Archer and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Archer and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 250 (22 February 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/9904

General Division )
Re: Margaret Susan Violet Rose Archer
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member D. J. Morris
DATE OF CORRIGENDUM:            22 February 2023
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

The wording of the Decision is deleted, and the following wording substituted:

Pursuant to s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal –
1. sets aside the decision of the delegate dated 30 November 2022; and

2. in its place substitutes a decision that the mandatory cancellation of the Applicant’s Class BF (Transitional) Permanent visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.

Paragraph [232] of the Reasons for the Decision is deleted and the following paragraph substituted:

Pursuant to s 43(1)(c)(i) of the AAT Act, the Tribunal –
1.sets aside the decision of the delegate dated 30 November 2022; and

2.in its place substitutes a decision that the mandatory cancellation of the Applicant’s Class BF (Transitional) Permanent visa be revoked under s 501CA(4)(b)(ii) of the Act.

........................[sgd]...........................................
Senior Member
Division:GENERAL DIVISION
File Number: 2022/9904
Re:Margaret Archer
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:22 February 2023
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal –
(1)sets aside the reviewable decision of 22 May 2018 cancelling the Applicant’s visa.
(2)in substitution for the decision so set aside, decides that the Applicant’s Class BF Transitional (Permanent) visa is not revoked.

.......................[sgd].................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of the United Kingdom of Great Britain and Northern Ireland – applicant held Class BF Transitional (Permanent) visa – visa mandatorily cancelled under Migration Act – substantial criminal record – delegate of Minister decided not to revoke mandatory cancellation – serious offence – two historical minor offences – consideration of the ministerial direction – primary considerations – protection of the Australian community – nature and seriousness of the conduct – assisting murderer after the fact – conduct found to be very serious – risk to the Australian community – best interests of minor children in Australia – special consideration – best interests of minor child of murder victim – expectations of the Australian community – extent of impediments if applicant removed to UK – links to the Australian community – age and health of applicant – negligible risk of reoffending found – decision under review set aside and new decision substituted that the visa not be revoked
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35
Children and Young People (Safety) Act 2017 (SA), s 86
Criminal Law Consolidation Act 1935 (SA), s 241
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Migration Reform Act 1992 (Cth), s 40
Migration Reform (Transitional Provisions) Regulations 1994
Social Security Act 1991 (Cth), s 94
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection [2019] 273 FCR 121
Lam and Minister for Immigration and Multicultural Affairs; Re: [1999] AATA 56
R v Haydon [2006] SASC 238
Webb v Minister for Home Affairs (2020) 170 ALD 511
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
Department of Social Services – International Social Security Agreements (dss.gov.au)
REASONS FOR DECISION
Senior Member D. J. Morris
22 February 2023

The Applicant was born in the United Kingdom in 1960 and migrated to Australia in 1965 with her parents and siblings. On 1 September 1994 she became the holder of a Class BF Transitional (Permanent) visa. The Applicant came to hold this visa by force of the Migration Reform (Transitional Provisions) Regulations 1994, made under the Migration Reform Act 1992 (Cth), which provided that entry permits or visas held by persons in Australia immediately before 1 September 1994 were automatically converted into one of two transitional visa classes by operation of law. The Applicant held that visa until it was cancelled on 22 May 2018 under ss 501(3A)(a)(i) and 501(3A)(b) of the Migration Act 1958 (‘the Act’).
The visa was cancelled because a delegate of the Minister was satisfied that the Applicant does not pass the character test in s 501(6) of the Act by reason of her having a ‘substantial criminal record’ under s 501(7)(c) of the Act, on the basis that she has been sentenced to a term of imprisonment of 12 months or more. In addition, the Applicant was serving a sentence of full-time imprisonment in a custodial institution for an offence against the laws of the Commonwealth, a State, or a Territory, on the date the visa was cancelled.
Having been notified of the cancellation of her visa, the Applicant was invited to make representations as to whether she passed the character test or, if not, there was ‘another reason’ why the mandatory cancellation should be revoked: s 501CA(4)(b) of the Act.
On 24 May 2018 the Applicant made representations to the Department of Home Affairs (‘the Department’) requesting revocation of the cancellation of her visa.
On 30 November 2022 another delegate of the Minister refused to revoke the cancellation. Under s 500(1)(ba) of the Act, where such a decision is made, the non-citizen is entitled to ask the Tribunal to review the decision. The Applicant did so on 6 December 2022.
Owing to the effect of s 500(6L)(c) of the Act, the Tribunal must make a decision in relation to this review within 84 days from when the Applicant was notified that the delegate had refused to revoke the cancellation. If it does not do so, by operation of law the delegate’s decision is taken to have been affirmed. That period ends on 23 February 2023.
HEARING
A hearing was held on 16 February 2023. The Applicant made submissions on her own behalf and gave evidence. She was cross-examined by Mr Christopher Tran of counsel, representing the Respondent, instructed by Mr Christopher Orchard of Sparke Helmore Lawyers. The Applicant called her husband, Mr LA; a son, Mr CA, and a brother, Mr MK, who all gave evidence. The Respondent called Ms Emma Bailey, Senior Social Worker at the South Australian Department for Child Protection (‘DCP’); and Ms Leesa Morris (no kin), Forensic Psychologist. All the witnesses other than the Applicant gave evidence by electronic means as permitted under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). At the conclusion of the hearing, the Tribunal reserved its decision.
The Tribunal took into evidence documents listed in the annexure to this decision. The Tribunal also took into account a Statement of Facts, Issues and Contentions of the Respondent. The Tribunal appreciates the actions of the Respondent, consistent with the conduct of a model litigant, in tendering several late documents submitted by family members of the Applicant.
The Tribunal made an order under s 35 of the AAT Act prohibiting the publication of the name of a minor child who will be referred to in the proceedings. The child is a grandson of the Applicant and will be referred to as ‘XS’. In addition, only initials of the victim, JM and her assailant, NA, will be used. Where any of these persons are referred to in quoted documents, the initials will replace the names.
APPLICANT’S OFFENDING
Before the Tribunal was a national criminal history check relating to the Applicant, produced by the Australian Criminal Intelligence Commission on 23 February 2022 (GD, pp 35-36). It recorded three offences. In October 1986 the Applicant was convicted at the Magistrates’ Court of two counts of Larceny. The report states that she received six weeks’ imprisonment.
In March 2018 the Applicant was convicted by the District Court of South Australia of the offence of Assist offender. She received a sentence of six years and six months imprisonment, with a non-parole period of four years. There is no other offending in the criminal history check.
The 1986 minor offences
The Minister’s delegate noted in the decision record that there were no Court records relating to the 1986 offences. The Applicant told her they related to an incident where her then partner stole some clothes from a clothesline. She said that her partner was imprisoned for 12 months, and she was issued with a 12-month good behaviour bond (GD, p 176)
The delegate accepted the summary and decided because of the age and relatively minor nature of the matters they were not weighty in the delegate’s consideration.
The Tribunal notes that in her personal circumstances form submitted to the Department, the Applicant said the incidents occurred in 1987 and that she received a 12-month good behaviour bond. The national criminal history check records that the Court hearing was in 1986 and the penalty was six weeks’ imprisonment. Given the lack of material around these offences, I am prepared to accept there was, in fact, no custodial time. The Applicant’s memory of a 12-month good behaviour bond would accord more closely with the gravity of the offending, given she had no prior criminal history.
Like the delegate, and consistent with the sentencing Judge in 2019 (GD, p 42), the Tribunal places no weight on these minor offences. They are more than 37 years old, were isolated and not part of any pattern of offending.
The 2018 major offence
In respect of the 2018 conviction, the facts were outlined in the sentencing remarks of His Honour Judge Muscat of the District Court of South Australia (GD, p 37). His Honour recorded that the Applicant’s son, NA, murdered a young woman, JM, with whom he was in a relationship for some four years, engaged to, and who was the mother of their two-year-old son. After the murder, NA buried JM inside a small garden shed at the back of the Applicant’s garden, before concreting over the floor of the shed.
The Judge found that the Applicant knew what NA had done shortly after he committed the murder and helped him cover it up. His Honour said (with names and locations redacted):
The evidence clearly establishes that you became aware your son had murdered JM very soon after he killed her. Between 9.30 p.m. and 10 p.m. on 26 August 2015, being the night JM was murdered, your son was seen at your home with you. This was not long after your son and JM left the family barbecue held for her stepfather and during which he remained in his car stewing.
The following morning, the same person who had witnessed you and your son together the night before, ran into the two of you at a car wash in [town]. Both of you told him that JM had left your son following a domestic argument.
The same morning you and your son drove to the BankSA branch in [town] where you withdrew $250 from the ATM using JM’s debit card. You withdrew that money so that you could purchase four bags of cement and a wheel barrow in which to mix the cement. You purchased those items from a hardware store in [town] not long after withdrawing the money from the ATM. That afternoon you and your son returned to the same hardware store in [town] and purchased 10 more bags of cement. The cement you had purchased was used by your son to concrete over the floor of the garden shed at your home beneath which JM’s body had been buried by him.
I am satisfied beyond a reasonable doubt from all of this evidence that your son must have told you that he had murdered JM shortly after he had killed her and the two of you then discussed how he could cover up what he did. You did not seek to challenge this finding when I raised it with your counsel during the sentencing hearing.
Not only did you permit your son to bury JM’s body inside your garden shed, but you assisted him in purchasing the cement using JM’s own money which you had withdrawn from her account so that he could then concrete the floor of the shed thereby concealing her body and thus the fact that she had been murdered by him.
Your assistance did not end there of course. Your son had JM’s mobile telephone. On 28 August 2015 you attended at the [town] Newsagency and purchased an Optus mobile telephone charge voucher. You did so because there had been two failed attempts to send a message from JM’s mobile telephone because her telephone was out of credit. After purchasing the phone credit a text message was sent from JM’s mobile phone to her mother’s mobile telephone to create the impression that JM was alive, well and safe, when in fact you knew that your son had murdered her and her body was buried inside your garden shed. JM’s mobile telephone has never been recovered by the police. Plainly, her telephone was disposed of to remove any connection to either yourself or your son.
On 29 August 2015 you purchased 10 more bags of cement, this time from the [name] store in [town], obviously to be used to complete the concreting of the shed inside which your son buried JM’s body.
On 4 September 2015, when police officers attended your home to speak with your son, you revealed to them that you had received a text message suggesting that JM may be somewhere in Victoria. You did so in a clear attempt to deflect the police away from your family, and your son in particular, by suggesting that JM was still alive.
On 7 September 2015 you provided a statement to one of the detectives involved in the investigation into the disappearance of JM in which you essentially corroborated the lying account your son had been telling the police. The following day you signed a typed version of that signed handwritten statement. You also produced a certified copy of your own bank statement…in an attempt to provide an innocent explanation for your presence at the ATM on the morning the money was withdrawn from JM’s account from that ATM by you.
The Judge then discussed efforts the Applicant undertook to cover up the purchase she had made of cement from the hardware stores, in an attempt to explain a receipt for the purchase of 10 bags of cement the police had found during a search of her house. His Honour continued:
You obviously did not want the police to suspect that the floor of the garden shed under which JM’s body was buried had recently been concreted. I have set out in some detail the circumstances, nature and extent of the acts performed by you, all of which were done with the intention of assisting your son escape police apprehension or prosecution for the murder of JM. Plainly, all of your actions were considered, calculated and deliberately designed to cover up your son’s murder of JM.
In my view the assistance you provided your son places your crime at the higher end of the range of seriousness for offences of this kind and this will be reflected in the sentence imposed upon you.
The family of JM has every right to feel anger towards you. After all, JM was not someone who you did not know, nor was she a mere acquaintance who you barely knew either. When one considers the nature of your relationship with her, she being the mother of your grandchild and the young woman who was engaged to your son, your involvement in helping cover up her murder and then the many lies you told police, the media, and particularly her family, is shocking and incredulous [sic]. Of course, and most sadly, throughout all of this [name] was in your care. He surely must have been wondering where his mother was. As the prosecution has submitted one can only imagine what you must have told him when he was asking after his mother.
You were, therefore, deceitful in the cruellest of ways to the family of JM, including her young child, as I have said, by offering them false hope that she was still alive when you well knew that she had been murdered by you son and was buried under a slab of concrete in your garden shed.
As JM’s family told the court, that you could be so emotionally detached after discovering that JM had been murdered by your son and to then act as you did in the days and weeks following the murder, simply defies comprehension and challenges the thinking of decent-minded people.
Through your counsel you claim to now appreciate the seriousness of your actions and the profound effect those actions, which include your blatant deceit of them, has upon the family of JM.
His Honour then briefly discussed the Applicant’s own upbringing, that she had been involved in violent domestic relationships, and that one of her sons acquired serious head injuries after being hit by a car as a child. The Judge referred to the two larceny charges in 1986 but determined, given the age of those offences, their relevance to sentencing for the current crime had passed. He referred to the Applicant’s conduct in prison thus far and her various health problems which he remarked can be adequately managed in the prison system.
In imposing the sentence, Judge Muscat noted that the Applicant’s actions had a very significant impact on a large number of people, including JM’s family and the Applicant’s own family. His Honour imposed a sentence of seven years, but discounted it on the basis of the timing of the plea of guilty. The Judge noted that the plea was late, coming on the first day of the trial, but the guilty plea then entered spared JM’s family from having to listen to detailed evidence in court that would have been extremely stressful to them. He therefore reduced the sentence imposed by six months, meaning the Court imposed a prison sentence of six years and six months. His Honour fixed a non-parole period of four years, with the sentence to commence from 14 December 2015.
FINDING ON THE CHARACTER TEST
It was not contested by the parties that the Applicant does not pass the character test because she has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more. The Applicant agreed in response to direct questioning at the hearing that she was serving her prison sentence on the day her visa was cancelled.
The Tribunal finds, on the basis of the sentence imposed on the Applicant on 8 March 2018 by the District Court of South Australia, that she does not pass the character test by reason of having a substantial criminal record. The Tribunal also notes a letter from the South Australian Department of Correctional Services dated 4 May 2018 (GD, p 45) which records that the Applicant was at that time incarcerated at Adelaide Women’s Prison, having been admitted to that prison on 15 December 2015. Her end release date is recorded as 13 June 2022, with a conditional release date of 13 December 2019. The writer noted that the Applicant will be eligible to apply for parole six months prior to the conditional release date, being the date of 13 July 2019. (In the event, the Applicant served the full sentence.)
The two ingredients set out in s 501(3A)(a)(i) – the Applicant having a substantial criminal record and s 501(3A)(b) that she was serving a sentence of imprisonment on a full-time basis for an office when the visa was cancelled – were therefore met. The visa was cancelled by the delegate by operation of law.
The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?

Having made the finding that the Applicant does not pass the character test, and being satisfied that the Applicant was invited under s 501CA(3) to make representations about the revocation of the decision to cancel the visa, the power was enlivened for the Minister, or his delegate (or the Tribunal now standing in his shoes) to potentially revoke the cancellation decision if satisfied that, under s 501CA(4)(b)(ii) that there is ‘another reason why the original decision should be revoked’.
In considering that question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 8 March 2021 the then Minister made a direction, which took effect on 15 April 2021 – Direction No. 90 (‘the Direction’). Decision-makers, including the Tribunal, must, under s 499(2) of the Act, comply with the Direction.
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists four primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.
Oral submissions and evidence
The Respondent submitted that the Applicant continues to present a risk of re-offending. Mr Tran submitted in his opening submissions that it was a ‘low risk’ but not a non-existent risk. The Respondent also submitted that the primary consideration in the Direction relating to family violence conduct is invoked in this case, because of the nature of the offending.
In terms of the best interest of minor children, Mr Tran submitted that the Minister accepts the Applicant has many grandchildren in Australia that she is close to, and that many of them are aged under 18. In terms of XS, who is the son of NA and the murder victim JM, the Minister submitted that his best interests weigh very heavily in favour of affirming the decision to revoke the Applicant’s visa.
In terms of the primary consideration relating to the expectations of the Australian community, the Respondent submitted that the community would not expect the Applicant to get her visa back.
Mr Tran submitted, in respect of the other considerations, as follows. He submitted that the consideration relating to Australia’s non-refoulement obligations was not relevant. In relation to the consideration relating to the extent of impediments if the Applicant was removed to the United Kingdom, the Respondent submitted that this favours restoration of the visa, noting that all the Applicant’s family and extended family are in Australia except for some minor relatives of her husband who reside in Canada. Mr Tran noted that the United Kingdom shares strong ties with Australia and has a similar culture.
In terms of the Applicant’s contribution to Australia, the Respondent accepted that the Applicant worked from the age of 18 until she ceased full-time employment following the birth of her first child. Thereafter, she was a homemaker and occupied with the rearing of her children.
Mr Tran submitted that the consideration relating to the impact on victims weighs against restoration of the visa. He noted that the Minister had tendered three statements from relatives of JM which he submitted read for themselves.
In respect of the consideration relating to links to the Australian community, Mr Tran accepted that the Applicant has wide and deep connexions to Australia and has lived almost all her life in Australia. He told the Tribunal that the impact on the Applicant of being returned to the United Kingdom would make life much more difficult, but the Respondent submitted that this is outweighed by the expectations of the Australian community because of the very serious nature of the offending.
ORAL EVIDENCE
The Applicant said she came to Australia with her parents and siblings on the SS Australis in 1965. She was then aged five. She said the family initially moved around because of her father’s work on the railways, but they settled outside Adelaide in around 1973. She has remained living in one of two towns in the region since that time.
The Applicant went to school in Murray Bridge and several of her extended family live in that town. She lives in another town about 15 minutes’ drive away. Her husband is employed locally.
The Applicant says she had around 30 grandchildren; five live in Western Australia; four live in Tasmania and the remainder in South Australia.
Mr Tran asked the Applicant if she remembered seeing Ms Morris, the forensic psychologist, and telling her that she had an instinct to protect her children. The Applicant said “Yes, since they were young. Their fathers used to hurt them. My instinct is to protect them, so they don’t get harmed in anyway.”
Mr Tran asked the Applicant what she would do if children in her family were exposed to harm. She responded: “I would take them away from the situation. I would help them, but not in a violent way.”
Mr Tran pressed the Applicant and asked her what she would do if she could not help a child in her family without committing a crime. She responded: “Not again, no. I have had a lot of time to think. I know it is wrong. I have to live that the rest of my life. I have lost a lot, the death of my parents, uncles, a grandchild. It has been so hard. It is not worth breaking the law.”
The Applicant agreed with Mr Tran that she had told Ms Morris she learned of the death of JM “two or three days after”. She said she could not remember the date, but she had been trying to contact JM and then learned that NA had killed her. She said she could not believe it had happened and went into shock.
Mr Tran noted that the sentencing Judge had found that she knew of JM’s death, in his words “very soon after”. She said: “I can’t remember. I didn’t find out until a couple of days later.”
Mr Tran asked the Applicant about her purchasing cement the next morning with NA, and put to her that when she did so, she was aware she was buying cement so that NA could cover JM’s body. She did not accept that.
The Applicant agreed that by the time she told JM’s parents that she believed JM was interstate, she did know that NA had killed her. She said: “I just didn’t have the heart to tell them. I couldn’t register. It was like a bad dream. I wasn’t expecting that my son would do that.”
Mr Tran asked the Applicant if she agreed that she took active steps to tell the police half-truths. She responded: “Yes, to protect my son, yes.” She agreed that she went out of her way to mislead police.
Mr Tran asked the Applicant how the Tribunal can be confident that she would not lie in the future to protect her children. She responded: “I have to live by the standard I taught my kids. I told them never to lie. I lied. I have to live with that. I always told them police were there to help. I hope I’ve learnt my lesson. Lying doesn’t get you anywhere. I would take anything back. It is something I have to live with. I kept telling NA he has to do the right thing. It made me happy when he did man up, even though I knew he would be locked up.”
Mr Tran remarked that Ms Morris had expressed the opinion that the Applicant has a tendency to avoid things. The Applicant agreed.
Mr Tran said that some of what the Applicant told Ms Morris and now says to the Tribunal is different from what the sentencing Judge found. She responded: “He only said what he was given to read. I didn’t know I could talk. I have never been to Court before.”
Mr Tran put to the Applicant that one possibility is that she was lying, or another possibility is that she is misremembering what actually occurred. She responded: “Maybe you are right.” She agreed with Mr Tran’s suggestion that she had built up a barrier.
The Applicant was asked about her health issues. She said she did not have a spleen, gallbladder, tonsils, or appendix. She said she suffered from depression, cirrhosis of the liver, diabetes, sleep apnoea and asthma. The Applicant said she had surgery “last year some time. They removed a third of my kidney because of cancer. They think they got everything. I am supposed to have tests every three months.”
Mr Tran said it will be the Minster’s submission that the variety of the Applicant’s medical conditions could be adequately managed by Britain’s National Health Service, if she was deported. She responded: “I have never thought of that.”
When asked how she would support herself in the UK, the Applicant said she did not know. Mr Tran asked the Applicant whether she would stay in the same town if her visa was restored. She responded: “My husband and I have spoken. We both think it would be better for JM’s family if we moved. It would give them peace of mind.”
The Tribunal noted that some of the statements from members of JM’s family remarked that if they saw the Applicant in the community, it would reignite memories of what happened to JM, which they would find traumatic. The Applicant said she had not read all the statements at this stage, but that she and her husband were thinking of moving to another town or perhaps to Adelaide.
The Tribunal asked the Applicant some direct questions. She said Mr LA used to visit her weekly when she was in prison in Adelaide, except when the pandemic caused a cessation of visits. Other family members would also regularly visit. She said since she was transferred to an immigration detention centre in Victoria, Mr LA, her son Mr CA, and his children visited her for Christmas in December 2022.
The Applicant said her youngest stepdaughter was killed in a car accident in Western Australia in 2020 and this loss had brought home to her the anguish of losing a child, which sharpened what she understood JM’s parents would be feeling.
In regard to her son Mr CA, the Applicant said he was knocked down by a car when he was a young child and sustained an acquired brain injury and hearing loss. This has had an effect on his concentration. She said Mr CA had three children, aged 12, 10 and 8 and that he and his partner had separated. Mr CA has 100 per cent care of the children. Before she was incarcerated, the Applicant said she helped Mr CA with his personal finances and with shopping and took him to medical appointments so she could explain things to him.
The Applicant said that Mr CA is on a disability support pension (DSP) and is great with his children, but he does need support. She said Mr LA has been trying to provide this support since she has been in custody, but he also works.
The Applicant agreed that both of her parents had become Australian citizens. Of her siblings, she said she believed at least five of her brothers had also become Australian citizens, because they enlisted in the Australian Army. She was unsure about her sister or other brothers.
Mr LA
Mr LA, who is the Applicant’s husband, gave evidence. He said that Mr CA was disabled and, since his wife has been in prison he has had to ‘step up’ and help. He said that Mr CA’s children stay with him some weekends and during school holidays.
Mr LA confirmed that he continues to rent the house where JM’s body was concealed. When Mr Tran asked if he had considered moving, Mr LA said: “Possibly, depending on the location and how the housing market is. Yes, if one came up, I’d move, if [my wife] wanted to start afresh.”
Mr Tran asked Mr LA whether he would move to the United Kingdom if the Applicant’s visa was not restored. He responded: “It would take me a while and depend on finances. I possibly would. I would have to discuss with Mr CA because he relies on family support.”
Mr LA said he had spoken to the Applicant about what they would do if she were deported, but not in ‘great detail’.
Mr LA said that at one time Mr CA had said he would move to the United Kingdom if his mother was deported but, since the breakdown of his relationship, he has changed his mind and, in any event, his former partner would not allow the children out of Australia.
Mr CA
Mr CA, who is the Applicant’s son, gave evidence. He confirmed that he had initially talked about going to England if his mother was deported. However, he had reconsidered: all his family is here, and he said he would not leave his children to go to the UK to be with his mother.
Mr CA said his former partner would not permit their children to be taken to the UK. He said he had 100 per cent care of the children and he and his former partner are currently negotiating in terms of a property settlement.
Mr CA confirmed that he does not work and is recipient of a DSP. He said that he owns the house in which he and his children live, which he purchased with funds from a trust established after he had a significant injury from being hit by a motor vehicle when a child.
His comments about his mother’s involvement in his life corroborated her evidence.
Mr MK
Mr MK, who is the Applicant’s brother, gave evidence. He said he visited the Applicant in prison every second weekend, when she was incarcerated, and sometimes took some of his children.
In response to direct questions from the Tribunal, Mr MK said that his father had one brother. They had lost touch during the Second World War but met up about 20 years ago. His uncle resided in the United Kingdom and came out to Australia from Britain to visit once. The uncle died about two years after this visit. He said he did not know anything about his mother’s family, except that her parents (i.e., the Applicant’s maternal grandparents) emigrated to Australia from the United Kingdom and later died in this country.
Ms Emma Bailey
Ms Bailey, who is a Senior Social Worker in the South Australian Department for Child Protection, gave evidence. She confirmed that she had written a letter to the Tribunal (Exhibit R9) relating to the child XS.
Mr Tran asked Ms Bailey about the penultimate paragraph of her letter, where she wrote:
DCP is not supportive of XS having any contact with his paternal grandmother [the Applicant] and would consider issuing a direction pursuant to Section 86 of the Children and Young People (Safety) Act SA 2017 [sic] preventing communication between XS and his grandmother to ensure XS’s safety, in the event she is not deported.
Mr Tran asked Ms Bailey to explain why the Department for Child Protection is not supportive of contact between the Applicant and XS. She responded: “The Department’s focus is on the best interests of the child. He is a deeply traumatised young man. He has expressed a wish not to have any contact with his paternal family. It would be disruptive to care arrangements.”
Mr Tran asked why it would be disruptive. Ms Bailey responded: “XS is placed with his maternal grandmother. The family said if he sees the Applicant in the community, that would re-traumatise.”
Mr Tran asked if XS had expressed that view to her. Ms Bailey responded: “Not directly to me, through his carer. He hasn’t spoken about [the Applicant] or his father to me. A traumatised child is more likely to express such views to someone they trust.”
The Tribunal asked Ms Bailey if she could explain, in general terms, what an order under the South Australian legislation would entail. She responded: “That was put in on the advice of DCP Legal. We can put in place certain no contact orders, but more formal ones have to be done under the Act.”
Ms Bailey was asked directly by the Tribunal if she was aware of any other factors that might expose XS to harm. She responded that she was not, and that she had visited XS where he lives several times. The Tribunal then asked if she conducted regular welfare checks. Ms Bailey responded: “We conduct monthly, at minimum, visits. We also visit schools where children attend. I visit XS regularly, by law I must sight him once a month.”
Ms Leesa Morris
Ms Morris, forensic psychologist, gave evidence and confirmed she had interviewed the Applicant at the request of the Respondent and provided a report dated 5 February 2023.
Ms Morris agreed that she had expressed the opinion that the Applicant was a ‘low risk’ of recidivism for any offending. Mr Tran asked her if a ‘low risk’ is something more than ‘no risk’. She responded, “No. Low risk is the lowest category for that instrument.”
Mr Tran asked if that meant no risk. Ms Morris responded, “The categories of risk are low, low to moderate, moderate, and high. In our vernacular, low and no risk are the same.”
Mr Tran asked Ms Morris if she felt there was any possibility of any future offending arising from the Applicant’s avoidant behaviour. She responded, “Low risk, I’d say.”
Mr Tran pressed, and asked if this meant, a low risk. She responded, “No definite risk.”
Mr Tran asked whether the Applicant’s history contributes at all to offending in the future. Ms Morris responded, “That’s a difficult question. Her offending was an act of omission rather than a direct action. Her psychological history impacted on her ability to make judgements.”
Mr Tran asked if the Applicant’s history contributes to the possibility of offending in the future. She responded, “The Applicant’s history contributes to her ability to make rational decisions in times of high stress.”
Mr Tran asked Ms Morris whether she would change her opinion if the Applicant had acted positively. She responded, “On the risk assessment, it wouldn’t alter.”
When Mr Tran pressed the witness, she said the risk could ‘potentially’ be elevated.
The Tribunal then asked Ms Morris directly what her understanding was of the Applicant’s offending. She responded, “There is a difference between the sentencing remarks compared with her story.”
Mr Tran asked whether the ‘low risk’ conclusion was premised on the Applicant’s account to her or the sentencing remarks. Ms Morris responded, “All of the information was taken into account.”
Mr Tran asked what her view would be if she was confined to the sentencing remarks. Ms Morris responded, “I don’t have the information. It is difficult to tell if the guilty plea took in what she engaged in.”
Mr Tran asked the witness to assume the sentencing remarks were correct, and asked Ms Morris whether that would be enough information for her to make a risk assessment. She responded, “No. I have to have the opportunity to challenge the person with the information put in front of them, so I can understand their cognitive process.”
Mr Tran asked Ms Morris to assume that the Applicant was informed of the death of JM soon after it happened, that she then went to the ATM to withdraw money from JM’s account, that the Applicant accompanied NA to buy concrete to bury JM’s body, that the Applicant did not tell the police so as to frustrate their investigatory attempts. Mr Tran asked Ms Morris to assume she gave an account that differed, and asked, with those assumptions, does the Applicant present some risk of re-offending in the future. Ms Morris responded, “Yes, with those facts I would put it at least as moderate.”
The Tribunal then put some direct questions to Ms Morris. She confirmed she was now changing her risk assessment to ‘moderate risk’. She confirmed that she had diagnosed the applicant with Complex Post-Traumatic Stress Disorder relating to childhood experiences.
The Tribunal asked Ms Morris whether she noticed a lack of empathy in the Applicant. She responded, “Yes when the Applicant was discussing the offending behaviour, her emotion was quite flat. Only when she expressed grief for JM did she become emotional. The loss of a person she cared about. It was evidence that she was distanced from herself when talking about the offence.”
The Tribunal asked Ms Morris if she was of the view that the Applicant had exhibited dissonance. She responded: “Dissonance at the time, but still distanced.” Ms Morris said her view was that it was traumatic and so the Applicant separated herself from ‘the mechanics’ of what had occurred.
Ms Morris confirmed that her view, now, is that the Applicant presents a moderate risk of any re-offending, provided Mr Tran’s assumptions are accurate. She confirmed that the Level of Service Inventory – Revised (‘LSI-R’) tool score would still reflect a ‘low risk’ of re-offending. The Tribunal therefore asked how that squares with the change in her opinion to a ‘moderate risk’. The witness responded, “I would have to, if I think the Applicant was in denial.”

The Tribunal made the observation that it was clear from the reference in her report that Ms Morris had the Judge’s sentencing remarks before her when she wrote her opinion, which presented something of a dilemma for the Tribunal that the witness was now changing her view on risk. She responded: “My view is moderate. The narrative that the Applicant provided to me was consistent with her behaviour throughout her remarks. The Applicant is passive. Yes, she will defend her children, but only when they were in danger would she end relationships.”
The Tribunal asked Ms Morris if there was a possibility the Applicant was understating to her what she did. She responded: “Yes.”
The Tribunal asked whether denial was passivity. She responded: “Not denial. Passivity is. She was quite open.” She agreed that the Applicant displayed emotional avoidance.
The Tribunal asked Ms Morris whether she was of the view that the Applicant denies emotions but does not deny actions. She responded: “Yes. She was forthcoming in identifying her weaknesses rather than her strengths.”
APPLICANT’S CLOSING SUBMISSION
The Applicant said:
All my ties are here. England is a foreign country to me. I know I have done wrong. That will live with me forever. If I could take it back, I would. I’ve lost a lot. If I go to England, I don’t think I could cope on my own. I love my family and I love my husband. Whatever I needed to do I would do – medical help, psychological help. My grandkids keep asking when I’m coming home. I can’t give them an answer. My son needs me...I know I will not see XS again.
RESPONDENT’S CLOSING SUBMISSION
Mr Tran said that the Respondent now changes its position, on the basis of Ms Morris’s amended opinion, to submit that the Applicant presents a moderate risk of re-offending. Mr Tran noted that a judge’s sentencing remark contain findings made to the criminal standard of proof. He said that the Applicant’s likelihood of offending now increases, but that it could be a small increase.
The Respondent accepts that the Applicant was convicted of assisting NA after the fact of the murder, and that she was not convicted of a violent crime. However, Mr Tran submitted that the Tribunal should conclude it is a violent crime in terms of the Direction, because the Applicant’s conduct associates her with a violent crime, by helping the principal offender avoid detection and prosecution. He submitted that such conduct is undermining of general deterrence. He accepted that the Applicant was convicted of attempting to conceal a murder.
The Respondent submitted that the Applicant’s conduct is relevant to the primary consideration relating to family violence. In respect of the impact on victims, Mr Tran noted the Applicant’s oral evidence that she was willing to move house, but that this was too speculative for the Tribunal to put any weight upon, and that this other consideration weighs against restoration of the visa.
Mr Tran summarised that the Minister’s view is that it is properly open to the Tribunal to come to either conclusion in relation to the question that is before it, but that the Respondent’s view is that the preferable decision is not to revoke the cancellation of the visa.
CONSIDERATION
The Ministerial Direction
Having found that the Applicant does not pass the character test, the remaining question is whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa. In forming a view about that, the Tribunal must have regard to the relevant contents of the Direction.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Respondent submitted that the offence of which the Applicant was convicted, Assisting offender, constitutes both a violent crime and an act of family violence.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention.
None of the categories stipulated in paragraph 8.1.1(1)(b) are relevant to the Applicant.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes.
In this case, the offence of which the Applicant was convicted is contained within s 241 of the Criminal Law Consolidation Act 1935 (SA) (‘the South Australian Act’). It states:
(1)Subject to subsection (2), a person (the “accessory”) who, knowing or believing that another person (the “principal offender”) has committed an offence, does an act with the intention of –
(a) impeding investigation of the offence; or
(b) assisting the principal offender to escape apprehension or prosecution or to dispose of the proceeds of the offence,
is guilty of an offence.
The Tribunal read this extract out at the hearing, and Mr Tran agreed that this was the offence of which the Applicant was convicted – that she knew NA had murdered JM and she assisted NA to escape apprehension or prosecution for that offence.
The Tribunal drew attention to two references in the Respondent’s Statement of Facts, Issues and Contentions which said that the Applicant ‘assisted in the murder’ of JM. Mr Tran agreed that this contention was not correct.
Although the Minister immediately withdrew the suggestion that the Applicant assisted in the murder of JM when that assertion was challenged by the Tribunal, it is important that I mention that here, because just as it is well-settled in law that the Tribunal cannot go behind the facts of a conviction of a non-citizen and the findings of a Court, it is essential that arguments proceed on a proper basis of what the particular offence was.
The conduct of the Applicant after the death of JM was reprehensible. It was completely at odds with what any decent person would do in the same circumstances, however shocked they might have been, having been told what their son had done to his partner and the mother of their child.
To the extent that the Applicant quibbled about finer details of her conduct in her oral evidence, so as to proffer evidence that departed from the Judge’s sentencing remarks, the Tribunal flatly rejects that evidence. To the extent that some of her responses to Ms Morris affected the opinion drawn in the psychological report, the value of that report is lessened. In HZCP v Minister for Immigration and Border Protection [2019] 273 FCR 121 (‘HZCP’), McKerracher J stated at [63]:
Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentencing on which the power depends…
(Emphasis added)
Therefore, the only authoritative summary before the Tribunal of what the Applicant did in the aftermath of JM’s death on 26 August 2015 is that given by His Honour Judge Muscat in Court in passing sentence.
In HZCP Colvin J held, at [195]:
In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual proposition that undermines the relevant convictions and sentences as “another reason” why the original decision should be revoked.
The Applicant in this case did not make such specific representations in the way His Honour was describing. She did say things to Ms Morris about the circumstances after the death of JM which were plainly wrong, and some of her responses to Mr Tran in her oral evidence also did not accord with the facts. However, when challenged that she might be misremembering what happened, she accepted that could be the case.
The Tribunal does observe that in other evidence and submissions the Applicant’s memory was faulty. For instance, she told the Tribunal how long she thought she had been in immigration detention, which was not accurate. She also said in her oral evidence that she had undergone surgery for removal of a renal tumour since being in detention in Melbourne, but later in the hearing said from the table that she might have been mistaken and the surgery might have been in South Australia, and might either have been when she was in detention there or when she was in prison. In neither of these examples did I detect the answers were provided for the purposes of evasion.
However, it is also important that His Honour’s remarks are read closely for what he said and found. The facts are that the Applicant became aware that NA had murdered JM “very soon” after he had done this act. The day after the victim’s murder, the Applicant and NA drove to a bank and the Applicant withdrew money, using her own card for one amount and JM’s debit card for another withdrawal. In her evidence the Applicant said that NA gave JM’s card to her to undertake that transaction. That may or may not be true, but it does not affect the facts.
Then the Applicant and NA drove to a hardware store and bought some cement and a wheelbarrow for NA to mix the cement. Later, the Applicant and NA drove to the hardware store again and bought more bags of cement.
The Judge found that the Applicant and NA must have discussed how to cover up the murder. The Judge found that the Applicant permitted NA to bury JM’s body inside the garden shed in the garden of the house she rented. The Judge found that the Applicant went to a newsagency and bought a telephone charge voucher for JM’s mobile phone.
The Judge did not find that the Applicant sent a text message to JM’s mother, to create the impression that JM was alive and safe. It may have been NA who did that. There was no definitive finding.
The Judge found that the Applicant bought still more bags of cement two days later. The Judge found that the Applicant told police when they visited her house to talk to NA that she had received a text message suggesting JM may be in Victoria. This was plainly a lie to mislead the police.
The Judge also found that the Applicant provided other statements to the police to corroborate lies NA had told them about what had occurred.
In addition, in her own oral evidence, the Applicant admitted telling JM’s parents things in order to lead them to believe JM had gone away following a break-down in the relationship. This was a particularly cruel thing to do. The Applicant said in her oral evidence that she ‘did not have the heart’ to tell them JM was dead. She did, however, readily give them false hope.
Mr Tan drew the Tribunal’s attention to the following part of the Direction, paragraph 8.1.1(1)(a):
Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
The way this part of the Direction should be read, in the Tribunal’s view, is that crimes of the nature set out in (i), (ii) and (iii) are viewed very seriously by the Australian Government and the Australian community. It therefore is couched, especially in terms of the Australian community, as a deemed conclusion for a decision-maker. That is, crimes of this nature are to be viewed very seriously.
I do not accept, however, Mr Tran’s submissions that the offence of which the Applicant was convicted is a violent crime or a crime of a violent nature against a woman. Nothing in that conclusion should be taken to attenuate the seriousness of the crime of which the Applicant was convicted, or leave any doubt that the Tribunal considers it condemnable behaviour. But this is where the Tribunal must take special care to look to the wording of the South Australian Act, because that founds the penal sanction of the conviction and the sentence.
Had s 241 of the South Australian Act provided that, for instance, the offence would be aggravated if the principal offender (in this case NA) committed a murder or other violent crime against the person, I may be more inclined to accept the Minister’s submission. But the offence does not include such a provision, it is a general offence relating to being an accessory after the fact of an offence. The place in the South Australian Act that the seriousness can be gauged is in the maximum penalty. In s 241(3) of the South Australian Act, where the maximum penalty for the offence is imprisonment for life, an accessory can receive a prison term not exceeding 10 years.
In this case, NA was sentenced to life imprisonment (TB1). The Applicant therefore was liable for a sentence of up to 10 years. The Judge indicated a sentence of seven years, discounted by six months, i.e., His Honour imposed an ultimate sentence of six and a half years. The Judge described the Applicant’s conduct as committing “a very serious example of the crime of assisting an offender” (GD, p 42). Objectively, the Tribunal is satisfied that her offending was at the higher end of this type of offence.
It is not the role of an administrative Tribunal to accept submissions that, because of the context of an offence, the wording of the Direction should be stretched to assign a meaning in relation to a person’s offending additional to that found by a criminal court. Especially when there is no such exhortation in the Direction. Therefore, I conclude that it would be improper for the Tribunal to import that the Applicant had been convicted of a ‘violent crime’ or a ‘crime of a violent nature against a woman’ as singled out as ‘very serious’ in the Direction.
Having said that, Mr Tran quite rightly drew the Tribunal’s attention to the opening words of paragraph 8.1.1(2)(a), which are “without limiting the range of conduct that may be considered very serious, …”. By way of analogy, if an applicant was convicted of a major fraud offence, that would be capable of being categorised as very serious conduct under this paragraph of the Direction, despite such an offence not fitting into one of the subset of highlighted types of offences in (i) to (iii).
It is therefore not necessary for the Tribunal to look for a ‘bridge’ to try and fit a crime into one of the stipulated categories in order to find that a particular offence is ‘very serious’ in terms of paragraph 8.1.1.
In R v Haydon [2006] SASC 238 (‘Haydon’), the Court of Criminal Appeal (Doyle CJ, Gray and White JJ) considered the wording of s 241 of the South Australian Act. Doyle CJ said (the other judges separately concurring), at [51-52]:
The offence of assisting an offender is a serious one. The maximum punishment is imprisonment for ten years.
The seriousness of a particular offence of assisting will depend on the conduct of the offender and the seriousness of the offence in relation to which assistance is given (the secondary offence). When, as here, the secondary offence is murder, the offence of assisting offender has to be viewed most seriously.
(Emphasis added.)
With respect, I adopt the Chief Justice’s approach in terms of how I should characterise the Applicant’s offending in relation to this part of the Direction. I also note that Judge Muscat referred to this passage from Haydon in his sentencing remarks (GD, p 38). I find that the Applicant’s conduct is very serious, and I am satisfied that the Government and the broader Australian community would think that.
Judge Muscat characterised the Applicant’s conduct succinctly (GD, p 41):
Plainly, all of your actions were considered, calculated and deliberately designed to cover up your son’s murder of JM.
The Applicant embarked on a pattern of several actions over a number of weeks designed to conceal a violent murder and aid the perpetrator in evading justice. This was not a case where a mother might undertake poorly considered actions immediately on learning that her child had done a terrible thing, and then quickly realise that the matter should be reported to the proper authorities. This was a case where steps were taken not only to conceal the death and help NA hide the body, but also to perpetuate another narrative that JM had gone away because of a domestic dispute. Each of these actions was calculated. The three visits to buy cement is an almost breathtaking example of the ‘banality of evil’. In her evidence, the Applicant said she did not drive, which is why she accompanied NA to the ATM. It invites the question as to why she decided she needed to make these visits to the hardware stores.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. Putting aside the historical larceny offences which the court found were not relevant in terms of sentencing, the Applicant has committed a single, but very serious, offence. There is therefore no frequency of offending nor any trend of increasing seriousness.
Paragraph 8.1.1(2)(e) requires the Tribunal to consider the cumulative effect of repeat offending. That element is not relevant here, because there has been no repeat offending.
Paragraph 8.1.1(2)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence of this.
Paragraph 8.1.1(2)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is no evidence of any re-offending, nor of any warning.
As I have said, although the offence of which the Applicant was convicted is not one stipulated in this part of the Direction, paragraph 8.1.1(1)(a) makes clear that the Tribunal is not limited to finding particular conduct very serious, and I have made that finding. The Applicant’s actions in the months after 26 August 2015 are repugnant to any right-thinking member of Australian society. The Applicant subsequently expressed the view that she realises now that she should have immediately persuaded NA to confess his crime to police. She did not do that. In fact, she did a lot more, in essence, to assist NA from potentially evading apprehension. It is a credit to the work of the South Australian Police that did not occur, not to any late act of contrition on behalf of the Applicant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2 of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct.

It is difficult to be definitive about the nature of harm to individuals or the Australian community should the Applicant re-offend. That is because apart from the index offence, she has no history of any offending, including (because she does not drive) no traffic offences. Obviously, if the Applicant re-offended in the same manner as she did in 2015, there would be great harm to individuals, especially enduring harm to other family members.
The Tribunal was not assisted by the volte-face of the expert witness in the course of her oral evidence on her opinion of risk of recidivism. The witness had the sentencing remarks in front of her which she apparently decided she did not have to fully accept and allowed some varying comments of the Applicant in her interview to feed into her conclusions. In particular, the Tribunal was unable to understand how the witness described the Applicant’s offending as an ‘act of omission’. This seems to strip back the Applicant’s wrongdoing only to failing to report the murder, and ignores the subsequent acts set out above which exacerbated her culpability. It also ignored the Judge’s use of the adjectives ‘considered’, ‘calculated’ and ‘deliberate’ to describe the offending conduct.
However, on the other hand, she told the Tribunal in response to direct questions that the ‘low risk’ assessment from the LSI-R tool would still stand, and the Applicant’s score on the Hare Psychopathy Checklist Screening Version, which Ms Morris also administered (which was recorded as ‘zero’), could potentially move up, but not appreciably. So, therefore, the report Ms Morris provided does have value to the Tribunal because it reflects the application of two objective criminogenic tools assessing risk by a person with forensic expertise.
Ultimately, the Tribunal must make its own risk assessment on the material before it. The facts are that the Applicant has been convicted of one serious offence. She has not led a criminal life, nor has there been a pattern of, or incidents of, offending conduct. Her minor larceny convictions in 1986 are not relevant. The evidence in the papers is that she has conducted herself in an exemplary manner while in prison. She had undertaken units for a Certificate III in Business (GD, p 150) and a Certificate II in Business (GD, p 152). She has also done a TAFE kitchen course, a Certificate II in Women’s Studies, a course in art therapy, a Red Cross food ready course and a word processing course.
She has undertaken community service with other prisoners in providing knitted goods to hospitals and other institutions, and several letters of appreciation of their work were in the papers. The Case Manager at Adelaide Women’s Prison reported (GD, p 189) that the Applicant has not received any warnings, negative case notes or reports since she has been a prisoner, and that she follows all directions given to her. In short, the Applicant appears to have been a model prisoner. There is also no evidence before the Tribunal of any misconduct in immigration detention.
Justice Mathews, a former President of this Tribunal, writing as a judicial member in Re: Lam and Minister for Immigration andMulticultural Affairs [1999] AATA 56, said, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
The Tribunal is unable to rely on Ms Morris’s amended, but still qualified, oral opinion of the Applicant having a moderate risk of re-offending. That change was made without any foundation in relation to the criminogenic tools that underpinned a ‘low risk’ and appears, with respect to the witness, to have been a change made off the cuff.
The Tribunal agrees with Justice Mathews that where a person has offended, it cannot be said that there is no risk that they will re-offend. However, the stark circumstances that presented in August 2015 are, in the Tribunal’s view, never likely to be repeated. There is no evidence before the Tribunal that any of the Applicant’s children other than NA have any criminal history. NA is incarcerated until, at the very earliest, September 2037. That is the time when he can first apply for parole.
The Respondent noted that one grandson of the Applicant had a criminal history, but the Applicant in her evidence said that this person had not offended for two years, now had a job and is in a stable relationship. In any event, there is no evidence of any link between his past offending and his grandmother.
The Tribunal concludes that the risk of the Applicant re-offending is not ‘no risk’ but is a negligible risk. She is a 62-year-old woman with a large number of health conditions. She is in a long and stable marriage. The elements of the LSI-R tool that Ms Morris applied include 54 items and 10 subscales: the person’s criminal history; their education and employment; their finances; their family and marital circumstances; their accommodation; leisure and recreational pursuits; companions; any drug and alcohol history (of which there is none); and the person’s emotional and personal situation; and their attitude and orientation. Ms Morris said that the Applicant scored eight, which is consistent with a ‘Low’ risk of reoffending. As mentioned above, Ms Morris also administered the Hare Psychopathy Checklist Screening Version and indicated the Applicant scored zero, suggesting that she does not present with any psychopathic personality traits. The application of these tools bolsters the Tribunal’s conclusion as to risk.
The Applicant was directly involved in the commission of a heinous crime. But she herself has no pattern of past offending or, in the Tribunal’s view, an assessable risk of future offending.
Overall, the Tribunal finds that this primary consideration bifurcates. The inherent nature of the very serious offending strongly would lean away from restoring the visa. The negligible risk of any offending being repeated leans the other way.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
Mr Tran submitted, rightly, that the actions of NA in murdering his partner of four years, and the mother of their two-year-old son was the ultimate act of family violence. Mr Tran drew the Tribunal’s attention to the wording of paragraph 8.2.(2)(a) of the Direction, which states:
(2)This consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence…
What is to be defined as “family violence” is set out in the interpretation section of the Direction, at Part 4(1). Relevantly, this part of the Direction states that ‘family violence’ means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. It then goes on to give examples, the relevant one of which is an assault.
Mr Tran submitted that the Tribunal should focus on the word ‘involve’ in paragraph 8.2.(2)(a), and that the Applicant’s actions involved the worst form of family violence.
Had the Applicant been convicted of being an accessory before the fact of the murder of JM, the Tribunal might find favour with the Respondent’s submissions. But in this case, the elements of the offence are found in s 241 of the South Australian Act and focus on assisting a principal offender to avoid apprehension after the accessory has become aware of what the principal offender did.
If the Tribunal were to accept the Respondent’s submissions, it would create a situation where a contextual gloss was being applied over offending dealt with in a court of competent jurisdiction. It is not the role of an administrative decision-maker, such as the Tribunal, in conducting a merits review of a decision under migration law to interpolate an aggravating factor into an offence which is not in the statute creating the offence. The ultimate act of family violence was perpetrated by NA, not by the Applicant.
Ms Morris’s evidence of the Applicant breaking down when discussing the principal offence supports a conclusion that she loved JM as the person who was, in essence, her daughter-in-law. It was also clear from her statements and testimony that her love and affection for XS was genuine. That is what makes her actions to assist NA even less explicable and, ultimately, more tragic.
The Tribunal does not find that this consideration is engaged.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which she is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal determines that there are three categories of minor children, on the evidence, who are relevant in this case. The first category comprises one child, that is XS, who is aged nine. He is the son of JM and NA. The second category is the three children of Mr CA. The third category are other minor grandchildren and nieces and nephews of the Applicant.
The Respondent submitted that XS merits special consideration. I agree with that, and his interests will be considered discretely below.
The children of Mr CA
Mr CA has three minor children. They live near to the Applicant and Mr LA. It was clear on the evidence of the Applicant, her husband and Mr CA, that the children have frequent and close contact with the Applicant and Mr LA. Although Mr LA is not Mr CA’s biological father, he has effectively been his father, which is reflected by the fact that Mr CA changed his name to have the same surname as Mr LA.
Mr CA is a person with special needs. He has been recipient of a DSP because he has a physical, intellectual, or psychiatric impairment that makes him unable to work (see s 94 of the Social SecurityAct 1991). It was not challenged by the Respondent, and the Tribunal accepts, that Mr CA has a cognitive deficit owing to an acquired brain injury. The evidence supports that he does a good job in bringing up his children, living independently and helping them get to and from school. However, Mr CA has special needs which mean he has been heavily reliant on his mother and stepfather for help with household bills and expenses, and with general assistance with everyday needs such as shopping. The bond between Mr CA and the Applicant is reflected in his earlier statement where he declared he would ‘go to England’ with his mother if she was deported. Since that time, Mr CA’s relationship has ended, and he now has full-time care of his three young children. He acknowledged he could not leave if his mother was deported.
The Tribunal also notes, as a general observation, that Mr CA’s DSP would only be payable for a limited period if he left Australia; and there would be likely to be barriers if he, as an Australian citizen with accepted impairment, sought to permanently emigrate to the United Kingdom.
Although the Applicant does not fulfil a parental role in relation to Mr CA’s three children, I am satisfied she fulfilled a major role in relation to their household and would again if she was in the community.
I make a determination that it is in the best interests of Mr CA’s three minor children that the visa cancellation is revoked.
Other grandchildren, step-grandchildren and nieces and nephews
The Applicant has four sons and four stepdaughters (GD, p 63) and provided a list of 26 grandchildren (GD, p 60). She gave evidence of several of them visiting her when she was in prison. There were a number of letters in the papers before the Tribunal attesting to their love for their grandmother. In addition, the Applicant is one of nine children, all of whom live in Australia and have children of their own, leading to 21 identified nieces and nephews (GD, p 64). The evidence is that two of them, Mr MK’s grandchildren, live in Canada, but the remainder are in various parts of Australia, mainly in South Australia. In addition, Mr LA’s children from his first marriage themselves have children, step-grandchildren of the Applicant.
There is no evidence before the Tribunal that the Applicant would not be a positive influence on her grandchildren and nieces and nephews, with the exception of XS who will be considered below. When she was in prison in Adelaide there is evidence of regular visits from several of them in the visitor’s log; this only ceased when the Department moved her from immigration detention in Adelaide to Melbourne. However, the Applicant said she has maintained contact through regular telephone calls, and this was accepted by the Respondent.
The Tribunal makes a determination that it would be in the best interests of the Applicant’s grandchildren, step-grandchildren and nieces and nephews that the visa cancellation is revoked. This is diluted, however, because the Applicant does not perform a parental role in respect of any of the children in this category.
The Respondent submitted that this primary consideration weighs in favour of revoking the visa cancellation. The Tribunal agrees and assigns significant weight to this consideration, mainly because of the special features relating to Mr CA and his children.
Special consideration – the best interests of XS
As set out above, XS was two years old when his father killed his mother. Ms Bailey’s letter to the Tribunal records that he was taken into the care of the DCP in September 2015, aged 2 years and 4 months. South Australian Police reported that NA was highly controlling of JM and had previously perpetuated significant violence against JM, including physical injuries.
Immediately after he came into State care, XS was placed into the care of his maternal grandmother. She has cared for him since that time. Ms Bailey reported that in 2020 XS was diagnosed with Reactive Attachment Disorder and associated resurfacing of memories relating to the events surrounding the murder of his mother. He is also diagnosed with Attention Deficit Disorder.
The Tribunal places significant weight on Ms Bailey’s commentary on XS’s challenges during his young life and her evidence that the DCP does not support any contact between the Applicant and XS. The Applicant herself, in her evidence and submissions, accepts she will not see XS again.
Section 86 of the Children and Young People (Safety) Act 2017 (SA) relevantly provides
(1)The Chief Executive may, by notice in writing, direct a specified person not to communicate, or attempt to communicate, (whether in any way or in a way specified in the notice) with a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive during the period specified in the notice.
…
(3)However, the Chief Executive may only give a direction under this section if the Chief Executive believes it is reasonably necessary to –
(a) prevent harm to the child or young person; or
(b) prevent the child or young person from engaging in, or being exposed to, conduct of a criminal nature.
This statute goes on to provide for a penalty of up to three years for a first offence, and four years for a second or subsequent offence.
While the Tribunal does not conclude XS would be in any personal danger from the Applicant, it is clear on the weight of the material that any contact with her would be considerably triggering of deeply traumatic memories. I am satisfied that, prima facie, the Chief Executive of the DCP could form a view that a notice could be issued to the Applicant on the basis that it is reasonably necessary prevent harm to XS, being mental harm.
The Tribunal therefore concludes that this special consideration weighs in favour of not revoking the visa cancellation. That is qualified by the advice of Ms Bailey that such a notice would be in contemplation, which would be a significant protective factor in XS’s best interests.
There is no evidence before me that the Applicant has any intention of harming XS nor did she indicate any intention, if returned to the community, to make contact with him.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’. In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by some other evaluative process.
The then Minister, Mr Hawke, made the current Direction after FYBR. The fact that it imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would be against restoration of the visa. Feeding into the community expectations would be the age of the Applicant and the length of time she has been in Australia, and the fact that she has been completely compliant with prison directives. Notwithstanding that it was a single offence with no pattern of prior offending, it was nevertheless a single offence that is directly linked to a terrible crime. Murder by strangulation of a young mother by her domestic partner is a crime that would shock the community. The actions of the Applicant are ultimately clearly malign and meriting a significant prison sentence, as found by the Court’s determination.

The Tribunal finds that this primary consideration weighs against the Applicant, and relatively heavily so.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
In this case, the Applicant is a citizen of the United Kingdom. That is the country to which she would be repatriated in the event her visa is not restored. No claims were made by the Applicant or by the Respondent that non-refoulement obligations are enlivened, and the Tribunal also finds no evidence that this other consideration in the Direction is relevant.
This other consideration therefore carries neutral weight.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to the United Kingdom, in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to her in the United Kingdom.
Dealing first with the language and cultural barriers, these would be minimal. Both the United Kingdom and Australia are English-speaking and there are many commonalities in the cultures of each nation.
In respect of the Applicant’s age and health, she is well into the third quartile of average life expectancy, being almost 63. The medical records before the Tribunal (GD, pp 66-69) show that she is prescribed or otherwise taking 17 regular tablets and other medicaments. The records also disclose she has the following current health needs: chronic pain issues; a splenectomy which leads to autoimmune haemolytic anaemia; depression; a melanoma; vasculitis; sleep apnoea; cirrhosis of the liver (non-alcoholic fatty liver); renal cell carcinoma (i.e., cancer of the kidney); type 2 diabetes; rheumatoid arthritis; asthma; and hypercholesterolemia.
The Respondent submitted that, as a British citizen, the Applicant would be able to avail herself of the National Health Service (NHS) in the United Kingdom if she is repatriated. The material provided by the Minister (TB3, pp 290-292) indicates that there might be an initial period before the Applicant was eligible, because it requires the provision of certain documents proving residence in the UK, a UK bank account showing recent activity, or employment in the United Kingdom. However, the Tribunal generally accepts that the Applicant would be eligible to be treated in Britain under one of the most comprehensive universal health services any country operates (see, relevantly, Webb v Minister for Home Affairs (2020) 170 ALD 511, at [100])
There is no reason, in the Tribunal’s view, that all of the Applicant’s accepted health conditions would not be able to be treated through the NHS. In particular, the Tribunal notes that prescriptions for medication are free under the NHS if the recipient is aged 60 or over (GD, p 296). The Applicant herself, as recorded above, said she had not thought about healthcare in Britain.
No submissions were made by either party about the portability of any Australian social security entitlements, and the Tribunal notes that the Social Security Agreement between Australia and the United Kingdom terminated on 1 March 2001 (dss.gov.au). While the Applicant is a British citizen, her eligibility for national pension entitlements in that country would be linked to time spent working in the United Kingdom, which she has not done, having not been in that country as an adult. There were no submissions from the parties about pension entitlements in the UK for someone like the Applicant who has never worked or paid taxes there.
Mr Tran asked Mr LA whether he thought the Applicant’s wider family would be able to offer financial assistance to her in Britain. He indicated that to his knowledge all the extended family were generally struggling financially.
Even though the Tribunal accepts the Respondent’s submissions that the Applicant would be able to use NHS services if repatriated, the Tribunal finds that this consideration weighs in favour of revoking the visa cancellation, principally because of her age, range of health conditions and the undoubted dislocation from her family that deportation would entail.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
In this case the Respondent solicited statements from three relatives of the murder victim which were admitted into evidence. Ms LS, who is the mother of JM, wrote (Exhibit R3):
Margaret’s offending has had a terrible impact on me and my family. Her behaviour was a betrayal of trust to us as a family and to XS. Her behaviour in covering up the murder was shocking to me – I do not understand how someone could so disgustingly treat a close relative like JM was, not to mention that she is also XS’s grandmother.
Ms LS went on to refer to the effect on XS and the fact that she has had, because of the actions of NA, to take on care of a young lad later in life. She wrote that seeing the Applicant would affect her grief and trauma and would make her angry.
Ms SAM provided a statement (Exhibit R4). She is the younger sister of JM. Ms SAM says she lives in Queensland, but her plan is to return to her family around Murray Bridge once every few months. Ms SAM wrote of the effect on XS and on her own children, who miss their late aunt. Ms SAM said that if the Applicant was returned to the community, it would affect her desire to go back to visit her own family in the same area.
Ms TLP provided a statement (Exhibit R8). She is the older half-sister of JM. Ms TLP said she used to work in a supermarket and serve the Applicant, including during the time between the murder and before she was arrested for being an accessory after the fact. Ms TLP said she eventually quit this job because she ‘could not stomach’ serving the Applicant. Ms TLP wrote that if she saw the Applicant, she would find it hard not to tell her how she felt.
It is very clear to the Tribunal from these three statements that each has been written with great and understandable emotion. The lives of each of these relatives of JM have been greatly and enduringly affected by her murder, and they were all unnecessarily further traumatised by the concealment immediately afterwards in which the Applicant was directly complicit.
The Tribunal finds that this other consideration weighs strongly against revoking the visa cancellation.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
The Applicant came to Australia in 1965 on the SS Australis, an immigrant liner (GD, p 84). Her parents had been accepted on the Assisted Passage Migration Scheme, and embarked with their nine children, two daughters and seven sons, all of whom were minors. The Applicant’s parents subsequently became Australian citizens (GD, pp 136-137) and lived the remainder of their lives in Australia. All the Applicants siblings live in Australia.
The Applicant went to school in Australia and worked for a period of time before marrying and starting a family. She gave up work when she started a family and went on to have four children.
The Applicant has not left Australia since she arrived in 1965. On arriving, for reason she said was never explained, the authorities separated her and some (but not all) of her siblings from their parents and they were sent to a children’s home in Victoria. She told the Tribunal that they were there for about a year, which was traumatic for a five-year-old who thought her parents had abandoned her. She told Ms Morris during the psychological evaluation of the privations and disciplinary experiences she was subjected to at the children’s home. This led to Ms Morris diagnosing a long-seated condition of Complex PTSD. The Tribunal accepts this professional conclusion. After about a year, the Applicant and her other siblings were reunited with their parents.
The Applicant said she had a regular childhood. She married in 1980 to a man with whom she had one son. He subjected her to domestic violence. She then was in a relationship with a second man, with whom she had two children. He, too, was violent and used her as an ashtray, on one occasion causing her to fall and miscarry. She was involved with a third man, with whom she had her last child, and who was also abusive. The Applicant was then single for ten years but bringing up four children.
Late in the 1990s she met Mr LA. They married in 2000. He had children from a previous marriage. The evidence supports that they have a strong and good marriage, now for around 23 years. The Tribunal notes that, at the time of the offending in August 2015, Mr LA was away from home for an extended period in Tasmania because of the death of his own mother and an aunt. He did not know of the actions of his son or his wife until much later. His son disguised the reason he had concreted the floor of the shed. The police accepted that Mr LA had no involvement.
The Tribunal accepts that the Applicant has no relatives in the United Kingdom. All her family are in Australia. She has not left Australia for almost 60 years. She has made some positive contribution to the community by her work and then bringing up her family, and a voluntary contribution whilst in prison. She has played sport in her local community. She did not begin offending soon after arriving in Australia, and in fact her criminal history is sparse (if in a singular respect very significant).
In particular, Mr CA would be deeply affected if the Applicant were repatriated. He has relied on her for extra care since he was injured at the age of six. His permanent acquired brain injury affects his concentration and while he is by all accounts a good father, living independently, he is reliant on the Applicant (and currently Mr LA) for regular assistance with finances and groceries. The Tribunal accepts that the breakup of Mr CA’s relationship consequently means that he is more reliant on his mother and stepfather.
The Respondent accepted without reservation that England would be a ‘foreign country’ to the Applicant, because of her coming to Australia aged five and having never left.
This consideration weighs relatively heavily in favour of revoking the visa cancellation.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. The Applicant worked in a supermarket many years ago, but has not undertaken paid employment in recent decades, dedicating her time to rearing her children and helping care for her grandchildren.
The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant’s visa remains cancelled or is restored. This sub-consideration, therefore, weighs neutrally.
Regarding this consideration overall, I find that this consideration weighs in favour of revoking the visa cancellation and assign relatively heavy weight in favour of revocation.
SUMMATION
Part 2 of the Direction informs the Tribunal how to exercise the discretion. The Tribunal must take into account the considerations where relevant to the decision. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. Further, paragraph 9 of the Direction requires that the Tribunal take into account relevant other considerations, but the Tribunal is not limited only to the stipulated other considerations. Any other matter relevant to the circumstances of a person and to the functions of the Act can be taken into account.
In this case the Tribunal has identified three primary considerations that are relevant: the protection of the Australian community; the best interests of minor children in Australia affected by the decision; and the expectations of the Australian community. In addition, a special consideration has been identified and considered, that is the best interests of the minor child, XS. Three other considerations are relevant and have been weighed: the extent of impediments if the Applicant is removed to the United Kingdom; the impact on victims; the Applicant’s links to the Australian community.
The Tribunal has found that the first primary consideration bifurcates. In terms of the nature and seriousness of the conduct, it weighs against revoking the visa cancellation. That is almost solely due to the profound nature of the offending. In terms of the risk to the Australian community should the Applicant re-offend, the Tribunal has found there is a negligible risk of recidivism, because of the lack of criminal history and the deep unlikeliness of the factual circumstances ever again presenting. This part of the first primary consideration thereby this weighs in favour of revocation.
In respect of the best interests of minor children excluding XS, this weighs relatively heavily in favour of revocation, but that is slightly diluted because the children identified have other persons who perform parental roles, albeit that the Applicant performs a greater role in respect of the children of her son Mr CA.
In respect of the best interests of XS, they would be served somewhat by not revoking the visa cancellation but that is conditioned by the flagging by the DCP officer of a possible no-contact order being made by that agency, and the Applicant’s acceptance she will not see XS again.
The expectations of the Australian community go against the Applicant. The other consideration relating to the extent of impediments if removed weigh in favour of revoking the visa cancellation. The other consideration relating to impact on victims in this case weighs relatively strongly against restoring the visa. Finally, the other consideration relating to links with the Australian community weighs strongly in favour of giving the Applicant back her visa.
The Tribunal has a difficult task in balancing considerations which in some respects sharply diverge. The single offence, which the Applicant committed some eight years ago, is one that is completely at odds with one of the values that we treasure in this country, whether born here or whether we have made Australia our home. That is that people should be held to account for their crimes, especially the most serious of crimes. By her positive actions, the Applicant sought to avoid that happening.
But pivotal in the Tribunal’s cumulative calculus is the risk of the Applicant re-offending. I have found that it is negligible. Apart from the complete unlikelihood of similar circumstances ever repeating, she is an older woman with cancer (in remission) and with several other health challenges. She has been in Australia some 58 years. Her husband of 23 years, Mr LA, impressed the Tribunal as a decent person. It is likely that, had he not been interstate when the principal offence occurred, events would have unfolded quite differently. If the Tribunal were to affirm the decision before it, one of the consequences is that it is reasonable to foresee the fracturing of his marriage.
The Tribunal finds, on all the circumstances being applied, that the preferable decision in this matter is that the discretion in s 501CA(4)(b)(ii) of the Act is enlivened – that there is ‘another reason’ to revoke the mandatory cancellation. The consequence of that finding is that the reviewable decision will be set aside.
It is not a purpose of Australia’s migration system for it to be used as some shadow system of criminal justice. In this country we have a robust system of law enforcement and courts, and their preserve is adjudication over crimes and the application of penal sanctions. The Applicant paid a (rightly) heavy price for her involvement after JM’s death and served a significant prison sentence. In a case where the risk of re-offending is so low, the Tribunal envisages no threat to the protection of the Australian community if the Applicant’s visa is restored.
In a final observation, I note that in this particular part of the jurisdiction (s 501 and s 501CA decision reviews), the Tribunal rarely receives statements from victims of a person’s criminal offending. The three statements the Minister gathered from the mother, sister and half-sister of JM made deeply affecting reading. The Tribunal hopes that the Applicant is equally affected by what they make clear is the continuing impact on their lives today of her actions, and that she will give serious thought to her expressed intention of moving away from the community to help them have some small peace of mind.
DECISION
Pursuant to s 43(1)(c) of the AAT Act, the Tribunal –
(1)sets aside the reviewable decision of 22 May 2018 cancelling the Applicant’s visa.
(2)in substitution for the decision so set aside, decides that the Applicant’s Class BF Transitional (Permanent) visa is not revoked.

I certify that the preceding 232 (two hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 22 February 2023

Date of hearing:

17 February 2023

Advocate for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Christopher Tran

Solicitors for the Respondent:

Sparke Helmore Lawyers

Annexure
Schedule of Exhibits
Exhibit R1
Volume of ‘GD’ documents
Exhibit R2
Report of Ms Leesa Morris dated 5 February 2023 with curriculum vitae and briefing letter dated 25 January 2023
Exhibit R4
Statement of Ms LS (not dated)
Exhibit R5
Tender Bundle (TB1 to TB3)
Exhibit R6
Unsigned statement of Ms TLP (not dated), lodged 10 February 2023
Exhibit R7
Statement of Mr Orchard, solicitor to the Respondent, dated 10 February 2023
Exhibit R8
Signed statement of Ms TLP (not dated) lodged 13 February 2023
Exhibit R9
Letter of Ms Emma Bailey, SA Department for Child Protection, not dated
Exhibit R10
Letter of Mr Mason K, not dated, forwarded to Respondent 14 February 2023

Exhibit R11
Letter of Mr Mark K, not dated, forwarded to Respondent 14 February 2023
Exhibit R12
Letter of Mr JK, not dated, forwarded to Respondent 14 February 2023
Exhibit R13
Letter of Mr MF, not dated, forwarded to Respondent 14 February 2023
Exhibit A1
Statement of Mr Martin K, dated 4 February 2023
Exhibit A2
Letter of Mr CA, dated 4 February 2023
Exhibit A3
Letter of Mr LA, not dated
Exhibit A4
Letter of Mr TK, not dated

[2023] AATA 250

22 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/9904
General Division	)

Date of hearing:	17 February 2023
Advocate for the Applicant:	Self-represented
Counsel for the Respondent:	Mr Christopher Tran
Solicitors for the Respondent:	Sparke Helmore Lawyers