Arnott and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Arnott and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4803 (27 November 2020)
Division: GENERAL DIVISION
File Number: 2020/5466
Re:Nicola Elizabeth Arnott
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:27 November 2020
Place:Brisbane

The decision under review is affirmed
..........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa (“visa”) - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – drug addiction – drug trafficking – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
27 November 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 48-year-old citizen of New Zealand.
In January 1988 when she was 15 years old, she moved to Australia to live permanently with her parents and sister. In September 2020, at her request, she was removed to New Zealand.
On 28 February 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“visa”) under

s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that she did not pass the character test and she was serving a full time custodial sentence.[1] On 18 March 2017, the Applicant made written representations to the Respondent requesting revocation of the cancellation of her visa (“revocation request”).[2] On 4 September 2020, the Respondent decided not to revoke the cancellation.[3]
[1] Exhibit G1, Section 501 G-documents, G29.
[2] Ibid, G9 pages 41 to 48.
[3] Ibid, G4 page 17.
The Applicant subsequently lodged an application for review in this Tribunal on 7 September 2020.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Ibid, G2, pages 3 to 8.
The hearing of this application proceeded on 12 and 18 November 2020. The Applicant gave evidence via video conference from New Zealand. Her father gave evidence via video conference. Dr Jacqueline Yoxall, psychologist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[6]
[5] [2018] FCAFC 151.
[6] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7]
[7] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 25 July 2018, the Applicant was sentenced to seven years imprisonment with a non-parole period of two years and one month. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test. She cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[8]
[8] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[9] and “Other considerations”.[10] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
[9] The Direction, paragraph 13.
[10] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[12]
[11] [2018] FCA 594.
[12] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant moved to Australia with her parents and younger sister in 1988 when she was 17 years old.
The following year, she was convicted of stealing and of being found on licensed premises whilst under the age of 18 years. She received a fine and community service for these offences. She said the stealing offences arose from her and some friends stealing clothes off clotheslines. I accept this.
In February 1993, the Applicant was convicted of possession of a dangerous drug and possession of a pipe for use in connection with a dangerous drug and she was fined. She said those items belonged to her partner at the time who used cannabis and had previously been in prison. She said she took the blame because she believed that she would only receive a fine, but her partner would go back to prison.[13] I accept this.
[13] Transcript, page 7, lines 32 to 39.
The Applicant did not re-offend for some 15 years. In that period, she was a contributing member of the community. She consistently held gainful employment in responsible roles, e.g. accounts manager, and for several years she did voluntary work for a hockey club. However, she also abused drugs and alcohol. When she was around 25 years old she had a cocaine habit whereby she used cocaine frequently if not daily for around a year, or slightly less than a year.[14] She went cold turkey when she saw that her parents were upset by it.[15] I note that she did not initially disclose her cocaine use, however when it was put to her that she had told Corrective Services about it for the purposes of an “Immediate Risk Assessment” in November 2017,[16] she agreed and said she had forgotten about it. In addition, between the ages of around 21 and 38, the Applicant was heavily addicted to alcohol. Towards the end of that period she was consuming a cask of wine every two nights.[17]
[14] Transcript, page 67, lines 27 to 34.
[15] Transcript, page 20, lines 7 to 15.
[16] Exhibit R2, Respondent’s summonsed material, page 463.
[17] Transcript, page 19, lines 31 to 44.
In June 2008, the Applicant was caught drink driving with a high range blood alcohol concentration. She was fined $2,550 and disqualified from driving for two years.[18] Around four months after the disqualification period expired, in October 2010, she was again caught drink driving with a high range blood alcohol concentration. She was sentenced in April 2011 to a term of imprisonment of seven months to be served by the way of an Intensive Correction Order (“ICO”) in the community. She was disqualified from driving for three years.[19]
[18] Exhibit R2, Respondent’s summonsed material, page 287.
[19] Ibid, page 288.
In the hearing, the Applicant said she committed the drink driving offences in the context of the breakdown of a long-term relationship (not with the partner who used cannabis). The Applicant suspected her then partner (“Mr S”) of having an affair with her best friend but he denied it and she could not catch him out. She became obsessed with finding out what was going on and she was drinking heavily. This went on for around two years. She had always suffered from anxiety and depression and it became worse during this period. One night she and Mr S had an argument at the pub, and she drove home. That was the 2008 offence. After Mr S left he moved in with the Applicant’s best friend which, to the Applicant, confirmed her suspicions. She had a breakdown and began drinking more heavily. By the time she committed the 2010 offence, she was not working and was drinking “pretty much day and night”.[20] She lost control of her car and hit a parked car.[21]
[20] Transcript, page 8, lines 35 to 36.
[21] Transcript, page 8.
I note that that Mr S provided a letter of support,[22] and in that letter he did not refer to the circumstances of the breakdown of his relationship with the Applicant. That is unsurprising if the circumstances were as the Applicant described. While the representations made by the Applicant in support of her revocation request seemed to gloss over or minimise some details, I found that her evidence in the hearing was candid and genuine. My impression was that she was basically honest and only faltered when she could not accurately recall events or details. I do not regard Mr S’s failure to mention the circumstances of his break-up with the Applicant as undermining her evidence about that.
[22] Exhibit G1, Section 501 G-documents, G14.
The Applicant stayed in Sydney for around a year after the break-up.[23] She was put on medication for anxiety. After the ICO expired, she moved to the Gold Coast.[24] She was happy, so she stopped taking her medication. She was “drinking a little bit”.[25] She found employment and ultimately got a job as the onsite manager of an apartment complex.[26] It was there that she started using methamphetamine socially. After around six months, she lost her job and became dependent on methamphetamine.[27] In her revocation request, she said:
“I started to get very depressed and anxious about finding another job and home and found myself self medicating with meth. I had never been a drug user, so believed I was strong enough to not become addicted. I was wrong and quickly found myself with an expensive drug habit & no income. I decided to sell drugs to keep up with my habit & this is where my criminal history started.”[28]
[23] Transcript, page 9, lines 20 to 23.
[24] Transcript, page 22, lines 10 to 15.
[25] Transcript, page 9, lines 1 to 6.
[26] Transcript, page 9, lines 30 to 39.
[27] Transcript, page 9, lines 40 to 48; page 25, lines 35 to 36.
[28] Exhibit G1, Section 501 G-documents, G11, pages 67 to 68.
The Applicant did not think she could get another job due to the effects of her drug use on her ability to think in an organised manner and on her appearance.[29]
[29] Transcript, page 10, lines 24 to 34; page 65, lines 21 to 27.
Between 2015 and 2018, she committed over 50 offences that broadly fell into the following categories:
·possession of drugs and drug related items;
·supply and trafficking of dangerous drugs including methylamphetamine and cannabis;
·breaches of bail, breaches of community based orders and contravention of directions/requirements;
·shoplifting, dealing in stolen property and unlawful use of motor vehicles;
·fraud, forgery and uttering; and
·traffic offences including drug driving, speeding, careless driving and unlicensed driving.
All of the offences were related to her drug use or her association with other drug users. She was dealt with by courts in numerous sentencing episodes. The penalties imposed were initially non-custodial and included fines, good behaviour bonds, community service and probation. Eventually custodial terms were imposed, and I will come to those in due course.
Towards the beginning of the period of offending, the Applicant was ordered to attend a Drug Diversion Assessment Program (on 24 November 2015). She firstly failed to attend[30] and, eventually did attend but did not take the opportunity to engage with any rehabilitative services. She said the program was for first time offenders as an alternative to going before the court. She described it in the following way:
“And you sit down with the counsellor for, I think it’s normally a couple of hours and go through a bit of your history and they give you some ideas and things that you could do to try and get over your drug use…. It was more a case of I got some numbers from them, it I started to think my addiction was getting out of control, I could contact them, or any of that sort of thig. But I don’t think there was any actual plan that came out of it. I could wrong, but I don’t think there was.[31]
[30] Exhibit R2, Respondent’s summonsed material, page 27; Transcript, page 27, line 25 to page 28, line 31.
[31] Transcript, page 28, lines 5 to 14.
The Applicant did not consider that her addiction was getting out of control and she did not contact any services at this time. She said the drug diversion made no difference whatsoever.[32]
[32] Transcript, page 27, line 23 to page 28, line 31.
In fact, the Applicant’s addiction was out of control and she was supplying illicit drugs to pay for her addiction. She explained in the hearing:
“…because I’d lost my job I had to obviously try to support my drug habit so the only way that I could think of to do it was to sell drugs. So I just started off with very small amounts obviously because I didn’t have much money and sort of grew it up a little bit from there so that I would basically be able to support my own habit plus live, because by the time you’re a drug addict you really can’t - getting a job wasn’t an option, it wouldn’t have happened.”[33]
and:
“I mean short of that if you have a drug addiction and you’re trying to feed it, you’re either going to sell yourself or you’re going to steal stuff. And I’ve shown I’m not good at stealing stuff, so I thought, well, you know, I’m just going to sell it. And it only started off as small amounts and it was more just a case of just trying to move enough to get myself enough. But as time went on I - obviously, I had living expenses and everything else, so I just increased all that.”[34]
[33] Transcript, page 10, lines 14 to 22.
[34] Transcript, page 65, lines 4 to 10.
The Applicant would buy drugs on credit, sell them and keep the difference to pay for her own drug use and living expenses.[35]
[35] Transcript, page 30, lines 38 to 44.
In 2015 and 2016, police conducted an operation to investigate unlawful drug activity and the suspected trafficking of methamphetamine and cannabis on the Gold Coast. The investigation included covert surveillance and telephone interceptions. The Applicant was not a target of the investigation but she was identified as a person involved in the supply of dangerous drugs from October 2015 onwards.[36]
[36] Exhibit R2, Respondent’s summonsed material, pages 39 and 40.
On 28 January 2016, the Applicant was caught drug driving and was subsequently disqualified from driving for two months.[37]
[37] Ibid, page 293.
On 11 May 2016, police executed a search warrant at the Applicant’s residence. During this search they found, in the room she shared with her (then) boyfriend, three grams of cannabis, four stolen bank cards and two stolen identification cards, two shotgun cartridges, two sets of digital scales and a large quantity of clip seal bags.[38] Following this search the Applicant was charged with some summary offences arising from the search including receiving tainted property, possessing dangerous drugs, authority required to possess explosives and possess utensils or pipes etc that had been used. The Applicant told the Tribunal that she had not lived at that residence for a week. She could not recall how the bank cards came to be there and she had no knowledge of the cartridges, but she pleaded guilty to possession of them. She said she was never given stolen bank cards or credit cards as payment for drugs. She said she thought she was not charged in relation to the identify cards. She explained that she had a friend who owned a nightclub and sometimes she would take cards that people had left there to the police station.[39] Given the Applicant’s evidence that she shared the room with another person and she had not lived there for a week, there is some doubt in my mind about whether she knew the items were there. In the scheme of things however, where there is evidence that the Applicant dealt with stolen goods on other occasions, very little turns on whether she dealt with stolen goods on this occasion. I accept that she had no knowledge of the cartridges.
[38] Ibid, page 43
[39] Transcript, page 52, lines 1 to 16.

The following day, on 12 May 2016, the Applicant was charged with two counts of trafficking in dangerous drugs with respect to methamphetamine and cannabis, and she was charged with possessing a mobile phone that had been used in the commission of the trafficking offences. She was granted bail.
While she was on bail, she continued to supply illicit drugs for around three weeks until she was apprehended again. On 5 June 2016, the police conducted a search of her car and found:
·     a syringe/plunger containing traces of GBL/GHB/1,4 Butanediol;
·     564 grams of GBL/GHB/1,4 Butanediol;
·     a clip seal bag containing a methylamphetamine residue;
·     a set of electronic scales; and
·     a smart phone that contained numerous text messages, dated after 12 May 2016, relating to the trafficking/supply of dangerous drugs including methamphetamine, cannabis and GBL/GHB/1,4 Butanediol.[40]
[40] Exhibit R2, Respondent’s summonsed material, pages 65 to 70.
When she was ultimately convicted of the trafficking offence, the learned sentencing Judge described her offending as follows:
“Your activities that were detected as a result of a police operation looking at men called Vidler and Smith. It seems that you were buying from Vidler and selling to Smith. The police retrieved 9000-odd of your text messages. You were charged in May 2016 with trafficking and released on bail, but on 5 June 2016, police detained you and found text messages and Facebook conversations on your phone indicating that you had gone right on trafficking while you were on bail for that period.
The allegation as I have said is that you trafficked in methylamphetamine, which seems to have, been the major drug of your dealing, and, to a lesser extent, in cannabis. This was, as I have said in exchanges with your counsel, an active business. You seem to have brought your skills to bear on it and operated it in a serious way, even though it did not to any great extent, it seems, involve wholesaling. It was conducted by you as a genuine business enterprise. This is not the circumstance of some pathetic addict dealing on the streets just to support a habit. It is more than that.
You were selling daily, it appears from your text messages, sometimes with a number of sales a day. You had a network of at least 28 customers which included both recreational drug users and sellers. There is at least one message indicating a customer was selling on to five customers in New South Wales. You were supplying in quantities, the methylamphetamine between points to an ounce and the cannabis, ounces to pounds.
There are many commercial aspects to this. You took property in lieu of payment on occasions. You varied your pricing according to who the customer was and the cost of you obtaining the drug. You were charging between $4400 and $5200 per ounce of methylamphetamine and between $2700 and 3000 (sic) per pound for cannabis, and presumably your prices varied, too, according to the amounts actually being provided in any transaction.
You were obtaining drugs several times a week… You obtained drugs, it seems, on credit from Vidler, but he was not your only supplier. On some occasions you liaised with his supplier and on other occasions when he couldn’t meet your needs, you approached other suppliers.
You spoke in terms of somebody conducting a business. You told Vidler about the demand that you were getting from your customers and the pressure you are under to supply - in a commercial sense, not in any other sense. Sometimes you were not able to supply. You described stock problems. You stockpiled drugs in anticipation of demand. You wanted to make sure you had stock on hand. You expressed concern that delay [in] supply would make your customers go elsewhere and you dealt with your customers as an ordinary retail outlet might, by informing them about problems with supply and telling them that things, for example, such as that a stock issue had been rectified.
You sold on credit and then you followed up your customers to collect proceeds, which you needed to buy your further supplies of drugs, obviously enough. You moved about the Gold Coast conducting transactions in public areas, but you also conducted transactions at apartment hotels. You had others working with you on occasions. You engaged an associate to deliver cash or get drugs and on at least one occasion you got someone to act as security during a transaction. Occasionally you gave Vidler some help. You obtained drugs on his behalf and you liaised with a drug supplier, on one occasion promising to give Vidler a sample so that he could see if it was worth buying.
You were obviously getting a profit from the drugs even though it is accepted you are a user yourself… And you were canny. You used coded references when you were discussing matters by phone. You changed your mobile phone twice. You used the Wickr app and you avoided premises if you thought the police was interested in them.
One of the worst things about this whole affair is your continuation of drug trafficking after your initial arrest.”[41]
[41] Exhibit G1, Section 501 G-documents, G8, pages 37 to 38.
The Applicant told the Tribunal that she did not feel like she was running a well organised drug trafficking business and that she ended up owing a lot of money.[42] She could not explain why it appeared that she varied her pricing for different customers apart from possibly being forgetful about how much she normally charged.[43] I do not find that speculative explanation convincing and I find, in accordance with the learned sentencing Judge’s findings, that the Applicant varied her pricing according to who the customer was and the cost of obtaining the drug. Regardless of whether the Applicant felt she was conducting her trafficking like a business; the evidence indicates that she was. I am satisfied that the Applicant was conducting a business of supplying drugs to members of the community in a systematic and strategic manner for financial gain. I accept that she did it to support her addiction and pay basic living expenses.
[42] Transcript, page 31, lines 17 to 18; page 65, lines 20 to 23.
[43] Transcript, page 31, lines 4 to 8.
The Applicant said that after her arrest for trafficking she stopped supplying drugs because she was afraid of going to prison.[44] When evidence that she had continued to supply drugs her arrest was put to her, she said she thought it was only cannabis before conceding that she kept dealing for “maybe a little while after” and “Yes, if I pled guilty to it, then I’m not disputing it”.[45] She said she took other measures to afford her addiction, including switching from smoking methamphetamine to injecting it. She said this reduced the cost considerably but it was more dangerous (an overdose would have killed her) and injecting it was more harmful to her health.[46] She also committed other crimes to get money, including dealing in stolen goods.[47] There is no evidence that she stole cars but she did use cars she knew were stolen.[48]
[44] Transcript, page 10, line 45 to page 11, line 1.
[45] Transcript, page 32, lines 19 to 39.
[46] Transcript, page 68, lines 37 to 43; page 11, lines 7 to 20.
[47] Transcript, page 11, lines 2 to 20.
[48] Transcript, page 45, lines 24 to 36; page 47, lines 1 to 9.
In August 2017, the Applicant was sentenced to a community service order for unlawful use of a motor vehicle and breaching a bail condition. In a separate sentencing episode, she was sentenced to probation for unlawful use of a motor vehicle, breaching a bail condition and possession of dangerous drugs. In September 2017, she was put on another probation order for stealing, two breaches of bail and a failure to appear.[49]
[49] Exhibit G1, Section 501 G-documents, G6.
Before me is a report from Corrective Services entitled “Director of Public Prosecutions Report PREVIOUS COMMUNITY BASED SUPERVISION” dated 5 December 2017.[50] It reports that the Applicant had attended her induction meeting in August 2017 in a stolen vehicle and failed to report on several occasions during September 2017.
[50] Exhibit R2, Respondent’s summonsed material, pages 282 to 283.
On11 October 2017 , the Applicant was sentenced to a total of two months imprisonment for several breaches of bail, possession of dangerous drugs, forgery and uttering, contravention of direction/requirement, and possession of drug related items. She served six weeks before being released on court ordered parole.[51] In relation to all of the breaches of bail conditions, the Applicant said her drug use made it hard to remember to report for bail and in the end she put an alarm in her phone to remind herself to report.[52]
[51] Exhibit G1, Section 501 G-documents, G6; Exhibit R2, Respondent’s summonsed material, page 374.
[52] Transcript, page 11, line 43 to page 12, line 7.
The Applicant did not use methamphetamine during the six weeks she spent in prison. After she was released her parole conditions required her to live with her parents and she did that.
Before me is another Corrective Services report, dated 18 July 2018.[53] This report concerns the Applicant’s response to parole. It noted that she had been advised to engage in:
“psychological interventions to help cope and to address relationships, social support and mental health holistically, and to be encouraged to complete residential rehabilitation to address her lengthy substance abuse history.”
[53] Exhibit R2, Respondent’s summonsed material, pages 284 and 285.
It further noted that:
“With regards to these, there is no evidence on file she attended any interventions. Ms Arnott has self-reported attending a psychologist, and that she was waitlisted for the Logan House Rehabilitation Centre but these were not confirmed. It appears she has avoided interventions.”
The report went on to say that the Applicant’s compliance with reporting obligations had improved during the Parole Order and she appeared to have stable accommodation, however her compliance appeared to be superficial and she had not taken full advantage of community supervision processes. It recommended that she was not suitable for further community supervision.
When it was put to her that her compliance was described as superficial and she had reportedly not engaged in intervention, she said she had contacted a rehabilitation service, “Transformations” during that time. There is a letter before me from this service addressed to “The Presiding Judge, Brisbane Supreme Court”, dated 1 February 2018, stating that they had accepted her into their program and were holding a bed for her until 6 February 2018.[54] There is no evidence before me to explain why the Applicant did not enter that rehabilitation program. Her evidence about the period after she was released on parole is that she was initially not using drugs, and she was seeing a counsellor and attending parole meetings. However, in early January 2018 her sister was taken into custody and “things started to unravel from there”.[55] She said:
“It was sort of just on my shoulders to try and get all of her stuff out of her rental into storage, and within weeks of that happening I’d started to use again.”[56]
[54] Transcript, page 55, lines 16 to 30; Exhibit G1, Section 501 G-documents, G21.
[55] Transcript, page 69, lines 35 to 37.
[56] Transcript, page 69, lines 35 to 39.
This relapse – in January 2018 – occurred before the date of the letter from Transformations. I find that the Applicant had an opportunity to enter a residential rehabilitation facility in early February 2018, after relapsing, and she did not do it. I accept the evidence in the Corrective Services report dated July 2018 to the effect that the Applicant’s compliance with community supervision had been superficial and she had avoided intervention.
In relation to this period, the Applicant’s father said he was quite happy with the Applicant’s behaviour for the first three or four weeks she was living with him and his wife. However, he and his wife went away on a cruise over Christmas and when they returned, he noticed a difference in her behaviour and demeanour and knew she was back using drugs.[57]
[57] Transcript, page 75, lines 13 to 19.
In early March 2018, the Applicant committed forgery, uttering and receiving tainted property in relation to a stolen script she presented at a pharmacy. She said a friend had asked her to get it filled and she had not initially realised it was forged. It came from a stolen script pad.[58] In mid-March 2018, she was found in possession of drug utensils and she failed to properly dispose of a needle. She was remanded in custody.[59]
[58] Exhibit G1, Section 501 G-documents. G6; Transcript, pages 49 to 50.
[59] Transcript, page 55.
On 25 July 2018, the Applicant was sentenced for trafficking in dangerous drugs (methamphetamine and cannabis) between 24 October 2015 and 6 June 2016, for possession of a mobile phone used in connection with trafficking and possession of 1-4 butanediol which the court accepted was for a commercial purpose[60]. She was sentenced to seven years imprisonment. The sentencing Judge’s remarks included the following:
“You were already on bail when you committed the offences on the indictment and, as I have said, you reoffended on bail having been arrested first. As I have said to your counsel. I do not accept that this is just street-level dealing. It was an active enterprise with many of the attributes of an ordinary small business, really, in the way you dealt with customers and obtain stock and so on.
Your criminal history significantly starts in December 2015 and I accept that that reflects the start of your methylamphetamine addiction, which I am told is connected with a relationship breakup. But it just contains an enormous array of offences of drug possession, unlawful use, stealing, forgery and entering premises, failing to appear, breaches of bail. One of the things that is notable, as I have mentioned, from your Court reports about a probation order you were on for stealing, was that you turned up to your first appointment in a stolen vehicle, and you continue to commit minor offences both on bail and on probation. You did not report on those orders and the view was that you were unsuitable for further orders.
There is nothing about anything you have done since being charged which suggests rehabilitation at all, and I have already said that I consider your psychologist’s report unduly sunny in the notion that all that is really needed is for you to have some psychological treatment and you will break your addiction. The idea that you are drug-free simply because you have been in custody for a while and not in a position to use does not, I think, given enormous comfort. I suppose I could accept that you are a low risk of reoffending, provided you had access to and complied with treatment, but that is the premise that I do not accept.”[61]
[60] Exhibit G1, Section 501 G-documents, G8, pages 37 to 38.
[61] Ibid, page 39.
Whilst serving her sentence, the Applicant was dealt with for breaching the two probation orders and a community services order imposed in 2017. She was resentenced to concurrent terms of imprisonment totalling 13 months, suspended for two years.
The Applicant has a reasonably serious traffic history. In addition to the two drink-driving offences she committed in Sydney, during 2016 and 2017, she drove a car with methamphetamine in her system on three occasions (one of which I have mentioned above), committed several minor speeding offences and drove unlicensed twice. She also drove without due care and attention.[62] In relation to that, she told the Tribunal that she had a dog in the car and when she turned around to calm it, she hit several parked cars. She said she had not slept for days due to her drug use.[63]
[62] Exhibit R2, Respondents summonsed material, pages 291 to 292; Transcript, page 24, lines 20 to 31.
[63] Transcript, page 37, lines 1 to 24.
In 1999 and 2008 when the Applicant re-entered Australia, she signed incoming passenger cards (“IPCs”) in which she had been asked to declare any “criminal convictions”.[64] She had said “no” to that question. In fact, she had been convicted of two criminal offences in 1989, being stealing and being underage on licensed premises. The Applicant said at the time she completed the cards she did not believe she had any recorded criminal convictions because criminal history checks had been done for her employment and nothing had come up.[65] I accept this explanation although the Applicant should have been more careful, given the importance of completing IPCs correctly.
[64] Exhibit G1, Section 501 G-documents, G27.
[65] Transcript, page 63, lines 6 to 14.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant’s most serious offending is the drug trafficking and the multiple instances of driving under the influence of alcohol or drugs. I group the drink-driving and drug-driving offences together because of the Applicant’s evidence that she self-medicated with alcohol and subsequently self-medicated with methamphetamine, effectively replacing alcohol abuse with methamphetamine abuse. I include in this category of offending the instance of driving without due care because the Applicant admitted that when she committed this offence, she had not slept for days due to her drug use. The Applicant circulated dangerous drugs in the community to a relatively large number of customers (28) for nine months and she kept doing it even after she was charged with trafficking. Her drink-driving offences were high range: she knew she was affected by alcohol. She also knew she was affected by methamphetamine when she committed the drug-driving offences as she was using methamphetamine consistently during that period. She drove when she was severely sleep deprived and hit several parked cars.

The Applicant has not committed any violent offences or otherwise engaged in violent conduct. There is no evidence that she has offended against any government representatives. Nor is there evidence that she offended directly against vulnerable members of the community, however the Applicant acknowledged that drug use impacts on the children of drug users when she said:
“I feel sorry for the kids, especially for the families that are hurt by drugs. I’ve watched so many of my friends lose their children, and it’s just so sad, it’s heartbreaking. And it sort of makes me sick a little bit that I was involved in it”.[66]
[66] Transcript, page 16, lines 23 to 26.
It is hard to conceive of a more vulnerable group than infants and children in the care of drug addicted parents. The factors in paragraph 13.1.1(1) of the Direction are not exhaustive and the propensity of a type of offending to cause harm to certain members of the community is relevant to the seriousness of that offending.
In 2018, the Supreme Court sentenced the Applicant to seven years imprisonment for drug trafficking. The head sentence of seven years, and the non-parole period of two years are indicative of very serious offending. Earlier, in late 2017, smaller sentences had been imposed for other offences, including four months imprisonment for enter premises and commit indictable offence and unlawful use of a motor vehicle, one month for several breaches of bail, one month for possessing dangerous drugs, forgery and uttering, and 14 days for possessing drug related items. These sentences are relatively short, however given that a custodial sentence is normally a sentence of last resort in the hierarchy of sentencing options available to a court, the fact that custodial sentences were imposed is significant. It appears that to some extent these custodial sentences reflected a recognition by the courts that previous alternative orders had been ineffective and more condign punishment was warranted.
The Applicant’s offending was certainly frequent: she was found guilty of over 50 offences between late 2015 and early 2018. In addition, the trafficking offence encapsulated many instances of supplying dangerous drugs, each of which was a separate offence. I do not discern any particular trend in increasing seriousness chiefly because the Applicant’s drink/drug driving offending was serious from the outset as was her other drug related offending, namely trafficking. The circumstances of her repeated offending grew increasingly serious by virtue of the fact that she kept offending despite frequent intervention by police and the courts. In fact, when she was using methamphetamine she was a menace to the community, circulating dangerous drugs, stealing, dealing in stolen goods and thereby encouraging property crime, and drug-driving. She consumed a great deal of police and court resources through her criminal activity and her failure to comply with bail conditions, police directions and court orders. She displayed am alarming disregard for the law and for the safety of the community.
The Applicant provided false information on two IPCs, although I am satisfied that she was careless rather than dishonest. It was appropriate for the Respondent to put the evidence about these IPCs before the Tribunal, however the offences concerned were quite trivial and dated, so I do not count these false statements against the Applicant.
I do not consider factors (h) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The nature and seriousness of the Applicant’s offending weighs heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of her offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further trafficking in dangerous drugs, in particular methamphetamine, the nature of harm to the community includes addiction, poor physical and psychological health, crimes of drug-fuelled violence committed against innocent members of the community, and misery caused to the families and loved ones of addicts. Dependence on illicit drugs leads to drug related crime, as the Applicant well knows, as she accepted stolen goods as payment for the drugs she supplied and she stole and dealt in stolen goods to pay for her own addiction. Further, the circulation of illicit drugs in the community puts a significant burden on the health and criminal justice systems.
Driving under the influence of drugs or alcohol puts all road users at an increased risk of injury or death. The two drink driving offences involved high range blood alcohol content. Twice the Applicant hit parked cars while either driving drunk or suffering sleep deprivation from drug use. In relation to the latter incident, she acknowledged that it was fortunate that she did not kill someone.[67]
[67] Transcript, page 37, lines10 to 13.
The Applicant engaged in stealing and she dealt in stolen property. Her actions encouraged the activities of thieves, including break-ins and theft. The harm from such activity includes financial loss, loss of items of sentimental value, and a sense of violation and lack of personal safety felt by victims of break-ins and other types of property offences.
Overall, the harm from further offending includes very serious physical and psychological harm, and financial harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
The Applicant’s offending, excluding the offences in 1989, is entirely related to drug and alcohol abuse.
In her early adulthood she used cocaine for an extended period, and for some 18 years she abused alcohol while maintaining employment and living a relatively crime-free life. She committed the high range drink- drink driving offences in the context of the disintegration of a long-term relationship. Dr Yoxall gave evidence that the type of situation the Applicant was in, suspecting her partner of infidelity while he denied it, can cause a lot of psychological distress and dysfunction, serious decline in mental health, and depression and anxiety disorders among other things.[68]
[68] Transcript, page 94, lines 1 to 10.
The Applicant commenced using methamphetamine on a recreational basis. In her words:
“I had become very friendly with a guy who’d lived in the building next to us. My backyard, or my back balcony jutted onto his entry. So, we would start talking. He was the one who sort of, introduced me to it initially. Him and a couple of his friends used to come around every couple of weeks or so and then I met more and more people through his circle of friends. At that stage, I knew my sister was using it, but I certainly wasn’t using it with her.[69]
[69] Transcript, page 26, lines 1 to 13.
The Applicant’s methamphetamine use escalated into addiction after she lost her job. In relation to that, she said:
“I was on an intensive correction order at the time for the drink driving charge, so the guy who was my - my guy in Corrections, actually came and got me and took me to the doctor, and he prescribed antidepressants, and that helped, but it took a while, but it helped, and I was starting to get better. The mistake I made is when I moved back to Queensland I thought, well, because my life’s good now, and everything’s coming together and it’s all in place and I’m working again, I’m just going to go off these drugs and I’ll be fine, I’ll be able to handle it. And I shouldn’t have done that because the moment I was stressed again or had any of those old sort of things, my go to straightaway was alcohol or - and obviously I was still smoking back then and my new thing was drugs, which was just silly.[70]
[Underlining added]
[70] Transcript, page 13, lines 2 to 14.
The pattern that emerges here is that the Applicant has a long history of using drugs and alcohol while not falling foul of the law, but in the context of difficult life events that exacerbated her anxiety and/or depression, her alcohol use and subsequently her drug use increased to a problematic level whereby she committed offences. Rather than seeking appropriate medication, she self-medicated with drugs or alcohol.
The change that occurred in the Applicant’s behaviour when she was in the grip of a methamphetamine dependence is a stark example of the evils of that drug, and is nothing short of tragic. The Applicant transformed from an honest, responsible, contributing member of the community to a person willing to sell drugs, deal in stolen property, commit dishonesty offences and put road users in danger by driving while affected by drugs. To a large extent she lost her moral compass, her insight into her own behaviour and her self-respect. As the Applicant described it “You could almost say you lose your soul… You stop caring”.[71]
[71] Transcript, page 57, lines 32 to 34.
Following the Applicant’s acknowledgment of the harm that drugs bring to the community and to the children of drug users, I asked her if she had that awareness at the time when she was offending. She said:
“No, definitely not. You don’t - you don’t think about anything other than what’s directly in front of you at the time. I wasn’t thinking about the fact that I was going to go to gaol, I wasn’t thinking about anything. I knew that I was going to go to gaol but if anything it just makes you downward spiral, a lot of it, so it tends to make your drug use worse. You definitely don’t think about - you don’t like to think about the fact that, I’m selling drugs to this person who may not be able to put food on the table for their children at home. You never think like that, and I think it’s more the fact that in your brain you know it but you don’t want to accept it.”[72]
[72] Transcript, page 17, lines 30 to 40.
The Applicant’s sister was also addicted to methamphetamine and was trafficking drugs independently of the Applicant.[73] She was charged with trafficking around six months before the Applicant was charged with trafficking, and the Applicant was aware of that at the time. Accordingly, at the time when her sister was charged, the Applicant was trafficking and continued to do that for around six months. The Applicant said her sister’s arrest did not serve as a deterrent because “for some reason I didn’t consider myself as trafficking drugs. Initially. Towards the end, yes, definitely. But – yes, no, when she was charged it never even occurred to me that I would.”[74]
[73] Transcript, page 48.
[74] Transcript, page 49, lines 1 to 10.
When asked why she chose to deal in drugs rather than seek intervention, the Applicant said it seemed like the easiest option.[75] During her period on parole, she was encouraged to engage with rehabilitative services and she was allocated a place in a residential rehabilitation facility, yet she did not take it.
[75] Transcript, page 64, line 42 to page 65, line 2.
The Applicant has not used illicit drugs since her incarceration in March 2018. For most of that time she was in a highly structured environment. She has been in the wider community in New Zealand since September 2020 which is a relatively short period. She said since returning to New Zealand, she has had a few alcoholic drinks but did not enjoy the experience and she has not smoked. While she was serving her sentence, she was put on anxiety medication that she finds effective. She still gets anxiety but “it’s reasonable anxiety, not crazy anxiety in my head”.[76]
[76] Transcript, page 13, lines 15 to 21.
While in custody, the Applicant engaged in a Low Intensity Substance Intervention course because she wanted to learn how to do a Relapse Prevention Plan and develop an understanding about her “triggers”. She said she knew she would never take up drugs again as she had been abstinent for two and a half years, but she wanted to be able to identify her triggers and work out how to cope with them.[77] The Applicant recalled that the course consisted of two days a week over a fortnight or a three week period. She said she found it helpful in relation to her tobacco addiction; she considers cigarettes are much harder to give up than anything else.[78] The Applicant included her “Relapse Prevention Plan” in her revocation request.[79]
[77] Transcript, page 12, lines 30 to 42.
[78] Transcript, page 58, lines 21 to 33.
[79] Exhibit G1, Section 501 G-documents, G11, pages 71 to 75.
In a letter included in her revocation request, she said that being in custody had given her a long time to reflect on her crimes and the mess she had made of her life when using drugs. She said:
“I know I won’t use drugs again, but I will see a psychiatrist on a regular basis to ensure that I can address the triggers that caused this to happen originally.
Once released on parole I will be staying with my parents and a family friend has offered me a job doing the administration for his company. Because my parole period will be for 4 years 9 months I assume I will be on strict conditions and an ankle bracelet for a while. Once I have proven myself to probation and parole I would like to try to go back to work in the hotel industry…
I know that once released I won’t reoffend, I could never do that to my family again & if I am lucky enough to get my visa back, that alone would help keep me on the right path… If I am given a second chance I know I can become a productive member of society again.[80]
[80] Exhibit G1, Section 501 G-documents, G11, pages 69 to 70.
In the hearing the Applicant said she intends to look for a job and accommodation in Brisbane so that she can go about her day-to-day life without having to worry about running into people who know about her offending while being close enough to her parents to visit them.[81]
[81] Transcript, page 16, lines 35 to 45.
Before me is a report by a Dr Morris, psychologist, dated 15 July 2018. Dr Morris recommended that:
“Although it is good she is now taking antidepressant medication, in my opinion she should also attend a clinical psychologist to engage in schema-focused cognitive behavioural therapy. This will include strategies to strengthen emotional regulation and adaptive coping skills, identify and challenge negative core beliefs, and have her engage in positive goal-setting and problem solving.”[82]
[82] Exhibit G1, Section 501 G-documents, G 20, paragraph 57.
Dr Morris considered the Applicant posed a low risk of reoffending provided she had access to treatment to address her psychological vulnerabilities that resulted in a self-defeating coping.[83]
[83] Exhibit G1, Section 501 G-documents, G20, paragraph 59.
It was Dr Morris’s report that the learned Supreme Court Judge described as “unduly sunny”. I note that Dr Morris did not appear to be aware of the Applicant’s cocaine use in her twenties or the extent of her problem with alcohol. Nor did Dr Yoxall, who provided a report dated 6 November 2020.[84] Dr Yoxall gave evidence in the hearing. She said she was unaware of the Applicant’s past cocaine use, and that she had understood that the Applicant had abused alcohol in her teens or early twenties and again in the context of the breakdown of her relationship. She was unaware that the alcohol abuse had continued in the interim period. Dr Yoxall said the past cocaine use and the longer history of alcohol abuse indicated a “more substantial pattern of substance misuse and polysubstance misuse” and a “longer and more substantial difficulty in misusing substances and management and remission of those substances”.[85] She said it indicates a “greater difficulty in sustaining remission from all substances”.[86] Taking that into account she said that the risk of re-offending moved away from very low and closer to moderate.[87]
[84] Exhibit A2, Applicant’s bundle of documents, A1, pages 2 to 43.
[85] Transcript, page 90, lines 8 to 15.
[86] Transcript, page 90, lines 8 to 23.
[87] Transcript, page 91, lines 1 to 10.
Dr Yoxall added:
“We’re moving away from the low once we’ve got a longer pattern. That balanced against the period of time - that balanced against a period of time in a controlled environment, because the difficulty for Ms Arnott is that she has been in a controlled environment, and that’s the majority of the time that she’s been able to abstain is in a controlled environment. She’s only been out of a controlled environment for a very brief period of time, so that’s a difficulty already. If there's then a, and there has been a limited amount of rehabilitation, there's a greater level of insight, et cetera, et cetera, but if there is a greater history behind her of this type of embedded pattern of substance dependence and cycling through to (inaudible) dependence, then I would say that the risk of relapse is essentially - is higher than - than a low, or very low as quoted to a moderate.”[88]
[88] Transcript, page 91, lines 9 to 21
Dr Yoxall was then asked:
“And I think…you made the point in your report… that the actual time in the community at the time of your report was very, very short at that stage and I think the way that you put it is, it remains to be seen if she can maintain her gains in abstaining from drug use in the community, either in Australia or New Zealand. So I mean, that, I suppose, goes without saying, doesn't it, that - that it’s still a pretty short period outside of a controlled environment at this point?
to which she said: “That's correct, yes”.[89]
[89] Transcript, page 91, lines 22 to 30.
I note, in relation to Dr Yoxall’s risk assessment, that she interviewed the Applicant and administered psychometric risk assessment tools. In the Level of Service Inventory - Revised (“LSI-R”), the Applicant scored in the 67.2^nd percentile, meaning the Applicant’s risk factors are higher than most of the normative sample, being a population of female offenders. Dr Yoxall cautioned against relying on this score because the sample groups were relatively small and the clinical validity of the LSI-R as applied to female offenders has been called into question.[90] She said this measure must be balanced against other sources of information. It is apparent from Dr Yoxall’s report that she did so in reaching her conclusions.
[90] Transcript, page 92, lines 20 to 45; Exhibit A2, Applicants bundle of documents, page 29.
Dr Yoxall opined that a key risk factor to the Applicant engaging in further offending was relapse into drug use and that her risks relating to that were negative peers, strong emotions that she cannot manage and an exacerbation of depression and anxiety.[91] Dr Yoxall assessed her risk of relapse and re-offending as very low. As stated above, in the haring, she revised this risk towards a moderate risk after receiving more complete information about the Applicant’s history of substance abuse.
[91] Exhibit A2, Applicants bundle of documents, page 31.

The Applicant has not yet engaged in psychological therapy. When asked:
“…have you managed to get any kind of help in relation - apart from the medication you’re on, help in relation to dealing with traumatic events, emotional distress, adversity, [all] the things you’ve identified as triggers for taking drugs and for drinking a lot of alcohol?”
she said:
“At this stage no I haven’t. I’m sort of relying at this point until I can see a counsellor on the medication that I take and definitely exercise helps. I find that if I do that I managed to offload a lot of the anxiety that I get. I think it’s going to be early January before they can do the assessment on me and then I’m guessing that I will be - I would imagine that they recommend that I see a counsellor regularly to go through that sort of stuff. If not, if I’m back in Australia by then I have a counsellor already that I can use there.”[92]
[92] Transcript, page 65, lines 34 to 45.
The Applicant had earlier given evidence that she intends to have an assessment done early next year by a drug and alcohol dependency organisation who will make recommendations to her probation officer about whether she needs to see a therapist and what sort of course could help her. She said the only reason she has not already done that is because there is a backlog due to the pandemic.[93] I am prepared to accept that the delay in seeking intervention through the parole service is beyond her control. However, it concerns me that despite Dr Morris recommending a specific type of psychological therapy and Dr Yoxall identifying the Applicant’s inability to manage strong emotions as a risk factor, the Applicant seems to think there is a question about whether she needs to see a therapist and what sort of treatment that would help her. Further, she has not sought the recommended intervention privately, outside of the parole service, preferring to rely on medication and exercise. Her wavering between an apparent intention to do counselling and questioning if it is necessary, coupled with her lack of initiative in obtaining counselling, give me cause to question her commitment to addressing the underlying emotional and psychological vulnerabilities that have, in the past, led to substance abuse.
[93] Transcript, page 57, line 37 to page 58, line 2.
The Applicant’s parents have provided letters of support. They appear to be law abiding members of the community who are saddened by her drug addiction and horrified by her offending. The Applicant’s father gave evidence in the hearing. He said that when the Applicant and her sister were addicted to drugs, he and his wife helped them financially for example by paying rent for them so they would have a roof over their heads.[94] He has looked into how he and his wife can help the Applicant with her rehabilitation. He is prepared to pay for residential rehabilitation however he noted that she would not be legally bound to stay at such a facility, which he found most unsatisfactory.[95] He said he thought the Applicant would abstain from drugs of her own volition because she has now had a period of abstinence and feels ashamed of the period when she was using drugs. He said if the Applicant did resume using drugs he would help her go straight into a residential rehabilitation facility, but he did not think she would resume drug use.[96]
[94] Transcript, page 74, lines 22 to 25.
[95] Transcript, page 76, lines 13 to 23
[96] Transcript, page 76, lines 33 to 48.
He further said:
“and I think she just knows the errors of her ways, it was just a matter of people [the Applicant and her sister] mixed with there. And fortunately they’re all out of their lives, so that’s the main thing. And, no, I’ve got no doubt that she can stay clean and away from drugs.”[97]
[97] Transcript, page 77, lines 5 to 9.
The Applicant’s father was asked if he was aware of the Applicant ever having other difficulties with substance abuse, apart from methamphetamine. He said he was not.[98]
[98] Transcript, page 77, lines 14 to 17.
While I found the Applicant’s father to be honest in his evidence, his confidence in the Applicant’s ability to abstain from further drug use is undermined by his ignorance of her prior history of drug and alcohol abuse. I am satisfied if the Applicant were to relapse, her parents would encourage her to enter a residential rehabilitation facility and they would pay for that service. However, she would have to want to do it and commit to seeing it through. The Applicant’s past behaviour shows that when she is in the grip of a drug addiction, she does not seek intervention and she is incapable of maintaining gainful employment. Rather, she chooses to commit crime to fund her drug-use.
The Applicant will be on parole until 2025 and she will presumably be subject to supervision by corrective services until this time. However, being on parole previously did not stop her from relapsing and reoffending, and it did not result in her seeking the intervention she needed.
I accept that the Applicant intends to continue to abstain from illicit drugs, that she is on medication and she has a relapse prevention plan. Her level of insight into the impact of methamphetamine on her and her offending is impressive. However, she has not addressed a key factor that predisposes her to abuse substances, being her inability to appropriately manage strong emotions and increases in her depression/anxiety conditions due to traumatic events in her life. When she previously abused drugs she eschewed treatment and was impervious to intervention from the authorities. She had a short period of abstinence while in custody and relapsed afterwards. She has now had a much longer period of abstinence but it was in the structured environment of prison and she has not been in the wider community for very long. There was an extended period after the Applicant moved from Sydney to the Gold Coast when she did not abuse drugs or alcohol yet she ended up with a methamphetamine addiction.
Dr Yoxall, being appraised of the Applicant’s history of substance abuse, assessed that she has a risk of re-offending towards moderate. I take this to mean somewhere from low to moderate. Taking all of the evidence into account, I accept Dr Yoxall’s assessment. I find that there is a low to moderate risk that the Applicant will re-offend.
It was contended on behalf of the Applicant that even if she were to relapse and turn to crime, she would not necessarily engage in drug trafficking. I accept that if the Applicant relapsed she would initially try to find alternative ways to fund her drug use as she did after June 2016. It does not necessarily follow that she would be successful in that endeavour. Further, the Applicant has experience in drug trafficking on a reasonably large scale – it is something she knows how to do. I am not satisfied that the risk of the Applicant engaging in the supply drug in the future is nil or insignificant. Given the harm to the community of such activity, even a low risk is unacceptable.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Applicant does not make any claims relevant to this Primary Consideration and none arise on the evidence.
Conclusion: Primary Consideration B
This Primary Consideration is not relevant to the determination of this application.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[99]
[99] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when she was 15 years old. She is now 48 years old;
·the Applicant committed a very minor offence only one year after moving to Australia. She had been living here for nearly twenty years before she committed an offence of real significance, being drink-driving;
·the Applicant has committed drug and alcohol-related offences, the most serious being driving under the influence (of drugs and alcohol) and trafficking;
·some of the Applicant’s offences are very serious and carry the potential for serious harm to members of the Australian community;
·there is a low to moderate risk that she will re-offend;
·when she is dependent on drugs or alcohol she acts in disregard of the laws regulating the community that she seeks to re-enter;
·she has a long history of gainful employment and she has done significant voluntary work in the community; and
·if she is not permitted to return to Australia, it will adversely affect her parents (addressed below under Other Considerations).
Conclusion: Primary Consideration C
The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that she should not hold a visa. Balanced against that, there are some matters in the Applicant’s favour. Considering all relevant factors, Primary Consideration C weighs moderately in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia in 1988 at the age of 15 and she lived in Australia for 32 years. She did not commit any offences of real significance until she had been living here for twenty years. In accordance with paragraph 14.2(1)(a) of the Direction, she is entitled to a much greater level of tolerance than a person who has lived in Australia for only a short time or commenced offending only a short time after relocating to Australia. The Applicant has a long history of gainful employment and for many years she did voluntary work for a hockey club that her partner at the time, Mr S, was involved in. Her employment and voluntary work afford her significant weight under paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant’s parents live on the Gold Coast. Her only sibling, her sister, lives with her in New Zealand. Her sister is in the same predicament as her, having had her visa cancelled on character grounds due to criminal offending. The Applicant’s sister is awaiting the outcome of her application to this Tribunal for revocation of the cancellation of her visa.
The Applicant said her sister married into a large Italian family consisting of 27 nieces and nephews and she considers them to be her family.[100] There is no further information before me about these in-laws, however I accept that the Applicant has some familial ties to this extended family. As the Applicant lived in Australia for over 30 years, I am satisfied that she has some social ties in the form of people who knew her through employment or other activities before she became involved with methamphetamine.
[100] Exhibit G1, Section 501-G-documents, G11, page 70.
If the Applicant is not permitted to return to Australia it will adversely impact her parents. Having built a life here, and having a social circle and some financial interests in Australia, they do not wish to move back to New Zealand. They are in their mid-seventies. The Applicant’s father is “pretty well” apart from high blood pressure. Her mother has some damage to her heart muscles and has constant angina attacks.[101] If the Applicant is not allowed to return to Australia it will cause her parents emotional hardship and she will not be able to look after them as they get older, and. The Applicant’s parents go to New Zealand every year for a fishing holiday with friends.[102] International travel restrictions allowing, I am satisfied that they would continue to visit New Zealand on a regular basis. They are also able to maintain contact with the Applicant via telephone or electronic means.
[101] Transcript, page 73, line 45 to page 74, line 10.
[102] Transcript, page 73, lines 20 to 26.
The Applicant’s sister is not currently a person who has the right to reside permanently in Australia. It is not known whether her visa will be returned to her, however the status quo is that her visa is cancelled, and she cannot return to Australia. The Direction does not require me to consider the impact of non-revocation on her and I have no information before me about that in any event.
The Applicant does not claim that non-revocation would adversely impact any other relatives in Australia.
The Applicant’s social and familial ties, and the impact on her parents of her removal from Australia, weigh to a moderate extent in her favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants significant weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that her removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get her visa restored to her) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·the non-citizen’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to that non-citizen in that country.
This Other Consideration directs me to take into account the extent of impediments the Applicant “may face if removed from Australia to [her] home country” [underlining added]. Where the Applicant has already been returned to her home country, I consider it my task to take into account the extent of impediments that she may face, or is already is facing, in establishing herself in New Zealand.

The Applicant is a 48-year-old year old woman who is able bodied and in generally good health. She does not smoke and she exercises regularly. She is prone to bronchitis which is worse in New Zealand’s colder climate,[103] and she requires medication for anxiety.[104] She obtains subsidised medication through the New Zealand social security system, as she explained in relation to her anxiety medication, “they only want to see me once every three months and they just give me medication to last the three months”.[105]
[103] Transcript, page 17, lines 6 to 10.
[104] Transcript, page 62, lines 10 to 11.
[105] Transcript, page 62, lines 15 to 26.
The Applicant lived in New Zealand until the age of 15, New Zealand is culturally and linguistically similar to Australia, and the Applicant did not claim to have experienced any language or cultural barriers since returning to New Zealand. I am satisfied that there are no language of cultural barriers to the Applicant’s successful re-settlement in New Zealand.
The Applicant is receiving income support from the New Zealand government,[106] and at the time of the hearing she has secured permanent employment as a cleaner.[107] She lives with her sister who is also employed. Their parents help to pay their rent with a view to reducing that assistance incrementally as the Applicant and her sister become more able to support themselves.[108] The Applicant has an uncle and an aunt in New Zealand who live in Auckland which is around three hours away from where she lives. She does not know either very well and her aunt travels for half of the year with her work. She stayed with her uncle for one night when she first arrived.[109] I accept that the Applicant does not know these relatives well and could not expect much in the way of support from them.
[106] Transcript, page 61, lines 1 to 5.
[107] Transcript, page 3, lines 38 to 39.
[108] Transcript, page 74, lines 39 to 44.
[109] Transcript, page 62, line 39 to page 63, line 4.
The Applicant is aware that if she is not permitted to return to Australia, she will not be able to assist her parents in their old age or attend their funerals when they pass away. It was submitted that this knowledge causes her some current anxiety and distress. I accept this. I further accept that it is likely to cause some emotional hardship should those things come to pass. However, the Applicant is not without emotional support. She has her sister with her now, and it is reasonable to infer that the medical and counselling services available in New Zealand are to a similar standard as in Australia. As stated above, she has medication to manage her anxiety/depression.
The Applicant has accommodation, employment and income support. She has re-established herself, and is maintaining basic living standards, in New Zealand.
This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
a)international non-refoulement obligations: not relevant;
b)strength nature and duration of ties: weighs heavily in favour of revocation;
c)impact on Australian business interests: not relevant;
d)impact on victims: neutral; and
e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B is not relevant; and
·Primary Consideration C weighs moderately in favour of non-revocation.
To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C. In particular, given the nature of harm from re-offending, the risk of re-offending is an unacceptable one.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed

I certify that the preceding 138 (one hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.........................[SGD]...............................................
Associate
Dated: 27 November 2020

Date of hearing: 12 and 18 November 2020

Solicitor for the Applicant:

Mr Joel McComber

Sentry Law

Solicitor for the Respondent
Mr David McLaren

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT No

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G31 pages 1 to 189)

R

-

22 SEP 2020

A1

Applicant’s Statement of Facts, Issues and Contentions

A

16 OCT 2020

16 OCT 2020

A2

Applicant’s Bundle of Documents

A

-

9 NOV 2020

R1

Respondent’s Statement of Facts, Issues and Contentions

R

30 OCT 2020

30 OCT 2020

R2

Respondent’s Summonsed Material (documents 1 to 38 pages 1 to 475)

R

-

30 OCT 2020

[2020] AATA 4803

27 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

EXHIBIT No	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G31 pages 1 to 189)	R	-	22 SEP 2020
A1	Applicant’s Statement of Facts, Issues and Contentions	A	16 OCT 2020	16 OCT 2020
A2	Applicant’s Bundle of Documents	A	-	9 NOV 2020
R1	Respondent’s Statement of Facts, Issues and Contentions	R	30 OCT 2020	30 OCT 2020
R2	Respondent’s Summonsed Material (documents 1 to 38 pages 1 to 475)	R	-	30 OCT 2020