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MIGRATION - refusal of partner visa to applicant's husband under s501(1) of the Migration Act, 1958 - husband fails character test - power to refuse visa enlivened under s 501(1) - whether statutory power should be exercised - Direction 110 - applicant single parent in Australia - interests of minor child - applicant also has history of cancer - applicant committed serious offence involving the possession of methylamphetamine for sale - low risk of reoffending - character concerns raise very serious issues - on balance preferable decision is to affirm decision under review

Migration Act, 1958 (Cth)

Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9

NRFX v. Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. This is an application by Ms Guannan Wang seeking a review of a decision of the respondent's delegate dated 17 June 2024.[1] By this decision, the delegate had refused the application for a partner visa that had been made in respect of Ms Wang's husband, Mr Sen Zhang.[2] The decision to refuse Mr Zhang a partner visa was taken under section 501(1) of the Migration Act 1958 (Cth) ('the Act'). This section permits the Minister to 'refuse to grant a visa to a person if the person does not satisfy the Minister that he or she satisfies the character test'. The 'character test' is elaborated in section 501(6).
2. Section 501(1) has two aspects to it. First, there is the jurisdictional threshold that must exist before the power may be exercised; namely, that of a person not satisfying the Minister that he or she passes the character test. Secondly, when the jurisdictional threshold is met, the question arises whether the power to refuse a visa should be exercised.
3. Mr Zhang could not satisfy the Minister's delegate that he passed the character test. He had been sentenced in 2015 in the District Court of Western Australia to a term of imprisonment of two years and nine months in respect of his possession of a quantity of methylamphetamine for supply or sale to others. I shall describe that offending in due course; but for present purposes, it is sufficient to note that the length of this sentence meant that Mr Zhang inevitably failed the 'character test' as defined in the Act.[3]
4. It follows that the Minister's statutory power under s 501(1) to refuse him a visa arose. So far as the exercise of this power is concerned (i.e., the second of the two matters to which I referred above), the Minister's delegate was obliged to apply any direction issued under section 499(1) of the Act.[4] The delegate applied the then applicable 'Direction no. 99'.[5] Having weighed the various considerations required to be addressed under this Direction, the delegate decided that they favoured, on balance, an exercise of the statutory power to refuse Mr Zhang a partner visa. The visa application was, accordingly, refused. Ms Wang, as Mr Zhang's visa sponsor, had a right to bring an application for review and she did so.[6]

1. Hearing the matter afresh on the evidence before me, I must address the same two aspects of section 501(1). So far as the jurisdictional threshold is concerned, I have already made clear that the delegate was correct to find that Mr Zhang inevitably failed the character test given the conviction and sentence to which I have referred.
2. The jurisdictional threshold having been satisfied, I must address the question of the proper exercise of the statutory power in section 501(1). In this regard, like the delegate, I am obliged to apply any direction issued under section 499. Since the delegate's decision, Direction no. 99 has been revoked and a new direction, Direction no. 110,[7] has been substituted. I have applied this latter direction in my review.
3. So far as the exercise of this Tribunal's review function is concerned, I note that in a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate's decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[8] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate's reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate's reasoning if that is the correct or preferable decision on the evidence before it.[9]
4. At the hearing before me, Ms Chen appeared for the applicant; Mr Kirstenfeldt, for the respondent. I am grateful to them both for their careful presentation of their respective cases.

1. I have decided to affirm the decision under review. I set out the background facts and then my reasons for this conclusion.

1. Mr Zhang was born in the People's Republic of China in 1976 and is a citizen of that country. He presently resides there. When he was in his late twenties, Mr Zhang entered Australia on a short-stay visa.[10] He arrived here on 29 August 2004.
2. I draw the following facts from one of Mr Zhang's statements.[11] After Mr Zhang arrived in Australia in 2004, he initially lived with his aunt in New South Wales for some four weeks.[12] He accepts that he did not renew his short-stay visa or apply for a new visa after its expiry. He decided, in effect, to stay on, although he had no legal right to do so.
3. Mr Zhang says he stayed on after the expiry of his visa because he was advised that if he lodged an application for a new visa, he would have to leave the country to await the decision and that he might not be able to return.[13] That view may well have been correct. It remains a fact that Mr Zhang decided to stay in Australia without a visa, and he did not follow any prescribed process to obtain a new visa or regularise his continued presence in Australia. In the event, Mr Zhang began work in Australia soon after his short-term visa expired, and he ended up staying for many years.
4. Mr Zhang records that he worked as a 'ceiling fixer'[14] and was working in that area before moving to Perth in about April 2006. He had limited English language skills. He happened to meet his future partner, Ms Wang, at a shopping-centre post-office where he was paying some bills. He asked Ms Wang whether she spoke 'Mandarin'. She indicated that she did, and they exchanged phone numbers.
5. He introduced himself to her as 'Zhang Guan Jun', but this was in fact the name of a person who had once worked in Australia but had since departed permanently. As is recorded in his statement, Mr Zhang assumed the identity of Mr Jun[15] so that he could work in Australia. He took over Mr Jun's tax-file number, bank-account details, and bankcard. The evidence before me was to the effect, therefore, that Mr Zhang assumed another identity to facilitate his intention to remain in Australia.
6. Mr Zhang met up with Ms Wang after their post-office encounter, and they began to socialise. After a period of time, they became closer and eventually intimate. In due course they began to rent a house together in Bentley, a Perth suburb. Mr Zhang worked repairing ceilings while Ms Wang studied accountancy. He supported her from 2008 to her graduation in 2011.
7. In October 2008, Mr Zhang introduced Ms Wang to his aunt. Ms Wang discovered Mr Zhang's identity after his aunt happened to address him by his real name during the visit. Mr Zhang explained to Ms Wang at that point that he had been using an assumed identity for about four years.
8. In 2011, Ms Wang graduated from Curtin University. She eventually found a job. In May 2012, the couple bought their first home together.
9. Mr Zhang was arrested and charged with certain drug-related offending in May 2014. He lodged a partner-visa application on 30 May 2014 and was granted a bridging visa. He was released on bail; but in August 2014, he was re-arrested and charged in connection with the serious offending to which I referred at the outset of these reasons.
10. From this point on, Mr Zhang remained in prison. He did not have a visa during this time, although he applied for a partner visa.[16] He was sentenced in respect of his August 2014 offending on 31 March 2015. Later in 2015, he was granted a limited bridging visa, it would appear, but it expired on 19 December 2015.[17] Mr Zhang was taken into immigration detention on 20 December 2015 after his release from jail on parole.[18]
11. In a further statement dated 18 March 2024,[19] Mr Zhang refers to his marriage to Ms Wang on 14 January 2016 at Yongah Hill Detention Centre in Western Australia.[20] He withdrew his outstanding application for a bridging visa on the same day. Mr Zhang then left Australia in February 2016 voluntarily, having requested his own removal.[21]
12. Mr Zhang further refers in his statement to his situation in 2007.[22] He had been working for a construction firm with several others. He was underpaid for his work because his employer knew that he had no legal right to remain in Australia and took advantage of that situation. Mr Zhang began to drink every day and he began also to argue with Ms Wang. He said that used drugs with his friends at this time. Mr Zhang says in his statement that he became addicted because he took drugs while drunk with friends. To support his own habit, he negotiated with a drug dealer to buy drugs on credit. When his debt increased, the dealer threatened him and forced him to sell drugs for him.[23] This part of his evidence is consistent with the sentencing remarks and I accept it. He further claims, but I reject this part of his statement, that he did not know whether the supply of methylamphetamine was legal or not in Australia. This particular evidence is quite implausible.
13. I have already referred to Mr Zhang and Ms Wang having married in January 2016. They had a baby daughter, to whom I shall refer as 'C', on 22 February 2018, two years after Mr Zhang's departure from Australia. Mr Zhang was no longer residing in Australia at this time, of course, and had not returned in the interim. I understand Ms Wang fell pregnant on one of her visits to China, but gave birth to C in Australia.[24] I note that in 2020, when C was only two years old, Ms Wang was diagnosed with a malignant breast cancer that had spread to her lymph nodes. As a result, she underwent several gruelling operations that involved, in general terms, a breast resection and the removal of all lymph nodes from her right armpit.[25] This has left her with a residual disability in the affected arm. She was also required to undergo an aggressive course of chemotherapy and radiotherapy. She is now required to take medicine on a daily basis. She can no longer have further children as a result of her treatment. She gave evidence, which I accept, that she is no longer working and that she felt compelled to resign her job given her overall circumstances.
14. In her evidence to me, Ms Wang said that she receives approximately $600 per week in social security benefits but must pay approximately $300 or more per week in mortgage repayments. Mr Zhang is unable to send any money to her from China. Her budget is undoubtedly tight. C is presently physically well, Ms Wang said in her evidence to me, but she is less certain of C's mental health as C is starting to ask questions about her father's absence.[26] Ms Wang has travelled overseas with C to meet Mr Zhang and spend time with him, and she continues to scrimp and save to fund future trips; but in my view the primary position remains that she is in effect a sole parent and Mr Zhang is an absent father who does not have one-on-one contact with his wife or daughter. He is unable to provide one-on-one support to either of them.
15. It is convenient at this point to refer in some detail to the August 2014 criminal offending. It is this offending that causes Mr Zhang to fail the 'character test' for the purposes of s 501(1) of the Act. On 31 March 2015, Mr Zhang was convicted in the District Court of Western Australia of the possession on 6 August 2014 of a prohibited drug with intent to sell or supply it. The drug in question was methylamphetamine. He was sentenced to a term of two years and nine months in jail. He was convicted of a number of other offences on that date and these appear in his criminal record which was before me.[27] The 'possession with intent to supply' offence to which I have just referred was the most serious of the charges, however.
16. I now turn to describe that offending. In this regard, I accept and rely upon the sentencing remarks that were before me.[28] On 6 August 2014, the police stopped Mr Zhang whilst he was driving. Mr Zhang was searched and a small quantity of methylamphetamine was found. Mr Zhang ran away from police, and while doing so, he threw away a package containing 26.36 g of methylamphetamine (80% pure). When apprehended by police, Mr Zhang kicked out at them. Later, Mr Zhang was found to have on his person a further 28.70 g of methylamphetamine (again 80% pure). The total, therefore, was 55.06 g. This led to the charge of possession with intent to sell or supply.
17. He was also found in possession of two small crystals of methylamphetamine wrapped in tissue weighing 0.75 g and 0.72 g, respectively. This led to a simple possession charge.
18. I shall return to the sentencing remarks in due course.
19. I note further that Mr Zhang pleaded guilty to a number of offences in the Perth Magistrates Court on 22 April 2015. The sentencing remarks were before me[29] and I rely on them. Those matters were all dealt with by way of a global fine of $2,500 and a further fine of $500 for possession of a false passport. I have had regard to these offences, but the main focus of my decision, clearly, must be the serious offending for which Mr Zhang was jailed.

1. With this background in mind, I turn to Direction no. 110 ('the Direction'), which I must apply. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [30] - [33] below.
2. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
3. Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
4. First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
5. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight 'generally' to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should 'generally' be given greater weight over other considerations.

1. I turn now to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is said to be 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 Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind. It is an important principle given the potential for harm posed by the supply of methylamphetamine.
2. Subparagraph (2) provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.1(1) requires me to have regard to a number of subparagraphs, (a) to (i), in considering the nature and seriousness of Mr Zhang's offending. I note that subparagraph (a) does not contain an exhaustive list of the matters that may be regarded very seriously.
3. I regard the offence of possession with intent to sell or supply as a very serious one in the circumstances of this case. I return at this point to the sentencing remarks.[30] The Court accepted that Mr Zhang was a 'user/dealer' and described his situation as that of a user paying off debts and paying for his own addiction by dealing in part by supplying within a commercial syndicate.[31]
4. The Court noted that drugs 'do an enormous amount of harm' in society.[32]
5. The Court also noted, however, that personal deterrence was not a 'great need' in Mr Zhang's case because of the way Mr Zhang had conducted himself since his arrest and because of his 'background'. In this latter connection, the Court noted Mr Zhang was a hard-working and well-respected member of the community and had a supportive partner. It was also a first offence. The Court recorded that Mr Zhang was remorseful and ashamed of his actions, that he was now drug-free and that he had not wasted his time whilst in custody[33] and was reformed. Mr Zhang had pleaded guilty and avoided a trial. He received a sentence discount of 25 per cent in these circumstances.[34]
6. Nevertheless, the Court referred to the drug offence in this case as a 'serious piece of offending'.[35] It involved a total of 55g of methylamphetamine analysed as 80% pure. It was 'very high-grade methylamphetamine' in the Court's view.[36] There would have been prospects for it to be 'cut down' to increase its volume, and its distribution in the community could have been greater. The Court said 55 g was 'not an insignificant amount' of 'this very dangerous drug'.[37]
7. All in all, and after the discount for the guilty plea, a term of imprisonment of two years and nine months was imposed upon Mr Zhang. This was backdated to Mr Zhang's arrest in August 2014. He was to be eligible for parole after one half of the sentence had been served, which places the earliest parole date as about 20 December 2015. This sentence was a significant penalty and reflected the gravity of the offending. I note that I am required to have regard to the sentence imposed by the court under paragraph (c) of paragraph 8.1.1.
8. This is the only instance of possession with intent to sell or supply, and the Court otherwise referred to the good character of Mr Zhang, as I have said. I am to have regard to the frequency of the offending, and I note that of its type it stands alone. Nevertheless, even as a stand-alone offence, it is very serious offending. I do note at this point that I have not proceeded on the basis that Mr Zhang has committed other offences of this type. I have confined myself to this offending in applying the Direction, which is as advantageous an assumption I can make in Mr Zhang's favour.
9. I must have regard under paragraph 8.1.2 of the Direction to the risk to the Australian community should Mr Zhang commit further offences or engage in other serious conduct.
10. By subparagraph (1), I am to 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. This principle is relevant because methylamphetamine is an illicit drug that has the potential to cause wide and substantial harm.
11. By subparagraph (2), I must have regard, when assessing risk, to, 'cumulatively', the nature of the harm to individuals or the Australian community should Mr Zhang engage in further criminal or other serious conduct and the likelihood of his so doing.[38]
12. Turning now to subparagraphs (a) and (b), I note that the nature of the harm to individuals in the community following from the supply of methylamphetamine can be unpredictable, but it can extend to very serious harm. Illicit drugs affect people in different ways. Certainly, methylamphetamine is, as is well known, a highly addictive drug and may be said, as a general proposition, to be potentially very harmful, as there can be extremely serious consequences for the user. The sentencing Court described the drug as 'very dangerous' as I have mentioned.
13. A person who participates in the chain of supply of methylamphetamine in the community assists an enterprise where the ultimate end-users may, or may not, suffer grievously as a result of any particular supply transaction. One simply does not know whether a particular transaction will have particularly serious consequences for a particular user. What is sure, however, is that methylamphetamine is harmful, to one degree or another, to all who consume it, that it is a highly addictive drug, and that ultimately, many users suffer grievously on account of their addiction.
14. I have assessed Mr Zhang as posing a very low risk of reoffending. He has experienced jail in Australia for the first time as a result of his criminal offending, which is a significant experience for anyone. I believe that the risk of his re-engaging in criminal activity Australia if he were allowed back into the country is very low. Too much depends upon him. He is committed to his wife and daughter. He has an offer of employment here, which would be a stabilising influence.[39] I believe Mr Zhang understands fully the dangers he would face in breaching the law again both in terms of his being re-jailed and in the cancellation of his partner visa. The offending is many years old now and he has not reoffended in China. The sentencing Court did not see that there was any 'great need for personal deterrence'.[40] My assessment is also consistent with the expert psychologist's report of Dr Watts dated 20 December 2021.[41]
15. There is no family violence for me to consider under paragraph 8.2.
16. I must consider the strength, nature, and duration of Mr Zhang's ties to Australia. Paragraph 8.3 (1) directs me to consider the impact on Mr Zhang's family. Most importantly, the family includes Mr Zhang's wife, Ms Wang, and their daughter, C. I accept Ms Wang's evidence to me that she has chosen not to relocate to China to join her husband there, and that it would be impracticable for her to do so. I accept, therefore, that although she might be able to travel intermittently in the future to visit her husband as she has in the past, she would finally lose her marriage as a meaningful one-on-one daily relationship were I to affirm the decision under review. I accept the submissions made by Ms Chen that Ms Wang has perfectly valid reasons for remaining in Australia and not wishing to relocate to China.[42] Equally, I accept that the daughter, C, would lose the prospect of a meaningful one-on-one daily relationship with her father. These are very serious consequences for the family unit. I also accept that apart from the inevitable emotional burden of the split family, there would be the ongoing lack of financial support for Ms Wang. Ms Wang would have to continue support herself and C as best she could. I take into account that she feels decompensated psychologically and anxious (and must take medications to assist with those conditions), and that she continues to feel physically fatigued and impaired.[43] Life is clearly a struggle for her at the present time on many fronts.
17. I further accept the submission that Mr Zhang has an aunt living in Sydney who considers him her own child, and needs the support of family, which she presently lacks. She too would be impacted by a decision to refuse Mr Zhang a visa.[44] Her interests inevitably count less than those Ms Wang and C, but they are still substantial in their own right. It is also the case that Mr Wei, a friend and colleague, will continue to miss him.[45]
18. There is a reference in Ms Chen's submissions to Ms Wang's stepfather and mother in this regard.[46] I accept that they would continue to be adversely affected by Mr Zhang's absence even though there are no supporting statements in this regard. But it is natural to suppose that they are greatly concerned about their daughter and granddaughter, C, and are impacted by the split in the family unit.
19. Finally, like the sentencing Court, which was aware of his irregular visa-status,[47] I acknowledge, and weigh in his favour, the contribution Mr Zhang has made since arrival by working in Australia, albeit unlawfully (because he was not authorised to reside here) and under a deliberately false and misleading identity. I note the Court described him as 'hardworking and well respected'.[48] The Court had earlier referred to having received 'positive references' attesting to his 'personal attributes and community awareness'.[49] These are matters I weigh in his favour.
20. All in all, this consideration counts substantially in favour of setting aside the decision.
21. I must also consider the interests of minor children. In this connection, I return to C's interests. Ms Wang gave evidence, which I accept, that C is at an age where she is beginning to miss her father more and more. She notices other children who have a father (or a father-figure) in their lives. I think the impact upon her would become more and more severe as time goes on if I refused the visa.[50] Mr Zhang would not be physically present in her life as other fathers frequently are. That would be a very severe burden for C to bear.
22. The Direction requires me to take into account the fact that C has a parent in Australia who loves her dearly and provides care;[51] but I remain of the view that it is in the best interests of this child that there be two parents assisting with her upbringing and psychological development.
23. The consideration set out in paragraph 8.4 counts very substantially in favour of not exercising the discretion to refuse Mr Zhang a visa.
24. I turn now to consider the expectations of the Australian community as outlined in paragraph 8.5. Paragraph 8.5(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further provides that where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a person to enter Australia. I note that the reference to 'a norm' is not one to an inflexible rule to be applied rigidly in all cases. It connotes a general proposition only.

1. Paragraph 8.5(2) provides that visa refusal may be appropriate because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. A number of instances are given which are said to raise concerns in particular. I proceed on the basis that drug supply is not one of those specifically mentioned (although it might be said to involve a crime where the ultimate victims are frequently vulnerable members of the community). Whether that is so or not, I do not proceed on that basis, which is the more favourable one to Mr Zhang.

1. Nevertheless, I do proceed on the basis that Mr Zhang has engaged in serious conduct in breach of the expectation that non-citizens should obey Australian laws under paragraph 8.5(1) and that his decision to participate in the drug trade was a seriously antisocial act. I note that I am not to assess independently the community's expectations in a particular case.[52] I further note that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[53]

1. This consideration does count against Mr Zhang.

1. I must apply 'other' considerations in section 9. The legal consequence of a decision to affirm the decision under review would be Mr Zhang's exclusion from Australia. That is a very serious consequence of my decision both for him and for his family. Given it would be a decision of this Tribunal, and as the decision would affirm a departmental decision, it is unlikely that Mr Zhang would be allowed to re-enter the country in the future.

1. It was put by Mr Kirstenfeldt and conceded by Ms Chen[54] that Mr Zhang would not be barred from re-applying for a partner visa if I affirmed the decision under review; and that was, I believe, a proper concession. In my opinion, however, I should proceed on the basis that the likely practical result of a decision by me to affirm the decision under review would be to exclude Mr Zhang permanently from Australia. I cannot anticipate a situation where he would be permitted to join his family in Australia, certainly not in the reasonably foreseeable future.

1. Mr Zhang has now been resettled in China, the country where he grew up, for many years now. He has Chinese citizenship. There are no impediments on his removal that I need to weigh as a result of my decision.

1. In my opinion, it is appropriate to bear in mind carefully just how great an impact my decision to affirm the decision under review would have upon this family. It would effectively entrench the split in the family, and it would also result in the destruction of a marriage as a one-on-one daily union. It is highly desirable that a family should remain unified, with both mother and father attending to a child's needs and sharing responsibility for the child's welfare. I accept that the burden would be exacerbated for Ms Wang because she has real concerns about her financial welfare and about the possibility of a recurrence of her cancer, and because she suffers the ongoing debilitative effects arising from her cancer treatment. She has the very real burden of raising a child alone (with the added burden of severe health worries) whilst trying to ensure the psychological welfare of her child in a single-parent household where there are financial challenges. This is not an easy range of challenges, to say the least, and I bear in mind she does not have help from her own family. The psychological welfare and advancement of an adolescent can be very delicate. It would be far better, all things being equal, for both parents to be present in Australia and to provide a stable family life. I act on that basis.

1. I accept also that I should weigh the impact on Mr Zhang. Mr Zhang himself would suffer greatly as a result of the loss of contact with his wife and child. He would lose permanently the normal contact attending intimate familial relationships that make life meaningful. I accept that he would feel poorly and distressed because of his ongoing inability to assist his wife and child. He does not provide financial support at the present time.

1. C's interests do count very substantially here. In one sense, she bears a special burden as a daughter who is, in one sense, an innocent victim of the dysfunction brought about by her father's criminal offending. Families often fail to function well when there is an unstable environment caused by the lack of one or other parent. C rightly feels she is presently deprived of her father's love and support.

1. Although it is of a lesser concern, I accept and weigh the interests of Mr Zhang's aunt who regards him as her own son. Clearly, the bond is very strong here. I weigh also the interests of Ms Wang's mother and stepfather.

1. These are all very important considerations to weigh.

1. Against this, I must weigh the extremely antisocial aspects of Mr Zhang's drug offence in August 2014. I accept his evidence that he was exploited while in Australia by an unscrupulous employer who blackmailed him to accept lower remuneration than was due him as a price for keeping secret his lack of a visa-status in Australia. The Court accepted that Mr Zhang turned to dealing because he had developed a drug habit. I acknowledge the very real pressures those addicted to drugs feel, and I also accept that there is inevitably some measure of disordered thinking when addicts turn to crime in order to make money, including money to support their own drug habit. That said, and whilst I accept that Mr Zhang had an addiction he needed to support, he does bear a serious measure of responsibility for his participation in the supply of methylamphetamine in this case

1. This offending was, as I say, highly antisocial, and the crime was a serious one. I do bear in mind, however, that his risk of recidivism is presently, on my assessment, very low. I also bear in mind that the offending took place more some eleven years ago, and he has not reoffended in China.[55]

1. I do weigh carefully, however, the expectations of the Australian community as outlined in 8.5(1). These do not, of course, predominate in in any particular case or dictate a result: they are merely a factor that needs to be weighed together with other factors. Nevertheless, it is a very serious matter to participate in the drug-trade involving methylamphetamine in Australia. The Court referred to the amount of methylamphetamine as being 'not insignificant', and described the offending as 'serious'.[56] These are important observations, in my opinion, that I should weigh carefully.

1. As I say, I am very conscious of the harm that would be done to this family if I affirmed the decision under review. I do face squarely the fact that a decision to affirm the decision under review will effectively destroy this family unit to the detriment of all since there is no realistic prospect of Ms Wang joining her husband. I accept that families are the basis of a well-ordered Australian community, and that in leaving this family unit fatherless, I would run the risk of harming the family substantially. That is the reality I must face if I affirmed the decision under review. But I return again to what has proved a most important factor in my deliberations; namely, that despite the low risk of recidivism, and despite the age of the conviction, both of which I have weighed in Mr Zhang's favour, the offending was very serious and a very serious breach of the community's expectations under the Direction.

1. I have found this a difficult case; but weighing all relevant considerations under the Direction, and notwithstanding the very serious consequences for each of the members of this family, I have decided that the preferable decision in this review is to exercise the discretion to refuse Mr Zhang a partner visa.

1. I should add that I have reached my decision in this case without taking into account, against Mr Zhang, the fact that he was living in Australia unlawfully at the time of his offending. My decision would have been the same if Mr Zhang had been living here lawfully on a visa.

1. I wish also to add that I have assessed C's interests by reference to the terms of the Direction, which require her interests to be taken into account under paragraphs 8.3 and 8.4. I have given her interests substantial weight, and, indeed, they have loomed large in my consideration of this matter as I have made plain. I have not accepted, however, Ms Chen's submission that I am required in law to apply the provisions of the Convention on the Rights of the Child, to which she referred me.[57] It is sufficient in this regard to refer to the decision of the Full Federal Court in NRFX v. Minister for Immigration, Citizenship and Multicultural Affairs[58], to which the respondent referred me. Further, I do note in this connection that Ms Wang fell pregnant to Mr Zhang while visiting him overseas, well after he had left Australia permanently in February 2016. Ms Wang returned to Australia and gave birth to C in February 2018 after falling pregnant overseas. Mr Zhang has always lived separately from his child; and that separation has not been the result of any action taken by the Australian Government. Rather, this is a case where Mr Zhang is simply unable to join his family in Australia because he does not hold a visa and because the one he has most recently applied for has been refused on character grounds. The Australian Government's decision to refuse Mr Zhang a visa operates, I accept, to prevent unification of all three family members on an ongoing basis in Australia; but it is difficult to see that any action of the Australian Government has itself caused a 'separation' of C from Mr Zhang, or that the situation is one intended to be addressed under the Convention. In any event, I accept the respondent's submissions that I am not bound to apply the Convention as a result of the Full Federal Court's decision.

1. The Tribunal affirms the decision under review.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

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[1] The delegate's decision and reasons were before me: Ex R1, 18ff.

[2] A Partner (Provisional) (Class UF) visa. The application was received on 27 December 2019 (see Ex R1, 259). Notice was given of an intention to refuse the application in October 2023 (Ex R1, 74), with the final decision to refuse being given on 17 June 2024.

[3] See section 501(6)(a) and (7)(c). Mr Zhang has a 'substantial criminal record' and thereby fails the character test.

[4] See s 499(2A) of the Act.

[5] Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, 23 January 2023.

[6] She applied to the Administrative Appeals Tribunal, this Tribunal's predecessor. After the abolition of the Administrative Appeals Tribunal with effect from 14 October 2024, this Tribunal assumed jurisdiction in respect of her undetermined application.

[7] Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, 21 June 2024.

[8] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal's predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal's exercise of jurisdiction.

[9] This paragraph is one I routinely use in my decisions to explain the general decision-making approach of the Tribunal.

[10] A Short Stay Sponsored (Visitor)(Class UL) visa.

[14] Ex R1, 114 [5]. Mr Zhang is a skilled gyprocker.

[20] The marriage certificate appears at EX R1, 179.

[23] See also on this point Ex A1, 36 [24].

[33] He had been in jail since August 2014.

[38] I note that paragraph (c), which refers to the case of a refusal of a visa does not apply on the facts before me.

[42] See Ex A1, 15-16 [4.9.4]ff and 26 [4.10.10].

[43] See also, for example, the reports at Ex R1, 180, 187, and 193.

[45] Ex R1, 200, Ex A1, 30.

[52] Paragraph 8.5(4) of the Direction.

[53] Paragraph 8.5(3) of the Direction.

[54] See letter dated 4 February 2025, p. 3.

[55] At Ex R1, 38 there is a Notarial Certificate (in translation) attesting to the fact that Mr Zhang has no criminal record in China up to 19 August 2021.

[57] See her submission dated 4 February 2025.

[58] [2023] FCAFC 187.