

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 criminal record if they have “been sentenced to a term of imprisonment of 12 months or
more”.

11. On 21 November 2019, the Applicant was convicted in the District Court of New South
Wales at the Downing Centre for several offences, including “Dealing with property that
subsequently becomes an instrument of crime”. On that count alone the Applicant was
convicted and sentenced to two years imprisonment but received a total effective sentence
of 30 months, accounting for the sentences on the other counts.9

12. The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the
Applicant has a “substantial criminal record” and, therefore, he does not pass the character
test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory
cancellation of his visa to be revoked.

Is there another reason why the cancellation of the Applicant’s visa should be
revoked?

13. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is
bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction
No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory
cancellation of a visa under section 501CA (“the Direction”) has application. 10

14. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or
not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the
Direction contains several principles that must inform a decision maker’s application of the
considerations identified in Part 2 where relevant to the decision.

15. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as
follows:

9Exhibit R2, s 501 G-Documents, G5, page 40.

10On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction
90.

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(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 engaged 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
measurable 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 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 by non-citizens who have 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 measurable risk of causing physical harm to the Australian
community.

PAGE 6 OF 43
16. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account
the considerations identified in sections 8 and 9, where relevant to the decision.

17. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must
take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia; and

(4) expectations of the Australian community.

18. Paragraph 9 of the Direction sets out Other Considerations which must be taken into
account. These considerations are:

a) international non-refoulement obligations;

b) extent of impediments if removed;

c) impact on victims; and

d) links to the Australian community, including:

i) strength, nature and duration of ties to Australia; and

ii) impact on Australian business interests

19. Paragraph 7(2) of the Direction provides that the primary considerations should generally
be given more weight than the other considerations. Paragraph 7(3) provides that one or
more primary considerations may outweigh other primary considerations.

BACKGROUND AND OFFENDING

20. The Applicant was enrolled in the Sydney Institute of Language and Commerce at Shanghai
University from September 1996 to July 1998, where he majored in International Business

PAGE 7 OF 43
 and English.11 After moving to Australia in December 1998 as the holder of a Temporary
Work (Skilled) visa (Subclass 457),12 and working as a director and secretary of Aus-Zhuhai
Investment Enterprises Pty Ltd (CAN: 081 661 298), 13 the Applicant completed a Graduate
Diploma in Information Technology from The University of Ballarat in December 2003. 14 The
Applicant went on to operate several businesses. These included being the licensee of a
karaoke entertainment venue called Pandora’s Music Box in Sydney,15 operating a mobile
telephone shop,16 and being employed on a contractual basis quoting and measuring
cabinets for installation. 17

21. On 27 November 2019, the New South Wales Department of Corrective Services
summarised the Applicant’s background as follows:

Comment: Born in China, has been in Australia for 20 years. He has a Bachelor of
Arts in international Business from China and a Masters of arts in IT from Ballarat
University by correspondence. His c class driving licence is valid. He was a manager
in a construction company for about 1 year. and he has been running business in
mobile phones, computers, a karaoke restaurant and a supermaker (sic) for
about 13 years. He would like to gain skills and qualificatiosn (sic) in vocational
courses like carpentry. He would like to improve his reading and writing. He will
return to working in his construction business.18

[Emphasis added]

22. The Applicant has a driving record replete with infringements and offences dating back to
1999.19 The Applicant was declared a habitual offender in the New South Wales Local Court
at Sutherland on 25 September 2003, 20 but continued to variously commit traffic offences
until September 2019. 21 The delegate found:

11 Exhibit R2, s 501 G-Documents, G45, page 425.

12 Exhibit R2, s 501 G-Documents, G100, page 841.
13 Exhibit R2, s 501 G-Documents, G50, page 466.

14 Exhibit R2, s 501 G-Documents, G45, page 427.

15 Exhibit R2, s 501 G-Documents, G50, pages 470-471.

16 Transcript, page 77, lines 26-27.
17 Exhibit R2, s 501 G-Documents, G35, page 304.

18 Exhibit R2, s 501 G-Documents, G36, page 360.

19 Exhibit R4.

20 Exhibit R4, page 5.

21 Exhibit R4, page 2.

PAGE 8 OF 43
 While I consider that these offences, in combination, amount to a sustained
disregard for Australian traffic laws and that this can be considered serious because
of the cumulative risk of such conduct for the community, I acknowledge that these
offences are essentially of a minor nature and that this is reflected in the
entirely non-custodial penalties imposed for them.22

[Emphasis added]

23. The Applicant has described this offending as “stupid” and has expressed his “deep
remorse” for this offending. 23

24. The Applicant married in September 2003.24 This marriage produced two children: Mr CP
who is currently aged 18 years, 25 and Miss AP who is currently aged 12 years. 26 It is unclear
to the Tribunal when the Applicant’s marriage broke down, but it did so, “it would appear,
because of his gambling addiction”.27 From his Child Support Assessments, from 2014 to
2019 the childrens’ mother’s care percentage for Mr CP was 86% and for Miss AP was
100%.28

25. All the Applicant’s minor children are Australian citizens. 29

26. Between about 2004 and 2007, 30 the Applicant drank a lot of alcohol and at times would
“blackout”.31 He also used “weed”, being marijuana, and cocaine during that time. 32 After
2007, the Applicant seems to have come to the realisation that he was unable to stop
drinking if he drank beyond a threshold of six bottles of beer. 33 Since 2017, the Applicant’s

22 Exhibit R2, s 501 G-Documents, G4, page 16, paragraph [14].

23 Exhibit A2, paragraph [2].
24 Exhibit R2, s 501 G-Documents, G7, page 55.

25 Exhibit R2, s 501 G-Documents, G55, page 503.

26 Exhibit R2, s 501 G-Documents, G54, page 502.

27 Exhibit R2, s 501 G-Documents, G7, page 55.

28 Exhibit R2, s 501 G-Documents, G58, pages 508-518
29 Exhibit A2, paragraphs [34] and [36].

30 Transcript, page 81, lines 38-43.

31 Exhibit R2, s 501 G-Documents, G34, page 285.

32 Transcript, page 85, lines 32-33.

33 Transcript, page 84, lines 4-12.

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 evidence is that he limits his consumption to two bottles. 34 Under cross-examination, the
Applicant’s partner Ms WW gave the following evidence:

Ms Laizans: Yes, does the applicant drink alcohol?

Interpreter: He doesn’t drink. No, he doesn’t drink, and I knew that - I heard
when he came - shortly after he came to Australia, in the
beginning, back then, when I didn’t know him yet, I know he had
a karaoke business and to socialise with the customers, he drank
quite a lot. However, during the time that I’ve known him, from
my impression, he’s never been drunk or done any hard
drinking. I don’t think so. And on top of that, because I don’t know
how to drive, it’s always been him who is the driver. So for
example, if we eat out, he would drive us, and when a friend offers
him a beer, he will decline and say, “No, I need to drive later on.”35
[Emphasis added]

27. The Applicant’s account of his alcohol consumption, and that of Ms WW, is consistent with
the evidence of the Applicant’s father Mr JP. In re-examination, Mr JP gave the following
answer in response to a question as to how many times Mr JP saw the Applicant drinking:

Interpreter: Long time ago, this was perhaps 2006 or 2007, that when he was
running the karaoke business, for the sake of keeping the
customers company, he drank. I knew about that, because I
was also helping out there. But after that, I’m not sure. All the
premium wine and any alcohol at home that were gifted to us from
others have been kept there for more than 10 years or even 20
years. None of us drank any of those and neither did he.36
[Emphasis added]

28. Between 2009 and 2016, the Applicant did not lodge personal income tax returns in
Australia.37 However from his Child Support Assessments, the Applicant’s Adjusted Taxable
Income from 2014 to 2019 approximated between $62,000 and $65,000.38

34 Transcript, page 87, lines 19-20.

35 Transcript, page 135, lines 33-41.
36 Transcript, page 125, lines 28-33.

37 Exhibit R2, s 501 G-Documents, G7, page 49.

38 Exhibit R2, s 501 G-Documents, G58, pages 508-518

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29. On 7 November 2014, 39 and again on 2 May 2015, 40 the Applicant provided false or
misleading information to the Department in not declaring his criminal record on his
incoming passenger card.

30. The Applicant and Ms WW became de-facto partners in July 2015, 41 having commenced a
relationship in 2013.42 Ms WW had a daughter from a previous relationship, Miss IW who is
currently aged 13 years. 43 The Applicant’s relationship with Ms WW also produced a son,
Master JP, who is currently aged five years. Ms WW’s evidence is that she was “…
diagnosed with postpartum depression as soon as I had [Master JP]. During this time [the
Applicant] spent most of his time caring for the children and me”.44 Ms WW suffers from
insomnia, extreme anxiety, significant ear pain, and is undergoing treatment, 45 whilst:

In addition, [Master JP] has severe asthma and allergies, which require long-term
medical examination and medication regularly in Australia. If he needs to travel to
China, it will be unstable for his condition and it is hard to reallocate the medications.
He has started on childcare and enjoy the environment and education here. He is
socially connected with friends in childcare. 46

31. Gambling has played a substantial role in the Applicant’s adult life. The Applicant says he
was gambling full-time from 2015,47 which he clarified under cross-examination as follows:

Ms Laizans: … So, Mr Peng, I understand that you began gambling full time
from about 2015, is that correct?
Mr Peng: Yes, around 2014.
Ms Laizans: And are you able to explain to the tribunal what you mean by
“gambling full time”?

39 Exhibit R2, s 501 G-Documents, G99, page 834.

40 Exhibit R2, s 501 G-Documents, G99, page 835.
41 Exhibit R2, s 501 G-Documents, G66, page 560.
42 Exhibit R2, s 501 G-Documents, G67, page 562.
43 Exhibit R2, s 501 G-Documents, G56, page 504.

44 Exhibit R2, s 501 G-Documents, G67, page 562.

45 Exhibit R2, s 501 G-Documents, G67, pages 563-564.

46 Exhibit R2, s 501 G-Documents, G67, page 563.

47 Exhibit R2, s 501 G-Documents, G7, page 56.

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 Mr Peng: For some it mean one week go to the casino few time and always
want the income from the casino and only doing some part time
income from the previous relationship, I mean studying the mobile
phone, just on part time. I mean it’s - from that time I just thinking
I don’t need to do any visit, I just get the - I can win the money
from the casino.48

32. This evidence is consistent with Applicant statement that prior to 2017 that “I thought I could
win on gamble, didn’t think about stopping”, which extrapolates from the Applicant’s view
that “Gambling disorder is the main cause of my crime …”.49 This view is supported by the
Applicant’s antecedents.

33. Between 4 January 2016 and 22 November 2016, the Applicant committed Count 1 of his
financial crimes, namely dealing with money intending it to become an instrument of crime
contrary to s195D(1) of the Crimes Act 1900 (NSW).50

34. On or about 4 January 2016, the Applicant committed Count 2 of his financial crimes,
namely giving false or misleading information to a specified reporting entity contrary to
s136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).51

35. On 9 March 2016, the Applicant was arrested at Treasury Casino in the name "Ping Chen"
and was prosecuted and convicted in that name and fined on 22 April 2016 for one count
of “Cheating by fraudulent act, practice or scheme”.52 This may be regarded as a relatively
minor matter.53

36. Under cross-examination, the Applicant explained why he had a passport with the name
“Ping Chen”:

Mr Peng: Yes. I use this fake passport go into the casino and open the
account and gamble and open a bank account to save in and with
draw the money, yes.

48 Transcript, page 56, lines 13-26.

49 Exhibit A2, paragraph [27].
50 Exhibit R2, s 501 G-Documents, G7, page 45.

51 Exhibit R2, s 501 G-Documents, G7, page 45.

52 Exhibit R2, s 501 G-Documents, G8, page 70.

53 Exhibit R2, s 501 G-Documents, G7, page 53.

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 Ms Laizans: Okay.
Mr Peng: On that stage I don’t have - I lost my - I lost my real passport and
- yes, and just in order to gamble I just stupid to use the fake
passport. I’m sorry about it, yes. I was stupid.
Ms Laizans: So I understand that you opened a Star Casino account using that
name, is that correct?
Mr Peng: Yes, correct.
Ms Laizans: You also opened two Commonwealth Bank accounts in that
name?
Mr Peng: Yes, correct.
Ms Laizans: So I understand that you opened a Star Casino account using that
name, is that correct?
Mr Peng: Yes, correct.
Ms Laizans: You also used that false identity to send money to China, is that
correct?
Mr Peng: I send the money to China, yes, correct.54

37. Between 11 May 2016 and 28 July 2016, the Applicant committed five further offences
contrary to s136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act
2006 (Cth).55

38. The Applicant was arrested for his financial offences on 30 November 2016,56 before being
released on conditional bail on about 10 February 2017.57 The Applicant latter entered pleas
of guilty and was sentenced by His Honour Judge McClintock SC in the District Court of
New South Wales on 21 November 2019.

39. In sentencing the Applicant to a total effective sentence of 30 months imprisonment with a
15-month non-parole period,58 His Honour found:

54 Transcript, page 52, lines 4-27.

55 Exhibit R2, s 501 G-Documents, G7, page 45.
56 Exhibit R2, s 501 G-Documents, G8, page 69.

57 Exhibit R2, s 501 G-Documents, G7, page 46.

58 Exhibit R2, s 501 G-Documents, G7, page 64.

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 As I have indicated his antecedents do not disentitle him to leniency. I have had
great difficulty trying to work out the objective seriousness of this offence. It
is based almost entirely on the fact that the offender was gambling large sums of
money, putting money in an out of accounts, sending money to China, and it would
appear receiving money from China. There does not appear to be any conscious
structuring within the money. There is a clear and significant amount of double
counting within the money but I have been given nothing to indicate precisely how
much double counting there is. As I have said, I adopt the interchange with the
Crown.

There is no doubt in my mind that the offender at one time was a high roller.

There is no doubt in my mind that he wished to retain that status.

There is no doubt that he became significantly addicted to gambling.

As I have indicated, that placed him in a very vulnerable position. That position
seems to have let (sic) to him using a false identity to explore (sic) a significant
amount of currency overseas. The inexorable logic of s 138(6) of the Anti-Money
Laundering legislation is that a person who uses a false name and fails to tell
the institutions, the reporting institutions, of that false name, in themselves
commits an offence which can be described as an instrument of crime.59

[Emphasis added]

40. His Honour went on to accept that the Applicant had relatively good prospects of
rehabilitation. In so doing His Honour considered the evidence of a forensic psychologist,
Mr Jason Borkowski.60

59 Exhibit R2, s 501 G-Documents, G7, page 61.

60 Exhibit R2, s 501 G-Documents, G7, pages 54-55.

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41. Mr Borkowski’s report of 29 March 2019 was prepared for the purposes of the Applicant’s
sentencing and Mr Borkowski was bound by the Expert Witness Code of Conduct contained
in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW).61 Mr Borkowski reported
that the Applicant presented with a “Gambling Disorder, Severe, Persistent” and a “Major
Depressive Disorder”.62 Mr Borkowski wrote:

I am of the opinion that Mr Peng presents with the above DSM-5 Disorders that were
present at the time of the current offences, and that there is a relationship between
his diagnosed disorders, and the current offences as outlined below.

Mr Peng reported being raised in a stable, supportive, caring and prosocial family
environment … He successfully completed his schooling and tertiary studies in
China, before relocating to Australia to pursue further education and advancing his
vocational and/or professional prospects. Mr Peng reported he subsequently
went on to establish and run several successful businesses throughout his
late twenties and early thirties.

However, in his mid thirties, Mr Peng commenced gambling as a recreational

interest. It appears that after he won a large amount of money in the early stages of
his gambling, he started to gamble more frequently, in increasing amounts. Mr Peng
described a pattern of behaviour in which he stared to chase his losses,
borrowing money, accumulating debts, and selling his businesses and
properties as a way to finance his increasing debts. The patterns of behaviour
described by Mr Peng is consistent with a Severe Persistent Gambling
Disorder…

Secondary to, and as a result of his gambling disorder and associated

problems it caused him including the breakdown of his marriage, and loss of

61 Exhibit R2, s 501 G-Documents, G32, page 249.

62 Exhibit R2, s 501 G-Documents, G32, page 255.

PAGE 15 OF 43
 his business, and property, and the significant debts he had accumulated,
Mr Peng also developed a Major Depressive Disorder.63

[Emphasis added]

42. The Tribunal notes that Mr Borkowski did not report the Applicant as suffering an Alcohol
use Disorder, despite the Applicant’s reports of problematic drinking whilst gambling.
Mr Borkowski was also unaware of the Applicant’s history of illicit substance use. 64
Mr Borkowski would also have been unaware that on the date he completed his report that
the Applicant committed a criminal act of family violence related to the Applicant’s gambling.

43. Gambling has been a source of tension in the relationship between the Applicant and
Ms WW. Ms WW wrote:

In 2014, Sining started gambling. He was addicted to gambling and this was very
difficult time for us. I could see that he was struggling with himself to stop gambling,
but he was finding it impossible.65

44. It was an argument over the Applicant’s gambling that gave rise to an incident on 29 March
2019,66 that caused the Applicant to be convicted of two criminal family violence offences.

45. On 30 May 2019, at the Local Court sitting at Parramatta, His Honour Magistrate Keady
convicted the Applicant of Common assault (DV)-T2 and Stalk/intimidate intend fear
physical etc harm (domestic)-T2 and concurrently made a conditional release order for
12 months.67 His Honour also put in place an Apprehended Domestic Violence Order
restricting the Applicant from going within 50 metres of Ms WW, Master JP, or Miss IW.68

63 Exhibit R2, s 501 G-Documents, G32, page 255.

64 Exhibit R2, s 501 G-Documents, G32, page 253; Transcript, page 88, lines 5-9.
65 Exhibit R2, s 501 G-Documents, G67, page 562.

66 Exhibit R2, s 501 G-Documents, G51, page 483.

67 Exhibit R2, s 501 G-Documents, G6, page 44.

68 Exhibit R2, s 501 G-Documents, G51, page 479.

PAGE 16 OF 43
 This order was subsequently varied on 5 May 2020 following an application by Ms WW,69
allowing her to visit the Applicant whilst incarcerated. 70

46. In sentencing the Applicant on 30 May 2019, His Honour found:

Mr Peng has pleaded guilty to one count of assault, one count of intimidation. The
assault occurred in circumstances, as is often the case, where there was an
argument with the woman with whom he resides. It is clear as a consequence of
that argument he became angry and that led him to punch his female partner
to what is said to be the left arm below her shoulder.

There were children in the unit, although not present, to observe this. Although
one would think, as is the case with children, even if they did not see it directly, they
would have had some understanding that something disturbing was
occurring. The raised voices, if nothing else, would have caused that problem and
the effect of these events on children is frequently understated.

I am not in a position to assess just how badly they may have been affected by this
incident but lack of direct sight does not mean that they would not have been
harmed psychologically by what undoubtedly they would have heard.

Following the event the accused is said to have taken a kitchen knife and then
drew it across his wrists informing the complainant that he wanted to kill
himself.

I am asked to make an apprehended violence order, which I make, which will have
the effect of ensuring that the defendant does not reside in the matrimonial
home for a period of two years. That is an essential separation, I think in the

69 Exhibit R2, s 501 G-Documents, G53, pages 499-501.

70 Exhibit R2, s 501 G-Documents, G52, page 492.

PAGE 17 OF 43
 circumstances. It is perhaps relevant to note that these events occurred on bail
while the accused was on bail and awaiting the disposition of quite serious matters
that are pending in another court. 71

[Emphasis added]

47. Under cross examination, Ms WW expanded on the link between the Applicant’s gambling
and domestic violence:

Interpreter: Sure. So I’m free to talk now? That day, because we were arguing
over his gambling problem, I was faced with a lot of problems.
Back then, because of that, my depression worsened. I kept
blaming my husband. I said something that I probably shouldn’t
have said. I said, “It’s all your fault. Go die.”
…
And then, he replied, “Okay, I will go die[”] and he rushed into the
kitchen. He wanted to grab a knife and kill himself. Actually,
when he grabbed the knife, I was so scared, I was thinking I
said something I shouldn’t have said. So I tried my very best
blocking him from the knives. I tried to block him away from
there and so that’s when he pushed me. While this was all
happening, he said, “Let’s all die together.” So my first
response was to ring the father of my husband. However, he didn’t
pick up the very - the many phone calls that made. Eventually, I
rang the police. I don’t feel like continuing. I don’t have further to
day. That’s it.72
[Emphasis added]

48. This evidence is inconsistent with a statutory declaration signed by the Applicant on 21 May
2020, where he said:

I have never done anything violent to my family. I just blamed myself for getting
involved in gambling and getting into trouble with them. My wife called the police
that day because she couldn’t get in touch with my father. She was afraid that I

71 Exhibit R2, s 501 G-Documents, G6, pages 43-44.

72 Transcript, page 131, lines 41-44; page 132, lines 5-13.

PAGE 18 OF 43
 would hurt myself and she would not be able to stop it physically. She hoped the
police would come and calm everyone down.73

[Emphasis added]

49. This evidence is again inconsistent with the Applicant’s evidence under cross-examination,
where he described his action as a “hard push” to Ms WW’s hand.74

50. Through a former solicitor, the Applicant has placed the blame for his family violence
convictions on a former barrister. On 27 May 2020, the former solicitor wrote to the
Department of Home Affairs that:

We submit that the (sic) Mr Peng and [Ms WW] were poorly represented by
their barrister [name redacted] for the common assault and Stalk/intimidate intend
fear physical charge. Mr Peng and [Ms WW] both informed [the barrister] that Mr
Peng did not punch [Ms WW]. However, [the barrister] encouraged Mr Peng to plead
guilty for the common assault and Stalk/intimidate intend physical charge instead of
having the charges dismissed. Mr Peng and [Ms WW] disclosed to the barrister that
he did not punch [Ms WW] and Mr Peng has consistently maintained his
innocence to [the barrister].75

[Emphasis added]

51. The allegations made against the barrister by the Applicant, through his former solicitor, are
serious. If substantiated, they may constitute unprofessional conduct or professional
misconduct. There is no evidence before the Tribunal that these allegations have ever been
put to the barrister by the Applicant or his former solicitor, or a complaint made to a
regulatory body. The allegations were not repeated by the Applicant at the hearing, or in his
statements. It is difficult to ascertain how a barrister could have represented both the

73 Exhibit R2, s 501 G-Documents, G25, page 208.

74 Transcript, page 47, line 18.
75 Exhibit R2, s 501 G-Documents, G14, page 128.

PAGE 19 OF 43
 Applicant and Ms WW, being respectively the accused and complainant of a crime
prosecuted by the New South Wales Police Force. The transcript of the sentencing remarks
records that a person other than the barrister appeared for the Applicant on the day of his
sentencing.76 The Tribunal places little weight on the substance of these allegations.

52. The Tribunal notes that from 29 June 2019 to 17 August 2019, the Applicant attended four
sessions with Gambling Help Counsellor/Coordinator Sha Mi. 77 He also consulted a
psychologist Ms Amy Ng, who wrote a report dated 21 August 2019. Following a
consultation on 10 August 2019, Ms Ng reported:

At his Initial Clinical Interview, 12/06/19, Mr Peng was desperate for a solution to
solve and fix his gambling issue. He had previously seen Psychologist Mr Herbert
Fung whom had referred him to myself for treatment to address his “thoughts of
gambling” and continued motivational interviewing to assist him with insight into his
condition.78

53. Ms Ng went on to find that the Applicant’s symptoms were consistent with “A Major
Depressive Disorder with anxious and depressed mood” and a “Gambling Disorder –
ongoing and chronic”.79 In reaching this conclusion through the application of diagnostic
criteria, Ms Ng had reported:

7. Lies to conceal the extent of involvement with gambling. (Yes, has hurt family
members in the past and is now more aware of the consequences)

8. Has jeopardized or lost a significant relationship, job, or educational or

career opportunity because of gambling. (Yes, business ruined with debts. Now
business is better and more stable with good social relationship with colleagues and
his children)

76 Exhibit R2, s 501 G-Documents, G6, page 43.

77 Exhibit R2, s 501 G-Documents, G47, page 428.
78 Exhibit R2, s 501 G-Documents, G33, page 261.

79 Exhibit R2, s 501 G-Documents, G33, page 262.

PAGE 20 OF 43
 9. Relies on others to provide money to relieve desperate financial situations
caused by gambling. (Yes, his family in the past). 80

54. Although Ms Ng’s report makes several mentions of the Applicant’s family, it does not make
express mention of the Applicant’s family violence. The same material omission is made in
the psychological report of Ms Sharon Dawson of 7 May 2020, who does not seem to have
been provided with all the relevant documents.81 Ms Dawson was provided with a New
South Wales Corrective Services Sentencing Assessment Report dated 3 June 2019, which
contained the paragraph:

Mr Peng lived with his partner and infant child in rental accommodation in Castlehill.
However, since a non contact Apprehended Violence Order has been imposed on
30/05/2019 he has now returned to his parent’s property in Kellyville.82

55. Materially, Ms Dawson was not provided with a copy of the Apprehended Domestic Violence
Order that was in force.83

56. In her report, Ms Dawson’s found that “It is in my opinion that Mr Peng poses little risk of
recidivism or likelihood of other serious misconduct”. Ms Dawson also reported that:

Mr Peng did not seek to avoid culpability for his behaviour in any way and knows
that gambling addiction is not an excuse for his behaviour. Mr Peng appeared
remorseful when we discussed the impact on his family and in particular his
parents.84

57. The Tribunal notes that the Applicant and Ms WW did not raise with Ms Dawson the issue
of family violence, where it was open to them to do so. Ms Dawson did not consider the

80 Exhibit R2, s 501 G-Documents, G33, page 262.

81 Exhibit R2, s 501 G-Documents, G31, page 238.
82 Exhibit R2, s 501 G-Documents, G35, page 303.

83 Exhibit R2, s 501 G-Documents, G53.

84 Exhibit R2, s 501 G-Documents, G31, page 239.

PAGE 21 OF 43
 issue of family violence. This limits the weight the Tribunal can place on Ms Dawson’s
evidence.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

58. In considering this Primary Consideration, paragraph 8.1 of the Direction requires decision-
makers to keep in mind the Government is committed to protecting the Australian
community from harm as a result of criminal activity or other serious conduct by non-
citizens. Decision-makers should have particular regard to the principle that entering or
remaining in Australia is a privilege that this country confers on non-citizens in the
expectation that they are, and have been, law abiding, that they will respect important
institutions and that they will not cause or threaten harm to individuals or the Australian
community.

59. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the
Direction requires decision-makers to give consideration to:

a) The nature and seriousness of the non-citizen’s conduct to date; and

b) The risk to the Australian community should the non-citizen commit further
offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant’s Conduct to Date

60. When assessing the nature and seriousness of a non-citizen’s criminal offending or other
conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must
have regard to a number of factors. I will now turn to addressing these considerations.

61. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the
range of conduct that may be considered very serious, violent and/or sexual crimes; crimes
of a violent nature against women or children (regardless of the sentence imposed); or acts
of family violence (regardless of whether there is a conviction for an offence or a sentence
imposed) are viewed very seriously by the Australian Government and the Australian
community.

PAGE 22 OF 43
62. His Honour Judge McClintock SC had “great difficulty trying to work out the objective
seriousness” of the Applicant’s offending contrary to s 195D(1) of the Crimes Act 1900
(NSW) and contrary to s 136(1) of the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (Cth). Nevertheless, the result was that the Applicant received a total
effective service of 30 months imprisonment with a 15-month non-parole period. This
reflects the objective seriousness of the Applicant’s offending

63. Whilst on bail for the above offending, Applicant has been convicted of offending against
his female partner, in circumstances where children were at the residence. This was an act
of family violence. The Applicant also continued to commit traffic offences.

64. The Applicant’s offending is viewed very seriously by the Tribunal.

65. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that, 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;

(i) 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));

(ii) 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, , or an offence
against section 197A of the Act, which prohibits escape from immigration
detention.

PAGE 23 OF 43
66. The evidence before the Tribunal does not give rise to a finding that any of the criterion in
sub-paragraph (b) are made out. Therefore, the Tribunal does not regard this factor to be
relevant.

67. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject
to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the
sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The
imposition of a custodial term is regarded as the last resort in any reasonably and correctly
applied sentencing process. Custodial terms are viewed as a reflection of the objective
seriousness of an applicant’s offending.

68. The Applicant has been sentenced to a custodial sentence for his offending contrary to
s 195D(1) of the Crimes Act 1900 (NSW) and contrary to s 136(1) of the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (Cth), being a reflection of the
objective seriousness of this offending. However, the Tribunal notes that the Applicant did
not receive a custodial sentence for any of his other offending.

69. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the
frequency of a non-citizen’s offending and whether there is any trend of increasing
seriousness.

70. The Applicant’s offending contrary to s 195D(1) of the Crimes Act 1900 (NSW) and contrary
to s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
was relatively limited in duration from January to November 2016.

71. The Applicant has only committed one incident of family violence for which he has been
prosecuted. Although he breached his bail in committing this offending, he has not
subsequently breached his Apprehended Domestic Violence Order.

72. The Respondent has submitted that the Applicant’s frequent history of traffic offending “…
demonstrate a consistent blasé attitude by the applicant to the legal requirements
imposed upon him and should be given significant weight as demonstrating a cavalier

PAGE 24 OF 43
 attitude towards respect for the law”.85 The Tribunal also acknowledges the Respondent’s
reliance on QJYD and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs [2021] AATA [51]-[54]. The Tribunal balances these submissions with
the view of the delegate that “these offences are essentially of a minor nature …”.86

73. The Respondent has submitted that there is “an escalation in the seriousness of the
offending” by the Applicant, relying on the Applicant’s traffic offences to demonstrate this. 87
This submission sits uncomfortably with the delegate’s finding that “… I find that his family
violence offending was not frequent and did not suggest a trend of increasing
seriousness”.88 On balance, the submissions are not sufficiently persuasive for the Tribunal
to find that a trend of increasing seriousness in the Applicant’s offending is made out.

74. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an
examination of the cumulative effect of an Applicant’s repeated offending.

75. There are no identified victims from the Applicant’s financial offending beyond the wider
Australian community.

76. The principal victim of the Applicant’s domestic violence is Ms WW, however as His Honour
Magistrate Keady observed with regard to the children at the residence a “… lack of direct
sight does not mean that they would not have been harmed psychologically by what
undoubtedly they would have heard”. 89

77. The Applicant’s traffic offending represents frequent and consistent breaches of the peace,
posing an inherent danger by a road user to other individuals.

85 Transcript, page 144, lines 40-43.

86 Exhibit R2, s 501 G-Documents, G4, page 16, paragraph [14].
87 Transcript, page 144, lines 24-28

88 Exhibit R2, s 501 G-Documents, G4, page 27.

89 Exhibit R2, s 501 G-Documents, G6, page 43.

PAGE 25 OF 43
78. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether
a non-citizen has provided false or misleading information to the Department, including by
not disclosing prior criminal offending.

79. On two occasions, the Applicant has provided false or misleading information to the
Department in not declaring his criminal record on his incoming passenger card.

80. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether
the non-citizen has re-offended since being formally warned about the consequences of
further offending in terms of the non-citizen’s migration status.

81. There is no evidence before the Tribunal that the Applicant was formally warned about the
consequences of further offending in terms of his migration status as a non-citizen.
Therefore, the Tribunal does not regard this factor to be relevant.

82. I do not consider factors (b) or (g) of paragraph 8.1.1(1) of the Direction applies to the
Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of
paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the
cancellation of the Applicant’s visa.

The Risk to the Australian Community Should the Applicant Commit Further
Offences or Engage in Other Serious Conduct

83. Paragraph 8.1.2(1) provides that 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.

84. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen
to the Australian community, decision-makers must have regard to, cumulatively:

• the nature of the harm to individuals or the Australian community should the non-
citizen engage in further criminal or other serious conduct;

PAGE 26 OF 43
 • 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 non-
citizen 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; and

• where consideration is being given to whether to refuse to grant a visa to the non-
citizen - whether the risk of harm may be affected by the duration and purpose of
the non-citizen’s intended stay, the type of visa being applied for, and whether
there are strong or compassionate reasons for granting a short stay visa.

Nature of harm should the Applicant engage in further criminal or other serious conduct

85. The assessment of the nature of the harm to individuals or the Australian community were
the Applicant to engage in further criminal or other serious conduct is properly informed by
the nature of his offending to date, including any escalation in his offending. This
assessment is also informed by the provision in the Direction which stipulates that the
Australian community’s tolerance for harm becomes lower as the seriousness of the
potential harm increases.

86. The nature of the Applicant’s offending to date is very serious. The Tribunal has not found
that a trend of increasing seriousness in the Applicant’s offending is made out.
Nevertheless, harm would undoubtedly accrue to individuals or the Australian community
were the Applicant to engage in further criminal or other serious conduct.

87. Anti-money laundering and counter-terrorism financing legislation is in place to protect the
Australian community from the dangers that flow from such criminality. Similarly, families
must not be made to live in fear of violence, nor should individuals be placed at risk by
habitual offending road users. The Australian community would be intolerant of the
Applicant were he to engage in further criminal or other serious conduct.

Likelihood of engaging in further criminal or other serious conduct

88. The Tribunal accepts His Honour Judge McClintock SC’s finding that the Applicant has good
prospects of rehabilitation. However, the Tribunal only does so with respect to his financial

PAGE 27 OF 43
 offending. The Applicant’s family violence antecedents were not before His Honour, 90 nor
was Mr Borkowski informed of them due to the contemporaneous nature of his report.
Although the sentencing report dated 3 June 2019 was relied upon by His Honour, 91 this
report made no mention of the Applicant’s convictions for family violence on 30 May 2019. 92

89. It is of concern to the Tribunal that Ms Dawson, and Ms Ng, were not informed of the
Applicant’s convictions for family violence whilst on bail. Where the Applicant’s relationship
with his family is raised in both of those reports, it is surely a material consideration that
they were protected by an Apprehended Violence Order. In the absence of such a material
consideration, which seems to have been caused by the Applicant’s omission, the Tribunal
has reservations as to whether the Applicant understands the gravity of his family violence
offending.

90. Ms WW has indicated that she wishes to receive relationship counselling. 93 The Applicant
goes as far as to say he undertook weekly visits to a social worker with Ms WW,94 which
seems inconsistent with the terms of the Apprehended Violence Order. In any event, no
firm plan for future relationship counselling is before the Tribunal.

91. The Applicant did not breach his Apprehended Violence Order, although this may be
partially explained by his presence in custody for part of its duration. However, the Applicant
did breach his bail when he committed his acts of family violence. This breach of bail causes
the Tribunal concern.

92. Considering all the material before it, the Tribunal is satisfied that the Applicant may engage
in further family violence if released into the Australian community.

93. For completeness, the Tribunal has considered the Applicant’s traffic offending and regards
that there is a likelihood that he will continue to commit traffic offences if released in the
Australian community. However, the Tribunal does not place significant weight on this issue

90 Exhibit R2, s 501 G-Documents, G8, page 70.

91 Exhibit R2, s 501 G-Documents, G7, page 48.
92 Exhibit R2, s 501 G-Documents, G35, page 303.

93 Exhibit R2, s 501 G-Documents, G69, page 570.

94 Exhibit R2, s 501 G-Documents, G25, page 208.

PAGE 28 OF 43
 when considered in isolation or in conjunction to the Applicant’s risk of engaging in further
family violence.

Conclusion: Primary Consideration 1

94. Primary Consideration 1 weighs significantly against revocation of the cancellation of the
Applicant’s visa.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

95. Paragraph 8.2 of the Direction provides:

(1) The Government has serious concerns about conferring on non-citizens who
engage in family violence the privilege of entering or remaining in Australia. The
Government’s concerns in this regard are proportionate to the seriousness of the
family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or
had charges proven howsoever described, that involve family violence;
and/or
b) there is information or evidence from independent and authoritative sources
indicating that the non-citizen is, or has been, involved in the perpetration of
family violence, and the non-citizen being considered under section 501 or
section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen,
the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of
increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of
family violence, including:
i. the extent to which the person accepts responsibility for their family violence
related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour
on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since
otherwise being made aware by a Court, law enforcement or other authority,
about the consequences of further acts of family violence, noting that the
absence of a warning should not be considered to be in the non-citizen’s favour.

PAGE 29 OF 43
 This includes warnings about the non- citizen’s migration status, should the non-
citizen engage in further acts of family violence.

96. It is unnecessary to repeat relevant the evidence and findings considered in Primary
Consideration 1 for the purposes of Primary Consideration 2.

97. The Applicant has committed one incident of family violence, whilst on bail for other
offending. The Tribunal is satisfied that the Applicant may engage in further family violence
if released into the Australian community. He has not reoffended. However, part of the
reason for this may be that the Applicant has been incarcerated and in immigration
detention.

98. The Tribunal has considered the seriousness of the family violence engaged in by the
Applicant. There is no trend of increasing seriousness, nor is there a cumulative effect of
repeated acts of family violence. The Applicant regards his family violence offending as
“stupid” and “wrong”.95

99. The Applicant’s plea of guilty, on the first opportunity,96 indicates the acceptance of a level
of responsibility notwithstanding that the Applicant now denies punching Ms WW. However,
the Applicant’s omission of this offending in both Ms Dawson’s report and Ms Ng’s report
indicate that he does not understand the impact of his behaviour on Ms WW and the
children. Indeed, the Applicant’s failure to raise the issue of family violence as a central
issue during Ms Ng’s treatment indicates that he is not committed to addressing the factors
which contributed to his family violence.

Conclusion: Primary Consideration 2

100. Primary Consideration 2 weighs significantly against revocation of the cancellation of the
Applicant’s visa.

95 Transcript, page 45, lines, 17-19.

96 Exhibit R2, s 501 G-Documents, G6, page 44.

PAGE 30 OF 43
 PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN
AUSTRALIA

101. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about
whether cancellation or refusal under section 501, or non-revocation under section 501CA
is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3)
respectively contain further stipulations. The former provides that for their interests to be
considered, the relevant child (or children) must be under 18 years of age at the time when
a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory
cancellation decision is being made. The latter provides that 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

102. The Direction sets out a number of factors to take into consideration with respect to the best
interests of minor children in Australia. Those include, relevantly:

• 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);

• 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;

• 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;

• 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;

• whether there are other persons who already fulfil a parental role in relation to the child;

• any known views of the child (with those views being given due weight in accordance
with the age and maturity of the child);

• 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;

PAGE 31 OF 43
 • evidence that the child has suffered or experienced any physical or emotional trauma
arising from the non-citizen’s conduct.

103. The Tribunal has already considered His Honour Magistrate Keady’s sentencing remarks
regarding the children at the residence during the incident on 29 March 2019 and need not
labour these considerations further. Similarly, the Tribunal need not labour the
Apprehended Domestic Violence Order that arose from that incident that protected Master
JP and Miss IW in addition to Ms WW. The Tribunal is already satisfied that the Applicant
may engage in further family violence if released into the Australian community.

104. There is an abundance of evidence before the Tribunal that the Applicant’s relationships
with his minor children in Australia are positive. Although at the age of four years Master JP
is too young to be expected to write in support of his father, at the age of 13 years his
stepsister Miss IW writes in compelling terms that Master JP misses his father.97 It is clear
from that correspondence that Miss IW also deeply misses her stepfather and is concerned
for her mother.

105. The Tribunal does not have direct evidence of the views of Miss AP, who is aged 12 years,
but her older brother Mr CP is of the view that “… being unable to see our father for an
extended period of time is going to result in negative effect for me and untold effects for my
sister [Miss AP]…”.98

106. Despite the Applicant’s criminal convictions and a gambling addiction, which must have
impacted his ability to financially provide for his family, the Tribunal is satisfied that the
Applicant plays a meaningful role in the lives of his minor children. They are emotionally
best served by the Applicant returning to the Australian community. The Applicant also has
good prospects of rehabilitation in terms of his financial offending, which may allow him to
re-dedicate his efforts to financially providing for his family.

97 Exhibit R2, s 501 G-Documents, G60, page 520; G61, pages 521-522; G62, pages 523-524.
98 Exhibit R2, s 501 G-Documents, G59, page 519.

PAGE 32 OF 43
 Conclusion: Primary Consideration 3

107. Primary Consideration 3 weighs moderately in favour of the revocation of the cancellation
of the Applicant’s visa.

PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN

COMMUNITY

The relevant paragraphs in the Direction

108. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph
8.4(1) of the Direction provides that the Australian community expects non-citizens to obey
Australian laws while in Australia. I should consider whether the Applicant has breached, or
whether there is an unacceptable risk that he would breach, this expectation by engaging
in serious conduct.

109. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-
revocation of the mandatory cancellation of a visa, may be appropriate simply because the
nature of the character concerns or offences are such that the Australian community would
expect that the person should not be granted or continue to hold a visa. In particular, the
Australian community expects that the Australian Government can and should refuse entry
to non-citizens, or cancel their visas, if they raise serious character concerns through
conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced
marriage;
(c) commission of serious crimes against women, children or other vulnerable members
of the community such as the elderly or disabled; in this context, ‘serious crimes’
include crimes of a violent or sexual nature, as well as other serious crimes against
the elderly or other vulnerable persons in the form of fraud, extortion, financial
abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the
position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people
smuggling, or in crimes that are of serious international concern including, but not
limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.

PAGE 33 OF 43
110. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian
community apply regardless of whether the non-citizen poses a measurable risk of causing
physical harm to the Australian community.

111. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the
Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole,

and in this respect, decision-makers should proceed on the basis of the
Government’s views as articulated above, without independently assessing the
community’s expectations in the particular case.

112. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in
FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach
established in previous authorities that it is not for the Tribunal to determine for itself the
expectations of the Australian community by reference to an Applicant’s circumstances or
evidence about those expectations. The Tribunal is to be guided by the Government’s views
as to the expectations of the Australian community, which are to be found in the Direction.99

113. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of
the Australian community, which operates to ascribe to the whole of the Australian
community an expectation aligning with that of the executive government which the decision
maker must have regard to.

Analysis – Allocation of Weight to Primary Consideration 4

114. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is

necessary to have regard to the following matters:

• The Applicant moved to Australia when he was 21 years old and is now aged 44
years.

99See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs
[2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister
for Home Affairs [2019] FCA 500.

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 • The Applicant remains emotionally close with his parents, his partner Ms WW, and
his son Mr CP, and his minor children Miss AP, Miss IW, and Master JP.

• The Applicant has maintained steady employment, albeit interrupted by gambling.

• The Applicant’s children are all relatively young and he has maintained a meaningful
relationship with them.

• The Applicant has committed financial crimes, contravening anti-money laundering

and counter-terrorism financing legislation.

• The Applicant has committed violent offences against a domestic partner whilst
children were in the residence.

• The Applicant has consistently and frequently committed traffic offences, which
commenced shortly after his arrival in Australia and continued through to his
incarceration.

• The Applicant’s offences are very serious.

• The Applicant’s preparedness to commit crimes raises serious concerns about his
character.

115. The Australian community condemns family violence. The Applicant has engaged in serious
criminal conduct. The Applicant’s conduct raises serious character concerns.

Conclusion: Primary Consideration 4

116. Primary Consideration 4 weighs heavily against revocation of the cancellation of the
Applicant’s visa.

OTHER CONSIDERATIONS

117. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.

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 (a) International non-refoulement obligations

118. The Applicant does not make any claims with respect to Australia’s non-refoulement
obligations.

119. The Tribunal is not satisfied that a claim with respect to Australia’s non-refoulement
obligations arises on the evidence. This Other Consideration is therefore not relevant to the
determination of this application.

(b) Extent of Impediments if Removed

120. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-
maker to take into account the extent of any impediments that the non-citizen may face if
removed from Australia to their home country, in establishing themselves and maintaining
basic living standards (in the context of what is generally available to other citizens of that
country), taking into account:

(a) the non-citizen’s age and health;

(b) whether there are any substantial language or cultural barriers; and

(c) any social, medical and/or economic support available to that non-citizen in that
country.

121. Having regard to the abovementioned matters, the Applicant is aged 44 years and the
evidence before the Tribunal does not support the making of findings regarding:

(a) physical ill health;

(b) substantial language or cultural barriers if removed to China; or

(c) any lesser social, medical and/or economic support available to the Applicant in
China that he would otherwise be able to access in Australia.

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122. Both Mr Borkowski and Ms Ng reported that the Applicant presented with a Gambling
Disorder and a Major Depressive Disorder. 100 Although it may be more difficult to receive
treatment for these conditions in China than in Australia, there is no objective evidence
before the Tribunal to suggest that such treatment is unavailable. Further, even it were
unavailable then there is no objective evidence before the Tribunal that telehealth services
from elsewhere would be unsuitable.

123. Mr Borkowski wrote that “Mr Peng identified his family as his primary prosocial supports
currently”.101 Indeed, the Applicant was heavily supported by his family at the hearing as
evidence by both their willingness to give evidence and their attendance in the public gallery.
The Applicant’s mother says that she needs him to look after her. 102 The Applicant’s father,
Mr JP, suffers multiple comorbidities.103 His evidence is that he requires “…24/7 care,
especially at night time”104 and, due to a heart condition that interferes with taking “a long
trip”,105 that he will never be able to see the Applicant again if the Applicant returns to
China.106

124. Ms WW has expressed concern that “If Sining leaves Australia, he will not be able to find
work in China and provide us with financial support as he has not been there for a long time
and has no family or friends there”.107 This view is not fully supported by the available
evidence. However, and despite the Applicant’s present unemployment whilst detained, the
Tribunal accepts that the Applicant could better provide for his family if he were released
back into the Australian community.

125. Considering the evidence before the Tribunal, the extent of impediments if removed carry
a slight level of weight in favour of exercising the discretion to revoke the mandatory
cancellation of the Applicant’s visa.

100 Exhibit R2, s 501 G-Documents, G32, page 255; page 261.
101 Exhibit R2, s 501 G-Documents, G32, page 252.
102 Exhibit A6.
103 Exhibit R2, s 501 G-Documents, G84, page 649.

104 Transcript, page 119, line 2.

105 Transcript, page 124, line 43.

106 Transcript, page 124, line 29.

107 Exhibit R2, s 501 G-Documents, G67, page 563

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 (c) Impact on victims

126. This Other Consideration (c) requires that 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.

127. The evidence before the Tribunal indicates a negative impact on Ms WW and the Applicant’s
children should the Applicant leave Australia, noting in so doing that Ms WW was the victim
of the Applicant’s family violence. The Tribunal balances this consideration with the impact
on the wider Australian community should the Applicant remain in Australia given his
financial and traffic offending. This Other Consideration (c) is therefore neutral.

(d) Links to the Australian Community

128. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that
decision makers must have regard to the following two factors set out in paragraph 9.4.1
and paragraph 9.4.2 respectively:

• the strength, nature, and duration of ties to Australia; and

• the impact on Australian business interests.

The strength, nature, and duration of ties to Australia

129. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate
family members in Australia, where those family members have citizenship, permanent
residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted
the Applicant’s extensive family ties to Australia. The Tribunal has placed weight on the
Applicant’s relationship with his father, who is unwell.

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130. The Tribunal has considered that the Applicant has lived continuously in Australia since
December 1998. Although the Applicant has made minor vocational contributions during
that time, the Tribunal balances these contributions against his non-payment of income tax
and his criminal offending.

131. Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal
places some weight in favour of revoking the Applicant’s mandatory visa cancellation.

Impact on Australian business interests

132. The Applicant does not claim that his removal from Australia would adversely impact on
Australian business interests. No weight can be allocated under paragraph 9.4.2 of the
Direction.

Findings: Other Considerations

133. The application of the Other Considerations in the present matter can be summarised as
follows:

(a) international non-refoulement obligations: not relevant;

(b) extent of impediments if removed: carries a slight level of weight in favour of

exercising the discretion to revoke the mandatory cancellation of the Applicant’s
visa;

(c) impact on victims: neutral; and

(d) links to the Australian community: carries some weight in favour of exercising the
discretion to revoke the mandatory cancellation of the Applicant’s visa.

CONCLUSION

134. Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise
of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the
Applicant must be found to pass the character test; or, the Tribunal must be satisfied that

PAGE 39 OF 43
 there is another reason, pursuant to the Direction, to revoke the cancellation. As noted and
found above, the Applicant does not pass the character test.

135. Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view
that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act
to revoke the mandatory visa cancellation decision.

136. In reaching that conclusion, the Tribunal has had regard to the considerations referred to in
the Direction. The Tribunal finds as follows:

• Primary Consideration 1 weighs significantly against revocation;

• Primary Consideration 2 weighs significantly against revocation;

• Primary Consideration 3 weighs moderately in favour of revocation;

• Primary Consideration 4 weighs heavily against revocation of the cancellation of the

Applicant’s visa; and

• The weight attributable to the four-listed Other Considerations as found above.

• The Tribunal considers that the totality of the heavy weight it has attributed to
Primary Consideration’s 1, 2 and 4, outweighs the weight allocated to the remaining
Primary and Other Considerations;

• A holistic view of the considerations in the Direction therefore favours the non-
revocation of the mandatory cancellation of the Applicant’s visa.

137. Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory
cancellation of the Applicant’s visa.

DECISION

138. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the
reviewable decision made by the delegate of the Respondent dated 1 April 2022 that the
mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB)
(Subclass 155) visa not be revoked under subsection 501(CA)(4) of the Migration Act
1958 (Cth) is affirmed.

PAGE 40 OF 43
 I certify that the preceding 138
(one hundred and thirty-eight)
paragraphs are a true copy of
the reasons for the decision
herein of Senior Member
George

.................................[SGD].......................................
Associate

Date of Decision: 24 June 2022

Date of Reasons: 15 July 2022

Date of Hearing: 6 & 7 June 2022

Applicant: Self-represented

Solicitor for the Respondent: Ms C Laizans

Minter Ellison

PAGE 41 OF 43
 Annexure A –Exhibit Register

DATE OF DATE
EXHIBIT DESCRIPTION OF EVIDENCE PARTY
DOCUMENT RECEIVED

Statement of Facts, Issues and

A1 A 15 May 2022 15 May 2022
Contentions

Amended Statement of Facts, Issues

A2 A 1 June 2022 1 June 2022
and Contentions

A3 Character Reference of Mr DW A 8 May 2022 15 May 2022

A4 Character Reference of Ms MP A 9 May 2022 15 May 2022

A5 Character Reference of Mr JP A 1 June 2022 1 June 2022

A6 Character Reference of Ms PL A 1 June 2022 1 June 2022

A7 Character Reference of Ms WW A 1 June 2022 1 June 2022

A8 Character Reference of Mr XJL A 31 May 2022 1 June 2022

A9 Transaction Record A Various 1 June 2022

A10 Conversation Record A Various 1 June 2022

8 September
A11 Smith Family Letter A 1 June 2022
2022

PAGE 42 OF 43
 DATE OF DATE
EXHIBIT DESCRIPTION OF EVIDENCE PARTY
DOCUMENT RECEIVED

Respondent’s Statement of Facts,

R1 R 27 May 2022 27 May 2022
Issues and Contentions

21 April
R2 Section 501 G-Documents R Various
2022

R3 35 Pages of Court Material R Various 3 June 2022

Six pages from Transport New South

R4 R 30 May 2022 6 June 2022
Wales

R5 Contact Material R Various 2 June 2022

PAGE 43 OF 43