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

[2023] AATA 2651

Barber and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2651 (22 August 2023)

Division:                  GENERAL DIVISION

File Number(s):      2023/3970

Re:Christine Rewa Barber

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Antoinette Younes

Date:  22 August 2023

Place:Sydney

The Tribunal affirms the decision under review.

..................................[SGD]......................................

Deputy President Antoinette Younes

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – impediments to removal – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA

Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

Returning Offenders (Management and Information) Act 2015 (NZ)

CASES

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461

Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Nepata v Minister for Home Affairs [2019] FCA 1197

Pearson v Minister for Home Affairs [2022] FCAFC 203

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Webb v Minister for Home Affairs [2020] FCA 831

SECONDARY MATERIALS

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Deputy President Antoinette Younes

22 August 2023

BACKGROUND

1. The Applicant is a national of New Zealand who was born in February 1987. She first arrived in Australia in August 2012 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (Subclass 444 visa). Since her arrival, she has departed Australia for brief periods to New Zealand (approximately two weeks), Taipei (a week), Dubai (a week) and Chile (a week), and most recently returned to Australia in June 2016.[1]

   [1] G2, 190-191, Ex 3.

2. The Applicant has extensive criminal history in both New Zealand and Australia. In New Zealand, the Applicant has been convicted of shoplifting in 2010, 2011 and 2012 (x7), common assault (family violence) in 2010, unlawful interference with motor vehicle in 2012, failure to answer District Court bail in 2010, driving at a dangerous speed in 2012, giving false details as to driver identity in 2012, and driving whilst disqualified in 2011 and 2012.[2]

   [2] G2, 37-38, Ex 3.

3. The Applicant has the following criminal history in Australia:[3]

   [3] G2, 29-36, Ex 3.

   ·On 2 April 2015, the Applicant was convicted of Larceny – T2 at Blacktown Local Court. The Applicant was sentenced to a 12-month good behaviour bond commencing on 2 April 2015.

   ·On 5 October 2016, the Applicant was found guilty of Never licenced person drive vehicle on road – first offence.[4] The matter was discharged without conviction.

   [4] G2, 36, Ex 3.

   ·On 13 December 2016, the Applicant was convicted of two counts of Never licensed person drive vehicle on road – first offence and Resident 3 months not obtain NSW licence – prior offence.

   ·On 14 December 2016, the Applicant was convicted of four counts of Shoplifting – T2.

   ·On 9 May 2017, the Applicant was convicted of Never licensed person drive vehicle on road – prior offence.

   ·In contravention of the good behaviour bond, from May to August 2017, the Applicant was the subject of provisional, interim and final apprehended domestic violence orders (ADVOs) issued for 12 months by the police for the protection of the Applicant’s former partner, Mr P.[5]

   ·On 13 February 2018, and in contravention of the 2-year good behaviour bond, the Applicant was convicted of Possess prohibited drug, resist or hinder police officer in the execution of duty, Class A m/v exceed speed > 10 km/h – Estimated, two counts of Drive motor vehicle during disqualification period – 2nd+off, and Drive motor vehicle during disqualification period – 1^st off.

   ·On 5 February 2019, the Applicant was convicted of Assault occasioning actual bodily harm (DV)-T2, Contravene prohibition/restriction in AVO (Domestic) and Fail to appear in accordance with bail acknowledgment. The Applicant’s prior convictions of two counts of Drive motor vehicle during disqualification period – 2nd+off and Drive motor vehicle during disqualification period – 1st off were called up.

   ·On 13 September 2019, the Applicant was convicted of Drive motor vehicle during disqualification period – 2nd +off, Police pursuit – not stop – drive recklessly – 1st off-T2 and Use unregistered registrable Class A motor vehicle on road.

   ·On 7 May 2020, the Applicant was convicted of Common assault – T2.

   ·On 17 February 2021, the Applicant was convicted of Common assault (DV) – T2 and Common assault – T2.

   ·On 21 April 2021, the Applicant was convicted of breaching the community corrections order as a result of the incident of 11 December 2019.[6]

   ·On 24 March 2022, the Applicant was convicted of five counts of Drive motor vehicle during disqualification period – 2nd+off, Use unregistered registrable Class A motor vehicle on road, Use registrable vehicle not display authorised number-plates, and Common assault – T2 (on call-up) and for breaching the community corrections order in respect of the assault against an inmate at the Silverwater Correctional Centre. The Drive motor vehicle during disqualification period – 2nd+off convictions arose from incidents on 3 May 2021, 4 May 2021, 6 May 2021, 11 August 2021, and 12 September 2021. On appeal, on 2 May 2022, the District Court of NSW at Paramatta reduced the non-parole period to six months.

   [5] R13, 58-60; R18, 70-72, Ex 2.

   [6] R13, 348-350, Ex 2.

4. On 30 June 2022, the Applicant's Subclass 444 visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate determined that the Applicant did not meet the character test under s 501(6)(a) because she has a 'substantial criminal record' on the basis of having been sentenced, to a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment on a full-time basis in a custodial institution.[7]

   [7] G2, 79-83, Ex 3.

5. The Applicant made representations on 14 July 2022.[8] On 17 February 2023, the Department of Home Affairs (the Department) wrote to the Applicant notifying her that the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Aggregate Sentences Act) had come into effect, and that it confirms the validity of past cancellation decisions which were impacted by the judgment of Pearson v Minister for Home Affairs [2022] FCAFC 203.[9] 

   [8] G2, 91-95, Ex 3.

   [9] G2, 116-118, Ex 3.

6. On the evidence, the Tribunal is satisfied that the cancellation decision of 30 June 2022 is a valid decision and that the Aggregate Sentences Act makes it clear that an aggregate sentence, imposed for multiple offences, can be relied upon in the assessment as to whether a person has substantial criminal record for the purpose of s 501(7)(c).

7. On 29 May 2023, the delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under s 501(3A) of the Act was not enlivened.[10]

   [10] G5, 12-33, Ex 3.

8. On 7 June 2023, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal). 

   LEGISLATION

9. Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:

   (3A)The Minister must cancel a visa that has been granted to a person if:

   (a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)…; and

   (b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10. Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’

11. Section 501(7) of the Act provides:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    (e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

    (f)the person has:

    (i)been found by a court to not be fit to plead, in relation to an offence; and

    (ii)the court has nonetheless found that on the evidence available the person committed the offence; and

    (iii)as a result, the person has been detained in a facility or institution.

12. Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.

13. Section 501CA(4) of the Act confers on the Respondent the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A).

14. Section 501CA(4) provides:

    (4)The 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.

    MINISTERIAL DIRECTION NO. 99

15. The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[11]

    [11] s 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].

16. On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90. 

17. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

    (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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

18. A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision. 

19. Paragraph 8 of the Direction identifies the following as primary considerations:

    (1)Protection of the Australian community from criminal or other serious conduct;

    (2)Whether the conduct engaged in constituted family violence;

    (3)The strength, nature and duration of ties to Australia;

    (4)The best interests of minor children in Australia; and

    (5)Expectations of the Australian community.

20. Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:

    a)Legal consequences of the decision;

    b)Extent of impediments if removed;

    c)Impact on victims; and

    d)Impact on Australian business interests.

21. Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”

    MATERIAL BEFORE THE TRIBUNAL

22. The Tribunal has the following material before it:

    ·The Respondent’s Statements of Facts, Issues and Contentions (SOFIC), dated 24 July 2023; and

    ·Respondent’s G-Documents and Tender Bundle.

23. All of these documents formed Exhibits 1-3.

    FINDINGS AND REASONS

24. The character test is defined in s 501(6) of the Act. It is fair to say that the character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.

25. A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because she has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

26. It is not in dispute that the Applicant does not meet the character test; the Applicant was sentenced on 24 March 2022 to an aggregate term of 12 months’ imprisonment for several offences. As an aggregate sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and does not pass the character test.

27. The issue before the Tribunal is whether the cancellation of the visa should be revoked.

28. The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[12] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[13]

    [12] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.

    [13] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].

29. The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[14]

    [14] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].

30. While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[15] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[16] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[17] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[18] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather it is the application by a decision-maker to the evidence and material in an individual case.[19]

    THE PRIMARY CONSIDERATIONS

    [15] GBV18 v Minister for Home Affairs [2020] FCAFC 17.

    [16] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].

    [17] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].

    [18] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].

    [19] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].

    Protection of the Australian community from criminal or other serious conduct.

1. The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[20] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[21] Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[22]

   [20] Direction 99 [8.1(1)].

   [21] Direction 99 [8.1(2)].

   [22] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).

   The seriousness of the Applicant’s conduct

2. As mentioned earlier, the Applicant has been convicted of multiple offences in both New Zealand and in Australia. In relation to the shoplifting offences in New Zealand, the Applicant gave evidence that this occurred as a result of the controlling relationship she had with a former partner, Mr M. The Applicant stated that “…he controlled [her] money, [her] spending, [her] everything.  It all went on his alcohol…[she] had a kid to feed… At the time that's what [she] felt [she] had to do...”[23]

   [23] Transcript Day 1, 7, [20]-[35].

3. In Australia, she has the following criminal history:

   ·On 2 April 2015, the Applicant was convicted of Larceny – T2 at Blacktown Local Court. This conviction arose from an incident on 10 February 2015, where the Applicant was at a Woolworths in Schofields. She was observed by a staff member scanning some items, but not others, at the self-service counter. When approached by a service supervisor, the Applicant shoved the service supervisor and stated: “I’m going to knock you out if you don’t move out of my way.”[24] The Applicant was sentenced to a twelve-month good behaviour bond commencing on 2 April 2015.

   [24] R6, 19-20, Ex 2.

   ·On 5 October 2016, the Applicant was found guilty of Never licenced person drive vehicle on road – first offence.[25] The matter was discharged without conviction.

   [25] G2, 36, Ex 3.

   ·On 13 December 2016, the Applicant was convicted of two counts of Never licensed person drive vehicle on road – first offence and Resident 3 months not obtain NSW licence – prior offence. These convictions arose from incidents on 27 October 2016, 4 November 2016, and 20 November 2016 for which the Applicant received a total of $1,700 in fines.

   ·On 14 December 2016, the Applicant was convicted of four counts of Shoplifting – T2. The Applicant was ordered to pay $600 in fines.

   ·On 9 May 2017, the Applicant was convicted of Never licensed person drive vehicle on road – prior offence. This conviction related to an incident on 16 February 2017 and the Applicant was sentenced to a good behaviour bond of two years and was disqualified from driving for three years.[26]

   [26] R15, 64-65, Ex 2.

   ·In contravention of the good behaviour bond, from May to August 2017, the Applicant was the subject of provisional, interim and final ADVOs issued for 12 months by the police for the protection of the Applicant’s former partner, Mr P.[27] The ADVOs were made following an incident on 15 April 2017, where the Applicant stabbed Mr P in the arm, causing a “small but deep wound to his forearm.”[28]

   [27] R13, 58-60; R18, 70-72, Ex 2.

   [28] R9, 34-35, Ex 2.

   ·On 13 February 2018, and in contravention of the two-year good behaviour bond, the Applicant was convicted of Possess prohibited drug, resist or hinder police officer in the execution of duty, Class A m/v exceed speed > 10 km/h – Estimated, two counts of Drive motor vehicle during disqualification period – 2nd+off, and Drive motor vehicle during disqualification period – 1^st off. The Applicant received $950 in fines and was sentenced to 14 months’ imprisonment (suspended sentence). These convictions arose from the following incidents:

   A.On 16 February 2017 and 9 April 2017, the Applicant was stopped by police for driving whilst disqualified.[29]

   [29] R7, 23-24; R8, 27-29, Ex 2.

   B.On 3 February 2018, the Applicant was stopped by police for driving while disqualified and in excess of the speed limit (84km/hour in an 60km/hour zone) at Asquith.[30] It was recorded by police that the Applicant’s son (aged 10) was seated in the front passenger seat.[31]

   [30] R19, 74-77, Ex 2.

   [31] R19, 77, Ex 2.

   ·In relation to the above offences, Magistrate Reiss made the following comments to the Applicant:

   “So a pattern of regular driving notwithstanding being charged by the police repeatedly, being before the Court on occasions and being the subject of a good behaviour bond that was granted for you.

   So total disregard... So it appears that you drive all the time, total disregard to the Court and court outcomes. On this occasion you were pulled over because you were speeding, 84 in a 60 zone, and you had your child in the car. So total disregard, continuing offending behaviour. I know what you submit in relation to your circumstances in New Zealand, it may well be the case. Nothing to the contrary before the Court but certainly total disregard here.”[32]

   [32] G2, 55, Ex 3.

   ·   On 22 November 2018, the Applicant was found in possession of 0.5 grams of methamphetamine in a plastic clip seal bag. The Applicant gave the police a fake name, ‘Khrystal Lesa’, and “continued to insist her name was Khrystal for 30 minutes.”[33]

   [33] R29, 109-111, Ex 2.

   ·On 5 February 2019, the Applicant was convicted of Assault occasioning actual bodily harm (DV)-T2, Contravene prohibition/restriction in AVO (Domestic) and Fail to appear in accordance with bail acknowledgment. The Applicant’s prior convictions of two counts of Drive motor vehicle during disqualification period – 2nd+off and Drive motor vehicle during disqualification period – 1st off were called up. These convictions arose from the following incidents:

   A.The conviction for assault arose from an incident on 13 April 2018 where the Applicant and her then partner, Mr P, were arguing in their granny flat where “slaps and punches [were] thrown by both [Mr P] and [the Applicant].” Mr P left the flat and the Applicant ran after him with a ‘metal vacuum tube’ and began to hit him with the tube. Mr P sustained a laceration to his right hand while trying to grab hold of the tube.

   B.The Applicant was charged and granted bail but failed to appear at Blacktown Local Court on 19 June 2018.[34]

   C.In relation to the above conviction of Assault occasioning actual bodily harm (DV) – T2 and Contravene prohibition/restriction in AVO (Domestic), at the Hornsby Local Court, Magistrate Williams found that the Applicant hit the victim, Mr P, with an ‘implement.’ This action injured the victim and caused a blood trail to the place to which the victim ran, where he then called the police. Magistrate Williams also found that the Applicant committed the offence in direct breach of an AVO and that there were no special circumstances to allow a conclusion that the Applicant should not be imprisoned.

   D.Magistrate Williams noted the Applicant’s offending was serious:

   “It is an assault of some degree, taking an implement to somebody; hitting them several times with an implement; causing injuries to the person; the person was bleeding; a blood trail leading to where the person ran to and called the police.  It is made worse by virtue of the fact that it was in breach of an AVO…”[35]

   ·On 13 September 2019, the Applicant was convicted of Drive motor vehicle during disqualification period – 2nd +off, Police pursuit – not stop – drive recklessly – 1st off-T2 and Use unregistered registrable Class A motor vehicle on road. These convictions arose from an incident on 3 July 2019, where the Applicant was stopped by the police while at a service station at Doonside. Police conducted checks on the vehicle which revealed it was unregistered and “activated warning lights and sirens with the intention of stopping the [Applicant’s] vehicle.” The police pursued the Applicant, but the Applicant did not slow her vehicle for speed bumps or a roundabout, before colliding into a gutter, causing both passenger wheels to deflate almost immediately. The Applicant continued in her attempt to get away from the police but, due to two deflated tyres, she had difficulty controlling her vehicle. The Applicant was refused bail because there was an “unacceptable risk [the Applicant], if released from custody will… fail to appear at any proceedings for the offence, commit a serious offence [and] endanger the victim, individual or the community.” The Applicant was sentenced to 9 months and 11 months imprisonment respectively, for the offences to be served concurrently.[36] 

   ·On 7 May 2020, the Applicant was convicted of Common assault – T2. The conviction arose from an incident on 11 December 2019 at Silverwater Women’s Correctional Centre. The Applicant punched an inmate with a closed fist. The victim returned to her cell as her nose was bleeding. A short time later, two inmates visited the victim’s cell and asked if she was going to tell the corrective officers about the assault. The inmates assaulted the victim from behind by hitting her in the head and punching her on the arm.[37] The Applicant was sentenced to a 12 month community corrections order.[38]

   ·On 17 February 2021, the Applicant was convicted of Common assault (DV) – T2 and Common assault – T2. These convictions arose from an incident on 24 November 2020, where the Applicant was engaged in a verbal and physical altercation at Quakers Court shopping centre with Ms W, the Applicant’s former partner. The Applicant struck Ms W in the head with her fist three or four times before chasing the victim. She also struck Ms W in the face another three times before another female arrived at the location in a red sedan.[39] A provisional AVO was issued against the Applicant for the protection of Ms W. A final AVO was issued on 17 February 2021.[40]

   ·On 21 April 2021, the Applicant was convicted of breaching the community corrections order as a result of the incident on 11 December 2019.[41]

   ·On 24 March 2022, the Applicant was convicted of five counts of Drive motor vehicle during disqualification period – 2nd+off, Use unregistered registrable Class A motor vehicle on road, Use registrable vehicle not display authorised number-plates, and Common assault – T2 (on call-up) and for breaching the community corrections order in respect of the assault against an inmate at the Silverwater Correctional Centre. The Drive motor vehicle during disqualification period – 2nd+off convictions arose from incidents on 3 May 2021, 4 May 2021, 6 May 2021, 11 August 2021, and 12 September 2021. The Applicant was sentenced to an aggregate term of 12 months’ imprisonment, with a non-parole period of eight months.[42] 

   [34] R24, 85-91, Ex 2.

   [35] G2, 48, Ex 2.

   [36] R59, 193-196; R75, 230-231, Ex 2.

   [37] R90, 272-275, Ex 2.

   [38] R101, 298-301, Ex 2.

   [39] R104, 314-316, Ex 2.

   [40] R10, 338-340, Ex 2.

   [41] R13, 348-350, Ex 2.

   [42] R124, 382-384; R125, 385-387, Ex 2.

4. On five separate occasions between May and September 2021, namely, 3 May 2021, 4 May 2021, 6 May 2021, 11 August 2021, and 12 September 2021, the Applicant was convicted of Driving a motor vehicle during a disqualification. The Applicant was described by Judge Herbert (the sentencing Judge) as a person with a “criminal history that disentitles her to leniency.” Judge Herbert found the Applicant was on a bond at the time she committed three of the Drive while disqualified offences and was on an intensive corrections order when she committed four of the Drive while disqualified offences.  Judge Herbert also referred to the fact that the Applicant had:

   “…breached various conditions re liberty in relation to Community Corrections, Community Service work, she was not doing the work when she was required to…

   …

   The common assault was an offence that occurred whilst she was in custody. Since that time, she has committed another offence of common assault. She was extended considerable leniency for a person who commits an offence of violence whilst in custody, but she did not take advantage of that.”[43]

   [43] G2, 41, Ex 3.

5. In relation to the shoplifting offences in Australia, at hearing, the Applicant gave the following evidence:

   “APPLICANT: To be honest, there is no - there was no reason, it was just straight stupidity, to be honest. Yes, I was in another relationship then and, yes, he was younger, my baby's father, he was younger than me and, yes, I boil it down to just stupidity.  Okay. 

   MS WONG: So it wasn't like you were in a controlling relationship?  

   APPLICANT: No. No, it was just stupid.”

6. In relation to the driving offences, at hearing, the following exchange occurred between the Respondent’s representative and the Applicant:

   MS WONG: Then we come to a series of driving offences, mainly not having a licence and then driving while disqualified, are you able to explain to the tribunal whether you were aware that you could not drive without a licence?  

   APPLICANT: Well, for me I didn't have an Australian licence, but I did have a New Zealand licence and I just continued to drive with my New Zealand licence. 

   MS WONG: But you were aware that you could not drive on your New Zealand licence, beyond the first three months of coming to Australia?  

   APPLICANT: I was aware when I got pulled up.

   MS WONG: And then can you explain to the tribunal then why you continued to drive without a New South Wales licence?  

   APPLICANT: When I get into, I'll say, a stubborn mood, or like there's someone there that can drive me, but I won't let them.  It's, yes, it's just me, again, not giving it a thought and that - at the end again, stupid, stubborn.  There was an ugly era for the, that. Yes, that's where it all stemmed from of the day it's my own fault.

7. At hearing, the Respondent’s representative asked the Applicant if she could recall why the ADVOs were made for Mr P’s protection. The Applicant responded:

   “APPLICANT: I don't know why that was made, actually because, prior to that, I had been - like we had been together for some time before that happened. We were living in Dee Why and he attacked me and I - in my defence I, yes, I hurt him back but I went to court for it and it got dismissed. Is that in these papers? 

   MS WONG: What got dismissed?  

   APPLICANT: I got - the case got dismissed for self-defence and it was against him.  Not only after - there was another time after that, it happened again and it got dismissed again. And for the third time when he went in and came back from work, I think that was - where was I living? Hornsby, Asquith. In Asquith. He has come home and, because I didn't get him KFC, he's gone and hit me.  He's done it all inside then I had had enough and I chased him out.  He ran out onto the street and then that's how it became an apprehended order was put on for him, because of the public, but no one saw what happened before he got out on the road. Like he - it actually backfired on him, he went to strike at me with the weapon, I caught it and then went to go hit him back, like - and that's where that AVO comes from.”[44]

   [44] Transcript Day 1, 7-8, [5]-[45].

8. In relation to the offence of exceeding speed limit by about 20 kilometres, the Applicant in oral evidence explained:

   “APPLICANT: To be honest, it didn't even feel like I was speeding.  

   MS WONG: Why didn't it feel like you were speeding?  

   APPLICANT: Because it was - the car's slow, I didn't feel like I was speeding until I got pulled up...I was going to McDonalds…

   MS WONG: Okay, so you were going to McDonalds, you were starving and that's why you were driving 24 kilometres over the speed limit?  

   APPLICANT: No, that wasn't the reason. I was just being an idiot again…Like I say things and I - yes, I don't mean to say it, but…

   MS WONG: So what was the reason that you were speeding?  

   APPLICANT: There was no reason.

   MS WONG: Do you think that the fact that your son was in the front seat, in the passenger seat, who was only 10 years old, that this would have been dangerous for him if you were to cause a traffic accident if you were over the speed limit?  

   APPLICANT: At the time, no, but, yes now, looking at it, yes, I do realise.”[45]

   [45] Transcript Day 1, 13-15, [30]-[45], [5]-[10].

9. In support of her request for revocation, dated 14 July 2022,[46] the Applicant indicated that:

   [46] G2, 91-95, Ex 3.

   ·She was raised by her mother. She met her then partner Mr M when she was 15 years old. They were in a relationship for 10 years and they have two children together. Their daughter died from Sudden Infant Death Syndrome (SIDS) at nine months old, which was very traumatic for the Applicant. She felt she could not care for her son, so she gave full custody to her mother.

   ·Mr M started to blame her for the loss of their daughter and beat her more severely. She had him charged and came to Australia out of fear and to get away from the abuse. She continues to fear harm at his hands. She has only been back to New Zealand on two to three occasions, for deaths in her family.

   ·Her father and her family are involved in community events, such as the Waitangi Day in Merrylands.

   ·She is in a relationship with Ms Bianca Lupton, hoping to get married soon. Ms Lupton is an Australian citizen. She has known Ms Lupton for five years and have resided together for some time. 

   ·She understands the ‘privilege’ of being in Australia and that there are expectations about her conduct.

   ·She has many friends in Australia who are supportive. She has mental health issues, including depression and post-natal depression. She attends grief counselling, anger management programs, EQUIPS program, and the SSIP program. She also knows a psychologist who sees her fortnightly. She continues to search ways of self-improvement. She has been selected to be the delegate of her block, which has given her a boost in self-esteem and motivation.

   ·Her father lives in Australia. Her father’s siblings live in Sydney with their children.  Her mother’s sister’s son is an Australian citizen, is in Sydney and he is married to an Aboriginal woman.

   ·She wants to be an independent woman and be able to bring her son to Australia.  She does not anticipate re-offending.

   ·She has never intentionally committed crimes against the community. She has never committed any crimes against the government or any vulnerable persons in the community. She does not present any measurable risk. There is no trend of increased seriousness in her offending, or any adverse impact on an Australian business.

   ·If deported to New Zealand, her safety would be at risk. She considers Australia to be where her wellbeing is safe.

   ·In case of cancellation of the Applicant’s visa, she would not be able to return to Australia, which means her son would not be able to meet her family. She would also like him to have a future in Australia.

   ·She apologised to the victims and for her actions and “stupidity.” She takes full responsibility for the offences.

10. The Tribunal has considered the Applicant’s explanations of “stupidity”, mental health challenges, and the fact that she is a victim of domestic violence herself. However, the Applicant’s criminal history in Australia is lengthy and very serious as it includes several offences of violence and driving offences, one of which occurred when her minor son was in the car. The Tribunal agrees with the comments of Magistrate Reiss that the Applicant has shown a “total disregard to the Court and Court outcomes.”[47] Her explanations and apologies do not diminish the seriousness of her conduct. The Tribunal views driving offences seriously given the potential danger to oneself and other road users. The police pursuit in relation to the conviction on 13 September 2019 highlights the total disregard demonstrated by the Applicant for the police and the danger of her conduct.

    [47] G2, 55, Ex 3.

1. The imposition of a custodial term upon an offender is considered to be the last resort in the sentencing hierarchy and a reflection of the objective seriousness of the Applicant’s offending. The custodial sentences reflect the seriousness of her offending and the Applicant’s consistently limited positive response to non-custodial sentences. The Applicant’s offending is frequent. She has been convicted of multiple offences in Australia. The aggregate sentence of 12 months’ imprisonment for the five separate occasions of driving while disqualified and for common assault is significant.

2. For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

3. The Direction states that decision-makers must have regard to the following considerations cumulatively:

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

   b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   i.information and evidence on the risk of the noncitizen re-offending; and

   ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

4. The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[48] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[49] The Tribunal needs to consider the likelihood and consequences of further offending.[50]

   [48] Direction 99 [8.1.2(1)].

   [49] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].

   [50] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].

5. The Applicant has contended that there is no increased risk of reoffending. The Applicant refers to courses she has undertaken and the regular counselling. Ms Bethany Downes, Chaplain at Dilwynia Correctional Centre and Anglicare, provided a report dated 21 September 2022 stating, among other things, that the Applicant had completed the Seasons of Grief program in September 2022. Ms Downes noted that during the course, the Applicant showed: [51]

   “…courage, vulnerability, insight, and honesty by sharing deep grief experiences which have impacted her for several years. She can now acknowledge how this trauma and grief affected her, and led to criminal behaviours which saw her end up in prison.  She now shares a desire to take positive steps forward to overcome this...

   …

   Christine has shown great insight into the aspects of her life which led to her incarceration, and a genuine desire to make changes to her life so that she does not end up in prison again.”

   [51] G2, 108-109, Ex 3.

6. In her report, Ms Downes mentioned that the Applicant was keen to get professional support upon her release to the community. 

7. The Applicant accepts that she has a problem with aggression. In oral evidence, she expressed how she was addressing her issues with aggression:

   “APPLICANT: I’ve been doing counselling; the psych has been coming to see me.  But it’s more like I said, a build-up of unresolved grief.  It stems from that.  And then I get mad and then I explode. But since doing counselling, I know how to address issues that I faced that I know I can't handle. I know how to address things.  Like, since my counsellors been coming to see me, it’s lifted a huge weight off my shoulders because something so simple, yet it was so hard for me because I’m just a very stubborn person. I can't change what I’ve done but I know I can change what I am going to be doing.

   MS WONG: And so how often are you seeing the counsellor?  

   APPLICANT: I see her two times a week.

   …

   MS WONG: And what are some practical examples that you’ve taken away from counselling, that you can apply in the future?  

   APPLICANT: The breathing technique when you get mad, just do the figure eight breathing.  Mindfulness. Even the – what’s it called when they put some music on?  I just went blank.  Meditating.  Meditation, what else. The one that works for me most is the breathing.  The breathing exercises.  And I’ve also learnt to stop, think, then do.  Before it was just do, do, do.  It’s just the little things.  It’s only little things to that, yes.  That I had to do.  Just little things like that.  Stop, think, then do.  What else, yes those are the main, that's what’s made me – and being with the Lord has also made me realise. Yes, that's made me realise a lot.”[52]

   [52] Transcript Day 1, 24-25, [5]-[25].

8. Ms Gail Gray, Case Worker at the Miranda Project, provided a report dated 27 September 2022,[53] and gave evidence during the hearing. The report explained that the Miranda Project is a project which provides trauma informed holistic and inclusive support to women who come in contact with the criminal justice system. She expressed her support for the Applicant to reside in Australia and to work through on her choices.

   [53] G2, 111-112, Ex 3.

9. In oral evidence and in relation to what evidence of rehabilitation she has seen in the Applicant, Ms Gray stated the following:

   “I guess the level of engagement, you know, I’m never having to chase Christine around. She’s always turned up to her appointments and always met with us even though [the Miranda Project is] a voluntary service. Just her willingness to, you know, even attend appointments.”

10. At hearing, Ms Gray discussed her role, and the role of the Miranda Project, in the Applicant’s life if the Applicant were to be released into the community:

    MS WONG: And if Christine is released into the community will your work with her be ongoing or does it stop once there - once a detainee is released?

    MS GRAY: No, we would - we would definitely pick up a high level of holistic case management with Christine if she is released.

    MS WONG: And what does that involve?

    MS GRAY: Well, it involves - it would definitely be a high level engaging weekly.  We’d have to revisit the case plan and really action, you know, some of the goals that Christine mentions, the - like currently, and that could involve, you know, maybe some counselling, just trying to link Christine in with appropriate support, you know, attending appointments, transporting.  We would transport Christine to appointments, just you know, try and - we do run groups, we run psychotherapy groups that could, you know, educate women on domestic and family violence, keeping themselves safe, Koori arts, Aboriginal art groups as well.”

11. In relation to whether Ms Gray has confidence that the Applicant will continue to meet with her if the Applicant is released into the community, Ms Gray explained that:

    “I’d build a lot of rapport with Christine. I believe that - I mean, she’s happy to meet with me regularly, there’s - you know, we’ve built a lot of rapport with Christine and, you know, we’ve earned Christine’s trust in our service and that we’ve got Christine’s best interest and, you know, she’s seen what - you know, what people have - that have come through our program have you know, had good outcomes and I think - yeah, I think we’ve instilled confidence in Christine that, you know, we just want to support her to - yes, to, you know, live her life free from violence and free from the criminal justice system. That’s the main thing is that we, you know, support women - empower women.”

12. Finally, Ms Gray gave the following oral evidence about the Applicant’s options for employment through the Miranda Project:

    “So we do have a woman who we can refer to, so it’s Employment Pathways, who is a lived experience of her own experience of incarceration and she works to support women to, you know, for pathways into employment without being discriminated against because they’ve got a criminal record or - so that would be a pathway that we would revisit with Christine.[54]

    [54] Transcript Day 2, 66-67, [15]-[45], [5]-[10].

13. The Respondent has contended that there is limited material to support a favourable assessment that the Applicant has been rehabilitated, and that if the Applicant were to reoffend in a similar manner to the serious offences she has committed in the past, then it is highly likely that it would involve physical harm to members of the Australian community.[55]  The Respondent argued that the Applicant presents a medium risk of reoffending.   

    [55] SOFIC, [63]-[65], Ex 1. 

14. The Tribunal observes that the Corrective Services NSW Psychology Service Progress notes record that the Applicant commenced engagement in multiple programs.[56] These programs include EQUIP Foundation, Connect, the Art Program, Positive Lifestyle Program and Seasons for Growth on or around 23 August 2022. The Applicant’s participation in these courses all post-date the visa cancellation decision of 30 June 2022. She has also undertaken two sessions of the Seasons of Grief program with Bethany on 5 and 21 September 2022.[57]

    [56] R156, 646, Ex 2.

    [57] Transcript Day 1, 36, [30].

15. The Tribunal is persuaded by the Respondent’s submissions that the timing of the Applicant’s participation in such courses could raise some doubts about her motives and suggests that the courses were undertaken to assist in a positive migration outcome.  Although an objective in trying to achieve a positive migration outcome should not diminish the potential positive rehabilitation outcome, there remains limited evidence before the Tribunal to lead to a conclusion that the Applicant has achieved a level of rehabilitation to minimise the risk of reoffending.

16. The Tribunal acknowledges the Applicant’s attempts, Ms Downes’ report and Ms Gray’s written and oral evidence of continued engagement with the Applicant on potential release. However, on balance, those do not overcome other concerns. As recently as the date of the hearing, the Applicant had not completed the Traffic Offenders Program, although she stated she had started it but was unable to complete it as she was sent to jail.[58] The Tribunal notes however that the Applicant has not always been in jail and her traffic offences have been ongoing for years. 

    [58] Transcript Day 1, 29, [5]-[25].

17. As mentioned earlier, the Courts have observed that the Applicant has shown disrespect for the Courts’ decisions and orders. She displayed contempt for authority and has committed acts of aggression whilst in jail. Given the fact that the Applicant has assaulted an inmate in a supervised and controlled environment, the Tribunal is not satisfied that the Applicant would not continue to offend if released into the community.

18. Documents from Corrective Services NSW show that on 29 September 2019, the Applicant was found in possession of what appeared to be a “needle forced into one end of a pen with elastics wrapped around it and an eraser stuck to the needle and what appeared to be a small diabetic prick needle.” The Applicant admitted ownership of the “drug implement.”[59]

    [59] R79, 239; R81, 241, Ex 2.

19. For around five years, during the period 2016 to 2021, the Applicant has continued to drive whilst either not licensed or disqualified from driving. The Applicant has shown poor compliance with orders to attend Court and to comply with corrections orders. On 9 May 2017, the Applicant was convicted of Never licenced person drive vehicle on road – prior offence and was directed to enter into a two-year good behaviour bond. The Applicant was ordered to attend Bankstown Local Court on 3 July 2017, but she did not appear, resulting in a warrant being issued for her arrest.[60] On 8 January 2019, the Applicant failed to appear at Hornsby Local Court for the offences of Assault occasioning actual bodily harm and Contravene prohibition/restriction in AVO, which resulted in a warrant being issued for her arrest. The Applicant was refused bail and was taken into custody.[61] The Applicant failed to report for her scheduled post-release appointment with Community Corrections on 8 May 2019.

    [60] R17, 68-69, Ex 2.

    [61] R37, 133-134, Ex 2.

20. It was recommended by the Corrections Officer on 15 May 2019 that the Applicant’s failure to present at her first appointment and “subsequent lack of contact” was of significant concern. It was recommended that her parole be revoked.[62] The Applicant only completed 2 of the 60 community service work hours, as ordered on 17 February 2021, and Corrective Services NSW recorded that the “[Applicant’s] response to the work component of [her] legal order had been unsatisfactory.”[63] As recent as 30 June 2023, force was used on the Applicant for non-compliance with Serco staff.[64] Serco notes also show  a “minor incident – assault” relating to the Applicant against her “ex-partner.”[65] 

    [62] R57, 188-189, Ex 2.

    [63] R112, 346, Ex 2.

    [64] R158, 659, Ex 2.

    [65] R158, 662, Ex 2.

21. In oral evidence, the Applicant stated that she did not complete the community service hours because of COVID-19. However, the Applicant’s oral evidence is inconsistent with a Breach Report, which noted the following:

    “On 1 April 2021 Ms Barber was given another warning to attend the community service work induction program on 6 April 2021 at 2 pm.  However, Ms Barber contacted Community Corrections advising she could not attend her induction program due to work.[66]

    [66] R112, 347, Ex 2.

22. Although COVID-19 and work might have had some impact, the Tribunal is not persuaded that these reasons explain the Applicant’s lack of completion of the community service hours.

23. There are pre-sentencing reports that have assessed the Applicant as being in the medium risk of reoffending.[67] The most recent pre-sentencing report dated 12 November 2021 assessed her to be at a medium-low risk of reoffending.[68]

    [67] R72, 225; R108, 331, Ex 2.

    [68] R121, 379, Ex 2.

24. There is evidence before the Tribunal that the Applicant has provided inconsistent information about her relationship with Mr M. In her written statement seeking revocation, the Applicant claimed that she and Mr M have two children together, and that he blamed her for the loss of their daughter. In oral evidence, she stated that the daughter was not Mr M’s child and that the child’s father was another male. She also gave evidence that the daughter died in Australia. The Applicant could not explain the inconsistency. The Respondent contended that this should raise significant doubts about the Applicant’s general credibility. 

25. The Applicant has not provided corroborative evidence, such as a death certificate, to confirm the daughter’s place of death. Although the above inconsistencies are significant, the Tribunal considers it harsh to reach an adverse credibility finding on this basis alone.  The Tribunal observed the Applicant in the course of the hearing when she gave evidence about the death of her daughter from SIDS. The Tribunal is mindful to be cautious about reliance on personal observations. However, the Tribunal found the Applicant’s evidence to be frank, describing in detail how she found the infant, which would have been traumatic for a mother. On balance, the Tribunal has decided to give the Applicant the benefit of the doubt and accept that Mr M is not the daughter’s father and that her daughter died in Australia, but is buried in New Zealand.

26. Whether the Applicant is credible or not is indirectly related to the assessment of risk, in that it goes to whether the Tribunal can rely on the Applicant’s words. In this case, the Tribunal is satisfied that the objective evidence indicates that there is a risk of the Applicant re-offending, in relation to physical violence, as well as traffic offences.

27. On balance, the Tribunal finds that there is a low to medium risk and that it is likely that the Applicant would engage in further criminal conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable. 

28. For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.

    Whether the conduct engaged in constituted family violence.

29. The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[69] 

    [69] Direction 99 [8.2(1)].

30. The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:

    ·the frequency of the offending conduct;

    ·any trend of increasing seriousness;

    ·the cumulative effect of repeated acts of family violence;

    ·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and

    ·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[70]

    [70] Direction 99 [8.2(3)].

31. The Applicant has been convicted of offences involving direct assaults against two of her former partners – Mr P (in 2019), in direct breach of the ADVO, and Ms W (in 2021). In addition, an ADVO was issued against the Applicant on 12 August 2020 for the protection of Ms B, who was also identified as the Applicant’s then partner. On 2 July 2020, Ms B attended the Applicant’s address. The Applicant opened the front door and began to hit Ms B with a “flurry of strikes” to the head with a closed fist, and another person grabbed Ms B by the hair and dragged her down the street.[71]

    [71] R102, 306, Ex 2.

32. The violence perpetrated by the Applicant on her former partners has been significant. The Applicant beat and slapped Ms W and Ms B with provocation and attacked Mr P with a metal tube causing a deep laceration. The Tribunal is mindful that in the case of Mr P, there was an interim order against Mr P.[72] However, the final ADVO was against the Applicant for the protection of Mr P.[73]

    [72] R11, 53, Ex 2.

    [73] R18, 70, Ex 2.

33. In terms of rehabilitation achieved, as discussed above and for the stated reasons, there is limited evidence before the Tribunal to lead to a conclusion that the Applicant has achieved a level of rehabilitation to minimise the risk of reoffending. On balance, the Tribunal finds that any rehabilitation achieved so far does not mean that it is unlikely that the Applicant would engage in further criminal conduct. On the contrary, on the evidence, the Tribunal finds that the Applicant has had a long history of violence and other criminal conduct and that despite her efforts so far, including participation in courses and counselling, there is limited objective evidence of meaningful rehabilitation. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.

34. The Applicant was convicted of assault occasioning actual bodily harm (DV) and contravene prohibition/restriction in AVO (Domestic) and was sentenced to 8 months imprisonment.

1. The Tribunal considers the Applicant’s conduct in relation to the family violence to be very serious and reflect the magnitude of the Applicant’s criminal conduct.

2. The Tribunal gives this consideration significant weight against revocation.

   The strength, nature and duration of ties to Australia.

3. The Direction at paragraph 8.3(1) contemplates that decision-makers 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 a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[74]

   [74] Direction 99 [8.3(2)].

4. Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:

   (a) the length of time the non-citizen has resided in the Australian community, noting that:

   (i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;

   (ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   (iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

5. The Applicant has been in Australia since 2012. Her first conviction in Australia occurred in April 2015.[75]

   [75] G2, 36, Ex 3.

6. The Applicant has indicated that her uncles, aunts and other relatives live in Sydney. There are no supporting statements by the Applicant’s family members to attest to their links and relationship with the Applicant. There is also no evidence that the Applicant has ties to any children who are Australian citizens or permanent residents, other than her nieces and nephews. Her son lives with her mother in New Zealand.

7. The Applicant explained that no supporting material was provided from the relatives because she did not want to bother them or she did not want them to see her incarcerated.  The Tribunal is not convinced, and is persuaded by the Respondent’s submissions, that this is a reflection of the “superficial nature” of the relationship between the Applicant and her relatives in Australia. 

8. The Applicant has claimed that she is engaged to Ms Bianca Lupton. Ms Lupton did not give evidence to the Tribunal as to the nature and duration of their ties, although she was present in the hearing room for support. The Tribunal notes that Ms Lupton visited the Applicant in the last year while in jail (as well as the Applicant’s mother).[76] The Tribunal is prepared to accept that there is a relationship between the Applicant and Ms Lupton, however, based on the available evidence, the Tribunal is not satisfied that this relationship represents strong ties, or that it is an ongoing relationship.

   [76] G2, 71, Ex 3.

9. The Applicant has provided letters of support from friends,[77] Ms Kong, Ms Chimmalee, and Ms Rosevale. The letters refer to the Applicant’s good character, her expressed remorse and the “abuse” that the Applicant had sustained in New Zealand at the hands of her former partner. The letters, however, provide limited information on what the abuse entailed, when it occurred, where her former partner is now, or whether the abuse was reported to the New Zealand authorities.

   [77] G2, 102-105, Ex 3.

10. The evidence before the Tribunal indicates that the ties the Applicant has in Australia are limited. Arguably, her strongest relationship is with her mother and son, both of whom are in New Zealand.

11. In terms of employment, the last time the Applicant had stable employment is around 2019, when she worked as a carer for participants of the National Disability Insurance Scheme (NDIS) as well as a picker packer worker in a warehouse. The Tribunal considers working for the NDIS as a carer to be a positive contribution to the Australian community, as it is assisting vulnerable persons in the Australian community.

12. On balance, the Tribunal gives this consideration some weight in favour of revocation.

    The best interests of minor children in Australia.

13. The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[78]

    [78] Direction 99 [8.4(1)].

14. In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:

    a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e) whether there are other persons who already fulfil a parental role in relation to the child;

    f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

15. The Applicant has a minor child who lives in New Zealand with her mother. The Applicant has indicated that she intends on “moving him” to be in Australia when she is released,[79] but the Tribunal notes that he is not in Australia. The Applicant has not presently identified any other minor children in Australia who may be affected by her visa cancellation, except for a couple of nieces and nephews. However, the Applicant conceded that her nieces and nephews would not be significantly impacted by the non-revocation of the visa cancellation.

    [79] G2, 93, Ex 3.

16. The Tribunal gives this consideration neutral weight.

    Expectations of the Australian community.

17. The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

18. The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[80] In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of a kind that includes acts of family violence.[81]

    [80] Direction 99 [8.5(2)].

    [81] Direction 99 [8.5(2)(a)].

19. The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[82]

    [82] Direction 99 [8.5(3)].

20. The Applicant’s criminal conduct is serious and it involves family violence offences. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because her conduct is serious and includes acts of family violence.

21. The Tribunal gives this consideration significant weight against revocation.

    THE OTHER CONSIDERATIONS

    Legal consequences of the decision.

22. At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

23. The Direction divides the considerations to be applied in this paragraph into two sections:

    (1) non-citizens covered by a protection finding; and

    (2) non-citizens not covered by a protection finding.

24. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called 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).

25. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.

26. Non-refoulement obligations is not confined to the protection obligations to which s 36(2) of the Act refers.[83] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

    [83]  See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].

27. If the Applicant is unsuccessful before the Tribunal and/or any appeal, she remains unlawful and she will be liable for removal from Australia pursuant to s 198 of the Act.

28. The Respondent has contended that the Applicant has not raised any non-refoulement obligations for consideration, and she has not applied for a protection visa. However, the Applicant claimed that she fears returning to New Zealand as she would be at risk of further “serious harm” from her former partner, the father of her son. 

29. The Tribunal is of the view that the Applicant has raised a potential claim for protection.  She is self-represented, so the Tribunal is mindful of the limitations in articulating her position. She has clearly claimed that if she were to return to New Zealand, she would be harmed at the hands of her former partner, Mr M. She claimed that she does not wish to return to New Zealand, among other things, as she fears harm at the hands of Mr M.  She gave evidence that in New Zealand, she had sent Mr M to jail, by charging him with assault.  She gave evidence that Mr M went to jail in 2012 for about two years. She confirmed that she did not have any supporting documents. She gave evidence that she has not been in touch with Mr M since 2012.[84]

    [84] Transcript Day 1, 2-6.

30. As mentioned earlier, the Applicant has provided inconsistent information about her relationship with Mr M. In her written statement seeking revocation, she claimed that she and Mr M have two children together, and that he blamed her for the loss of their daughter.  In oral evidence, she stated that the daughter was not Mr M’s child and that the child’s father was another male. The Applicant could not explain the inconsistency. 

31. For the reasons outlined earlier, the Tribunal gave the Applicant the benefit of the doubt and accepted a number of her claims. For the same reasons, the Tribunal accepts the Applicant’s contentions that she has not had contact with Mr M for a number of years and that it is plausible that she fears being harmed by him in case she returned to New Zealand, because she “put [Mr M] in jail” for assaulting her.

32. The Applicant has not applied for a protection visa and it is open to her to apply for this visa. The Direction contemplates that where it is open to a non-citizen to apply for a protection visa, it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.[85] The Tribunal observes that the process of determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. In this instance, the Applicant’s claims could come under the Refugees Convention (member of a particular social group) or under Complementary Protection provisions. Regardless, given that it is open to the Applicant to apply for a protection visa, where a full and comprehensive assessment of her claims would occur, the Tribunal is satisfied that it is not required in this review to determine whether non-refoulement obligations are engaged in respect of the Applicant.

    [85] Direction 99 [9.1.2(2)].

33. Moreover, the Tribunal is mindful that the cancellation of a visa is legally distinct from removal and that, prior to any removal, the Department might undertake an International Treaties Obligations Assessment, which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that Australia would not remove a person in breach of international obligations.

34. In light of the above, the Tribunal gives this consideration neutral weight.

    Extent of impediments if removed.

35. Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:

    (a) the non-citizen's age and health;

    (b) whether there are substantial language or cultural barriers; and

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

36. The Applicant is 36 years old and she suffers from mental health issues arising from past post-natal depression, trauma from losing her baby daughter to SIDS, deaths of other family members and domestic violence suffered in New Zealand. The Applicant receives and would benefit from psychological counselling, but she has not provided evidence that this is not available in New Zealand from the public health system. The Respondent provided examples of services which the Applicant could access, including the Depression Helpline,[86] and mental health services in the community that are funded through Te Whatu Ora.[87]

    [86] R171, 845, Ex 2.

    [87] R171, 845, Ex 2.

37. There are no cultural or linguistical obstacles. The English language is one of the national languages of New Zealand and New Zealand has a comparable standard of living and social welfare system to Australia.[88] As a New Zealand citizen, the Applicant would be able to access health care and counselling for her mental health issues and apply for social welfare assistance if required.[89] The Applicant would have access to the same social, medical, and economic supports as other citizens of New Zealand, which are comparable to those available in Australia.[90] This includes support available to returning citizens after a period of imprisonment in another country.[91]

    [88] R178, 857-858, Ex 2.

    [89] R171, 844-845, R172, 846-849, Ex 2.

    [90] Webb v Minister for Home Affairs [2020] FCA 831 [98]; Uelese v Minister for Immigration and Border

    Protection [2016] FCA 348 [68]-[69].

    [91] R174, 853-854, Ex 2; Returning Offenders (Management and Information) Act 2015 (NZ).

38. Although the Tribunal acknowledges that if removed from Australia to New Zealand, the Applicant could face some practical difficulties, including re-establishing relationships, housing and employment, the Applicant would be able to establish herself and maintain basic living standards. The obstacles are not insurmountable.

39. In terms of being able to access police in case of her fears concerning Mr M, there is no evidence to indicate that police and or judicial protection would be withheld or denied as those are generally available to all citizens of New Zealand, if needed. In fact, by her own contentions, Mr M went to jail because of the domestic violence he perpetrated against her, supporting a conclusion that she would be able to seek police, and or court orders in New Zealand for her protection. 

40. In oral evidence, the Applicant argued that it takes too long for New Zealand police to respond to calls. The Applicant stated that she use to “ring the police on [her] ex-partner, like, quite a lot of times…it took them an hour to get there, and the police station is just literally down the road; two minutes.”[92] Without knowing the details of the circumstances, the Tribunal is not satisfied that this means that she would not be offered support and protection in New Zealand. The Tribunal also gives regard to material provided by the Respondent confirming the availability of women shelters in New Zealand that also offer support and protection to women.[93]   

    [92] Transcript Day 2, 77, [45].

    [93] R184, 883-884, Ex 2.

41. The Tribunal has considered the Applicant’s circumstances very carefully. On balance, the Tribunal gives this consideration limited weight in favour of revocation.

    Impact on victims.

42. The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[94]

    [94] Direction 99 [9.3].

43. The Tribunal does not have specific information about any impact of non-revocation or revocation on the victims. 

44. The Tribunal gives this consideration neutral weight.

    Impact on Australian business interests.

45. At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

46. There is no evidence of impact on an Australian business.

47. The Tribunal gives this consideration neutral weight.

    Other matters for consideration.

48. Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.

49. The Tribunal has dealt with the claims relating to Mr M under different considerations. 

50. There are no other matters for consideration.

    CONCLUSION

51. The Tribunal recognises the significance and complexity of a visa cancellation. The process is not intended to be a formulaic exercise, but rather a holistic approach, taking a number of matters into account, and giving regard to the considerations under Direction 99. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The seriousness of the Applicant’s offending conduct, the fact that the offending conduct involved family violence, the risk of reoffending, and the expectations of the Australian community weigh heavily against revocation.

1. The Tribunal and for the explained reasons found that:

   ·Primary considerations 1, 2 and 5 weigh strongly in favour of non-revocation.

   ·Primary consideration 3 weighs slightly in favour of revocation.

   ·Primary consideration 4 is neutral. 

   ·Other consideration a is neutral.

   ·Other considerations b weighs slightly in favour of revocation.

   ·Other considerations c and d are neutral.

2. The Tribunal is satisfied that Primary considerations 1, 2 and 5, significantly outweigh all other considerations. The Applicant has engaged in serious conduct demonstrating disregard to Australia’s laws and the Courts. In her circumstances, she cannot expect not to forfeit the privilege of remaining in Australia.

3. Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s Subclass 444 visa.

   DECISION

4. The Tribunal affirms the decision under review.  

130.    I certify that the preceding one-hundred and twenty-nine (129) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................

Associate

Dated: 22 August 2023  

Date of hearing(s):	8 and 9 August 2023
Applicant:	In person
Representative for the Respondent:	Ms A Wong, Mills Oakley