The applicant was born in China in 1981 and was 44 years of age at the time of the hearing before me. In his statement,[8] he says that he lived with his grandmother, who raised him, and had little ongoing contact with his parents. The applicant finished high school in China and then enrolled in university. In 2006, he completed a Bachelor's degree in Commerce (majoring in Accounting) at the University of Southern Queensland (which had a campus in China).
After graduating, Mr Cai began his professional career in China. He worked for one and a half years or so[9] for Adidas, and then moved to Hitachi Global Storage Technologies. In 2010 he accepted a position with a Hong Kong-listed company as a management and financial analyst in their finance department.
He married his wife, C, when he was 29 years of age. They have two children, a daughter and a son, to whom I shall refer as 'D' and 'S'. D is 14 years of age and S is eight. D was born in China; S, in Australia.
In 2015, Mr Cai, together with his wife and daughter,[10] emigrated to Australia under his wife's employee-sponsored 457 visa. They set themselves up in Sydney. He has lived in Australia ever since with occasional family trips overseas.
Mr Cai went into business with a university friend, Mr Ma, in the years from 2015 to 2016. They ran a two-dollar shop in Wentworthville, New South Wales.[11] Mr Cai said he invested some $200,000 of his savings, which I shall accept as accurate. That money, he claimed, was lost due to Mr Ma's gambling.[12] Again, I proceed on the basis that was the case. He was then able to get work as an accountant.
In 2019, Mr Cai and his family moved to Hobart, Tasmania. He opened a small tourist shop there which also failed. Mr Cai claimed that the onset of the pandemic in China began to affect negatively the number of tourists coming from that country to Tasmania, and he lost money again. Mr Cai maintains that he found himself with significant debts. Again, I proceed on the basis that this is an accurate version of events.
Mr Cai re-involved himself with Mr Ma at this point of his life. Mr Ma invited him to earn a living by participating in transactions involving large sums of cash. I shall describe Mr Cai's work for Mr Ma in due course. Mr Cai said he was under a great deal of financial pressure and wanted to get back the money he had earlier lost.[13] Mr Cai gave evidence to me that he initially thought Mr Ma's business was legitimate. He claimed he thought the large sums of cash that he began to handle involved a legitimate foreign-currency exchange business for which his friend had the necessary licence.
Mr Cai admitted in his statement that he thought the absence of any paperwork in his handling of the money was suspicious and he thought there might be something wrong but given his financial pressure, he persisted and did not question the business even when he knew what he was doing was illegal.[14] He denied before me in his oral evidence any knowledge or suspicion at the time that the large cash sums he was handling might have represented the proceeds of illegal activity (apart from tax evasion) or organised crime. I do not accept that evidence.
I turn now to describe Mr Cai's work for Mr Ma. Between 19 December 2019 and 4 March 2020, Mr Cai was involved in collecting and delivering very large sums of cash. Over this period, in fact, Mr Cai dealt with cash sums totalling $28.8 million. At his sentencing, an agreed statement of facts was presented to the Court.[15] It forms part of the sentencing record, and I accept and rely on it.[16]
The statement records very large sums of cash being collected on 33 different days. On none of these 33 days was less than $100,000 in cash handled. On no fewer than twelve occasions, sums of $1 million or more were handled in cash. These were, self-evidently, extremely large cash sums.
The enterprise operated as follows according to the agreed facts. Mr Cai followed instructions given by his friend, Mr Ma. He would attend various addresses on the Australian mainland and collect cash. He would then deliver the cash to various locations and persons as instructed by Mr Ma. He would report his activities to Mr Ma by encrypted messages.
When he was arrested on 4 March 2020, Mr Cai was found in possession of $400,000 in cash. The money had been secreted in an Aldi cooler bag in his vehicle, which was parked outside his room at the Box Hill Hotel in Melbourne, Victoria. That amount of cash had been collected by Mr Cai on Mr Ma's instructions from a customer immediately before his arrest. He also had in his possession a note-counting machine and encrypted mobile phones. His laptop was found to contain an Excel spreadsheet that recorded the details of cash collected and distributed as well as commission payments to Mr Cai and Mr Ma between 12 January 2020 and 4 March 2020. The spreadsheet indicates that the commission rate was about 0.5 per cent for each of Mr Ma and Mr Cai. The spreadsheet further indicates that Mr Cai had received at least $104,000 in commission payments between January and March 2020.
I turn now to a more detailed description of some of the contents of the agreed facts. The statement of facts is extensive and it is an important document. The following matters, amongst others, emerge from the agreed facts, which informed the Court's sentence.[17]
Paragraph [1] of the statement states that Mr Cai was to be sentenced for his 'role in a money-laundering enterprise involving an unregistered money remittance scheme whereby cash was transacted in Australia and corresponding electronic transfers were made internationally in foreign currencies'.[18] Mr Cai was a collector of cash. His involvement spanned the period from 19 December 2019 until his arrest on 4 March 2020.[19]
Mr Cai intended that the money would become an instrument of an offence contrary to s.474(2) of the Anti-Money Laundering Counter-Terrorism Financing Act, 2006 (Cth); namely the provision of a remittance service by an unregistered person.[20]
The total amount dealt with by Mr Cai was at least $28.83m and the amounts of cash collected by him throughout the offending are set out in detail in a table as I have said.[21]
Mr Cai resided in Kingston, Tasmania during the offending, but travelled regularly to Melbourne and Sydney.[22] The coordinator of the money-laundering enterprise was Mr Ma. He coordinated the collection and distribution of cash from organised crime groups in Sydney and Melbourne, provided instructions to his collectors, and made arrangements for corresponding offshore electronic transfers. Mr Cai acted as his collector.[23]
This is an important fact because it indicates that Mr Ma had links with, or connections to, organised crime groups in Sydney and Melbourne.
Mr Cai followed Mr Ma's instructions to attend various addresses and collect cash. He would then deliver the cash to various locations and persons, again as instructed by Mr Ma.[24]
As I have earlier noted, on 4 March 2020, Mr Cai was arrested whilst in possession of $400,000 in cash. The cash had been collected by Mr Cai on Mr Ma's instructions from a customer just before Mr Cai's arrest.
Mr Cai received 0.5% approximately as commission for his work and records in his possession indicated he received at least $104,395 in payments between January and March 2020.[25] Mr Cai used encrypted mobile phones, chat applications including Cipher phones, Wickr, WhatsApp, and WeChat.[26] Mr Cai was observed at a Kennards self-storage unit in Auburn, New South Wales, which was agreed in the facts to be a cash distribution point used in the money-laundering enterprise.[27]
Mr Cai collected very large amounts on individual days, including $1.9 million on 19 December 2019, $2 million on 31 January 2020, $2.31 million on 4 February 2020, and $1.649 million on 7 February 2020.[28] Mr Cai was apparently concerned about a possible lack of security at one stage and indicated that he needed to get a new mobile phone number.[29] Mr Cai further refers in a conversation on 27 February 2020 to the possibility of dealing directly with drug traffickers, but then discounts it as too risky.[30] At various other parts of the agreed facts, there are references to 'washing' money through businesses[31] or via a 'purchase' of multiple bank accounts in China.[32]
I also had the sentencing remarks in the District Court of New South Wales before me and I rely upon them.[33] Mr Cai pleaded guilty to one count of contravening s 400.3(1) of the federal Criminal Code. This involved his dealing with an amount of money exceeding $1,000,000 while intending the money would become an instrument of crime in relation to a Commonwealth indictable offence. The indictable offence in question was that created by s 74(1) of the Anti-Money Laundering Counter-Terrorism Financing Act, which prohibits the provision of a remittance network service by a person not registered with AUSTRAC.
Mr Cai was entitled to a 25 per cent discount because his plea was of utility: he entered it at the earliest possible opportunity. This indicated contrition and remorse.[34] The sentencing Court referred to Mr Cai being involved in an unregistered money remittance scheme by which cash was transacted in Australia and corresponding electronic transfers were made in foreign currencies, which reflects paragraph [1] of the agreed statement of facts.
The Court found that communications that had been intercepted indicated that Mr Cai 'was aware that he was engaging in an illegal money-laundering business, having referred to, for example, "washing money" '.[35] I do not accept Mr Cai's oral evidence to me that this expression had a more innocuous meaning. I bear in mind, however, that the Court noted that Mr Cai was not involved in any of the offending attributed to Mr Wang.[36]
The Court found that Mr Cai told Mr Wang on 18 February 2020 that he was earning between $5,000 and $8,000 per week.[37] The Court found that Mr Cai had an understanding of the operation of the enterprise and on occasion explained 'the process including the process of offsetting in China and providing information to associates'.[38] The Court also found that Mr Cai was aware of the illegality of the enterprise.[39]
The Court noted that Mr Cai received over $104,000 for his role but he had to pay for his own travel expenses.[40] The Court also found that Mr Cai's involvement only ceased upon his arrest.[41]
The Court decided that Mr Cai was 'clearly not a principal' of what was described as 'the organised and rather sophisticated money-laundering syndicate', but was rather an 'entrusted member' and also 'an indispensable link in the syndicate's activities'.[42]
The Court held that the objective seriousness of the offending was in the mid-range,[43] rejecting the prosecution's submission that it was above mid-range.[44] The Court referred to the fact that Mr Cai had demonstrated some insight into his offending behaviour and had identified the impact the offending had had on his wife and children.[45]
Mr Cai was found not to have a history of antisocial behaviour and to have a low risk of reoffending.[46] His prospects of rehabilitation were 'relatively good'.[47] Money-laundering constituted serious criminal activity, however.[48] The Court observed that money-laundering 'is vital to the success of predicate or contemplated criminal offences because it moves the proceeds of crime to third parties or offshore, assisting such criminal enterprises and making their detection more difficult'.[49]
In the event, Mr Cai was sentenced to seven years and six months imprisonment (with a non-parole period of four years commencing on 15 April 2022 and expiring on 14 April 2026).[50] There is every reason to suppose Mr Cai will be granted parole next April given his model behaviour in jail. His behaviour indicates that he has rehabilitated himself.
[2]
With this background in mind, I now turn to the Direction. I usually set out a number of standard paragraphs explaining general aspects of the Direction, and I do so again in the next four paragraphs.
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).
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.
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.
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, it also provides that primary considerations should 'generally' be given greater weight over other considerations.
[3]
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Paragraph 8.1(1) provides that when considering the protection of the Australian community, decision-makers should keep in mind that the community's safety is the highest priority of the Australian Government. The Government is recorded as being 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.
Decision-makers should also give consideration to 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) provides that in considering the nature and seriousness of the non-citizen's criminal conduct to date, I should have regard to a range of matters specified in paragraphs (a) to (i). Paragraphs (a) and (b) specify certain conduct that is to be taken to be very serious or serious; but it is clear from the drafting that the specified offences do not limit the range of conduct that may be considered to fall within these two categories.[51]
In my opinion, the offence of which Mr Cai was convicted was very serious given the amount of money he handled and the nature of the offence. I acknowledge, however, that it is the only offence in his criminal record.
I must have regard also to the sentence imposed by the Court.[52] It was a long sentence; but in this regard, I bear in mind also in Mr Cai's favour that the sentence was influenced by the strong need for general deterrence because the type of crime in question is difficult to detect and prosecute.[53] In other words, other factors, apart from the intrinsic wrongfulness of Mr Cai's offending, influenced the imposition of what was a long sentence.
Mr Cai's criminal record involves one charge only, and so there has been no frequency of offending as such although there was clearly a course of conduct involving multiple occasions of money handling.[54]
I now turn to the risk to the Australian community should Mr Cai commit further offences of this type. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community 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.
In assessing the risk that may be posed by the non-citizen, decision-makers are to have regard, cumulatively, to a number of matters.[55] In this case there are two such matters. First, I must consider the nature of the harm to individuals or the Australian community should Mr Cai engage in further criminal or other serious conduct. The second matter is the likelihood of Mr Cai engaging in that conduct.
Turning to the first matter, I would assess the nature of harm to the Australian community as very serious indeed (if Mr Cai were to reoffend). Money-laundering aids in the disposal of proceeds from other crime. That was made clear in the sentencing remarks. The agreed facts referred to Mr Ma's co-ordination of the collection and distribution of cash from organised crime groups in Sydney and Melbourne, as I have pointed out. Exactly what type of organised crime ‒ whether it is racketeering, or the drug trade, or some other crime ‒ may not be clear to a person like Mr Cai, who was engaged simply as a cash collector. But some sort of anti-social and illegal activity is clearly implied by an operation that consists of collecting such extremely large sums of cash in such a secretive and unorthodox way. A collector's role is clearly important because it aids in the disposition of illegitimate gains for the benefit of those who seek to prosper from that illegal activity. In other words, crime, including organised crime, is assisted by collectors, amongst others, in the chain. As I have said, Mr Cai was described by the Court as an 'indispensable link in the syndicate's activities'.[56]
It is a very serious matter, indeed, for a person to behave in a way that assists others to launder the proceeds of crime.
I do not say that Mr Cai necessarily knew where any particular batch of money was coming from. But he must have concluded that the money could not have derived from an honest source. I do not accept that he suspected tax evasion only, although that is serious enough in its own right. The amounts of cash being collected and transported were extremely large as I have said. There was no documentation, and he conducted himself in a secretive way, and referred to 'washing' money. He refers specifically[57] to dealing with drug traffickers as too risky, which indicates an awareness of one possible source. It was a very serious matter, indeed, for Mr Cai to participate in the laundering of such large cash sums.
I turn now to consider the likelihood of Mr Cai re-engaging in that conduct. In my opinion, the likelihood is very low. There are a number of reasons for this conclusion. First, this is the only offending in which Mr Cai has engaged in his life according to the criminal record before me. Secondly, Mr Cai has had the experience of jail and will continue to have it until at least the end of his non-parole period in April 2026. Jail is very confronting for those who have not experienced it before.
Jail is intended to serve rehabilitative purposes, and it has done so in this case. The evidence before me suggests Mr Cai has been rehabilitated by his experience. He has behaved very positively in jail, and indeed has helped other inmates who have had difficulties. He has been noted to be very co-operative and has earned the right to work outside the jail.
I also note that Mr Cai is vitally interested in resuming family life with his wife and two children. That prospect would be lost again if Mr Cai were to reoffend. Mr Cai could hardly suppose that if he remained in Australia on this occasion, he would be given a further opportunity to stay in the country if he re-offended. Finally, Mr Cai impressed me as a person of considerable intelligence. It is quite clear in my opinion that he participated in the scheme because he thought that he would not be detected. That misapprehension has been corrected. He has been caught. He knows he would be of interest to the police and could be subject to surveillance if he returned to the community. He understands that even encrypted phones and a special, coded language would not protect him from discovery.
All in all, I rate Mr Cai's risk of recidivism as very low; and this is consistent with, indeed even lower than, the assessment given in the expert psychological report prepared by Mr Watson-Munro and tendered on Mr Cai's behalf.[58] I accept the broad thrust of the submissions made by Ms Mamarot, on Mr Cai's behalf, in her Statement of Facts, Issues and Contentions in this regard.[59]
In his psychological report, Mr Watson-Munro found that Mr Cai was adversely affected by peer pressure, exacerbated by high levels of anxiety, depression and low self-esteem at the time of the offending.[60] That may well have been so and the sentencing remarks advert to that possibility;[61] but it must also be concluded in my opinion that Mr Cai chose to participate in the activities directed by Mr Ma in significant ways over a number of months. He acted out of self-interest, even though it was self-evident that the activities were unlawful. He is a well-educated and sophisticated man with a finance background, and I note that he continued to participate until he was caught.
There is no family violence for me to consider.[62]
I must consider the strength, nature and duration of Mr Cai's ties to Australia.[63] If I affirmed the decision under review, it would be a very severe blow to Mr Cai's spouse. She gave evidence to the Tribunal.[64] She is employed, but her income is not high, and she is struggling as a single parent with the responsibility of raising the two children in Western Australia. Mr Cai's departure for China would leave his spouse and children in a quandary if they remained in Australia, which is a likely outcome.[65] He could no longer provide financial support to them from within Australia, and I doubt his capacity to provide effective support from China, at least in the short to medium term. If the family were to leave for China, it would involve very substantial hardship to Mr Cai's spouse and the two children. Mr Cai's spouse would lose her marriage and his very important practical and emotional support, as she makes clear in her statement.[66] I also accept Ms Mamarot's submissions in this regard.[67]
In my opinion, Mr Cai's deportation would effectively destroy the family unit and the marriage as a one-on-one lived, daily bond between two spouses caring for one another and their children and building a life together. That is a very serious impact. It would affect all four members of this family, including Mr Cai himself. I note in this regard that Mr Watson-Munro has assessed Mr Cai as having a severe and recurring depressive disorder.[68] That would only be exacerbated if I affirmed the decision under review. He may be unable to access effective therapeutic assistance in China to assist him in that regard.
I accept Ms Mamarot's submission that Mr Cai has established good ties within his local community. I accept the submission she makes in her Statement of Facts, Issues and Contentions concerning his good character and the references he has from community members.[69] As Ms Mamarot also points out, there has been some contribution to the community through his employment history (including his most recent work in and outside the jail).[70]
I must consider the interests of minor children.[71] Mr Cai has two biological children to whom I have earlier referred. They are apparently unaware of his present circumstances. A decision was taken not to tell them. The best interests of the children clearly favour a revocation of the cancellation decision. Children develop better psychological health when there are two parents looking after them. That is the natural family unit. Serious psychological and emotional problems can ensue from the absence of one parent, especially when the remaining parent struggles with the additional burdens he or she must shoulder, as is the case here. I accept Ms Mamarot's submission[72] that Mr Cai has played an active role in the children's lives and is a loving parent. I do regard the interests of these two children as of great concern. If I affirmed the decision under review, they would have to be told at some point that their father must leave the country. That would be a huge shock. Again, I repeat that if Mr Cai's spouse decided to resettle the family in China, the children would suffer a very serious dislocation in their lives.
I turn now to the expectations of the Australian community. Paragraph 8.5(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community expects 'as a norm' ‒ but not as an inflexible rule ‒ that the Government should not allow that person to remain in Australia. That principle clearly applies here.
This expectation is expressed to apply regardless of whether or not the citizen poses a measurable risk of causing physical harm to the Australian community.[73] I am also directed not to assess the community's expectations in any given case but to apply the expectations as expressed in paragraph 8.5.[74] All in all, this consideration counts considerably against Mr Cai in my view.
I must have regard to so-called 'other' considerations under section 9. Clearly, if I affirm the decision under review, Mr Cai will be excluded from Australia on a permanent basis. He would have to return to China. He grew up there and speaks the language fluently. I do not think that there would be permanent impediments to his re-establishing himself in China although I do take account of the fact that there will be initial burdens and an associated sense of dislocation as he begins to resettle in China. I accept he has no real connection with family in China. I accept also that there will be a severe emotional burden for him as he will have to cope with the destruction of his familial ties. That is a very serious matter for him to contemplate. His current depressed state will be exacerbated,[75] and I refer again to Mr Watson-Munro's report in this regard. I agree generally with Ms Mamarot's submission.[76]
I also accept that some weight should be accorded to the fact that Mr Cai is now of an age where he might well face quite some age discrimination when seeking to re-enter the Chinese employment market: he is 44 and has not had recent employment there. I accept also that family members in China would most likely be shocked and upset to learn that he has had to return and that the family has been fractured.[77]
[4]
I now turn to weighing the considerations I have identified. I must weigh all of them carefully. I turn first to the impact of my decision upon the family, including Mr Cai himself. I must face the reality that if I affirmed the decision under review, the practical destruction of this family unit would ensue in circumstances where I am satisfied that Mr Cai is not at all likely to reoffend. That is a principal fact that I should bear steadily in mind. I bear in mind also that children, in particular, may be said to be the innocent victims of the dysfunction brought into a family by one or other parent's misconduct. That is the case here. They would lose their father in their important teenage years.
Mr Cai's spouse has also suffered and will continue to suffer grievously. Mr Cai would be less able to support the family from China whereas he has an offer of employment in Australia on release from jail.[78] That would represent a real loss to the family. As I say, I bear in mind that the risk of Mr Cai reoffending is very low, and so Mr Cai's deportation would be unlikely to bring an appreciable increase in safety to the Australian community. That is a very important consideration for me to bear in mind. Mr Cai's own mental health would suffer, and I accept he might be unable to find, or afford, appropriate psychological assistance in China. These are all serious considerations.
The offending in question has, however, breached in a very serious way the expectations of the Australian community. That consideration does not predominate over other considerations: no consideration specified in the Direction does. It is nevertheless important in this case. Mr Cai chose to engage on an ongoing basis in the collection of very significant amounts of cash which he must have known were being entrusted to Mr Ma precisely because they could not be transferred through the banking system without drawing attention to the associated transactions. Mr Cai may well have been under significant financial pressure, as he asserts, and I have proceeded on the basis that he was, but I have also concluded that he must have known that the money had a likely criminal origin.
I bear in mind that Mr Cai has not been charged with, let alone convicted of, any active involvement in any particular form of illegal activity involving drugs, racketeering, or anything else. So he has not had direct involvement in these crimes. Nevertheless, by committing the offence of which he was convicted, Mr Cai engaged in a highly antisocial act. I return to the sentencing remarks in this regard, where the Court observed that conduct like Mr Cai's 'is vital to the success of predicate or contemplated criminal offences because it moves the proceeds of crime to third parties or offshore'.
Mr Cai has breached the community's expectations very seriously, as I say. Notwithstanding his financial pressures, and notwithstanding an undoubted element of distortion in his thinking brought on by his adverse circumstances, he chose on an ongoing basis to participate in what was for him a quite lucrative enterprise (in that he earned over $100,000 in a short period of time although I accept that some 45 per cent may have been paid out in expenses).[79] That is a very serious matter for me to weigh.
After weighing all relevant matters, I have decided that they favour non-revocation of the cancellation decision. This is not an easy decision to make, precisely because I accept that it will destroy a family unit, and family life is the cornerstone of a stable Australian community, and my decision will affect each family member grievously. Nevertheless, the Direction speaks firmly against serious crime, and I must weigh that factor carefully, even if, as I say, it does not predominate. I accept that the sentencing Court found that the crime fell within the mid-range of offences of this type; but it was still very serious, and extremely large sums of cash were involved over a short period.
[5]
Given my conclusion, the appropriate decision is to affirm the decision under review.
[6]
I wish to make some final observations in respect of exhibits that were tendered. On the second day of the hearing, I accepted the tender of a transcript that on its face purported to be a record of certain intercepted conversations.[80] The tender was accepted because the document was said by the respondent to contain a record of conversations in connection with the offence of which the applicant was convicted, and there was no objection taken to its tender by Ms Mamarot. It became clear, however, in the course of cross-examination, that the document contained an apparent record of conversations referring to the possibility of other illegal conduct. Although I issued warnings to Mr Cai about his right not to incriminate himself at these points, I did not give him a warning at the outset that he did not need to confirm that the transcript concerned his conversations. I believe that warning ought to have been given, and I would have given it had I realised what was in the lengthy transcript that had been handed up and the direction the cross-examination was to take. In the circumstances, I subsequently formed the view that it would be appropriate for me to have no regard at all to any answers given by Mr Cai in respect of the document since he could legitimately have declined to answer any of the questions from the outset. None of his answers assisted his case, and so he is not prejudiced by my decision to ignore his answers.
Given that I am unable to conclude safely that the transcript is, indeed, an accurate record in the absence of Mr Cai's confirmation that he was one of the speakers, I have also decided that it is appropriate to exclude the transcript altogether from my deliberations. Even though it was admitted by consent, I do not believe I should rely upon the transcript, and I have not done so. For much the same reasons, I note that I have also excluded from my consideration the lengthy document appearing in the Hearing Book.[81]
To make matters clear, I have had regard only to the sentencing remarks and the agreed facts as the relevant documentary evidence explaining the offending and the underlying
[7]
I certify that the preceding seventy-seven(77) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.
[5] 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)
[14]
[6] This paragraph is one I routinely insert in my decisions in this area.
[15]
[7] 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.
[16]
[9] There is a minor difference between Mr Cai's statement at EX A1, 2 and his statement at HB, 75 in this regard.