BBFD and Minister for Home Affairs (Migration)

BBFD and Minister for Home Affairs (Migration) [2018] AATA 4479 (3 December 2018)
Division:GENERAL DIVISION
File Number: 2018/5365
Re:BBFD
APPLICANT

Minister for Home Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:3 December 2018
Place:Brisbane

The Tribunal affirms the decision under review
...........................[SGD].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – refusal of protection visa pursuant to s 501(1) - applicant does not pass the character test – considerations in Ministerial Direction N0. 65 – whether there is another reason for the discretion to refuse to grant the visa to not be applied – offences committed in New Zealand – offences committed in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 65
New Zealand 2016 Human Rights Report, Country Reports on Human Rights Practices for 2016, United States Department of State, Bureau of Democracy, Human Rights and Labor.
REASONS FOR DECISION
Senior Member Theodore Tavoularis
3 December 2018
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “Respondent”) to refuse BBFD (“the Applicant”) a Protection (Class XA) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant was born in New Zealand and entered Australia for the ninth time on a fraudulently obtained passport on 19 March 2009.[1] On 3 October 2017, this Tribunal affirmed a decision of the delegate to refuse the Applicant’s Bridging visa application because she did not satisfy the character test.[2] This decision is not in relation to that visa. Rather, it is in relation to a decision of the delegate to refuse the Applicant’s Protection visa pursuant to section 501 of the Act because, as occurred with the Applicant’s Bridging visa application, it was found that the Applicant did not satisfy the character test. On

17 September 2018, the Applicant filed an application for review of the Delegate’s decision.[3]
[1]           Exhibit 4, G documents, G3, p. 175; p. 322.
[2]           Ibid, pp. 320 – 339.
[3]           Ibid, G1, pp. 1 -2.
The Tribunal heard this matter on 22 November 2018.
ISSUES
Under s 501(1) of the Act, the Minister – or his delegate – “…may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Importantly, there are two stages to this enquiry. First, there is an onus on the applicant to satisfy the decision-maker that they pass the character test. If the decision-maker is not so satisfied, a decision-maker must progress to the next stage of the enquiry. That is, whether the discretion to refuse to grant the visa should be applied.
This latter enquiry is informed by a direction of the Minister under s 499(1) of the Act, specifically: Ministerial Direction No 65 (“the Direction”). The Tribunal is bound to comply with the Direction.[4] In addition to setting out some guiding principles, discussed in more detail below, the Direction enumerates three primary considerations and four other considerations which a decision-maker must take into account in determining whether to exercise the discretion to refuse to grant a visa. It is important to recognise that although the second class of considerations are described as being “other” considerations, this does not mean that they necessarily take on secondary importance when compared to the “primary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[5]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement 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.[6]
[4] Migration Act 1958 (Cth), s 499(2A).
[5] [2018] FCA 594.
[6] Ibid at [23].
Thus, I must address two issues:
(a)Whether the Applicant passes the character test as defined in s 501(6) of the Act;
(b)Whether there is another reason for the discretion to refuse to grant the visa to not be applied.
I will address each of these two issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
Offending History
The totality of the Applicant’s criminal history appears in the material.[7] A precis of the criminal history for both New Zealand and Australia can be summarised as follows.
[7]See Exhibit 5, Federal Court Application Book (Proceeding NSD1853/2017), specifically, decision of Senior Member J C Kelly, dated 03 October 2017, paragraphs [18]-[26]; See also, Exhibit 4, Section 501 G-Documents, G3 Attachments A – D, pp. 50- 58.
Offences in New Zealand
The Applicant’s criminal offending commences in 1994. Those offences were dealt with in a Youth Court in New Zealand. Further offences were committed in 1995 and 1997. The offending history seems to have commenced with a serious tone from the outset. The Applicant’s offending during this period included one offence of wounding with intent to cause grievous bodily harm, four offences of receiving property (under $500), one offence of shoplifting under ($500), 13 offences of take/obtain/use document for pecuniary advantage, and one offence of breach of community service.
She refrained from offending until 2005 but further offences appear in her history for the years 2006, 2007 and 2008. The offending in this period features, to my mind, the still unresolved connection the Applicant has with illegal drugs. The offences committed during this period include procure/possess methamphetamine/amphetamine, procure/possess cannabis plant, disorderly behaviour, possess/use utensils – methamphetamine and amphetamine, shoplift (under $500), wilful damage, theft property (under $500) and unlawfully occupying a building.
Similarly, the Applicant’s traffic history in New Zealand does her no favours. The traffic history in New Zealand runs from 1996 until March 2007.[8] The abovementioned theme of a refusal to respect lawful authority is evident from her traffic history. This offending involved three offences of failing to give her name and address upon demand from law enforcement officers, four offences of driving under the influence of alcohol, three offences of driving while disqualified, two of which were committed in the one month

– March 2007, three offences of operating a vehicle in a careless manner, two offences of driving a motor vehicle in a dangerous manner in each of the years 2006 and 2007, and one further offence in 2007 involving the reckless operation of a motor vehicle. There are two further offences committed in 2007 involving a failure to ensure the vehicle under her control remained stopped pursuant to the request of an enforcement officer.
[8] Ibid, G3, pp. 53 – 54.
Offences committed in Australia
The Applicant’s offending in Australia also makes for sobering reading. It commences on 9 February 2005, when she was convicted of assault occasioning bodily harm. It continues on 10 September 2010, when she was convicted of furnishing a false name to lawful authority, together with possession of a dangerous drug (Cannabis), possession of a Schedule 2 substance for a commercial purpose and possession of a thing involved in the administration of a dangerous drug. She received a custodial term of 28 days for her possession of a Schedule 2 substance which was backdated to the date of her arrest on

5 August 2010. When she concluded serving the aforementioned custodial term, she was taken into immigration detention.
There is an acknowledgement by the Applicant that she has outstanding charges for criminal offences in New Zealand, including outstanding warrants for her arrest. There is reliable information from Interpol in Wellington, New Zealand indicating the following charges remain live and pending in New Zealand:[9]
·Being unlawfully present in a building;
·Failure to answer District Court bail;
·Import/export Fantasy-type substances;
·Sell/Give/Supply/Administer/deal Fantasy substances (four charges);
·Procure/possess methamphetamine/amphetamine; and
·Drove under influence of drink or drug – third or subsequent offence.
[9] Exhibit 5, p. 832.
In 2009, she sought to leave New Zealand and enter Australia for the final time. The Applicant was aware that she was at large on bail in New Zealand and that as part of her bail, her passport had been confiscated. The Applicant then proceeded to procure a false passport and to depart New Zealand and enter Australia on that false passport and assumed identity.
The material also shows the Applicant provided incorrect information to the Department on her incoming passenger card on 19 March 2009, to the extent that she failed to disclose her criminal history in New Zealand.[10]
[10] Ibid, G3, p. 177.
While in immigration detention in Darwin in 2010, the Applicant absconded from that Detention centre barely three days after being detained.[11] As was the case in earlier hearings, the Applicant gave unpersuasive explanations as to why she did not apply to regularise her migration status prior to her return to immigration detention in or about August 2015. This absconding conduct constitutes a criminal offence pursuant to

s 197A of the Act and is in fact punishable by up to five years imprisonment. While the Applicant has not yet been formally charged or convicted of the absconding offence, it cannot be denied that she was unlawfully at large for a period of five years and that she was unlawfully employed in the community during that period. Although she has not been charged with being unlawfully employed, that conduct, in itself, is an offence pursuant to

s 235(3) of the Act.
[11] Ibid, p. 323.
Her conduct while in immigration detention has been less than exemplary and does her no favours.
The representative of the Minister contends that the Applicant does not pass the character test as defined in s 501(6) of the Act. Specifically, a person will not pass the character test if:
(a)Having regard to the person’s past and present criminal conduct and/or the person’s past and present general conduct, the person is not of good character[12]; or
(b)In the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia[13].
[12] s 501(6)(c)(i)-(ii), the Act.
[13] s 501(6)(d)(i), the Act.
It is not contested that the Applicant fails the character test pursuant to either

s 501(6)(c) or s 501(6)(d)(i).[14] Assessed in its totality, the Applicant’s history of offending both in Australia and New Zealand is, quite frankly, appalling. There can be no sustainable argument raised against the proposition that she does not pass the character test. Thus, the Protection visa sought by the Applicant cannot be granted to her on character grounds.
ISSUE 2 IS THERE ANOTHER REASON FOR THE DISCRETION TO REFUSE TO GRANT THE VISA TO BE APPLIED?
[14] Exhibit 3, Respondent’s SIFC, p.7, para [5].
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is obligated in accordance with s 499(2A) to comply with the Direction. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
… a decision-maker:… must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;[15].
[15] Direction No 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised as follows:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(b)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;
(c)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
(d)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 future risk of similar conduct in the future is unacceptable;
(e)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;
(f)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
(g)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.[16]
[16] The Direction, para 6.3.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:
(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.
Paragraph 8(1) of the Direction provides that a decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction further provides that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Respondent contends that the Applicant’s offending history is lengthy and that it involves a number of dishonesty and drug offences both in Australia and New Zealand.[17] That contention is fairly and correctly made. The history cannot be construed in any other way. The Applicant’s history of offending has two primary themes: first, it is persistent and second, it portrays a lack of respect for the authority of law enforcement. For reasons that follow, I do not think that the Applicant’s contentions justify exercising the Tribunal’s discretion to not refuse the grant of the Applicant’s Protection (Class XA) visa.
[17] Exhibit 3, Respondent’s SIFC, p. 9, para [15].
While the Applicant has not sought to deny the extent and nature of her offending either in her oral testimony before me or in any of the written submissions filed on her behalf, she has nevertheless sought to explain away or ameliorate her conduct in a way that is simply not sustainable. While she agrees she does not pass the character test, she nevertheless contends she is entitled to a Protection visa because, according to her, the risk of her offending resulting in harm to the Australian community is apparently quite low. She also contends that the best interests of her infant child and husband militate in favour of the visa she seeks. Her additional contention is that Australia has non-refoulment obligations to her.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes) amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)…
(d)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; 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 s 197A of the Act.
(e)The principle that any conduct forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;
(f)The sentence imposed by the courts for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction provides that, without limiting the range of offences that may be considered serious, crimes of violence are to be viewed seriously. There is an undeniable element of violence in the Applicant’s history of offending.
There is a theme of violence from the commencement of the Applicant’s offending history in New Zealand. The early years of her offending comprise 1995, 1996 and 1997. One of the offences committed during that period involved wounding with intent to cause grievous bodily harm.

While not strictly speaking violent offences, drug offending often spawns or captures within its orbit, acts of violence. Her early drug offending in New Zealand included procure/possess methamphetamine/amphetamine, procuring/possessing cannabis plant and possess/use utensils – methamphetamine and amphetamine.
Her traffic offending in New Zealand is also suggestive of offences having the potential to cause significant violence or harm in the community. Her traffic offending in New Zealand commenced in 1996 and ran until March 2007. There are four offences involving driving whilst under the influence of alcohol, three offences of driving while disqualified, two of which were committed in the one month of 2007, two offences of operating a vehicle carelessly, two offences of driving a motor vehicle in a dangerous manner in 2006 and 2007 and one offence in 2007 of operating a motor vehicle recklessly.
Her offending history in Australia commences in February of 2005 when she was convicted of assault occasioning actual bodily harm. In September 2010 she was convicted of possession of a dangerous drug (cannabis), possession of a Schedule 2 drug for a commercial purpose and possession of a thing for use in the administration of a dangerous drug. A custodial term of 28 days was imposed but back dated until the

5 August 2010 which was the date of her arrest. Upon completion of this custodial term she was then taken into immigration detention on 10 September 2010.[18]
[18] Exhibit 3, Respondent’s SIFC, p. 4.
The Applicant has sought to explain away both the actual occurrence and seriousness of her offending. Those explanations involved her apparently being elsewhere at the times the offences were committed. Those explanations lack credibility and are not corroborated. Any duplication or administrative inaccuracy in the records containing her criminal offending do not support her contention that those records are inaccurate to the extent of absolving her – to any extent at all – from her serious offending.
It should also be noted that the Applicant has acknowledged that she has outstanding charges for criminal offences in New Zealand, including outstanding warrants for her arrest. Those charges comprise:[19]
·Unlawfully being in a building;
·Failure to answer District Court bail;
·Import/Export Fantasy-type substances;
·Possess for Supply –Fantasy substances;
·Sell/Give/Supply/Administer/Deal Fantasy substances (4 charges);
·Procure/possess methamphetamine/amphetamine; and
·Drove under influence of drink or drugs - third or subsequent.
[19] Exhibit 5, p. 832.
There is a contention from the Applicant that a certain law enforcement officer in New Zealand has told her that the law enforcement authorities in that country will not be taking any further action pursuant to the warrants. This evidence is that of the Applicant alone and is uncorroborated.[20]
[20] Ibid, p. 832.
Having regard to sub-paragraph (a) of paragraph 11.1.1(1) of the Direction, I am of the view that the totality of the Applicant’s offences must be viewed seriously. She has a demonstrated propensity of engaging in conduct that causes her to resort to criminal activity as a means of supporting herself. As her history also shows, her criminal offending readily takes her into the realm of violent conduct.
Sub-paragraph (c) of paragraph 11.1.1(1) provides that 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; 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 absconded from immigration detention three days after being detained in 2010. She did not apply to regularise her migration status with the Minister’s department at any time before being returned to immigration detention some 5 years later, in August 2015. Absconding from immigration detention is a criminal offence pursuant to s 197A of the Act and is punishable by five years imprisonment. While the Applicant has not been yet charged or convicted of that offence, the reality remains that she did escape and unlawfully remained at large in the community for five years. She was unlawfully working in the community during this five year period. Although she has not been charged with this offence either, that conduct, in itself, constitutes an offence pursuant to s 235(3) of the Act.
Her purported explanations and amelioration of the reasons behind her absconding from detention and unlawfully remaining at large are unconvincing. The Applicant has claimed that she is at risk of significant harm from criminal gangs in New Zealand, however, this evidence is uncorroborated from any external source.
The Applicant’s conduct while in detention does not assist her. She has demonstrated aggressive behaviour towards Serco staff and other detainees.[21] The material discloses assaults by the Applicant toward other detainees including the stabbing of another detainee in the hand with a pen, together with additional assaults on Serco officers. The material discloses that while in detention, the Applicant was found to be in possession of contraband including liquids having an odour similar to alcohol. She has also verbally abused medical staff in the detention centre, Serco staff and other detainees in that centre. The material also discloses numerous reports of altercations between the Applicant and other detainees.
[21] Exhibit 4, G3, pp. 171 – 173.
The material further discloses the Applicants consumption of both alcoholic and other illegal substances while in detention. In an earlier hearing, her evidence was that she did ask her husband to bring her an alcoholic beverage when it had been her birthday and that she had consumed that alcohol in the detention centre as a means of controlling her purported high levels of anxiety. In the hearing before me, the Applicant also spoke of “smoking a joint a couple of weeks ago” with other detainees.
Having regard to the provisions of this sub-paragraph (c), I am of the view that this Applicant’s conduct while in immigration detention, including her absconding from such detention in 2010, remaining at large for five years and unlawfully gaining employment during that period are factors that indicate a significant level of seriousness in her conduct to date. This finding is to be tempered by the reality that she has not been formally charged for the absconding or the unlawful employment during the relevant five year period. However, there can be little or no dispute that these events occurred, as did the events while she has been in immigration detention.
Sub-paragraph (d) of paragraph 11.1.1(1) of the Direction directs a decision-maker to have regard to:
The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious.
As mentioned earlier in these reasons, s 501(6)(c) includes a consideration of the Applicant’s past and present general conduct, as well as her past and present criminal conduct. I am of the view that her general conduct for the purposes of this sub-paragraph (d) encompasses the above-mentioned pending criminal charges, including the breach of District Court bail in New Zealand. Such conduct can, to my mind, fall within the realm of “general conduct” because – to be fair to the Applicant, those charges remain untested in a court and she has not been convicted of them.
A similar determination can be made in relation to her conduct in and around her absconding from immigration detention in September 2010. Once again, that conduct has not been the subject of any formal charges having been tested in the appropriate forum, resulting in any conviction. That said, the reality of the Applicant intentionally absconding from detention and her deliberate conduct in not regularising her migration status until she was detected and returned to detention in 2015, some five years later, cannot be denied. Nor can the reality, on her own evidence, that she was unlawfully employed during that period.
I have already made a finding that the Applicant is not of good character. I have little or no hesitation in augmenting that finding with a finding that both her past and present general conduct, together with her past and present criminal conduct, are such as to render her not of good character, pursuant to s 501(6)(c) of the Act. On this basis, I find that Applicant’s conduct can be categorised as significantly serious, pursuant to

sub-paragraph (d) of paragraph 11.1.1(1) of the Direction.
Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction concerns itself with any sentence (or sentences) imposed by the courts for a crime or crimes committed by the Applicant. I have had regard to the Applicant’s police records from New Zealand[22] I have also had regard to the Applicant’s National Police Certificate in Australia.[23] As will be noted from her New Zealand offending history, she has received the benefit of non-custodial terms for most, if not all, of her offending in that country. That said, the list of offending, including traffic offending, cannot be said to be anything other than consistent and extensive.
[22] Exhibit 4, Section 501 G-Documents, G-3, pages 52-62.
[23] Ibid, G-3, pages 50-51.
The significant counterpoint in her history of offending is to be found in her National Police Certificate for her Australian offences. For virtually the first time in her offending history the sentencing authorities saw fit to punish her offending by imposing a custodial sentence – albeit for 28 days – for possession of a Schedule 2 unlawful substance for a commercial purpose. The imposition of a custodial term is a measure of last resort in any reasonably applied sentencing process. There can be little or no doubt that the charges relating to the Applicant’s absconding from immigration detention and her unlawful employment in the community while at large for five years, would most likely be punished by the imposition of a custodial term. Whether such custodial terms would or would not be partly or wholly suspended would be a matter for the discretion of the sentencing judicial officer.
I am of the view that the imposition of a custodial term – albeit a brief term – on the Applicant for just her second episode of offending in this country is indicative of the recognition of her conduct by the Australian sentencing authorities as serious. Put another way, the Australian sentencing authorities saw fit to impose a custodial term when such punishment had not previously featured in the Applicant’s offending history in New Zealand. An application of sub-paragraph (e) of paragraph 11.1.1(1) demonstrates that the sentencing authorities, in Australia at least, now regard her offending as sufficiently serious as to warrant a custodial term.
Sub-paragraph (f) of Paragraph 11.1.1(1) requires me to look at the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. Clearly, there is. The increase in seriousness can initially be detected in her traffic history. The early components of that offending involved – what can only be described as – “bad choices” by the Applicant. Resulting in offences such as driving whilst under the influence of alcohol and failing or refusing to provide her personal particulars to a law enforcement officer in the course of driving a motor vehicle. However, this offending graduated towards repeated and high range drink driving, together with three offences of driving whilst disqualified – two of which were committed in the month of March 2007, two offences of operating a motor vehicle carelessly, two offences of driving a motor vehicle in a dangerous manner in 2006 and 2007 and one offence of operating a motor vehicle recklessly in 2007. Her traffic offending also involved a direct challenge to lawful authority, whose responsibility it is to control and regulate driving activity. Specifically, the Applicant failed to remain stopped pursuant to a request of an enforcement officer in 2007.
It is clear that the Applicant has an unresolved issue with illegal drugs and, most likely, alcohol. On her own evidence, she continues to consume alcohol and illegal substances even while in immigration detention. As is often the case in circumstances where Applicants have an extensive history of offending, much of their offending occurs either as a direct result of or an indirect consequence of the consumption of alcohol and/or illegal substances. It is not clear whether her aggressive conduct while in immigration detention is or is not a direct result of her consumption of alcohol and/or illegal substances. There is nothing before the Tribunal from an independent and suitably qualified medical or other expert who has: (a) identified the issue(s) causing the Applicant to offend and re-offend and (b) defined a course of management and treatment of those symptoms such as to minimise the Applicant’s prospects re-offending were she, at some stage, to be released into the community.
For present purposes and with reference to sub-paragraph (f) of paragraph 11.1.1(1), the question for the decision-maker is whether a decision-maker can detect (a) whether the offending has been frequent; and (b) whether there is an increasing trend of seriousness. I consider that this Applicant’s pattern of offending from its inception in 1994 to be frequent. While she has enjoyed the benefit of predominately non-custodial punishment thus far, her willingness to abscond from immigration detention and to remain unlawfully at large for five years, coupled with the escalating nature of her offending in this country, demonstrates the seriousness of her offending.
The only conclusion that can be drawn from an application of sub-paragraph (f) of paragraph 11.1.1(1) of the Direction, is that the frequency of the totality of the offending and its trend of increasing seriousness, are factors confirming the significantly serious nature of the Applicant’s criminal and other offending to date.
Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction requires a consideration of whether the cumulative effect of the Applicant’s offending is such as to render it serious. Taking a longitudinal view of her offending, that question can be answered in the affirmative. While the Applicant did consult with a clinical psychologist in May 2016, that consultation was in relation to certain Children’s Court proceedings for her infant child.[24] As observed by the Minister, that report is now rather dated. The more significant problem with the report is that there is no concluded view about: (a) identification of the factors giving rise to a propensity in the Applicant to offend; or (b) that those factors are somehow under professional management and control.
[24] Ibid, G-3, Report of Dino Cipriani Clinical Psychologist, dated 23 May 2016,
The Applicant sought to advance an argument that she had turned a corner and no longer had any intention of returning to the drug culture that has so significantly dominated her life thus far. Though such a thought may be well intended, it does not serve to lessen the repetitive nature and seriousness of her offending thus far. The present enquiry is concerned with assessing the seriousness of what she has done, against – if it were available – bona fide expert opinion that she is unlikely to re-offend as result of intervention from a rehabilitative expert(s). The seriousness of what she has done is self-evident. The absence of any report or opinion from a suitably qualified rehabilitative expert is obvious. In the absence of such an opinion, all that remains is the very serious nature of her offending to date.
I do not consider that the Tribunal can be satisfied that this Applicant has developed any measurable level of respect and deference to lawful authority. Even at the basic level of operating a motor vehicle, the nature of her offending is such as to demonstrate a marked lack of respect for both the lawful authority that issued a driver’s licence to her in the first place and for the safety of other road users. The Applicant must surely be aware that driving under the influence of alcohol places not only her own life in danger but the life of potentially numerous others in serious jeopardy as well. Government campaigns, both in Australia and New Zealand with a focus against drink driving have been at the forefront of our community’s consciousness for decades. I cannot accept that the Applicant was not aware of the seriousness of driving whilst under the influence of alcohol. She has clearly not taken heed of long term government messaging about the perils of drink driving.
Likewise, with her conduct involving her in absconding from immigration detention and unlawfully remaining at large for five years. There is again, a clear lack of respect for lawful authority. To abscond may perhaps be regarded as one thing. But to deliberately remain at large and to at no time during that five year period regularize her visa status is another thing altogether. It is redolent of taking lawful authority for granted and assuming that she is above the law such that she thought she would remain at large indefinitely.
The totality of her offending leads me to a conclusion that she has not yet developed a demonstrable capacity to distinguish right from wrong. This is probably because she has not had the benefit of independent and genuinely expert rehabilitative assistance in gaining a properly advised insight into the factors causing her to offend as she has.
A further conclusion that I draw is that the cumulative effect of her repeated offending is that it is clear her offending days are not yet over. The remorse she appears to have expressed during the hearing of this matter does not displace the reality that due to a lack of rehabilitation she could quite realistically re-commence her offending were she ever to be released in the community and, for example, to find herself in another situation of exposure to illegal drugs. Further, the Tribunal draws a negative inference from the fact that the Applicant has not demonstrated a seriousness about abstaining from illegal substances. The Tribunal relies on the comments made by the Applicant at the hearing relating to contraband and smoking marijuana at the immigration detention centre.
Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction is also relevant in this matter. It deals with the question of whether the non-citizen has provided false or misleading information to the Respondent, including by not disclosing prior criminal offending. When the Applicant departed New Zealand for Australia in March 2009, she did so knowing that she was on bail and that her New Zealand passport had been confiscated as part of her bail conditions. Be that as it may, the Applicant contrived to obtain a false passport and utilized that false passport to depart New Zealand. In addition, she utilized that false passport to enter Australia.
Further, the Applicant provided incorrect information to the Department on her incoming passenger card on 19 March 2009. Put simply, she did not disclose her criminal history to the Australian authorities. I have noted her evidence around these aspects:
(a)obtaining a false passport,
(b)knowingly departing New Zealand and entering Australia on that false passport;
(c)departing New Zealand in the knowledge that charges were pending against her in that country; and
(d)knowingly withholding details of her criminal history from the Australian authorities. In my view, I reject that evidence as unsustainable, unsubstantiated, otherwise self-serving and lacking in credibility.

With reference to sub-paragraph (h) of paragraph 11.1.1(1) of the Direction, I have also had regard to the Applicant’s willingness to fraudulently attempt to put forward a letter of support from her former partner (and father of her infant child) with the partner’s forged signature in Tribunal proceedings numbered “2017/4020”.. While, strictly speaking, the Tribunal is not “the Department”, for the purposes of sub-paragraph (h), it is conduct demonstrative of the Applicant having a willingness to mislead lawful authority.
The Applicant’s evidence in response to the suggestion that she forged her former partner’s signature was both misconceived and totally lacking in credibility. She purported to suggest that the former partner was “being slack” in not getting around to actually signing the letter so she took it upon herself to sign it for him. According to the Applicant, her former partner changed his mind about the letter, by which time she had filed it and thus, it “looked like” she had committed fraudulent behaviour. The self-serving nature of her evidence - with no corroboration from the former partner – speaks for itself. This evidence, which was fraudulently produced, should be discounted in its entirety.
This conduct by the Applicant, to my mind, falls squarely within the consideration of sub-paragraph (h) of paragraph 11.1.1(1) of the Direction, and militates strongly in favour of a finding that her conduct can be regarded as significantly serious.
The final sub-paragraph of paragraph 11.1.1(1) of the Direction is sub-paragraph (i). It involves an assessment by the decision-maker of whether the offences or conduct of the Applicant committed in another country (in this case, New Zealand) can be classified as an offence in Australia. It is clear that the totality of the Applicant’s offending in New Zealand would be regarded as offences in Australia. There can be no question that offences of violence, offences involving illegal drugs, offences against a person, offences involving a refusal to submit and respect lawful authority and the Applicant’s offences while purporting to be in control of a motor vehicle - are all offences within the Australian criminal jurisdiction. Put simply, what the Applicant has done in New Zealand is regarded as offending conduct in Australia and the totality of the New Zealand offending can be utilized – pursuant to this sub-paragraph (i) – to reach a conclusion that the totality of her offending can be regarded as significantly serious.
Having regard to (1) an application of the relevant sub-paragraphs of paragraph 11.1.1(1) of the Direction to the Applicant’s conduct giving rise to her criminal and traffic history;

(2) taking a longitudinal view of that history and its increasing severity; and (3) the absence of any rehabilitative or other measures identifying and treating the factors predisposing the Applicant to offending, I find that the nature and seriousness of the Applicant’s conduct to date is of a significantly serious nature. As such, I further find that the nature and seriousness of her conduct weighs strongly against any finding that the Applicant satisfies the character test.
The Risk to the Australian Community should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) provides that a decision-maker should have regard “to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”. This part of the Direction provides that if some conduct, and the harm that would be caused if it were to be repeated, is so serious, then any likelihood that it may be repeated should be regarded by a decision-maker as unacceptable.
Sub-paragraph (3) of paragraph 11.1.2 of the Direction provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)    evidence of any 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); and
(iii)    the duration of the intended stay in Australia.
Sub-paragraph (4) of paragraph 11.1.2 of the Direction directs decision-makers to consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
I concur with the finding of my colleague at a previous hearing[25] involving this Applicant:
“[54] …. there is a risk that the Applicant will commit further offences or engage in other serious conduct. In making that finding, the Tribunal takes into account that she did not commit a criminal offence in Australia for five years before she was taken into detention for the second time and the support she will have from her husband if she is granted the visa and it would be in her interests to obey the law if she was granted the visa.
[55] The Tribunal finds that the Applicant feels entitled to do whatever she thinks she needs to do to achieve her objective, including breaking the law. She does not accept responsibility for her actions.
[56] The Applicant has a history of drug taking and it is clear from the records of International Health and Medical Services (IHMS), which provide medical care in detention, that she is demonstrating drug seeking behaviour while in detention. The Tribunal finds that her complaints about being denied medication are not well-founded. She is being denied particular medications that she has requested. Similarly, the Tribunal does not accept her claims that she is being denied the treatment she needs. The transport records show that she has been taken to external medical providers, including a neurologist, 10 times. The Tribunal accepts that she may not have received particular treatment she has requested, for example from a chiropractor, but it does accept that it is treatment that is necessary. Necessary treatment is a matter for medical practitioners to assess.
[57] The Tribunal finds that there is a risk that she will again commit drug offences if the visa was granted. The Tribunal is satisfied that she will drink alcohol if she is released from detention. It follows that there is a risk that she will commit driving offences under the influence of either drugs or alcohol as she has in the past, if the visa is granted.
[58] …. The Tribunal finds that the longer the Applicant is in the community, the more likely it is that she will reoffend.”[26]
[Emphasis in original]
[25]Exhibit 5 Federal Court Application Book (Proceeding NSD 1853/2017), Decision of Senior Member Kelly, 3 October 2017, pp. 838 - 839.
[26]Ibid, pp 838 – 839, comprising paragraphs [54] – [58] of the decision of SM Kelly dated 3 October 2017.
I am therefore of the view that the totality of the Applicant’s offending conduct, and particularly its increasingly serious nature, is such as to lower the Australian community’s tolerance for any risk of future harm that her offending may cause. The trajectory of her offending and the lack of resolution, management and/or treatment of the factors behind it, lead me to the conclusion that were the Applicant to re-offend, the outcome would likely be so serious that any risk of such repetition would be unacceptable to the Australian community.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
It was contended on behalf of the Applicant that the Minister’s delegate reached an:
“...unsubstantiated conclusion, as the delegate has not given any reasons why [the Applicant] would represent a ‘risk of harm to the Australian community’. Given that her past history are [sic] mainly finable offences, and given the length of time since she was last involved in criminal activity. There is only a very slight risk to the Australian community, as it is of a minimal chance that [the Applicant] would reoffend, and this is not a significant risk to the community. The delegates [sic] decision to refuse [the Applicant’s] protection visa, for the reason that [the Applicant], is a unacceptable risk [sic] to the Australian community, is unfounded, and does not apply to the applicant’s Protection visa, under section 501, of the Act. There is no evidence to support such a claim of [the Applicant’s] conduct amounting to physical or psychological harm to members of the community. There are no prior criminal convictions, that show this is a probable outcome, for the future conduct of [the Applicant] to be an unacceptable risk to the Australian community.
The emphasis of Direction No 65, is placed upon the seriousness of the crimes committed and the seriousness of past conduct when considering the risk of harm to the community should the non-citizen repeat offend [sic]. There is no evidence that [the Applicant] is an unacceptable risk to the community.”.[27]
[27] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, p. 7, para [34].
The difficulty with that contention is that it is not supported by independent and expert medical or other evidence demonstrating that the factors causing the Applicant to offend have been identified and are the subject of an active rehabilitative treatment programme. It is trite to say that the Applicant’s issues with alcohol and illegal drugs are resolved. As mentioned earlier, her own evidence is that she continues to consume both alcohol and illegal drugs while in immigration detention.
The abovementioned report of the clinical psychologist, Mr Cipriani, is now two and half years old. It was prepared for earlier proceedings in relation to the infant child of the Applicant and is predicated towards issues of parenting. Mr Cipriani’s report says nothing about:
(a)the issues that have been behind the Applicant’s offending to date;
(b)how those issues can be categorized in a clinical sense;
(c)how severely the Applicant has been affected, and remains affected, by those symptoms with specific reference to her offending history and the prospects of her reoffending; and
(d)any prognosis about the prospects of her overcoming those propensities that have caused her offending that, in turn, can properly inform a decision-maker about the likelihood of her reoffending and, if so, the nature and harm that would result.
The Applicant’s husband provided a written statement in support of the Applicant’s application.[28] He also gave evidence at the hearing. He was cross-examined about the portion of his written statement where he refers to the Applicant’s on-going detention where he says: “It puts a lot of strain on our marriage. [The Applicant] has even told me that she doesn’t want me to come in anymore because of this situation and that has affected me greatly.”[29] The Applicant’s husband sought to ameliorate this evidence by attributing the Applicant telling him to no longer visit her to a newly implemented system for booking visitations. According to the evidence of the Applicant’s husband, he is only able to visit her once a week and the booking of that one visit must be made five days in advance.
[28] Exhibit 2, Applicant’s material, Tab 2, Statement of the Applicant’s husband dated 3 October 2010.
[29] Ibid, page 1.
Contrarian though this may sound, it was difficult to find the partner’s evidence compelling having particular regard to the strength or longevity of any relationship he may have had or may in future have with her. I accept his evidence with regard to what he thinks are the good aspects of the Applicant. It is nevertheless curious for him to say that she doesn’t want him to visit her anymore. The evidence is curious because even in the face of a more strict or inconvenient regime of booking visitations, one is hard-pressed to understand how that would cause her to tell him to no longer visit her.
The question thus becomes what are the factors informing an assessment of the nature of the harm that would likely result from further or other serious conduct by the Applicant? Those factors may be variously stated as thus:
·Limited insight: the Applicant contends she has developed insight into the nature and harm resulting from her past conduct. The problem with that submission is that only she has formed this view. It is not supported or augmented by independent psychological and/or psychiatric evidence;
·Identification of causative factors: there is no identification of exactly what it is within the Applicant’s personality or psychology that causes her to abuse substances – both legal and illegal. Does she have a problem with alcohol and illegal drugs that is unresolved? Does she have an unstable mood which is somehow aroused or thrown out of kilter by the consumption of alcohol and/or other substances? Has her conduct got nothing to do with substance abuse and is her behaviour attributable to some mood instability or other diagnosable personality disorder?
·Refusal to submit to lawful authority: aside from the Applicant expressing remorse about what she has done and her realization that things could seriously go awry for her were she to not succeed in this application, how can the Tribunal be satisfied that the Applicant has gained any modicum of respect for lawful authority? It is certainly not demonstrated either in her offending history in New Zealand and Australia;
·What has the Applicant learnt from previous penalties and sentences?: I have already referred to the custodial term imposed upon her as a result of her first experience with sentencing by an Australian court in September 2010. I think it more likely than not that were the authorities to proceed with prosecuting her for absconding from immigration detention and remaining unlawfully at large for five years, she would receive further custodial terms. How can the Tribunal be satisfied the Applicant has learnt anything from the imposition of the albeit shot custodial term in September 2010? This is particularly so because she received relatively “light” and non-custodial sentences in New Zealand yet commits a significantly more serious drug offence barely a year after her arrival in Australia?;
·Her failure to moderate her own behaviour: why should the Tribunal accept her evidence of being a changed person in circumstances where she has not moderated her behaviour in the past despite:
othe efforts of sentencing courts in New Zealand to deter her from future offending via the various non-custodial terms imposed upon her; and
othe opportunity (prior to her being placed in immigration detention in 2015) to engage with genuine rehabilitative expertise, yet failing to do so. The Applicant must surely have known of her issues with either or both alcohol and illegal drugs when she arrived in Australia. Rather than seeking expert assistance for those issues, she proceeded to commit a serious drug offence resulting in the imposition of a custodial term.
I have had regard to the totality of the Applicant’s history and its escalating level of seriousness. For reasons I have explained, I am of the view that were the Applicant to re-offend in a similar manner, the risk she would pose to individuals of the Australian community would be significant. Looking at her history both here and in New Zealand, such harm could result in others suffering anything from minor physical or psychological injuries to much more serious such injuries or even death. I am therefore of the view that the potential future harm she may cause to members of the Australian community is to be categorised as significant to very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Sub-paragraph 11.1.2(3)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to such a risk, while also looking for and taking into account any rehabilitation achieved by the time of this decision.
There are several reasons that have led me to the conclusion that there is a likelihood of there being a significant risk that the Applicant will reoffend. In the context of the evidence, those reasons can be stated as follows:
·her offending primarily occurs in the context of substance abuse. Since her arrival in Australia (if not well before then in New Zealand), she must have been aware of these issues yet did little to have it identified and treated. Her issues with substance abuse remain unresolved and, in those circumstances, no decision-maker could reasonably form the view that there is a low likelihood that she will reoffend;
·whatever treatment or programme she has undergone while in immigration detention has resolved nothing by way of identifying her symptoms, defining a rehabilitative or treatment programme and laying down a prognosis of how those symptoms – duly managed – will lessen her propensity to offend;
·as discussed earlier in these Reasons, there is no independent or expert evidence before the Tribunal to prove and demonstrate the content of the immediately preceding bullet point paragraph. I have earlier dealt with the report of Mr Cipriani and its inherent limitations. The Applicant has agitated about treatment apparently denied to her while in immigration detention, but the reality remains that while in detention, she continues to demonstrate drug seeking behaviour; and
·the Applicant has been in corrective services or immigration detention since August 2015. Any extent to which she may have been rehabilitated is yet to be tested because there has been insufficient time – indeed no time - has elapsed to observe the Applicant’s conduct in an unsupervised environment within the Australian community. There is thus no time-based measure to test her claims of rehabilitation and to form a genuine assessment of the likelihood of her re-offending.
I have formed the view that the Tribunal cannot be satisfied that the Applicant has taken adequate steps to rehabilitate herself, such that there is a low likelihood of her

re-offending. Any issues she has with alcohol and illegal drugs remain unresolved. Any psychological/psychiatric factors predisposing her to abuse these substances remain unidentified, untreated and unresolved.
Conclusion: Primary Consideration A
My finding is that for all of the preceding reasons there is a strong and convincing likelihood that this Applicant will engage in further serious conduct, most likely as a result of her unresolved substance abuse issues, if returned to the Australian community. I am also of the view that it is quite likely any harm occasioned to others in the event of her re-offending would be both substantial and serious and, quite conceivably, at least of the same level of severity evident in her offending to date. In consideration of all of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of refusing a grant of the subject visa sought by the Applicant.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is, or is not, in the best interests of a child who may be affected by a refusal to grant the subject visa sought by the Applicant. Paragraphs 11.2(2) and 11.2(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 the decision to refuse to grant the visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Applicant has a six year old child and another child aged approximately 17 years. I am therefore required to make a determination about whether a refusal to grant the subject visa is, or is not, in the best interests of the six year old child. The Applicant’s older child is not part of this Primary Consideration B.
Paragraph 11.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of those factors include:
·the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or meaningful contact (including whether an existing court order restricts contact);
·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 younger child turns 18);
·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;
·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;
·whether there are other persons who already fulfil a parenting role in relation to the child;
·any known views of the child (with those being given due weight in accordance with the age and maturity of the child);
·evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The six year old child is the subject of certain orders made by the Children’s Court of New South Wales in May 2016.[30] Those orders relevantly provide that parental responsibility be allocated to the Minister for Family and Community Services for a period of six months from the date of the order. Then, parental responsibility would be allocated to the child’s father until the child attains the age of 18 years. Significantly for present purposes, the Children’s Court sought and obtained undertakings from the child’s father that he:
·Will not restore the child to his mother’s care;
·Will agree to facilitate supervised contact between the child and the Applicant once per month while she remains in New South Wales until the child reaches 12 years of age; and
·Will supervise or ensure that a responsible adult supervises any contact between the Applicant and the child, “be it through Skype or equivalent, telephone calls, letters or any future face to face contact”[31], until the child reaches 12 years of age.
[30] Exhibit 4, G3, pp. 422 – 424.
[31] Exhibit 4, G3, p. 424.
To the extent the Applicant may now seek to challenge or assert some sort of procedural or other flaw in the abovementioned Children’s Court orders, I reject that evidence on the same grounds as did my colleague in an earlier ventilation of this issue.[32]
[32]Exhibit 5, Federal Court Application Book (Proceeding NSD 1853/2017): Decision of Senior Member Kelly, dated 3 October 2017, pp. 835 - 836, paras 42 and 44.
I similarly reject the Applicant’s evidence about the quite appalling incident that occurred on or about May 2005, involving the elder child’s apparent accidental ingestion of ecstasy in New Zealand, as well as the Applicant’s alleged administration of Panadol to sedate the infant child on the same basis reached by my abovementioned colleague.[33]
[33] Ibid, p. 835, para 43.
I am satisfied that the Children’s Court of New South Wales duly made the abovementioned orders in May 2016, after itself being satisfied that the making of those orders was appropriate. This Tribunal will not go behind those orders. The abovementioned reported incidents about the Applicant’s conduct in relation to the infant child reflects adversely on her. No evidence proffered by the Applicant convinces me that her conduct is capable of amelioration.
While the Applicant may contend that she, her husband and the infant child “…are a family unit and that [the Applicant’s] visa refusal is causing them hardship…”, there is no evidence before the tribunal of any parental relationship between the infant child and the Applicant’s husband.
The orders made by the Children’s Court in May 2016, preclude any meaningful application of the factors appearing in paragraph 11.2(4) of the Direction. The effect of those orders is to subjugate those considerations and to ensure their primacy remains intact in the best interests of the infant child. In other words, the only measuring mechanism of what is in the best interests of the infant child, for the purposes of this consideration, comprises those orders.
Be that as it may, I have regard to the concession of the Respondent, who accepts that it is in the best interests of the infant child for the Applicant to remain in Australia so that she may continue to have contact with him in accordance with the orders of the Children’s Court.[34] This concession is appropriately made and accords with the terms of paragraph 11.2(1) of the Direction, which provides: “(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.”
[34] Exhibit 3, Respondent’s SFIC, p. 10, paragraph [19].
Conclusion: Primary Consideration B
In accordance with the Respondent’s concession, I find that the best interests of the Applicant’s minor child in Australia is a consideration that moderately weighs in favour of the Applicant. However, the finding, in terms of weight to be attributed to, it can go no higher than that. Any weight that could be attributable to this Primary Consideration B can only occur on the basis of (1) the Respondent’s abovementioned concession and (2) the broad terms of paragraph 11.2(1) of the Direction.
Primary Consideration C
The final primary consideration relates to the expectations of the Australian community. In making this assessment, paragraph 11.3(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. I must also have regard to the Government’s views in this respect. Paragraph 11.3(1) of the Direction directs a decision-maker to endorse the refusal of a visa as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C, is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending – particularly her very lengthy history in New Zealand, her lack of engagement with the rehabilitation process and her consequential lack of insight into her offending, should be granted the visa she seeks and thus be allowed to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether this Applicant should retain the right to remain in Australia is most clearly answered by reducing it to a series of components that can be properly understood and assessed.
I think the essential question posed by paragraph 11.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to be granted a visa to remain in Australia in circumstances where:
·She commenced offending in New Zealand in 1994 and committed further offences in 1995, 1996, 1997, 2006, 2007 and 2008. The offending had a serious tone from its outset, ranging from an offence of wounding with intent to cause grievous bodily harm, offences involving possession of illegal drugs and paraphernalia associated with them, shoplifting offences and offences relating to the unlawful occupation of a building;
·Her traffic history in New Zealand, running from 1996 until 2007, involved:
ofive offences involving refusal to submit to lawful authority;
ofour offences of driving under the influence of alcohol;
othree offences of driving while disqualified;
otwo offences of operating a vehicle in a careless manner;
otwo offences of driving a motor vehicle in a dangerous manner; and
oone offence involving the reckless operation of a motor vehicle.
·She arrived in Australia on 19 March 2009, under an assumed name with a false passport while there were live and outstanding warrants for her arrest in New Zealand, as well as pending criminal charges against her in New Zealand;
·On February 2005 the Applicant was charged for the offence of assault occasioning actual bodily harm, and was fined $400.00;
·On 10 September 2010, barely a year after her arrival, she was convicted of a serious drug offence involving possession of a schedule 2 illegal substance, for which she was sentenced to a custodial term for her second episode of offending in this country;
·On 10 September 2010, in addition to the immediately preceding conviction for the serious drug offence, she was also convicted of (1) furnishing a false name to a law enforcement officer, (2) possession of a dangerous drug, and (3) possession of a thing to be used in the administration of a dangerous drug;
·Her Special Category (Class TY) visa was cancelled on 10 September 2010, contemporaneous with her abovementioned convictions on that day;
·On 13 September 2010, she absconds from immigration detention and unlawfully remains at large in the community until arrested by Queensland Police and returned to detention in August 2015;
·On 6 October 2015, her application for a Bridging visa is refused by a delegate of the Respondent;
·On 16 December 2015, her application for a Protection visa is refused by the Minister;
·On 6 April 2017, her application for a further Bridging E (Class WE) visa is refused by the Minister;
·On 11 July 2017, the Minister again refused the Applicant’s further Bridging visa application on the basis that the Applicant did not satisfy the character test;
·On 3 October 2017, this Tribunal affirmed the Minister’s refusal to grant a further Bridging visa application on the basis that the Applicant did not satisfy the character test;
·On 7 September 2018, a the Minister re-considered her Protection visa application and refuses that application on the basis that the Applicant did not satisfy the character test;
·Between 2015–2017, the Applicant is involved in numerous incidents while in immigration detention, including contraband alcohol, abusive incidents towards other detainees and serco staff, aggressive behaviour, assaults and property damage.
·There is a clearly discernible increase in the level of seriousness of her offending conduct;
·She has been in either corrective custody or immigration detention on a continuous basis from June 2015; and
·
There is no medical or other independent expert, either (1) identifying or diagnosing the factors giving rise to the Applicant’s propensity to offend; or

(2) defining a regime of treatment and remedial management of those factors such that the Tribunal can be satisfied that the Applicant is not likely to further offend. Put another way, the Applicant’s issues with alcohol and illegal substances and anything else in her psychological profile giving rise to a propensity to offend, remain unidentified, unresolved and untreated. There is no certainty that she will not offend in future, and if she does, that her offending will be any less serious than it already has been.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae designed to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[35]
[35] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Of course, the passage of time informs and even alarms any reasonable member of the Australian community. Times and circumstances change, which sometimes spawns an alteration in the community’s apprehension of how a specific statutory power ought be applied. The community’s tolerance of domestic violence has – through concentrated and intense community and media campaigning – definitely become lower in the course of the last decade. Its effect on how Courts and Tribunals have sought to apply s 501 of the Act (and more particularly with reference to the community expectations component described in paragraph 11.3(1) of the Direction) is palpable, particularly in more recent decisions.
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 11.3(1) of the Direction.[36] In

ETWK and Minister for Immigration and Border Protection
, Deputy President Forgie said:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) [the equivalent paragraph in the Direction for the present consideration is 11.3(1)] is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[36] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[37]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 [for present purposes, paragraph 11.3(1)] of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[37] [2017] FCA 1466 at [76]-[77].
The learned Mortimer J went further, and thought the last two sentences of paragraph 11.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[38] Bromwich J said:
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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms, which is precisely what it did.
[My underlining]
[38] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant is either of sufficiently good character to pass the character test or, in the alternative, whether the nature and seriousness of her past conduct and the likelihood of her reoffending in this country can be put to one side, such that she should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The significantly serious nature of her offending and the discernible trend of its increasing seriousness;
(ii)Her demonstrated refusal to accept and submit to lawful authority. This is evident from several aspects of her offending profile while in the community (whether in New Zealand or Australia), but including her unsatisfactory conduct while in immigration detention;
(iii)My respective findings as to (a) the significantly serious nature of her offending to date; (b) the likelihood that she will re-offend; and (c) if she were to do so, the resulting harm would be of at least the same significantly serious nature as her earlier offending;
(iv)Her failure to moderate her behaviour in circumstances where (a) the sentencing courts (especially in New Zealand) have sought to deter her from further offending; and (b) the reality that she is the mother of one almost adult child and one infant child, and wife to an apparently devoted husband;
(v)A virtual absence of any participation in a rehabilitative process; and
(vi)The comments of the learned Mortimer and Bromwich JJ and Deputy President Forgie about how a decision-maker ought to apply paragraph 13.3 of the Direction, which is of course the parallel provision to paragraph 11.3.
I therefore find that the Australian community would consider that this Applicant has breached the trust they have placed in her to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that she hold a visa to remain in this country.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, prove herself as both a mother and a wife. Does she deserve such an opportunity? The answer depends on the circumstances of her case to be considered in light of the overriding purpose of the legislation.[39]
[39]See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant has a criminal history running from 1996 to 2010[40] (approximately

14 years). It has become progressively more serious and it has only stopped as a result of her being placed in either corrective custody or immigration detention. That is the stark reality of her offending history that cannot be denied.
[40]Strictly speaking, the offending history ends in “September 2010” when she was dealt with at the Darwin Court of Summary jurisdiction. On one view, the offending history is not at an end. As mentioned earlier, she was arrested in August 2015 and returned to immigration detention. The National Police Certificate contains no reference to her having been dealt with for the absconding conduct, the conduct involved in remaining lawfully at large and the conduct around her unlawful employment while unlawfully at large.

It should also be kept in mind that she is yet to be formally charged and convicted for absconding from immigration detention in 2010, remaining unlawfully at large in the community for five years, and being unlawfully employed in the community during that five year period. Similarly, there are the pending charges awaiting her in New Zealand. On one view, her experience with the sentencing courts is not yet concluded.
I have taken into account that her husband, the Applicant’s sister-in-law and her father have spoken favourably about the Applicant. However, none of her lay witnesses spoke with any genuine conviction or certainty that she would not reoffend. I found the husband’s evidence about the currency and longevity of his relationship with the Applicant to be unconvincing and, on the whole, unimpressive.
My greatest concern arising from the factual circumstances of this matter is that the issues giving rise to this Applicant’s propensity to offend remain unresolved. Her previous offending has been so consistent and increasingly serious that the only prediction one can make about the likelihood of her offending in future is: (1) that she indeed is likely to reoffend; and (2) if she does, the consequences will most likely be quite serious. In these circumstances, I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust it placed in her when she first came here. She breached that trust barely a year after her arrival in Australia.
The Applicant speaks of having a chance to re-establish her life back in the Australian community. She initially had chances and opportunities to moderate her conduct in New Zealand. She failed to do so. Despite her unlawful arrival in Australia in March 2009, it can be said the Australian community gave her a chance to re-establish her life in this country. Again, she failed to do so and, indeed, offended in a significantly serious way and then proceeded to abscond from lawful authority and remain at large for five years until her arrest and forced return to detention.
Thus, she has had chances and opportunities, be it in the form of initially less harsh sentences (in New Zealand), in the form of a loyal and loving husband, together with a supportive immediate and extended family. She has failed to take each of those chances she has received and has continued her offending ways virtually unabated. I am of the view that a reasonably minded member of the Australia community would conclude that it is no longer incumbent on this country to give her another chance or chances.
I therefore do not consider that the Australian community would be prepared to give this Applicant a chance to be released from immigration detention and to resume her life here under the visa she seeks.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse an affirmation of the decision under review – specifically, that the Minister has rightly refused a grant of the visa sought by the Applicant. I accordingly find that this Primary Consideration C weighs heavily in favour of her not holding a visa to remain here.
Other Considerations
There are four “other considerations” disclosed at paragraph 12(1) of the Direction. I address each in turn.
(a)International Non-Refoulement Obligations:
When she initially applied for a Protection visa in September 2015, the Applicant said she was in “real danger of being killed in New Zealand” and, according to her, this was the reason for her emergent and unlawful departure from New Zealand to Australia. I note that in the decision under review, the delegate agreed with an earlier finding of this Tribunal[41] that the Applicant was a person in respect of whom Australia has non-refoulement obligations pursuant to s 36(2)(aa) of the Act. That is to say, the delegate found that, but for failing the character test, Australia owes the Applicant protection obligations pursuant to s 36(2)(aa) of the Act. I am mindful that if the Applicant fails in this application for a Protection visa, s 501(E) of the Act prevents her from applying for another visa, other than for another Protection visa or a Bridging R (Class WR) visa. However, absent a determination by the Minister to the contrary, s 48(A) of the Act will prevent her from making a further application for a Protection visa while she remains in the immigration zone.
[41] G Documents, G3, pp. 373 – 396.
Without a Protection visa, the Applicant becomes an unlawful non-citizen and, as such, attracts the operation of s 198 of the Act, which presents her with two possibilities. First, she becomes liable to removal from Australia as soon as reasonably practicable. Second, pending removal, she will remain in immigration detention pursuant to s 189 of the Act. Section 197C of the Act provides that for the operative purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
As I recall the closing submissions of the Respondent’s representative, while agreeing the Applicant could be returned to New Zealand (if a Protection visa is not granted), “this is not something the government would intend to do.” This submission was accompanied by references to ss 195A and 197C of the Act, and seems consistent with the delegate’s comments in the decision under review:
“83. I am also mindful that at the time of the insertion of s197C in the Act, the government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms include the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which he may grant a visa to a person who is in immigration detention if he thinks it is in the public interest to do so.
84. I am aware that the potential for the Minister to personally exercise his s195A power in order to meet Australia’s international non-refoulement obligations is pertinent to [the Applicant’s] case and this potential could be encompassed in a consideration by the Minister of alternative management options in relation to

[the Applicant]
.”[42]
[42] Exhibit 4, s501 G Documents, G2.5, page 46.
Both the delegate’s above-quoted decision and the above-quoted closing submission from the Respondent’s representative, are, respectfully, inconsistent with the comments of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448:
“[26] The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A
…
[30] It relies upon the assumption that the only relevant consequence of the refusal decision was that the applicant would be detained for a short period before a decision was made in relation to the s 195A power. However, there is no reference in the reasons of the Minister to his decision to consider alternative management options. That decision was independent of the decision to refuse the protection visa. The response of the Minister recorded on the submission from the Department shows that the decision to consider alternative management options was made after the protection visa application had been rejected. Thus, at the time of refusal decision, the consequence of the decision was not a short period of detention, but rather the removal of the applicant to Syria.”.[43]
[43] At [26] and [30].
The Tribunal respectfully disagrees with the contentions of the Respondent and the Applicant regarding Australia’s non-refoulement obligations to the Applicant. As stated, the Minister’s delegate considered whether the Applicant was owed complimentary protection and then made a finding that the Applicant was owed complimentary protection.
Further, and with respect, the submissions from the Respondent on non-refoulement are not relevant to the extent that the review rights the Applicant has with the Minister do not affect the assessment the Tribunal has to undertake when considering Australia’s non-refoulement obligations.
As I have stated earlier in this decision, the Applicant has claimed that she is at risk of significant harm from criminal gangs in New Zealand, but this has not been corroborated from any external source.[44] Due to the inherently unreliable nature of the Applicant’s evidence, both on this and most other aspects of this application, the Tribunal cannot be satisfied that the Applicant is owed non-refoulement obligations based on the Applicant’s claim alone. Specifically, the view of this Tribunal is that Australia does not owe the Applicant complimentary protection pursuant to s 36(2)(aa) of the Act.
[44]During the hearing the Applicant’s father, in his evidence, alluded to “gangs” in New Zealand apparently interested in the Applicant, but provided nothing by way of definitive evidence such as, for example, that he and the Applicant had engaged in a process with law enforcement authorities in New Zealand for the placement of the Applicant on a witness protection program, or equivalent.
The Full Court of the Federal Court in MIAC v SZQRB [2013] FCAFC 33 set out the correct test to be followed in order for the Tribunal to make a finding on whether “…there is a real risk that the non-citizen will suffer significant harm” if removed from Australia:
“[242] The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a) when considering whether the applicant has a well-founded fear that the applicant will face persecution for a Convention reason if returned to the applicant’s country of nationality: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 429 and Mason CJ at 389, Dawson J at 398, and Toohey J at 407
…
[246] In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan”.[45]
[45] Para [242] and [246].
The state of the evidence before the Tribunal in this application is such that I am not able to find “…substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
I now have to consider whether the Applicant is a refugee pursuant to s 36(2)(a) of the Act. The Applicant has made no claims to this Tribunal that she have been persecuted based on her race, religion, nationality or membership of a particular social group or particular opinion.[46]
[46] s 5J(1), the Act.
The Applicant’s evidence was to the effect that Australia owes her complimentary protection because she has been and possibly still is the target of a vendetta and that such vendetta is still current against her in New Zealand. In essence, the Applicant seeks to make out her claims of persecution based on her “membership of a particular social group”, as I understood her evidence. I do not think her evidence bears this out. Having apparently displeased or fallen afoul of someone else in another country does not equate to a demonstrable apprehension of persecution for the purposes of s 5J of the Act.
There is also no evidence that the Applicant is a family member of someone to whom Australia owes protection obligations.[47]
[47] s 36(2)(b)-(c), the Act.
Although not considered by the delegate in the decision under review, even if the foregoing reasoning is incorrect, the Tribunal should also have regard to s 91WA(1)(a) of the Act, which stipulates that:
“The Minister must refuse to grant an applicant for a protection visa if: (a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship”.
As stated earlier in these reasons, the Applicant fraudulently obtained a passport to depart New Zealand and enter Australia on that false passport with an assumed identity.
It is open to the Tribunal to not be satisfied that there is a real chance that she will suffer serious harm or a real risk that she will suffer significant harm if she returns to New Zealand based upon her claims of perceived or expected violence against her. As noted by my colleague at an earlier decision of this Tribunal in this matter:
“…Australia does not owe the Applicant any protection obligations as her fears relate to the alleged criminal conduct of third parties in a country with effective state protection.”[48]
[48]Footnote from Exhibit 5, p. 840: New Zealand 2016 Human Rights Report, Country Reports on Human Rights Practices for 2016, United States Department of State, Bureau of Democracy, Human Rights and Labor.
I have had regard to the provisions of s 36(2)(B) of the Act, which outlines certain circumstances in which there is taken not to be a “real risk” that the applicant will suffer significant harm in New Zealand if the Tribunal is satisfied of these things:
(a) It would be reasonable for the applicant to relocate to an area of New Zealand where there would not be a real risk that she would suffer significant harm; or
(b) The applicant could obtain from an authority of New Zealand, protection such that there would not be a real risk that she will suffer significant harm; or
(c) The real risk is one faced by the population of the country generally and is not faced by the applicant personally.
She has told an earlier hearing that New Zealand is a small country with a small population and that due to those factors, she is easy to trace by those wishing to cause her harm. That proposition should be rejected because there must surely be other individuals in New Zealand who have remained in that country on, for example, a witness protection program or have otherwise had their assumed names and locations kept confidential by law enforcement authorities in that country.
The Applicant cannot sustain an argument that she would not be able to obtain from the New Zealand authorities protection such that there would not be a real risk that she would suffer significant harm. New Zealand is a country with effective state protection and its law enforcement authorities would be reasonably expected to take notice of and give effect to such a request from one of its citizens.
The Applicant cannot demonstrate that the real risk she propounds is one faced by the population of New Zealand generally. It is clearly something that on her own evidence is faced by her alone.
I therefore respectfully concur with the finding of the Federal Court in MIAC v MZYYL (2012) 207 FCR 211 such that the level of protection required by s 36(2)(b) of the Act was that of “reasonable” protection and that no higher standard than that is necessary to meet the requirements of s 36(2)(a) of the Act. Based on the evidence before me, I am of the view that the Applicant can find and secure reasonable protection in New Zealand for her propounded fears of harm, were she to be returned there.
I am consequently of the view that the Tribunal cannot be satisfied that Australia owes the Applicant non-refoulement obligations.
For the purposes of this decision, I (1) accept that the Applicant is not a person in respect of whom Australia has non-refoulement obligations and (2) this Other Consideration

(a) weighs against the Applicant or, put at its highest, is of neutral weight.
(b)Impact on Family Members:
there is a ready acknowledgement by the Respondent that “…there would be hardship to the Applicant’s husband…if the visa were refused.”[49] I temper any adoption of that concession with the following:
(1) that I found the husband’s evidence about the currency and longevity of his relationship with the Applicant to be unconvincing and, on the whole, unimpressive; and
(2) that although the Applicant contends that she, her husband and the infant child “…are a family unit…” there is no evidence of any parental relationship between the infant child and the Applicant’s husband.
[49] Exhibit 3, Respondent’s SFIC, page 10, paragraph [27].
With specific reference to the infant child, it should be noted that the orders made by the Children’s Court of New South Wales on May 2016, while depriving the Applicant of custody of the infant child, nevertheless give her rights of access and contact time with that child on the basis that all such access/contact time will be supervised until the infant child attains the age of 12 years.[50]
[50]As observed by the Respondent, this regime of access/contact does not change even if the visa now sought via this application is granted: see Exhibit 3, Respondent’s SFIC, page 10, paragraph [19].
The orders of the Children’s Court clearly contemplate access/contact time between the Applicant and the infant child by electronic and other digital platforms. Those orders provide that the father of the child:
“will supervise or ensure that a responsible adult supervises any contact between [the Applicant] and [the child], be it through Skype or equivalent, telephone calls, letters or any future face to face contact”, until [the child] attains at least twelve (12) years of age.”[51]
[51] Exhibit 4, G3, p.424.
Thus, this Other Consideration (b) is of neutral weight to my consideration, or put at its highest, moderately weighs in favour of the Applicant.
(c)Impact on Victims:
I cannot recall any evidence that this other consideration is of relevance in determining this application.
(d)Impact on Australian business interests:
I cannot recall any evidence that this other consideration is of relevance in determining this application. For the sake of completeness, I note paragraph 12.4(1) of the Direction provides that this other consideration only carries weight where removal of an applicant from a given employment scenario would significantly compromise the delivery of a major project or delivery of an important service to Australia. There is no such evidence before the Tribunal in this matter.
Conclusion: Other Considerations
The application of the Other Considerations mandated by paragraph 12(1) of the Direction can be summarized as follows:
(a)International non-refoulement obligations: weighs against the Applicant or, in the alternative is of neutral weight;
(b)Impact on family members: is of neutral weight to this consideration, or in the alternative, moderately weighs in favour of the Applicant;
(c)Impact on victims: not relevant to this consideration;
(d)Impact on Australian business interests: not relevant to this consideration.
CONCLUSION
I have had regard to the considerations referred to in the Direction. Primary Consideration A weighs heavily in favour of refusing the visa. Primary Consideration B weighs moderately in favour of the Applicant. Primary Consideration C weighs heavily in favour of refusing the visa. Of the Other Considerations, only Other Consideration (b) (impact on family members) weighs in favour of the Applicant while the remaining Other Considerations have no application and/or are otherwise of no weight. I do not consider that Primary Consideration B, alone or combined with Other Consideration (b) outweighs the combined weight of Primary Considerations A and C. Accordingly, a holistic view of the considerations (both Primary and Other) in the Direction favours exercising the discretion to prevent the applicant being granted a visa.

I revert to the two stages of the enquiry applicable to determination of this application:
(a)First, I am satisfied that the Applicant has not discharged the onus to demonstrate that she passes the character test;
(b)
Second, I am of the view that the discretion to refuse to grant the Protection

(Class XA) visa pursuant to s 501(1) of the Act should be exercised such that the subject visa should not be granted.
DECISION
The decision under review is affirmed.

I certify that the preceding 147 (one hundred and forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............................[SGD].........................................
Associate
Dated: 3 December 2018

Date of hearing: 22 November 2018

Advocate for the Applicant: Azam Jafari

Representative for the Applicant: AJ Migration Consultants

Counsel for the Respondent: Tim Reilly

Solicitors for the Respondent: AGS

[2018] AATA 4479

3 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date of hearing:	22 November 2018
Advocate for the Applicant:	Azam Jafari
Representative for the Applicant:	AJ Migration Consultants
Counsel for the Respondent:	Tim Reilly
Solicitors for the Respondent:	AGS