FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs in an amount to be agreed between the parties, and if not agreed to be the subject of a lump-sum determination by a Registrar.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J

1    The applicant in this proceeding, Ms Yutian Li, is a 43 year old citizen of the People’s Republic of China. The applicant first travelled to Australia on 18 August 2015 on a tourist visa but she most recently arrived in Australia on 12 December 2016. On 6 February 2017 she was granted a student visa, and on 25 October 2018 she was granted a bridging visa (the visa). A short time after her arrival in Australia, in January 2017, the applicant was involved in an extortion attempt. On 25 July 2019, she was convicted in the District Court of Queensland on two charges of extortion and sentenced to a term of imprisonment of 15 months. As a result of that conviction and sentence the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the visa cancellation decision).

2    The applicant seeks judicial review of the decision of the second respondent, the Administrative Appeals Tribunal, to affirm the decision of a delegate of the Minister pursuant to s 501CA(4) of the Act, not to revoke the visa cancellation decision.

3    For the reasons I now turn to explain, it is appropriate to dismiss the application.

THE LEGISLATIVE FRAMEWORK

4    Under s 501(3A) of the Act the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’, as defined, because of the operation of s 501(6) of the Act. A person does not pass the character test if the person has a ‘substantial criminal record’ (s 501(6)(a)), and a person has a substantial criminal record if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

5    Under s 501CA(4) of the Act, the Minister may revoke the original visa cancellation decision if the person makes representations in accordance with an invitation from the Minister to do so, and the Minister is satisfied either that:

(1)    the person passes the character test, as defined in s 501; or

(2)    there is ‘another reason’ why the original decision should be revoked.

6    In a case like the present one, in which it is common ground that the applicant does not pass the character test, the only basis upon which the Minister could have decided to revoke the original decision was if the Minister was satisfied that there is ‘another reason’ the original visa cancellation decision should be revoked.

Direction 79

7    In deciding whether or not there is ‘another reason’ why the visa cancellation decision should be revoked, the Tribunal was required to be guided by the Minister’s direction under s 499(1) of the Act, titled Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79).

8    Paragraph 13(2) in Part C of Direction 79 identifies the following three ‘primary considerations’ that the Tribunal was required to take into account in determining whether to revoke the cancellation of the applicant’s visa, being:

a)    protection of the Australian community from criminal or other serious conduct by non-citizens;

b)    best interests of minor children in Australia; and

c)    expectations of the Australian community.

9    In relation to protection of the Australian community, paragraph 13.1 of Direction 79 provides:

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2)    Decision-makers should also 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.

10    In relation to “the nature and seriousness of the non-citizen’s conduct”, paragraph 13.1.1 provides:

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)    The principle that 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, are serious;

d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

f)    The cumulative effect of repeated offending;

g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

i)    Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;

11    In relation to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, paragraph 13.1.2 provides:

(1)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

12    In relation to the expectations of the Australian community, paragraph 13.3 provides:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

13    A non-exhaustive list of ‘other considerations’ that must be taken into account by the Tribunal are set out in paragraph 14, relevantly including:

(a)    the strength, nature and duration of the non-citizen’s ties to Australia. Paragraph 14.2 provides as follows in relation to this consideration:

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

(b)    the impact on Australian business interests of the non-citizen’s removal from Australia. Paragraph 14.3 provides as follows in relation to this:

(1)    Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

(c)    the extent of any impediments for the non-citizen if removed from Australia. Paragraph 14.5 provides as follows in relation to this:

(1)    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 substantial language or cultural barriers; and

c)    Any social, medical and/or economic support available to them in that country.

THE FACTUAL AND PROCEDURAL BACKGROUND

The conviction

14    On 25 July 2019 the applicant was convicted in the District Court of Queensland of one count of ‘extortion with intent to gain a benefit with threat of detriment’, and one count of ‘extortion with intent to cause detriment with threat of detriment’, and sentenced to a term of imprisonment of 15 months, suspended after seven months.

15    In sentencing the applicant Judge Farr SC described the circumstances of the applicant’s offending conduct as follows:

Yutian Li, you have been convicted by a jury of two counts of extortion. You were 37 years of age at the time. You are a Chinese national….You are presently in the country on a bridging visa. I note that you have no prior convictions. You have been convicted on the basis that you were a party to each offence. It is not suggested that you were a principal offender. You met your co-offender, Mr Pisasale, when working as an escort.

I accept that you told him some things about a relationship that you had previously had with the complainant, [Mr X]. It is clear that the effect of what you told him is that you felt you had been treated badly by that man. Whether or not that was correct information, I do not know, nor is it of relevance to this proceeding. One of the conversations between you and Pisasale that was covertly recorded was telling, in that you spoke of Pisasale having to punish [Mr X] for what he had done.

I do not have any doubt that you understood the correct meaning of that word, and that this notion of punishment, whenever it was first formulated - and it is obvious that there was some discussion about it sometime before that recorded phone call on the 13th of January - was the catalyst for this offending conduct. You, quite obviously, had not expended any money on hiring a private investigator to investigate [Mr X], and you were well aware that you were not entitled to any compensation from him. You wanted him punished for the way he treated you, either financially or, alternatively, by causing his wife to find out about his relationship with you.

… You knowingly aided or assisted in the commission of each offence by providing Pisasale with your name, [Mr X]’s phone number and address… You provided Pisasale with information regarding your relationship with [Mr X], and you provided to him certain paperwork. You were also present with Pisasale during, at least, some of his phone conversations with [Mr X].

Of course, you encouraged Pisasale to punish [Mr X], and I am satisfied that you and he formed a common intention to unlawfully obtain money from [Mr X]. I note, also, that whatever it was that you told Pisasale regarding your previous relationship, you did not initially tell him that you were, in fact, married yourself. So, even though you were not the principal offender for these offences, you played an integral role in their commission. You knew of the methods that were being adopted and you knew that were not entitled to any compensation. Of course, you were the intended beneficiary of those offences.

It has been submitted that the amounts sought, that is $10,000 and $8,400, were reasonably small amounts. But that depends upon the financial circumstances of [Mr X]. Evidence is before the Court that he gave you some money during the course of the relationship, so you may well have thought that he was a man of some means.

Whether he was or not, I do not know, but I do know that the amounts demanded were considered by you and Pisasale to be at such a level that success in getting the money was realistic, and that paying it would constitute punishment for [Mr X]. In my view, it is a large sum of money for an ordinary person. Furthermore, this was not a single instance of offending conduct. The activity of [sic] the subject of count 2 occurred about two weeks after the events that are subject of count 1.

You had plenty of time to realise the error of ways and disassociate yourself before the events that are the subject of count 2 occurred. It is partially to your credit that you did eventually tell Pisasale that you did not want him to continue to chase [Mr X], and that you just wanted to forget about him, but that did not happen until well after the count 2 offence occurred. It seems that you did tell [Mr X], during a phone call, probably on the 16th of January 2017, that you did not want money, but subsequent to that, you supplied Pisasale with documents including, what you said, was a false ID that [Mr X] had used to get into the country. Extortion is a serious offence. You involved yourself in its commission on two separate occasions over a two week period of time. You have demonstrated no remorse. You have exercised your right to trial by jury and you are not to be sentenced more heavily because you have done that, but it means, of course, that you have not co-operated with the administration of justice. That is relevant to the degree of leniency that might be afforded to you. It seems that you have a reasonable employment history and have obtained some tertiary qualifications. You recently have been working as a masseuse and I note that you help financially to maintain your mother in China.

The threat of harm in this matter was not trivial. [Mr X] was threatened with litigation that could cost him up to $200,000, plus $20,000 to $30,000 in costs, plus adverse publicity about his extra-marital affair and the risk of a criminal prosecution. I note, though, that the threat did not involve a threat of violence or physical harm to the person, nor of damage to property, nor were you in a position of power. I further note that no money was actually handed over.

The mandatory cancellation of the applicant’s visa

16    As a result of the conviction and sentence in the District Court, on 24 October 2019 the Minister mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Act.

The appeals

17    The applicant appealed against the convictions. On 10 March 2020, the Queensland Supreme Court of Appeal dismissed the appeal (see R v Li, R v McKenzie; R v Pisasale [2020] QCA 39). Morrison JA delivered the main judgment, with which Philippides JA agreed and Mullins AJA agreed with some additional remarks. Morrison JA described the applicant’s offending conduct as follows (at [1]-[11]):

[1]     In 2017 Mr Pisasale formed a friendship with Yutian Li, a Chinese woman working as an escort in Australia.

[2]     Through her limited English she told him she was very angry about the treatment she had received at the hands of the complainant, Xin Li. Amongst other things she told Mr Pisasale that in early 2016, when she was living in Singapore and the complainant was living in Sydney, they developed an intimate relationship, meeting for holidays in Bali and the Maldives. The complainant led her to believe they would marry and enjoy a life together in Australia. Later that year he told her he had a terminal illness and did not want her to go through the resultant suffering.

[3]     When she arrived unannounced in Sydney, intending to look after him, she discovered he had lied. He had not revealed that he was already married and had a child. He did not have a terminal illness, and he did not wish to marry her.

[4]     Ms Li told Mr Pisasale she wanted to investigate the truth. She said it had cost her airfares, accommodation, and investigation costs trying to find out the truth. Mr Pisasale resolved that he would try to get her costs from the complainant.

[5]     Ms Li encouraged Mr Pisasale and joined in him doing so, saying she wanted to punish the complainant, and arming Mr Pisasale with her full name, the complainant’s name, address and phone number, and information about the relationship.

[6]     As a consequence, on 15 January 2017 Mr Pisasale made a number of telephone calls to the complainant in which he:

(a)     demanded that the complainant pay a sum of money between $5,000 and $10,000 for the costs, or part of the costs, of an investigation carried out by Mr Pisasale’s private investigation company; and

(b)     threatened to cause detriment to the complainant, including by: being subjected to court proceedings; being sued for $200,000; incurring costs of $20,000 in court; being subjected to the adverse publicity of court proceedings; and being summoned to go to court.

[7]     Two weeks later, on 1 February 2017, Mr Pisasale had Mr McKenzie, a solicitor friend, send a letter to the complainant demanding that he pay $8,400, which was said to reflect expenses incurred of $6,100 for a private investigator, $1,500 miscellaneous charges, and $800 legal costs.

[8]     That demand was accompanied by a threat to cause detriment to the complainant, namely:

(a)     that in the absence of payment the complainant was to “Answer for your actions in the Federal Court of Australia”; and

(b)     that a failure to accept the offer may lead to the complainant being criminally prosecuted through his actions being discovered in a court of law.

[9]     Ms Li encouraged, aided and joined in sending that letter by telling him that she wanted to punish the complainant, and providing Mr Pisasale with: her full name; the complainant’s name, address and phone number; information about the relationship; and the complainant’s personal details and documents.

[10]     Mr Pisasale encouraged, aided and joined in sending that letter by providing the information to write the letter, having input into the form of the letter, providing the email address to send it to, and encouraging it being written and sent.

[11]     Out of these events there were two counts of extortion, that is making demands without reasonable cause, with intent to gain a benefit or cause a detriment, contrary to s 415 of the Criminal Code (Qld). The phone calls formed the basis of count 1 against Mr Pisasale and Ms Li only. The sending of the letter formed the basis of count 2 against Mr McKenzie, Mr Pisasale and Ms Li.

18    The applicant’s challenge to the convictions included that the verdicts were unreasonable and not supported by the evidence. In dismissing that ground of appeal Morrison JA said the following (at [168]):

The evidence of Ms Li’s involvement was considerable:

(a)     she provided Mr Pisasale with all the information he had, including a critical matter, namely the complainant’s phone number; that enabled Mr Pisasale to start and maintain his campaign of trying to extract money by threats;

(b)     she was present in the car for the call when Mr Pisasale said he was “George Robinson” and doing a health survey; she obviously knew he was using a false name;

(c)     she asked Mr Pisasale to “punish” her ex-boyfriend, and Mr Pisasale said he would do that, and she was to “bring his number”;

(d)     she was present and provided ongoing assistance while the calls the subject of count 1 were being made; in those calls Mr Pisasale: (i) used a false name (“John”), (ii) pretended that Ms Li had hired his private investigation company, he worked for her, and was billing her, (iii) used and referred to information provided by Ms Li about the complainant, including messages, photos, texts and Centrelink details, (iv) consulted Ms Li about the correct spelling of her name; (v) threatened court proceedings; (vi) pretended he had a file which he was consulting; (vii) lied, saying she was then in Beijing; (viii) threatened to “get the lawyer”; (ix) lied, saying that Ms Li had “some lawyer friends that …are prepared to help her”; (x) threatened that he would have the complainant “exported (sic) out of Australia for the way [he was] talking”; (xi) lied, saying it had cost Ms Li $10,000, or $6,000 to $7,000, in fees and searches; (xii) continued to demand money after the complainant said that Ms Li told him she did not want the money;

(e)     after the letter was sent on 2 February 2017 Ms Li told Mr Pisasale that “he doesn’t pay the money”, and two days later, that she did not want to destroy the complainant’s life by revealing his immigration defaults; Mr Pisasale responded that “it’s ok he will pay, let me plan it only scare him”; Ms Li’s response was “please don’t put this one in our plan just we know it and observe his reaction then use the point deal with him”; she urged that revealing the immigration default could hurt others who were innocent; Mr Pisasale responded “Yes will not hurt others”; and

(f)     her comment (on 21 March 2017, well after the event) that she no longer wished to frighten her ex-boyfriend, together with her continued presence and assistance, and her reference in the text exchange above to “our plan”, was evidence that at the time of count 1 she knew (at least) the essential ingredients of the offence, or alternatively that there was a plan to unlawfully obtain money from the complainant.

19    Morrison JA went on to say (at [169]) that it was open to the jury to accept that evidence and conclude that the applicant was centrally involved in Mr Pisasale’s efforts to extract money by threatening Mr X.

20    The applicant applied for special leave to appeal to the High Court of Australia. Special leave was refused on 17 June 2021.

The delegate’s decision

21    Upon cancellation of the visa the Department of Home Affairs invited the applicant to make representations to the Minister about revocation of the original decision, pursuant to s 501CA(3) of the Act. On 19 November 2019 the applicant made representations seeking that the cancellation decision be revoked. She accepted that she did not pass the character test but contended that there was another reason why the cancellation decision should be revoked, as provided under s 501CA(4).

22    On 5 August 2020, a delegate of the Minister refused to revoke the cancellation decision. It is unnecessary to set out the delegate’s reasons as that decision has been overtaken by the Tribunal’s decision.

The application to the Tribunal

23    On 13 August 2020, the applicant applied to the Tribunal for review of the decision of the delegate not to revoke the original decision.

24    On 10 February 2021, following a hearing before the Tribunal in which the applicant was legally represented and gave evidence, the Tribunal decided to affirm the delegate’s decision.

Other events

25    On 23 February 2020, upon completion of her term of imprisonment, the applicant was transferred to immigration detention.

26    On 29 July 2020, the applicant voluntarily returned to China.

THE TRIBUNAL DECISION

27    Before the Tribunal it was common ground that having been sentenced to a term of imprisonment for a period of more than 12 months the applicant did not pass the character test. The applicant’s evidence and submissions were directed to establishing that there was another reason (or perhaps more accurately, other reasons) why the Tribunal should exercise the power under s 501CA(4) to revoke the visa cancellation decision. It was also common ground that in deciding whether to revoke the visa cancellation decision the Tribunal was required to be guided by the considerations mandated in Direction 79.

Protection of the Australian community

28    In relation to this ‘primary consideration’, the Tribunal reasoned that having regard to the findings and the outcome in the criminal proceeding “the impact of any future offending could also be serious”; finding that “[a]dverse financial consequences and other serious inconvenience is a foreseeable outcome for victims from this form offending” (at [89]).

29    Drawing from the “limited formal evidence” to hand and from the Tribunal’s assessment of the significance of the particular findings in the criminal proceeding and the applicant’s response to that proceeding (at [90]), the Tribunal found that there was only a low risk of the applicant reoffending “but a risk nonetheless”. In the Tribunal’s view there was a “troubling ambiguity” at the core of the application in that, while the applicant expressed remorse, and the Tribunal accepted that she became involved in an extortion attempt “not entirely of her making”, the “particular findings” in the criminal proceeding ran contrary to core arguments she made in which she contended that she had limited culpability for the offending conduct (at [90]).

30    The Tribunal was not comfortably persuaded that there was adequate evidence to outweigh the significance that it was required to place on the ongoing risk of the applicant reoffending, albeit that the risk may be quite low (at [91]).

The best interests of minor children in Australia

31    In relation to this ‘primary consideration’, the applicant did not contend that any minor children were affected by the visa cancellation decision. The Tribunal found this consideration weighed neutrally (at [93]).

The expectations of the Australian community

32    In relation to this ‘primary consideration’, the Tribunal took into account the principles expressed at paragraphs 6.3(5), (6) and (7) of Direction 79, including that:

(a)    “Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time”;

(b)    “Australia has a low tolerance of any criminal or other serious conduct by…those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia”; and

(c)    “[t]he length of time a non-citizen has been making a positive contribution to the Australian community… are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused”.

33    The Tribunal considered the applicant’s assertions as to the absence of any criminal consciousness on her part and her subsidiary part in the extortion scheme, which it had earlier addressed in relation to the consideration “protection of the Australian community”. On balance, and taking those matters related to her culpability into account, the Tribunal concluded that it did not consider the ongoing risk of the applicant reoffending to be “unacceptable” (at [98]).

34    The Tribunal reasoned that the applicant had made “a somewhat marginal contribution to the Australian community”; that her offending conduct occurred within a very short period of time after she arrived in Australia, and that she had spent only three and a half years in Australia, 12 months of which had been in prison or detention (at [97]). It found that the fact that the applicant had breached Australian law was sufficient to make an adverse finding under this consideration which weighed slightly against revocation of the visa cancellation decision (at [99]-[100]).

The ‘other considerations’ under paragraph 14 of Direction 79

35    In relation to:

(1)    “strength, nature and duration of ties”, the Tribunal found that the applicant’s personal connections and contributions to Australia were not substantial, and concluded that the strength, nature and duration of her ties to Australia were “minimal”. The Tribunal considered that that this consideration weighed neutrally (at [111]-[113]);

(2)    “impact on Australian business interests”, the Tribunal noted that the applicant’s employment history in Australia appeared to be restricted to engaging in massage and escort services (the latter, on her evidence, for a brief period only) (at [104]). The applicant’s evidence centred on her intention to continue her studies, and the Tribunal concluded that this “very indirect prospective contribution to the conduct of business by an unspecified education provider [was] too remote to engage this consideration”, and concluded that it therefore weighed neutrally (at [105]); and

(3)    “extent of impediments if removed”, the Tribunal considered the applicant’s arguments as to gender discrimination against women and older employees in China (at [115]), and her work history in China and the likelihood of her being able to obtain employment upon return to China (at [117]). The Tribunal concluded that the evidence did not demonstrate that the applicant faced “particularly significant challenges” upon return to China. It noted that the applicant had voluntarily returned to China from immigration detention, had given evidence that she had been effectively engaging in daily life since her return and had already obtained short-term employment in her area of childcare. The Tribunal concluded that this consideration weighed neutrally at [120]).

36    In respect to the primary considerations “protection of the Australian community” and “expectations of the Australian community”, the Tribunal noted that they each weighed slightly against revocation, whereas “best interests of minor children in Australia” weighed neutrally (at [121]). In respect to the three relevant ‘other considerations’, the Tribunal said that each weighed neutrally (at [122]).

37    The Tribunal concluded (at [123]) that there was nothing arising from the evidence or the Tribunal’s consideration and findings that weighed positively in the applicant’s favour, and that there was nothing to cause the Tribunal to identify any other relevant factor that that might amount to ‘another reason’ to revoke the cancellation decision. The Tribunal noted that the applicant had been convicted of a “not insubstantial offence” (at [124]) and that the delegate’s decision not to revoke the cancellation decision should be affirmed as the Tribunal had found that two of the three ‘primary considerations’ weighed slightly against revocation (at [125]).

THE APPLICATION FOR JUDICIAL REVIEW

38    On 10 March 2021, the applicant filed an application for judicial review of the Tribunal’s decision, seeking orders to quash the decision and to require the Tribunal to re-determine the application according to law. On 19 January 2022, the applicant filed an amended originating application.

The applicant’s overarching submissions

39    The applicant emphasises that paragraph 6.1(3) in the preamble to Direction 79 states that “[w]here the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case” (emphasis added.) She stresses that the paragraph 6.2(1) in the preamble provides that the principles set out in Direction 79 are of “critical importance” in furthering the protection of the Australian community from harm as a result of criminal or other serious conduct by non-citizens and “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (emphasis added.)

40    The applicant submits that there are some “quite extraordinary specific circumstances” in her case that the preamble to Direction 79 mandated that the Tribunal take into account. She noted that the Tribunal said (at [96]):

I have noted the submissions from the parties which have in common the position that this matter is quite finely balanced. I should also observe that, while there may be some rather sensational aspects to the background in this matter, such a perspective should not overshadow a more dispassionate consideration of the facts and circumstances.

41    On the applicant’s argument, the Tribunal having informed itself of the “rather sensational aspects to the background in this matter”, consciously or unconsciously directed its focus to the findings of the sentencing judge, Judge Farr, and the observations of the Queensland Court of Appeal, rather than taking into account the “extensive background detail” in her representations to the Minister and her sworn evidence before the Tribunal. She contends that the Tribunal failed to give genuine intellectual consideration to the specific circumstances of her case.

42    The applicant submits that a principal objective of Direction 79 is “protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”, and she notes that the Tribunal concluded (at [98]) that “the risk of re-offending was not unacceptable”. She contends that given the objective of protecting the Australian community from harm as a result of criminal activity, that finding ought to have been a sufficient reason for the Tribunal to find that there was another reason why the cancellation decision ought to be revoked.

43    I now turn to address each ground of the application.

Ground one

44    Ground one of the application alleges as follows:

The Tribunal erred by failing to complete its statutory task in compliance with Ministerial Direction No. 79 in that it misconstrued, misunderstood and/or misapplied para 13.1.1.(1) which requires regard to be had to the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.

(a)    The Tribunal conflated ‘seriousness of the non-citizen’s criminal or other conduct to date’ with seriousness of the charged offence being Extortion. The Tribunal determined the weight to be given to this criterion on the basis that Extortion was a serious offence rather than determining the weight to be given based on the actual criminal offending (and) other conduct of the applicant.

(b)    When determining the weight to be given to this criterion, the Tribunal failed to take into consideration, the ‘other conduct’ of the applicant which was that of an honest law-abiding person in China, Singapore and in Australia including after the conduct giving rise to the charges and before the conviction and sentence resulting in the applicant’s visa being mandatorily cancelled.

(c)    Had the Tribunal taken into account the ‘other conduct’ of the applicant in balancing the relative weight given to each element of this criterion, the weight given to the nature and seriousness of the applicant’s criminal offending and other conduct to date ought rationally to have been neutral or positively in favour of revocation of the visa cancellation.

The applicant’s submissions

45    Under this ground the applicant submits that in considering the “nature and seriousness of the non-citizen’s conduct to date”, as required by paragraph 13.1(2)(a) of Direction 79, the Tribunal erred by relying on the “findings made and the outcome reached in the criminal process” in reaching the conclusion (at [89]) that the applicant’s offending conduct “must be understood as serious”.

46    On the applicant’s argument, her offending conduct fell at the lowest level of offending of this type. She was not a principal offender; there were no threats of violence or physical harm to any person nor damage to property; she was not in a position of power; the victim did not instigate a complaint; no money was paid and there was no evidence that the victim suffered in any way at all. She contends that the Tribunal did not give active intellectual consideration to the low level of her offending conduct; and instead took into account the 14 year maximum sentence for the offence of extortion as being indicative of the seriousness of the applicant’s conduct, and that Farr J “was clear in stressing the importance of a custodial sentence” (at [79]).

47    The applicant submits that the Tribunal also erred in concluding (at [79]) that the applicant’s offending conduct, which involved extortion, was no less serious than crimes such as assault. She contends that in so concluding, the Tribunal failed to take into account that the offence of extortion can encompass violent threats, demands for huge sums and other serious consequences, which did not feature in her offending conduct; and that the conclusion was contrary to paragraph 13.1.1(1)(a) of Direction 79 which provides that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”.

48    The applicant argues that when evaluating the seriousness of her offending conduct, the Tribunal failed to give active intellectual consideration to her representations to the Minister and her evidence before the Tribunal as to the circumstances of her offending, where that was not directly in conflict with Farr J’s findings in the criminal proceeding. She submits that the Tribunal had her unchallenged evidence that at the time of the offending conduct she had only been in Australia a short time; could not understand much English; and that she used the Baidu dictionary app on her phone “to translate and cut and paste” English words into a message; and that the Baidu app translated the Mandarin word for ‘warn’ to the English word ‘punish’. She says that the Tribunal should have, but failed to, take her evidence into account.

49    Relatedly, the applicant says that she did not give evidence in the criminal trial and thus there was no direct evidence in that trial of her state of mind or what she knew or believed at the time the offences were committed. On her submissions that is significant because it meant that the findings of Farr J were not based on evidence put before the jury or on an agreed statement of facts. In particular, when Farr J said that he “had no doubt” the applicant understood the meaning of ‘punish’, the jury did not need to find that she understood the meaning of ‘punish’ to find her guilty, and his Honour’s remarks in that regard could only be speculation.

50    The applicant also contends that the Tribunal went beyond accepting Farr J’s findings in sentencing the applicant, as it also accepted his Honour’s findings in sentencing the principal offender, Paul Pisasale. She contends that those were not findings with respect to the applicant’s sentencing and the Tribunal was not prevented from accepting her evidence which was contrary to those findings.

51    The Tribunal noted (at [16(b)]) that Farr J considered that whether or not her evidence regarding her treatment by Mr X was accurate was of no relevance to the sentence to be imposed. The applicant says that the Tribunal, however, had before it her representations to the Minister and her unchallenged evidence in which she testified as to the circumstances of her relationship with Mr X and his treatment of her. On her argument, the circumstances of her relationship with Mr X, and the way she was treated by him, was a key element in her offending conduct, and should have been treated as highly relevant in the Tribunal’s consideration.

52    The applicant also submits that the Tribunal failed to engage intellectually with her evidence in relation to her “other conduct”; being her clean criminal record in Singapore and China before coming to Australia; her clean record when she first visited Australia; and her clean record in the 2½ years after the offending conduct during which she worked and studied, prior to her imprisonment. She says that during that period she was in every way a law-abiding resident in Australia making a positive contribution to the Australian community. She notes that the Tribunal had before it documents which corroborated her evidence with regards to her studies and work in Australia. She emphasises that the Tribunal made no criticism of the credibility of her evidence. The applicant contends that the Tribunal only briefly noted the evidence as to her study, work and social contacts in Australia (at [22]-[24]) and failed to engage intellectually with it. On her case, it must be clear from the Tribunal’s reasons that it had considered the evidence thoroughly and fairly, citing QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [24]-[27] (Anastassiou J).

53    The applicant submits that, notwithstanding her written representations to the Minister and her unchallenged evidence, the Tribunal placed virtually no weight on the following matters:

(a)    she did not intentionally break the law;

(b)    she had only very basic English language ability, and could not clearly understand what the principal offender was saying;

(c)    she used the Baidu app to translate the mandarin word for ‘warn’ into English, and it provided the translation as ‘punish’;

(d)    she placed trust in the principal offenders; Mr Pisasale who was the mayor of Ipswich and a solicitor, both of whom believed that what they were doing to assist her was lawful;

(e)    she had no idea that what she did was unlawful until she was charged many months after the event;

(f)    she cooperated with the police by answering all questions and allowing the police to download the contents of her mobile telephone despite the police having no warrant to seize and search it; and

(g)    Mr X admitted that she had told him she did not want money;

(h)    Mr X did not instigate a complaint to the police; and

(i)    Mr X suffered no loss or harm.

54    The applicant denies that her submissions are an attempt to go behind the conviction and findings in the criminal proceedings, citing HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 (McKerracher and Colvin JJ, Derrington J in dissent). The applicant relies upon the remarks of McKerracher J (at [56]) where his Honour citing with approval the remarks of the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (at [42]) said that in an application where a previous conviction is the basis for a decision-maker’s jurisdiction “…the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself.”

55    The applicant argues that all the jury had to decide in order to convict her of extortion in the criminal proceeding was to be satisfied that she had knowingly aided the principal offenders by providing documents and information that were then used by them to make the demands and threats that comprised the offences of extortion for which they were convicted, and she does not challenge those findings in the criminal proceeding.

56    The applicant also cites HZCP (at [69]) where McKerracher J approved the observations of Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; 106 FCR 313 at [40]-[45]; and (at [191]) where Colvin J said, “[i]n an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose”.

57    The applicant says that the facts of her case can be distinguished from HZCP as in that case the person seeking revocation of the visa cancellation decision argued that the Tribunal erred by failing to take into account a version of the facts that was inconsistent with the findings of the court which were necessary for the person’s conviction. In her case, she contends the Tribunal erred because it did not place any weight on her evidence in relation to the circumstances of her offending conduct in circumstances where that evidence did not conflict with the ‘essential facts’ on which her conviction and sentence was based.

58    The applicant also relies upon Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; 287 FCR 294 at [27] (Burley, Colvin and Jackson JJ) where the Full Court said:

Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1)    If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2)    The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3)    The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4)    However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5)    Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6)    If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

Consideration

59    The applicant’s submissions variously characterise the asserted jurisdictional error as a failure to give genuine intellectual consideration to the applicant’s evidence, representations and supporting documents with regard to the circumstances of her offending conduct and other conduct; a failure to give real and genuine consideration to a substantial or significant or clearly expressed claim made in her representations; a failure to give enough weight to the relevant evidence; and at one point as irrationality.

60    I am not persuaded that the Tribunal fell into error as alleged.

61    In relation to the consideration “protection of the Australian community”, paragraph 13.1(1) of Direction 79 required the Tribunal to have regard to the principle that the federal government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, and will not cause or threaten harm to individuals or the Australian community.

62    The Tribunal was required to have regard to:

(a)    the nature and seriousness of the applicant’s criminal offending including, relevantly, the sentence imposed on the applicant by the court (paragraph 13.1.1(d)); and the frequency of the applicant’s offending and whether there was a trend of increasing seriousness (paragraph 13.1.1(e)).

(b)    the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (paragraph 13.1.2) including, cumulatively:

(i)    the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct (paragraph 13.1.2(1)(a)); and

(ii)    the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account the available information and evidence on that risk (paragraph 13.1.2(1)(b)).

63    On a fair reading of the reasons I consider the Tribunal reached its decision having regard to those matters.

64    First, the Tribunal summarised the circumstances of the applicant’s offending conduct derived from:

(a)    the sentencing remarks of Farr J (at [16]-[17]) and the judgment of the Queensland Court of Appeal (at [15] and [18]); and

(b)    the applicant’s evidence (at [25]-[32]).

65    The Tribunal also summarised the applicant’s submissions (at [62]). This points away from concluding that the Tribunal did not treat the circumstances of the applicant’s offending conduct as relevant to its task, and also from concluding that it failed to give real and genuine consideration to those circumstances.

66    Second, in considering the nature and seriousness of the applicant’s offending conduct, the Tribunal had regard to:

(a)    the sentence imposed on the applicant by the court (at [3] and [79]), as required by paragraph 13.1.1(d) of Direction 79; and

(b)    the frequency of the applicant’s offending and whether there was a trend of increasing seriousness as required by paragraph 13.1.1(e). The Tribunal found that the applicant had engaged in offending conduct over “a relatively brief and confined period” (at [79]); the extortion offences were the applicant’s only offending conduct (at [89]); and that there was no indication of any prior or subsequent poor conduct, let alone criminal activity (at [83]).

67    I am not persuaded that the Tribunal failed to properly consider the matters under paragraph 13.1.1.

68    Third, there is little merit in the applicant’s contention that the Tribunal conflated the seriousness of her offending conduct with the seriousness of the offence of extortion. It is undeniable that extortion is a serious offence, and the Tribunal did not err by noting that the maximum penalty was 14 years, while also noting that the sentence of a 15 month term of imprisonment (suspended after seven months), indicated extortion at the low end of that range.

69    The Tribunal’s reasons show that:

(1)    it likened the applicant’s offending conduct to ‘white-collar’ crime but said that did not mean that it should be considered less serious than, for example, assault or drug offences; and that the seriousness of such conduct was clear from the available 14 year maximum sentence (at [79]);

(2)    the 15 month term of imprisonment indicated that the applicant’s “particular conduct” might be understood as having warranted a lower range penalty, but the sentencing judge had nevertheless been clear in stressing the importance of a custodial sentence (at [79]). There, the Tribunal was emphasising that the sentencing judge considered the offending conduct to be serious;

(3)    the applicant submitted that she had limited culpability in the offending conduct and had appealed the convictions and sentence (at [80]). The Tribunal was, however, satisfied that Farr J and the Queensland Court of Appeal took account of matters such as the applicant’s asserted misapprehension in relation to the English language (‘warn’ v ‘punish’); and her apparent desire to interrupt the criminal scheme implemented by Mr Pisasale. The Tribunal said that those arguments were “front and centre” in the criminal proceeding and had been rejected by Farr J and the Queensland Court of Appeal (at [81]). As I later explain, in my view the Tribunal was bound to follow the essential findings in the criminal proceedings, and thus to reject the applicant’s submissions as to her limited culpability. The Tribunal said that while circumstances and chance appear to have played an important and probably critical part in the applicant’s offending conduct, in the criminal proceeding she had been found to be an active participant in the extortion enterprise, and appropriate weight should be placed “on the findings and outcome of the criminal process”(at [82]). There is no error in that; and

(4)    it considered the applicant’s responses to the Tribunal’s questions, although slightly contradictory, indicated her “awareness of the nature of the [criminal] enterprise underway” (at [82]). In my view the Tribunal considered the applicant’s evidence and submissions as to her limited culpability, but did not accept that her culpability was as limited as she contended.

70    In those circumstances the applicant did not establish that the Tribunal failed to give real and genuine consideration to the applicant’s evidence and submissions regarding the nature and seriousness of her offending conduct.

71    Fourth, nor am I persuaded that the Tribunal failed to engage in a real and genuine consideration of the applicant’s evidence and submissions regarding the risk to the Australian community should the applicant engage in further criminal or other serious conduct. The reasons show that the Tribunal considered the applicant’s offending conduct to be serious “based on the findings made and outcome reached in the criminal process”, and on that basis considered the impact of any future offending by the applicant could also be serious, as adverse financial consequences and serious inconvenience is a foreseeable outcome for victims of extortion (at [89]).

72    In relation to the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal noted that in written submissions the applicant said she had “a very low risk” of reoffending, while in oral submissions she argued that there was a “zero risk” of her reoffending” (at [87]). The Tribunal’s reasons show that it:

(a)    took account of the applicant’s evidence and submissions with regard to the nature and circumstances of her offending conduct, to the extent that they spoke to the risk of further offending by her (at [83]);

(a)    accepted that the applicant had expressed contrition, and that there was no indication of any prior or subsequent poor conduct by her but did not accept that the applicant had “a zero chance” of reoffending (at (83]); and

(b)    accepted that the applicant has expressed remorse and that she became involved in an enterprise not entirely of her making. However, in the Tribunal’s view there was a “troubling ambiguity” in the applicant’s case in that she expressed remorse and contrition but at the same time contended that her culpability was limited and was pursuing an appeal in relation to her conviction (at [90]).

73    In the circumstances, I am not persuaded that the Tribunal failed to give active intellectual consideration to the applicant’s evidence and submissions on this issue.

74    Fifth, the applicant’s real complaint is that the Tribunal did not accept her evidence and submissions as to the lower seriousness of her offending conduct and her limited criminal consciousness and culpability in that conduct, and instead relied on the observations of Farr J and the Queensland Court of Appeal. The difficulty for the applicant in this regard is that the foundation of the Tribunal’s exercise of power was the criminal conviction for offences of extortion and the imposition of a sentence of more than 12 months imprisonment.  The authorities provide that where a criminal conviction or sentence is a precondition for an administrative decision-maker’s power to cancel a visa, the decision-maker or a tribunal on review will fall into error if it impugns or ‘goes behind’ the “essential factual findings” underpinning the conviction or sentence: see Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197; (1999) 92 FCR 560 at [39]-[48] (Branson, Lindgren and Emmett JJ); LLF at [42]-[43]; HZCP at [77] (McKerracher J), at [181]-[182] (Colvin J).

75    In SRT at [40] the Full Court explained what is meant by the Tribunal impugning a sentence:

The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.

(Emphasis added.)

76    In HZCP (at [77]) McKerracher J explained:

As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function. The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

(Citations omitted and emphasis added.)

77    To similar effect Colvin J said (at [181]-[182]):

In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others). The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. …

In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view. Usually, the legislative context will also require the further conclusion that the decision-maker is not entrusted with power to contradict the necessary factual basis for the conviction or the sentence. However, the extent to which the foundation for the power constrains the fact finding process of the decision-maker will depend upon a proper consideration of the legislative provision in each case.

(Emphasis added.)

78    In deciding whether there is ‘another reason’ to revoke the visa cancellation decision the Tribunal was not permitted to make factual findings about the circumstances of the applicant’s offending conduct which were inconsistent with the essential findings made by the judge sentencing the applicant for those offences: Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036 at [39] (McKerracher J), citing HZCP. Moreover, “a convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings”: HZCP at [191] (Colvin J).

79    The following paragraphs of the Tribunal’s decision show how it sought to grapple with the applicant’s submissions contesting her culpability for the offending conduct:

[81]     My reading of the material arising from the criminal process, nonetheless, demonstrates to my satisfaction that the sentencing judge and the appeal court took account of arguments raised on Ms Li’s behalf relating to her culpability. That is, matters such as Ms Li’s misapprehension about language (‘warn’ v ‘punish’) and her apparent desire to interrupt the scheme implemented by Mr Pisasale, were front and centre in the criminal process and these arguments, in particular, were rejected.

[82]     It is appropriate to take account of the fact that circumstances and chance appear to have played an important, and probably critical, part in bringing Ms Li to the situation in which she currently finds herself. She was, however, found to be an active participant in the extortion enterprise, and I consider that I should place appropriate weight on the findings and outcome of the criminal process. I also take account of her evidence at [57] above. While slightly contradictory, Ms Li’s response to my direct question indicates awareness of the nature of the enterprise underway. That is, notwithstanding her particular fate, fate alone cannot be seen as explaining her involvement in the scheme.

[83]     I take account of the evidence advanced on her behalf with respect to the nature and circumstances of the offending, to the extent that they speak to the risk and impact of further offending. As part of this consideration I also accept that Ms Li has expressed contrition and that there is no indication of any prior or subsequent poor conduct, let alone criminal activity. I am not able to accept the oral submission at the hearing, however, that Ms Li has a zero chance of reoffending.

80    The applicant contends that the Tribunal erred by placing little or no weight on her following assertions:

(a)    she did not intentionally break the law: - It was not, however, open to the Tribunal to accept the applicant’s evidence and submissions in this regard; doing so would be inconsistent with Farr J’s findings that the applicant “knowingly aided or assisted in the commission of each offence by providing Pisasale with [her] name and [Mr X’s] phone number and address”; that she encouraged Mr Pisasale to punish Mr X, and that the applicant and Mr Pisasale “formed a common intention to unlawfully obtain money from [Mr X]”. It is also inconsistent with the findings of the Court of Appeal (at [168]) where Morrison JA (with whom Philippides JA and Mullins AJA agreed) said that the evidence of the applicant’s involvement in the extortion scheme was “considerable” and (at [168(f)]) that at the time of the offending conduct the applicant “knew (at least) the essential ingredients of the offence, or alternatively that there was a plan to unlawfully obtain money from [Mr X]”.

(b)    she had only very basic English language ability; could not clearly understand what Mr Pisasale was saying; and that in her communications with Mr Pisasale she used the Baidu app to translate the mandarin word for ‘warn’ into English, and it wrongly provided the translation as ‘punish’: - It was not, however, open to the Tribunal to accept the applicant’s evidence and submissions in this regard; doing so would be inconsistent with Farr J’s finding that, “I do not have any doubt that you understood the correct meaning of [punish], and that this notion of punishment…was the catalyst for this offending conduct….You wanted him punished for the way he treated you, either financially or, alternatively, by causing his wife to find out about his relationship with you.”

(c)    she placed trust in the principal offenders, Mr Pisasale who was the mayor of Ipswich, and a solicitor, both of whom believed that what they were doing to assist her was lawful: - The Tribunal accepted that the applicant was not the principal offender and that “circumstances and chance appear to have played an important, and probably critical, part in bringing Ms Li to the situation in which she currently finds herself” (at [82]). But, again, it was not open to the Tribunal to accept that Mr Pisasale and the solicitor co-accused both believed what they were doing was lawful; that would be inconsistent with the findings of Farr J and the Queensland Court of Appeal that the applicant and Mr Pisasale “formed a common intention to unlawfully obtain money from [Mr X].”

(d)    she had no idea that what she did was unlawful until she was charged many months after the event: - Again, it was not open to the Tribunal to accept the applicant’s evidence and submissions in this regard when the Queensland Court of Appeal found that at the time of the first count of extortion the applicant "knew (at least) the essential ingredients of the offence, or alternatively that there was a plan to unlawfully obtain money from the complainant”;

(e)    she cooperated with the police by answering all questions and allowing the police to download the contents of her mobile telephone despite the police having no warrant to seize and search it: - The applicant did not take the Court to evidence before the Tribunal which might establish this. On the assumption there was such evidence it may have been open to the Tribunal to treat that as indicating some minor degree of lessened culpability. However, had the Tribunal reached that view, in my opinion there is no realistic possibility that it could have resulted in a different outcome and any such error would not be ‘material’: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ); and

(f)    Mr X did not instigate a complaint to the police: - Again, the applicant did not take the Court to evidence before the Tribunal which might establish this. The materials seem to indicate that the offences came to light because Mr Pisasale’s telephone was under police surveillance, rather than through a complaint by Mr X. Even so, in my view, in light of the threats of harm that were made to him, the fact (if it be so) that Mr X did not report the extortion attempt to the police is quite unlikely to have altered the Tribunal’s view as to the seriousness of the applicant’s offending conduct and her culpability in that conduct. Mr X might have chosen not to go to the police because of the threats of harm made and the risk of exposure of his extra-marital activities. In my opinion there is no realistic possibility that the fact that Mr X did not instigate a police complaint could have resulted in a different outcome before the Tribunal. Again, any such error is not ‘material’.

(g)    Mr X suffered no loss or harm: - It appears that Mr X did not hand over any money in response to the extortion attempt, but that misses the point in relation to the seriousness of the applicant’s offending conduct. Her conduct involved attempted extortion with threats of harm. In my opinion it was not open to the Tribunal to make a finding that there was no loss or harm when Farr J found that “[t]he threat of harm in this matter was not trivial. [Mr X] was threatened with litigation that could cost him up to $200,000, plus $20,000 to $30,000 in costs, plus adverse publicity about his extra-marital affair and the risk of a criminal prosecution.”

81    Sixth, there is no force in the applicant’s contention that the Tribunal erred by failing to take into consideration the “other conduct” of the applicant, which was that of an honest law-abiding person in China, Singapore and in Australia. The Tribunal accepted that the evidence did not indicate any prior or subsequent poor conduct by the applicant (at [83]), but noted that she had only been in Australia for three and a half years, 12 months of which she had spent in prison or detention; and that the offending conduct had occurred within an extremely short period of time after her arrival in Australia (at [97]). The Tribunal took her clean record into consideration, but did not give it great weight. That does not show jurisdictional error.

82    It is appropriate to dismiss ground one of the application.

Ground two

83    Ground two of the application alleges as follows:

The Tribunal erred by failing to complete its statutory task in compliance with Ministerial Direction No. 79 in that it misconstrued, misunderstood and/or misapplied para 13.1.2 which requires regard to be had to the Risk to the Australian Community should the non-citizen commit further offences or other serious conduct.

(a)    The Tribunal found that the ongoing risk of the applicant reoffending was ‘not unacceptable’. (Reasons para 98). Having so found, the Tribunal then relied on its finding in relation to the nature and seriousness of the non-citizen’s criminal offending or other conduct to date that the applicant’s criminal offending was serious, to base a finding that the nature of harm to individuals or the Australian Community should the applicant engage in further criminal or other serious conduct, ‘could also be serious’. (Reasons para 89) despite the fact that the impact on the victim in the offending for which she was convicted was negligible.

(b)    The Tribunal determined the weight to be given to this criterion on the finding that the offending for which the applicant was convicted was serious not less serious than assault or drug offences serious (Reasons para 79) rather than objectively engaging in the evaluative exercise of considering the ‘nature of harm to individuals or the Australian community should the applicant re-offend’.

(c)    The Tribunal stated that: (the applicant’s offending) ‘might be considered an instance of ‘white collar’ crime. This does not mean it should be considered less serious than, for example, assault or drug offences,’ (Reasons para 79) when Ministerial Direction 79 at paragraph 13.1.1 (a) states that ‘violent or sexual crimes are to be viewed very seriously'.

(d)    The Tribunal failed to exercise its discretion with regard to evaluating the seriousness of the offending on the direct evidence of the Applicant but improperly adopted the findings of the Trial Judge and the Queensland Court of Appeal (paragraphs 89 and 90). Neither the Trial Judge nor the Court of Appeal heard any direct evidence from the Applicant.

(e)    The Tribunal cumulatively added the effect of re-offending to the risk of re-offending when assessing the risk to the Australian Community, when the Tribunal assessed the risk of reoffending as ‘not unacceptable’ thereby in effect double counting the effect of re-offending in assigning negative weight to this consideration.

The applicant’s submissions

84    Under this ground the applicant relies on Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; 148 ALD 117 at [42]-[44] (Gilmour J), where his Honour cited with approval, the remarks of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 at [89]-[104] which in turn, drew on the decision of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice [2013] VSCA 213; 304 ALR 535 in relation to determining what constitutes an “unacceptable risk”.

85    The applicant notes that the Tribunal’s task in assessing the risk to the Australian community if the applicant were to reoffend involved two elements - the nature of harm should the applicant reoffend and the likelihood of the applicant reoffending. The task was recognised, correctly, by the Tribunal (at [86]) as requiring a cumulative assessment of those two elements.

86    The applicant notes that in relation to the likelihood of the applicant reoffending, the Tribunal had before it a risk assessment by Queensland Correction Services which assigned the risk of the applicant reoffending a rating of 1 on a scale of 1 to 22 (1 being the lowest risk). In relation to that the Tribunal said only that “[t]his assessment was not addressed at the hearing and therefore it may be inappropriate to analyse it, and the purpose for which it was created, to any significant degree” (at [88]), and nothing further. On the applicant’s argument, the Tribunal thereby failed to take into account an independent assessment of the risk of the applicant reoffending made by a government service with expertise in such assessments. She submits that the Tribunal erred by ignoring evidence relevant to arriving at an evaluation of the likelihood of the applicant engaging in further criminal conduct or other serious conduct.

87    In relation to the risk of harm to the Australian community if the applicant were to reoffend, the applicant notes that the consequence of further offending is integral to the assessment of that risk: see Tanielu at [97], cited with approval in WAD 230/2014 at [43].

88    The applicant notes that the Tribunal found (at [90]) that “…there was a low risk of Ms Li offending, but a risk nevertheless.” Then, in further considering the risk of the applicant reoffending the Tribunal concluded “[o]n balance, and taking these factors relating to culpability into account, I do not consider the risk of reoffending in this case to be unacceptable” (at [98)). On the applicant’s argument, the Tribunal made only limited reference to the “likelihood of further criminal or other serious conduct”, and nowhere did it set out the process of arriving at the conclusion that there was a low risk of the applicant reoffending.

89    The applicant notes that the Tribunal observed (at [86]) that “[t]he second limb of this primary consideration rests on a cumulative assessment of the nature of any harm should Ms Li reoffend and the likelihood of further offending”. She argues, however, that the Tribunal then proceeded (at [87] and [88]) to consider the risk of reoffending rather than the likelihood of further criminal or other serious conduct.

90    The applicant contends that the Tribunal then returned to an evaluation of the applicant’s offending conduct and the consequence of further offending by stating (at [89]):

In summary, I consider that Ms Li’s offending conduct must be understood as serious, based on the findings made and the outcome reached in the criminal process. I draw on the same material with respect to considering the harm that might arise from future offending. Based on her sole offence, I consider it reasonable that the impact of any future offending could also be serious. Adverse financial consequences in other serious inconvenience is a foreseeable outcome for victims from this kind of offending.

91    She submits that Direction 79 reveals a distinction between “likelihood of further offending” and “risk to the Australian community”, as the exercise of assessing risk to the Australian community involves an analysis of the likelihood of further offending. She argues that the Tribunal did not undertake this analytical process; and instead conflated the two.

92    The applicant also contends that the Tribunal failed to carry out a genuine evaluation of the “particular circumstances” which pertained to her, and impermissibly focused upon “generalisations about the general character of the offences or the sentences which are attracted by the relevant offence”, as cautioned against by the Victorian Court of Appeal in Nigro (at [130]).

93    She also relies on Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [38]-[39] (Allsop CJ, Besanko and O’Callaghan JJ) where the Full Court said:

The notion of “risk” involves possibility in the future. Thus, consideration what may or might happen in the future by reference to the presence of the visa holder in Australia is what is called for…

The task is the consideration of future possibilities which “proceeds by drawing inferences from known facts”, and is based on “reasonable conjecture within the parameters set by the historical facts”. To these consideration should be added as legitimate basis for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department.

(Citations omitted.)

94    The applicant submits that the Tribunal did not undertake the task of determining risk to the Australian community by drawing legitimate inferences from known facts, and did not apply common sense or apparent reasonable appreciation of human experience. On her argument, the Tribunal failed to carry out the necessary exercise of determining the likelihood of the occurrence of the risk before considering the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.

95    The applicant contends that the Tribunal made the same error as that in WAD 230/2014 at [62] where Gilmour J said:

Moreover, the Tribunal did not make any express findings as to the likelihood of the applicant re-offending. Rather, at [62] of its reasons, having regard to the Pre-Sentence Report (in light of its own non-expert assessment as to his rehabilitation), it said that it was of the opinion that the “applicant continues to present a real risk of re-offending in a similar manner”. This is not a finding as to the likelihood of the applicant re-offending. At best it is a statement of the obvious but without any meaningful qualitative content.

96    The applicant also contends that in approaching the task of assessing the nature of harm that might arise from future offending, the Tribunal fell into the same error as in Tanielu. She argues that it did not consider “[t]hat gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender”; and instead relied “upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence” (see Tanielu at [97] citing Nigro at [130]).

97    The applicant notes that (at [90]) the Tribunal said that its finding that there was a “low risk” of her reoffending:

…arises from the limited formal evidence to hand, but also from my assessment of the significance of the findings in the criminal process and Ms Li’s response to this process. While respecting the continuing pursuit of legal appeal avenues open, I consider that there is a troubling ambiguity at the heart of her case. I accept that Ms Li has expressed remorse, and I accept that she became involved in an enterprise not entirely of her own making. However, as noted, I consider the particular findings in the criminal process are contrary to core arguments on her behalf.

98    The applicant contends that the Tribunal did not elaborate on the “troubling ambiguity” nor state how the findings in the criminal proceeding against her were contrary to “core arguments on her behalf”. She says that it is impossible to discern the Tribunal’s reasoning, and by failing to deal with the risk assessment by Queensland Corrective Services the Tribunal put out of mind one authoritative measure of the applicant’s risk of reoffending.

99    The applicant also argues that several findings in the criminal proceeding, which were not essential to the conviction or sentence, were demonstrably wrong or contradicted by the applicant’s evidence, and that the Tribunal’s finding in relation to the risk of her reoffending is therefore without a logical basis. On the applicant’s argument, the Tribunal simply engaged in speculation as to future consequences, based on the findings in the criminal proceeding (some of which were wrong), while ignoring the countervailing facts of the applicant’s otherwise lifelong law-abiding conduct. She contends that the Tribunal made the same error as identified in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [56] (Charlesworth J, Flick and Perry JJ agreeing) in which the Minister “exercised the discretion in a manner that purported to advance an object of the statute, and yet there is no evident rational connection between that legitimate object and the particular materials upon which the Minister is said to have relied.”

100    Further, the applicant notes that in considering the primary consideration “expectations of the Australian community”, the Tribunal found that the ongoing risk of reoffending was not “unacceptable”. She argues that having arrived at that assessment, the Tribunal could not rationally consider again “the impact of any future offending” as that effectively meant that the consequences of reoffending were double counted. She says that it follows that the Tribunal could not rationally reach a conclusion that the primary consideration “risk to the Australian community should the applicant commit further offences or engage in other serious conduct” should weigh against revocation. On her submissions, had the Tribunal correctly taken into consideration the matters required under paragraph 13.1.2 of Direction 79, and nothing irrelevant or incorrect, it would have concluded that this consideration weighed, at least to some degree, in favour of revocation, or at worst neutrally.

Consideration

101    I am not persuaded that the Tribunal fell into error as alleged.

102    In considering the risk to the Australian community under paragraph 13.1.2 of Direction 79, the Tribunal was required to have regard to, cumulatively:

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

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

103    The Tribunal was required to make a cumulative assessment of the nature of any harm should the applicant reoffend and the likelihood of her further offending. In my view, on a fair reading of the Tribunal’s decision, it did so.

104    First, in relation to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, the Tribunal said (at [89]) that the applicant’s offending conduct must be considered as serious having regard to the findings made and the outcome reached in the criminal process, and that the impact of any future offending could also be serious. It concluded that “[a]dverse financial consequences and other serious inconvenience is a foreseeable outcome for victims from this form offending”, being attempted extortion. I can see no error in that conclusion.

105    The applicant’s contention that this conclusion reveals error because, in fact, the impact of the offending conduct on Mr X was negligible, has no force. As I have said, it is true that Mr X did not hand over any money in response to the extortion attempt, but that misses the point in relation to the nature of the harm that could be suffered if the applicant were to reoffend or engage in other serious conduct. The applicant’s conduct involved attempted extortion with threats of harm which Farr J described as a “serious offence”. His Honour found that the threat of harm in this matter was not trivial, as Mr X was threatened with litigation that could cost him substantial monies, adverse publicity about his extra-marital affair and the risk of a criminal prosecution. The applicant was sentenced on that basis and it was not open to the Tribunal to conclude that the nature of any harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct was not serious.

106    Nor can I accept the applicant’s submission that the Tribunal erred by failing to objectively evaluate the nature of harm to individuals or the Australian community should the applicant reoffend. The applicant relies on the fact that the Tribunal said (at [79]) that the offending conduct might be considered an instance of “white-collar” crime, but that did not mean that it could be considered less serious than, “for example, assault or drug offences”, which the Tribunal said was clear from the 14 year maximum term of imprisonment that was available for such conduct. In my view, on a fair reading, the Tribunal did evaluate the nature of harm to individuals or the Australian community should the applicant reoffend, doing so by reference to the harm that could arise from conduct involving extortion, which it said included adverse financial consequences and serious inconvenience. I can see no error in that conclusion.

107    Second, in relation to the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal found that there was a “low risk” of that occurring, but a risk nonetheless (at [90]); also describing that risk as “quite low” (at [91]). In my view, contrary to the applicant’s submissions, the Tribunal engaged in the necessary exercise of determining the ‘likelihood of the occurrence of the risk’, but used the language of “low risk”, which in context is equivalent to a finding that there was a low likelihood of the applicant reoffending. The Tribunal took that assessment into account, as well as considering the tension between the applicant’s expression of remorse and her seeking to contradict the findings in the criminal proceeding, describing that as a “troubling ambiguity”. The applicant is correct in submitting that the Tribunal did not expressly take into account Queensland Corrective Services’ assessment that there was a low risk of the applicant reoffending, but there is no force in the applicant’s argument that this shows jurisdictional error when, in effect, the Tribunal concurred with that assessment.

108    The cumulative consideration of those matters was reflected in the Tribunal’s overall conclusion that the risk to the Australian community should the applicant commit further offences or engage in other serious conduct weighed only “slightly” against revocation of the visa cancellation decision.

109    It is appropriate to dismiss ground two.

Ground three

110    Ground three of the application alleges as follows:

Further or in the alternative, the Tribunal erred by failing to complete its statutory task in compliance with Ministerial Direction No. 79 in that it misconstrued, misunderstood and/or misapplied para 13.3 which requires regard to be had to the Expectations of the Australian Community.

(a)    The Tribunal failed to perform its statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with the substance of the expectations of the Australian Community.in relation to the applicant when the Tribunal had found that ‘the ongoing risk of reoffending was not unacceptable’, and thereafter relied upon ‘the prior history of a breach of Australian law’ without considering in relation to this criterion, the specific nature and circumstances of the applicant’s criminal offending.

(b)    The Tribunal took into account ‘prior history of a breach of Australian law’ when there was no evidence of a ‘prior history of a breach of Australian law’ before the offending giving rise to the Mandatory cancellation of the applicant’s visa.

(c)    The Tribunal erroneously imported into paragraph 13.3 a reference to paragraph 13.1(1) which is part of paragraph 13.1 Protection of the Australian Community) (paras 94 and 99). The Tribunal impermissibly applied paragraph 13.1(1) to consideration of paragraph 13.3 ‘Expectations of the Australian Community’.

The applicant’s submissions

111    Under this ground the applicant notes that, in considering the “Expectations of the Australian community”, the Tribunal found (at [98]) that the applicant did not present an “unacceptable” ongoing risk of reoffending. She contends that the Tribunal then, illogically and irrationally, proceeded to take into account a “prior history of a breach of Australian law” (at [99]), when there was no evidence of such a breach prior to the offending that gave rise to the mandatory cancellation decision. She argues that the Tribunal does not identify any other offending conduct and the applicant has an otherwise clean record in Australia, Singapore and China. She submits that by relying on a non-existent prior breach of Australian law the Tribunal made a jurisdictional error that is unarguably material in that it has affected the outcome of the decision.

112    The applicant also argues that the Tribunal erred in referring to paragraph 13.1(1) of Direction 79 (at [99]) to make an adverse finding in relation to the “Expectations of the Australian community”. She notes that paragraph 13.1(1) relates to the “Protection of the Australian Community”; not to the “Expectations of the Australian community”, which falls under paragraph 13.3.

113    The applicant contends that these errors are material because, had the Tribunal not made a finding without evidence, or misapplied paragraph 13.1(1) in relation to the expectations of the Australian community, it would not have been open to the Tribunal to find that the expectations of the Australian community weighed against revocation of the cancellation decision; and instead the Tribunal would have found that this consideration weighed in favour of revocation.

Consideration

114    I am not persuaded that the Tribunal fell into error as alleged.

115    First, the contention that the Tribunal failed to give proper, genuine and realistic consideration to, or to engage in an active intellectual process with, the consideration “expectations of the Australian community” has little force. The Tribunal considered the principles expressed in paragraphs 6.3(5), (6) and (7) of Direction 79 which include that:

(a)    Australia has a low tolerance of any criminal or other serious conduct by a non-citizen who has been participating in, and contributing to, the Australian community only for a short period of time;

(b)    Australia has a low tolerance of any criminal or other serious conduct by non-citizens holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia; and

(c)    the length of time a non-citizen has been making a positive contribution to the Australian community is a relevant consideration in determining whether that person’s visa should be cancelled.

116    The Tribunal took those matters into account in noting (at [97]) that the applicant’s offending conduct occurred within an extremely short period of time after her arrival in Australia, and that she had made a “somewhat marginal contribution” to the Australian community. It noted that the applicant had spent only some three and a half years in Australia, 12 months of which had been in prison or detention.

117    The Tribunal also noted (at [98]) the applicant’s submissions in which it was said that there was an absence of criminal consciousness on her part, and that she played a subsidiary role in the extortion scheme, and referred back to its conclusions under the consideration “protection of the Australian community”. It concluded that there was not an “unacceptable risk” of the applicant again offending but considered that the applicant’s breach of Australian law was sufficient to conclude that the expectations of the Australian community “weighed slightly against” revocation of the cancellation decision.

118    There is little in the Tribunal’s reasons to show that it fell into jurisdictional error by failing to give real and genuine consideration to, or to engage in an active intellectual process with, the applicant’s evidence and submissions regarding “expectations of the Australian community”. In reality, this ground relates to the Tribunal’s adverse finding in relation to this consideration, not to an erroneous failure to properly consider the applicant’s evidence and submissions in this regard. The Court has no power to undertake a merits review of the Tribunal’s decision.

119    Second, in considering the expectations of the Australian community the Tribunal was required to have regard to the following (deemed) expectations of the community:

(a)    non-citizens are expected to obey Australian law while in Australia;

(b)    it may be appropriate not to revoke a mandatory visa cancellation where:

(i)    the non-citizen has breached the expectation that he or she will obey the law; or

(ii)    there is an unacceptable risk that the non-citizen will breach the expectation that he or she will obey the law; or

(iii)    the non-citizen has been convicted of offences in Australia or elsewhere; and

(c)    in a particular case, refusal to revoke a cancellation decision 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 hold a visa: see FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [100] (Flick, Charlesworth and Stewart JJ) in relation to an equivalent requirement.

120    As the Full Court explained in FYBR at [101], “[u]nderstood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” 

121    In concluding that the applicant’s involvement in a criminal extortion scheme breached community expectations the Tribunal took that approach, and it was open on the evidence for the Tribunal to conclude that this weighed slightly against revocation of the cancellation decision.

122    Third, the applicant’s contention that the Tribunal erred by taking into account a “prior history of a breach of Australian law” when there was no evidence of such a breach before the relevant offending conduct, is without merit. As the Minister submits, in considering the expectations of the Australian community, under paragraph 13.3 the Tribunal was expressly directed to have regard to whether that the applicant had breached the expectation that she would comply with Australian laws while in Australia. Plainly the applicant had breached that trust, because she had been convicted of extortion offences. The Tribunal addressed the “expectations of the Australian community” in the context of the applicant’s conviction and there is no error in the Tribunal’s approach in that regard.

123    Fourth, the applicant’s contention that (at [99]) the Tribunal erroneously imported into consideration of paragraph 13.3 of Direction 79 a reference to paragraph 13.1(1), which relates to “protection of the Australian community” rather than the “expectations of the Australian community”, has no force. On a fair reading of the Tribunal’s reasons the reference to paragraph 13.1(1) is just an error, probably typographical, in which that paragraph is incorrectly named instead of paragraph 13.3. That is sufficiently clear from the reference to “unacceptable risk”, which is not mentioned in paragraph 13.1, but was considered by the Tribunal in reference to the expectations of the Australian community as required by paragraph 13.3.

124    Fifth, I do not accept that the Tribunal erred by relying upon the applicant’s prior history of breach of Australian law without considering the specific nature and circumstances of the applicant’s criminal offending. I have already dealt with the asserted error of relying upon the applicant’s prior history of breach of Australian law. The balance of this submission boils down to an argument that the Tribunal fell into jurisdictional error by not accepting the applicant’s evidence and submissions as to the lower seriousness of her offending conduct and her limited criminal consciousness and culpability in that conduct, and instead relied on the findings of Farr J and the Queensland Court of Appeal. As I have said, it was not open to the Tribunal to impugn or go behind the essential factual findings underpinning the conviction and sentence imposed on the applicant. As earlier explained, it was either not open to the Tribunal to make the factual findings which the applicant now contends ought to have been made, or the failure to make such findings is not a ‘material’ error. This ground must be dismissed.

Ground four

125    Ground four of the application alleges as follows:

Further or in the alternative, the Tribunal erred by failing to complete its statutory task in compliance with Ministerial Direction No. 79 in that it misconstrued, misunderstood and/or misapplied para 14.2 which requires regard to be had to the Strength nature and duration of ties.

(a)    The Tribunal failed to perform its statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with, the Applicant’s evidence and representations about the social ties she had developed in Australia and the contributions she has made contributing positively to the Australian community by concluding that the applicant’s personal connections and contributions are not substantial. , and

(b)    The Tribunal took into account the short period of time after the Applicant arrived in Australia in December 2016 before the offending in January 2017, but failed to take into account the fact that the Applicant had been to Australia previously in July 2016 (paras 109, 111, and 112). The Tribunal also failed to take give rational consideration to the long period of time the Applicant was a law-abiding and productive resident in Australia subsequent to the offending and prior to her being imprisoned.

(c)    The Tribunal failed to take into account evidence favourable to the Applicant to the extent that ‘this Other consideration’ weighed neutrally when there was substantial evidence of positive personal connections and contributions to the Australian community.

The applicant’s submissions

126    Under this ground the applicant submits that the Tribunal erred in according only neutral weight to the consideration “strength, nature and duration of ties to Australia”, and failed to properly consider her evidence and submissions about her connections with the Australian community, which was supported by letters from two Australian citizens, and which was not challenged.

127    The applicant notes that paragraph 14.2(1)(a) of Direction 79 requires that “less weight should be given where the non-citizen began offending soon after arriving in Australia”, and argues that it does not require the Tribunal to give negative weight to that consideration. She also notes that paragraph 14.2(1)(a) requires that “more weight to be given to time the non-citizen has spent contributing positively to the Australian community”, and argues that the Tribunal failed to engage in an active intellectual process in relation to the applicant’s evidence and submissions which showed that she had contributed positively to the Australian community for the whole period from when she committed the offences in January 2017 until she was sentenced and imprisoned in July 2019.

128    At [112] the Tribunal said that it did not consider that the applicant’s evidence and submissions aimed at showing reduced culpability for the offending conduct were “sufficient to outweigh the weight I consider it appropriate to apply to the short time spent in Australia prior to offending”. The applicant submits that finding is illogical and irrational. She further contends that in referring generally to “issues that reduce her culpability” the Tribunal turned its mind from actively engaging with the period of time the applicant spent making a contribution to the Australian community, to focusing again on the applicant’s culpability for her offending, which was not a relevant consideration in respect of this criterion.

129    The applicant also submits that the Tribunal failed to give genuine intellectual consideration to the specific circumstances of the applicant’s case, as required pursuant to the preamble to Direction 79.

130    Finally, the applicant notes that the Tribunal found (at [111]) that the applicant “appears to have developed a relatively typical range of local and international colleagues and friends as international student”. She argues that, on this finding alone, it was illogical for the Tribunal not to give some positive weight to the consideration “strength, nature and duration of ties”. She contends that, had the Tribunal taken into account the short period of time before offending as warranting less weight under this consideration, and the time during which she made a positive contribution as warranting more weight, rationally the Tribunal had to give the strength, nature and duration of her ties to Australia some positive weight.

Consideration

131    I am not persuaded that the Tribunal fell into error as alleged.

132    First, the contention that the Tribunal failed to give real and genuine consideration to the applicant’s evidence and submissions about the social ties she developed in Australia and the contribution she had made to the Australian community is without force.

133    At [52] of its reasons the Tribunal said:

With reference to her links to Australia, Ms Li agreed that she has no children, no relationship to an Australian citizen, and that she is not in contact with the friends she met while studying in Australia. Asked about any contribution to the Australian community Ms Li stated: she had made friends with Australian citizens; she assisted classmates who were new to Australia; she exercised; and, in immigration detention she asked a friend to provide some money to a young Malaysian man and also provided some things to a young woman from Taiwan.

134    Then, (at [108]), the Tribunal noted that paragraph 14.2 effectively reiterated the principles expressed at paragraphs 6.3(5), (6) and (7) of Direction 79. As set out above, those principles provide that:

(a)    Australia has a low tolerance of any criminal or other serious conduct by a non-citizen who has been participating in, and contributing to, the Australian community only for a short period of time;

(b)    Australia has a low tolerance of any criminal or other serious conduct by non-citizens holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia; and

(c)    the length of time a non-citizen has been making a positive contribution to the Australian community is a relevant consideration in determining whether that person’s visa should be cancelled.

135    The Tribunal also noted (at [108]) that paragraph 14.2 required it to have regard to the length of time a non-citizen has resided in Australia, but giving less weight to that length of time where the offending conduct began soon after arrival, and more weight to time the non-citizen has spent contributing positively to the Australian community. It also noted that it was required to have regard to the strength, duration and nature of any family or social ties with Australian citizens, Australian permanent residents and/or people who have indefinite rights to remain in Australia.

136    The Tribunal then turned to consider those matters having regard to the facts of the application before it (at [109]-[113]). It noted (at [109]) that the applicant arrived in Australia on 12 December 2016, whereupon she moved between Sydney, Melbourne and Brisbane where she encountered Mr Pisasale. In January 2017, she engaged in the offending conduct. By mid-January she had relocated to Melbourne in order to study, and enrolled in an EAL (Access) (English) course at St Peter Institute Melbourne in March 2017. In September 2017 the applicant was charged with the criminal offences and granted bail.

137    The Tribunal considered the applicant’s evidence with regard to the personal connections she developed while in Australia which surrounded her time as a student, and considered her conduct other than the offending conduct, which she said shows that she had made a positive contribution to the Australian community (at [110]).

138    The Tribunal, however, noted (at [111]) that the applicant had spent “a remarkably short period of time” in Australia before engaging in the offending conduct. The Tribunal then said (at [111]) that the applicant appeared to have developed “a relatively typical range of local and international colleagues and friends as international student”, and it did not discount the contribution she said she had made outside her friendships and while in detention. The Tribunal, however, found (at [112] that the applicant’s personal connections and contributions were not substantial and that it was appropriate to take into account that she had engaged in her offending conduct immediately after arriving in Australia. The timeframe within which the applicant began offending was plainly relevant given the principle in paragraph 6.3(5) of Direction 79 that Australia has a low tolerance of any criminal conduct by a non-citizen who has been participating in, and contributing to, the Australian community only for a short period of time.

139    Having regard to those matters, the Tribunal concluded that, on the whole, the strength nature and duration of the applicant’s ties to Australia were minimal and found that this consideration weighed neutrally.

140    Again, I am not persuaded that the Tribunal’s reasons show that it fell into jurisdictional error by failing to give real and genuine consideration to, or to engage in an active intellectual process with, the consideration “strength, nature and duration of ties”. In reality this ground relates to the Tribunal’s adverse finding in relation to that consideration, not to an erroneous failure to properly consider the applicant’s evidence and submissions in this regard. The Court has no power to undertake a merits review of the Tribunal’s decision.

141    Second, there is no merit in the applicant’s contention that the Tribunal erred by failing to take into account evidence favourable to the applicant in concluding that this consideration weighed neutrally. On a fair reading, the Tribunal had regard to the evidence. The Tribunal accepted that the applicant did not engage in any other offending conduct while in Australia, but did not consider that the evidence showed she had made a substantial contribution to the Australian community. It accepted that she had formed a range of friendships while in Australia but it concluded that the applicant did not have substantial ties to Australia.

142    Third, there is no force in the applicant’s contention that the Tribunal erred by failing to take into account that the applicant had been in Australia previously, and failing to give rational consideration to the long period of time the applicant was a law-abiding and productive resident in Australia subsequent to the offending conduct and prior to her being imprisoned in July 2019. There is nothing in the Tribunal’s reasons in this regard to show illogicality or irrationality rising to the level of jurisdictional error.

143    As the Full Court explained in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ):

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

144    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.

145    In my view the Tribunal did not miss the fact that the applicant had previously been in Australia; it noted (at [2]) that in August 2015 she visited Australia on a tourist visa. It is appropriate to infer that the Tribunal did not again refer to that short visit because it was not significant to its conclusion. Nor am I persuaded that it was irrational or illogical, let alone extremely irrational or illogical, for the Tribunal to conclude that the applicant’s personal connections nor her contribution to the Australian community were not substantial, and that the strength, nature and duration of her ties to Australia were minimal. Having regard to the Tribunal’s findings and to the matters described in paragraph 14.2 it was plainly open to the Tribunal to conclude that the strength, nature and duration of the applicant’s ties to Australia weighed neutrally in relation to whether there is ‘another reason’ to revoke the visa cancellation decision.

Ground six

146    Ground six of the application alleges as follows:    

Further or in the alternative, the Tribunal erred by failing to complete its statutory task in compliance with Ministerial Direction No. 79 in that it misconstrued, misunderstood and/or misapplied para 14.5 which requires regard to be had to the impediments if removed from Australia to their home country.

(a)    The Tribunal failed to perform its statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with, the Applicant’s representations about the harm she would suffer in China without completing her qualification in Early Childhood Education and Care as ‘another reason for revocation’.

(b)    The Tribunal failed to intellectually engage with the substantial evidence of discrimination against older women in employment in China.

(c)    The Tribunal found that it accepted that there was pervasive gender bias against women in employment in China and that there has, at least in the past been something of a bias towards younger employees (para 115) but observed that discrimination against women was based on their role as mothers when there was no evidence before the Tribunal to support this. The Tribunal further found that this did not apply to the Applicant, despite her still being of child-bearing age, and having expressed a desire to be a mother.

(d)    The Tribunal failed to perform its statutory task by concluding that ‘it is difficult to determine conclusively what impact discrimination might have on the applicant’s future work expectations’ (para 117)

(e)    The Tribunal found that the applicant may face some inconvenience (para 119) but unreasonably concluded that this criterion ought not be given positive weight.

(f)    The Tribunal failed to give any positive weight to this consideration despite having found that there were some impediments to the Applicant establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of China).

(g)    The Tribunal erred by failing to take into consideration the effective of the COVID-19 impact on the impediments the applicant may face if removed from Australia to her home country when there was evidence before the Tribunal that unemployment in China had risen due to Covid-19.

The applicant’s submissions

147    The applicant notes that paragraph 14.5 of Direction 79 required the Tribunal to have regard to the extent of any impediments that the non-citizen may face if returned 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 substantial language or cultural barriers; and

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

148    The applicant submits that she gave evidence to the Tribunal of the impediments to her establishing herself and maintaining basic living standards, on the basis of there being discrimination against middle-aged women in the workforce in China, arguing that she has no contemporary qualifications or recent work history in China; there is high unemployment in Heilongjiang province, where she is registered; she had not paid social insurance for over eight years; she would have great difficulty in transferring her official registration to a larger city where there were more possibilities of work. She argues that her evidence was supplemented by country information which went to employment, economic conditions, social welfare and health services in China.

149    The applicant argues that the weight of the evidence was that:

(a)    she was, at that time, a 42-year-old woman who had no one in China to rely on for support;

(b)    she was living in Shandon, but her Household Registration was in Heilongjiang province;

(c)    she had not paid social security insurance for eight years;

(d)    there was no work for her in Heilongjiang province;

(e)    she had temporary work only with no certainty of it continuing for more than two or three months;

(f)    if she had an Australian qualification in Childcare the prospects of getting a secure, better paid job would be much better;

(g)    she was contributing to the cost of 84-year-old mother in an aged care home

(h)    her sisters could not support her;

(i)    there was discrimination in China against women in the workforce generally and there was discrimination against older women in particular; and

(j)    unemployment was much higher due to the impact of COVID-19.

150    On the applicant’s argument, notwithstanding the evidence, the Tribunal erroneously found that while the applicant would face some inconvenience, she would not face “particularly significant challenges”. She contends that the Tribunal failed to give proper, genuine and realistic consideration to, or to engage in an active intellectual process with the applicant’s evidence and representations about the harm she would suffer in China without any formal qualification in a field of employment where there may be opportunities for her to gain work. She further contends that, having regard to the evidence of the impediments that she would face on return to China, the Tribunal’s conclusion that this consideration weighs neutrally is unreasonable and illogical.

Consideration

151    I am not persuaded that the Tribunal made the jurisdictional error alleged.

152    First, on a fair reading of the Tribunal’s reasons, the applicant did not establish that the Tribunal failed to give proper, genuine and realistic consideration to, or to engage in an active intellectual process with the applicant’s representation about the harm she would suffer if she was not permitted to remain in Australia to complete her qualification in Early Childhood Education and Care.

153    Paragraph 14.5(1) of Direction 79 required the Tribunal to give consideration to the impediments of removal to the non-citizen’s 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 account of their age and health, any substantial language barriers and any social, medical and/or economic support available to them.

154    The Tribunal’s reasons show that it considered, and accepted as a general proposition, the applicant’s contention that there was a gender bias against women in the employment market in China at least in certain roles, and that there had been a bias towards younger employees. It accepted that there seemed to be a bias in favour of women playing a traditional role in child-rearing and domestic duties (at [115]). The Tribunal noted, however, that the application was advanced on the basis that the applicant sought to continue her childcare studies in Australia for a short period in order to improve her standing in her preferred field of work. But at the time of the application the applicant had already obtained short-term employment in that area (at [116]).

155    The Tribunal accepted that the applicant had been out of the Chinese job market for over seven years but noted that she had a record of working for a Chinese company while she had been living in Singapore and that she had Chinese undergraduate qualifications. It considered that while there may well be some competition for work in childcare, and her age may be somewhat of a barrier, she had relatively little work experience in childcare and it is difficult to determine what impact discrimination might have on her future work expectations (at [117]).

156    The “impediments” referred to in paragraph 14.5 of Direction 79 concern difficulties for the non-citizen in establishing him or herself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The Tribunal concluded, on balance, that the evidence did not demonstrate that the applicant faces “particularly significant challenges”. In my view while paragraph 14.5(1) sets a low bar for the Minister, the Tribunal was incorrect to the extent that it required the applicant to demonstrate that she faced “particularly significant challenges”.

157    Even so, on a fair reading of the Tribunal’s reasons, it is appropriate to understand the Tribunal as finding that the applicant may face some difficulties and inconvenience but would not face challenges rising to the level of “impediments”. The Tribunal considered that while the applicant may face some difficulties, it was not persuaded that they rose to the level of impeding the applicant in maintaining basic living standards in the context of what is generally available to other citizens of that country. The Tribunal noted that the applicant had voluntarily returned to China and, on her evidence, had been effectively engaging in daily life since return. On that basis the Tribunal found this consideration weighed neutrally.

158    I am not persuaded that the Tribunal’s reasons bespeak a failure to give real and genuine consideration to the applicant’s evidence and submissions. In my opinion they tend to show that the Tribunal engaged in an active intellectual process in relation to the applicant’s evidence and submissions but reached a conclusion with which the applicant disagrees. That does not show jurisdictional error.

159    Second, I do not accept the applicant’s contention that, having regard to the evidence of the impediments that she would face on return to China, the Tribunal’s conclusion that this consideration weighs neutrally is unreasonable and illogical. As I have said, if the ultimate decision or finding along the way to that decision is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable: Sabharwal at [45]. It is insufficient to show jurisdictional error simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], [135] (Crennan and Bell JJ).  For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown: SZRKT at [148].

160    I am not persuaded that it was irrational or illogical, let alone extremely irrational or illogical, for the Tribunal to conclude that the impediments the applicant would face in China were not such that that this consideration weighed in favour of revocation; and instead found that it weighs neutrally in relation to whether there was ‘another reason’ to revoke the cancellation decision. In my view a reasonable decision-maker could reach that finding on the same material.

Grounds eight and nine

161    Ground eight of the application alleges as follows:

(a)    The applicant refers to and repeats the particulars to grounds 3, 4, and 6 hereto.

162    Ground nine alleges:

The Tribunal reached a legally unreasonable conclusion that there was not ‘another reason’ why the visa applicant’s visa cancellation ought not be revoked.

(a)    The Tribunal accepted the submissions of the applicant and the respondent that the matter was ‘quite finely balanced’ but then failed to give due weight to the positive factors weighing in favour or revocation, being:

i.    The secondary role of the applicant in the offences of extortion committed by the principal offenders;

ii.    The applicant’s limited understanding of English and hence limited knowledge of the criminality of the conduct of the principal offenders;

iii.    The applicant informing the victim that she did not want money and he should ignore the letter of demand;

iv.    The negligible effect of her offending on the victim;

v.    The relatively light sentence just seven months imprisonment to be served with eight months suspended of the 15 months imprisonment imposed for the offence of Extortion that carries a maximum sentence of 14 years imprisonment;

vi.    The fact that the balance of the sentence being eight months was suspended for two years, meaning the applicant was subject to potential re-imprisonment if she offended in that two year period;

vii.    The applicant’s otherwise honest, law-abiding conduct prior to and after the incident giving rise to her charges, conviction and sentence;

viii.    The not unacceptable risk of the applicant re-offending;

ix.    The minimal risk of harm should the applicant re-offend;

x.    The applicant’s desire to return to Australia only to complete her course of study in Early childhood Education and care and then return to China;

xi.    The benefit to the applicant of the qualification in Early Childhood Education and Care in overcoming impediments facing her in future in China;

xii.    The social ties the applicant had in Australia;

xiii.    The contribution the applicant had made to Australian business interests while in Australia.

(b)    The Tribunal placed undue weight on the negative factors weighing against revocation of the visa cancellation, being:

xiv.    The seriousness of the offence of Extortion determined by the maximum sentence available (para 79);

xv.    That although ‘the offence could be categorised as ‘white collar’ crime, this does not mean it should be considered less serious than, for example, assault or drug offences’ (paragraph 79), when at Clause 13.1.1 (1)(a) Ministerial Direction 79 states clearly that offences involving violence are viewed very seriously;

xvi.    The applicant had returned to China voluntarily;

xvii.    The applicant did not make a statement to police (paragraph 18(a)) when in fact she did (paragraph 31);

xviii.    The applicant understood the meaning of ‘punish’ when uncontested evidence before the Tribunal was that she did not.

(c)    Cumulatively, the Tribunal’s exercise in weighing the positive and negative factors was irrational and unreasonable, and the conclusion reached as a result of that exercise in weighing the positive and negative factors was legally unreasonable.

xix.    The Tribunal found that two primary considerations ‘weighed slightly against revocation’ of the mandatory cancellation: Protection of the Australian Community’ (paragraph 92) and Expectations of the Australian Community – (paragraph 100) when ‘Expectations of the Australian Community’ ought to have weighed positively.

xx.    and The Tribunal found that all relevant secondary considerations weighed neutrally: Impact on Australian businesses (paragraph 105) Strength nature and duration of ties (paragraph 113) impediments if removed to country of origin (paragraph 120) and impact on members of the Australian community including victims and their family members (paragraph 107), when all evidence supported giving these considerations some positive weight.

xxi.    The Tribunal irrationally and illogically failed to take into consideration substantial evidence supporting positive weight being given to any secondary considerations despite such evidence being before the Tribunal.

xxii.    Had the Tribunal rationally and logically taken into consideration evidence supporting positive weight to the secondary considerations the finely balanced weighing of negative and positive considerations would have been tipped in favour of revocation of the visa cancellation.

The applicant’s submissions

163    Under these grounds the applicant submits that the Tribunal made a number of material errors in being satisfied that there was not another reason why the mandatory cancellation decision should be revoked. She contends that the errors included failing to take into account relevant evidence, relying on irrelevant considerations, making findings for which there was no evidence, and misconstruing or misapplying Direction 79.

164    The applicant notes that the authorities recognise two different contexts in which the concept of legal unreasonableness has developed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second is an “outcome focused” conclusion without any specific jurisdictional error being identified: e.g., Minister for Immigration and Border Protection v Singh [2014] FCAFC 1: 231 FCR 437 at [44] (Allsop CJ, Robertson and Mortimer JJ). She contends that the decision of the Tribunal in this case suffers both from identifiable jurisdictional errors and an overall illogicality and unreasonableness that amount to jurisdictional error. She contends that it cannot be said to be possible for the Tribunal’s conclusion to have been reached logically or rationally on the available material and it can properly be characterised as unjust, arbitrary or capricious, citing Djokovic at [35].

165    The applicant alleges the following errors.

166    In relation to the first element of the primary consideration - the nature and seriousness of the non-citizens conduct to date - the applicant contends that the Tribunal erred by placing reliance upon the sentencing remarks of Farr J when those remarks and observations were demonstrably factually inaccurate. Furthermore, at [82] and [89] of the reasons, the Tribunal took into account the seriousness of the offence of extortion, not the seriousness of the applicant’s offending or other conduct to date as required by Direction 79. Then, in considering the weight to be given to this criterion the Tribunal failed to carry out a genuine evaluation of the particular circumstances which pertain to the applicant’s offending conduct but rather focused upon generalisations about the general character of the offence or the sentence which is attracted by the offence.

167    In relation to the second element of this primary consideration - the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct - the applicant submits that the Tribunal failed to have regard to relevant evidence regarding the nature of the harm to individuals should the applicant engage in further criminal or other serious conduct; instead, (at [89]) the Tribunal illogically and impermissibly drew on the findings made and the outcome of the criminal proceedings to determine that the impact of any future offending could also be serious.

168    In relation to the fourth element of the primary consideration - expectations of the Australian community - the applicant submits that the Tribunal proceeded on the basis that the risk of reoffending was not “unacceptable” and then relied on paragraph 13.1(1) of Direction 79 to take into account “a prior history of a breach of the Australian law” which relates to the consideration protection of the Australian community not to the expectations of the Australian community criterion. She argues that the Tribunal thereby departed from the considerations mandated by Direction 79 in respect of expectations of the Australian community, and says furthermore that there was no evidence at all of any prior breach of Australian law. On the applicant’s argument the Tribunal thereby fell into jurisdictional error in two recognised ways; first, taking into account an irrelevant consideration and second, reaching a conclusion for which there was no evidence.

169    In relation to the ‘other consideration’ - strength, nature and duration of ties - the applicant notes that the Tribunal found that she “appears to have developed a relatively typical range of local and international colleagues and friends as an international student”. On the applicant’s argument, logically that must mean that some positive weight must be given to this consideration. She accepts that, having given some positive weight to it the Tribunal would be entitled to reduce the weight to some extent by virtue of the applicant having offended soon after arriving in Australia. However, she argues, by the same rational process the Tribunal should have increased the weight given to this consideration by virtue of the period of time the applicant had been contributing positively to the Australian community. She says that the Tribunal thereby failed to take into account relevant evidence of the period of time the applicant was positively contributing. Further, the applicant says that the Tribunal illogically and irrationally turned its mind to the culpability of the applicant when that is not a matter specified under this criterion of Direction 79.

170    In relation to the ‘other consideration’ - impact on Australian businesses - the applicant notes that the Tribunal found that weighed neutrally (at [105]). She argues that finding is irrational because her removal from Australia must have been some impact on Australian businesses including on the education institution the applicant was enrolled in. On her argument, rationally, there must be some impact on Australian businesses because she was buying clothes, food and was working.

171    On the applicant’s argument the Tribunal’s reasons contained a number of “glaring errors” including that the Tribunal;

(a)    made specific reference to multiple matters which were drawn from the sentencing remarks of Farr J and the Queensland Court of Appeal decision that were clearly at odds with evidence of the applicant before the Tribunal and which did not impugn the criminal conviction or sentence;

(b)    failed to give genuine consideration to extensive evidence of the specific circumstances of the applicant’s case;

(c)    conflated risk with likelihood in considering the “risk to the Australian community should the non-citizen commit further offences. It is argued that the Tribunal found that there was a low risk of reoffending but also that the risk was not unacceptable. Then, notwithstanding this finding the Tribunal illogically concluded that the risk to the Australian community weighs slightly against revocation; and

(d)    failed to consider the likelihood of the non-citizen engaging in further criminal or other conduct, contrary to the express requirement to do so under paragraph 13.2.1(1)(b).

172    The applicant contends that the Tribunal’s reasons do not provide an evident and intelligible justification for the decision, and cumulatively the Tribunal’s exercise in weighing the positive and negative factors was irrational and unreasonable, and the conclusion reached as a result of the exercise was legally unreasonable.

Consideration

173    This ground is little more than a reiteration of the previous grounds. It is unnecessary to again deal with each of those grounds and it suffices to note the following:

(a)    In relation to “the nature and seriousness of the non-citizens conduct to date”, the applicant made essentially the same arguments under ground one, and I do not accept them. Specifically, I do not accept that the Tribunal erred in relying on the sentencing remarks of Farr J and the Queensland Court of Appeal decision in circumstances where the essential findings in the criminal proceedings are inconsistent with the applicant’s evidence and submissions as to the lower seriousness of her offending conduct and her limited criminal consciousness and culpability in that conduct. Nor am I persuaded that the Tribunal’s findings show ‘extreme’ illogicality or irrationality measured against the standard that it is not enough for the finding to be one on which reasonable minds may come to a different conclusion. I do not accept that the Tribunal’s findings in this regard are such that a reasonable decision-maker could not reach those findings on the same material. In my view they do not show jurisdictional error.

(b)    In relation to “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” the applicant made essentially the same arguments under ground two, and I do not accept them. Specifically, I do not accept that the Tribunal erroneously conflated risk with likelihood and acted illogically or irrationally in concluding that the risk to the Australian community weighs slightly against revocation. I am not persuaded that the Tribunal’s findings in this regard are such that a reasonable decision-maker could not reach those findings on the same material, and they do not show jurisdictional error.

(c)    In relation to “expectations of the Australian community” the applicant made essentially the same arguments under ground three, and I do not accept them. Specifically, I do not accept that the Tribunal departed from the considerations mandated by Direction 79 in respect of expectations of the Australian community, and do not accept that there was no evidence of any prior breach of Australian law. The relevant breach was the offending conduct which led to the applicant’s conviction and sentence. I am not satisfied that the Tribunal took into account an irrelevant consideration, nor that it reached a conclusion for which there was no evidence, and the applicant did not establish legal unreasonableness.

(d)    In relation to the “strength, nature and duration of ties” the applicant made the same arguments under ground four, and I do not accept them. Specifically, I do not accept that it was irrational for the Tribunal to conclude that this consideration weighed neutrally in relation to revocation. In my view that conclusion was open to the Tribunal on the evidence and it does not show illogicality or irrationality rising to the level of jurisdictional error.

174    In relation to “impact on Australian businesses”, this issue did not arise under the earlier grounds and I now deal with it. It appears that before the Tribunal the applicant said that she was employed while in Australia, that she consumed goods and services, including by paying fees to an Australian educational institution, and that she intended to pay further fees so as to continue her studies. On that basis the applicant argues that there must be some impact on Australian businesses by reason of the visa cancellation decision.

175    The Tribunal, however, recognised that paragraph 14.3(1) of Direction 79 requires that an employment link is generally only to be given weight “where non-revocation would significantly compromise the delivery of a major project or delivery of an important service in Australia (at [103]). It noted that it appeared that the applicant’s only employment in Australia was restricted to engaging in massage and escort services. I can see no error, let alone a jurisdictional error, in the Tribunal deciding not to attribute any impact on Australian business arising from the applicant’s inability to continue to work in Australia. It cannot be said that the applicant’s absence from Australia will compromise delivery of a major project or an important service.

176    In regard to the prospective fees the applicant intended to pay to an educational institution for the applicant’s intended continued studies the Tribunal said (at [105]) that her “very indirect prospective contribution to the conduct of business by an unspecified education provider [was] too remote to engage this consideration.” Reasonable minds may differ as to whether that is the correct or preferable conclusion, but in my view it does not bespeak illogicality, irrationality or unreasonableness rising to the level of jurisdictional error.

177    It can be accepted that for the period the applicant was in Australia and not incarcerated she must have bought food, some clothing and paid for some accommodation. On that basis the applicant argues that there must be some impact on Australian businesses if the cancellation decision is not revoked. It is not clear to me whether this argument was advanced before the Tribunal, as it was not referred to by the Tribunal. But, if this was an error, I am disinclined to accept that it is material. In my view, the impact on Australian businesses of a refusal to revoke the cancellation decision was de minimis and I do not consider it to be material in the sense that if a different finding was made there was a realistic possibility of a different outcome in the application: SZMTA at [45]-[46]; Hossain at [29]–[31].