BFBZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 4810
•23 November 2023
BFBZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4810 (23 November 2023)
Division: GENERAL DIVISION
File Number: 2023/6569
Re: BFBZ
APPLICANT
And Minister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Member McLean Williams
Date of decision: 23 November 2023
Date of written reasons: 26 April 2024
Place: Brisbane
Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated 30 August 2023 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercised the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).
.................................[SGD].......................................
Member McLean Williams
Catchwords
MIGRATION – Mandatory cancellation of visa – substantial criminal record – failure to pass character test - whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 99 applied – Class TY Subclass 444 Special Category visa – citizen of New Zealand – protection of the Australian community – seriousness of offence – risk of reoffending – domestic violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member McLean Williams 26 April 2024
1.On 23 November 2023, the Tribunal set aside and substituted the decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
2.In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the Written Reasons for that decision. In Khalil, the Full Federal Court said:
[41] The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.
…
[48] What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…
[Emphasis added]
3.On 29 September 2021, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent Minister’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) pursuant to section 501(3A) of the Act. This was done on the basis of a determination that the Applicant did not pass the character test, by reason that she had a ‘substantial criminal record’, having been sentenced to a term of imprisonment of more than 12 months and was then serving a sentence of imprisonment
on a full-time basis in a custodial institution for an offence against the law of a State or Territory1 (‘the cancellation decision’).
4.On 3 October 2021, the Applicant made representations seeking revocation of the cancellation decision (‘the revocation request’).2
5.On 30 August 2023, the Minister’s Delegate decided (‘decision’) that the power in s.501CA(4) of the Act was not enlivened, and accordingly the Applicant’s visa remained cancelled.3
6.The Applicant then applied for a review of the decision in the General Division of the Administrative Appeals Tribunal on 6 September 2023, which was within the nine-day statutory review period.4 The Tribunal has jurisdiction to review the decision, pursuant to s.500(1)(ba) of the Act.
7.The Hearing of this Application For Review took place on 6 and 7 November 2023. At the Hearing, the Respondent was represented by Mr Chris West of Sparke Helmore Lawyers and the Applicant was represented by Ms Rachel Tomassen, of Samuta McComber Lawyers. At the Hearing, the Tribunal heard oral evidence from the following persons:
·the Applicant, BFBZ;
·Dr Jacqui Yoxall (Clinical Psychologist);
·Mr JF (the Applicant’s partner; and
·Ms VC (the Applicant’s mother).
8.The Tribunal also had the benefit of written character references from:
·Ms BM (a friend whom the Applicant met in Dillwynia Correction Centre);
·Mr EC (the Applicant’s brother);
1 G9.
2 G13.
3 G3.
4 G2.
·Mr JF;
·Ms KC (the Applicant’s sister);
·Mr PF (Mr JF’s half-brother);
·Mr TF (Mr JF’s half-brother); and
·Ms VC.
9.The Tribunal also considered the documentary evidence submitted by the Applicant and the Respondent, as now detailed in the attached Exhibit Register, now marked as ‘Annexure A’ to these reasons.
BACKGROUND
10.The female Applicant, hereinafter referred to in these reasons as ‘BFBZ’, was born in New Zealand in 1996, and initially arrived in Australia when aged 15. The Applicant’s mother is a nurse and had taken up a senior nursing position in Broome, Western Australia. After her arrival in Australia with her family in 1996, BFBZ then completed years 11 and 12 of her high school education, in Broome.
11.Although BFBZ appears to have had relatively harmonious and happy period whilst at high school in Broome, she was also the victim of a sexual assault when aged 16, when she was raped at a beach party, whilst intoxicated. BFBZ has not previously revealed the fact of this sexual assault to her family, yet the psychological ramifications of same on BFBZ appear to have ‘carried forward’, to become a contributing factor towards BFBZ subsequently engaging in drug use, and thus becoming exposed to other criminal influences as a young adult.
12.After completing High School in Broome, BFBZ had hoped to move to Perth to attend University, together with many others from within her existing friendship cohort from Broome. Unfortunately, that was not possible, given that BFBZ would have been compelled to pay international student tuition to attend university in Australia, on the basis of her being a non-citizen. BFBZ was compelled by reason of her family’s financial circumstances to return to New Zealand for her higher education, instead:
MS TOMASSEN: So you just referred to your plans to go to Curtin University in Perth?---Yes.
Can you tell me what ended up happening instead, and why?---So, the end of the year, my mum then also got a position overseas in Qatar. So due to my parents now moving overseas again, they weren’t able to support me going to university in Perth. So, they sent me back to New Zealand to go to university just because in Australia, back then, New Zealanders weren’t accessible to student loans, or anything, so I’d have to pay upfront, and pay accommodation, and everything. So, it was more financially suitable for me to go back to New Zealand to attend university there.
Thank you. So you went back to New Zealand for university, how did you feel during this time?---I struggled quite a bit. I was alone in New Zealand. I don’t know, I was really struggling, it was my first introduction to this kind of drinking, and partying. And, yes, I think I felt really isolated, and I was going through quite a few mental health challenges. And, yes, I think it was just a really rough time, like, being so young as well.
MEMBER: How old were you when you started university?---I was 17, turning 18. All right.5
13.Things did not go well for BFBZ in New Zealand. Within 12 months of her arrival:
‘I was binge drinking a lot. I was not performing very well in my classes. I was making friends, but I didn’t feel very connected to them. Yes, I was definitely struggling through that time’……
….So I started escorting, I was really struggling with my mental health, I was self- harming at the time, I was drinking excessively’.6
14.In 2016, the Applicant dropped out of her university course altogether:
5 Transcript p. 4 lines 25 – 45.
6 Transcript, p. 5 lines 3 – 10.
‘My mental health was in a pretty bad way, and I just wanted to get away from New Zealand, and away, I think, or away from the situation that I was in. And I thought maybe I could come to Sydney and have this fresh start.’
During this time, were you in contact with your parents at all? --- ‘By the time I had pretty limited contact with my parents, I think I was finding it really hard to connect with people, and finding it really hard to reach out. Yes, I had pretty limited contact with my parents. I think I was keeping people pretty much in the dark, not letting them know how bad things was.7
Working as an escort in New Zealand had a number of adverse impacts upon BFBZ:
‘I think it definitely fed into my mental health, and definitely help deteriorate me further. I think I thought it was helping – because it was also where I was introduced to drugs, I had this whole numbing effect going on’.8
15.Eventually, BFBZ realised that she was in a bad situation, and that she needed to leave New Zealand. She returned to Sydney, hoping to find a fresh start. Despite that hope BFBZ however resumed escorting, shortly after her arrival in Sydney:
‘I think it’s because [of] how I knew to make money at the time. It is also a way to be using drugs at the time, which I was relying heavily on’.9
16.While still in New Zealand, BFBZ had started using the drug ‘Ice’. After her arrival in Sydney BFBZ then started using the further illicit drug, ‘GHB’. BFBZ also became involved in a distinctly unsavoury relationship with ‘L’, a man whom she had met when they were both at a drug dealer’s house, buying drugs:
‘He knew about the escorting, and he told me, “You don’t have to do it anymore. I’m going to look after you”. He was working at the time as well. But I think, as the time went on, we were using more drugs, using more drugs, and then he didn’t want to
7 Transcript p. 6 lines 16 – 27
8 Transcript, p. 5 lines 45 – 47.
9 Transcript p. 7, lines 17-20.
work anymore. So, as a way to make money, he would then use me as a way to make money.’
[MEMBER] So he became your pimp? --- Pretty much, yes’.10
17.However, BFBZ’s relationship with L also came to an abrupt end: “it got to a point where my mental state was so bad that I tried to overdose. Trying to overdose I don’t know if that kind of scared him as well that, like, maybe he’s gone too far. In doing that, he then contacted my parents, and contacted my mum and told her, like, he doesn’t know what’s wrong with me, that he thinks I’m going to end up dead if they don’t come and get me.11 BFBZ’s mother then came to Sydney and took her away on a family holiday to Thailand.
18.After returning from her reunion with her family, BFBZ’s circumstances improved, at least for a short period, lasting for perhaps four or five months.12 However problems were to soon arise again, this time when BFBZ met her next unsavoury romantic partner ‘JP’, and resumed regularly consuming drugs in company with him:
So how do you know JP, or how did you know him?---So I met him through mutual friends, who were all drug users.
And why did you get into a relationship with JP?---So, I had just gone through a breakup, which I was pretty devastated by, and I was using drugs, and he came along, and he was, like, infatuated with me, do you know what I mean? Like, he gave me this love that I desperately required, or desperately thought I needed. And, like, do you know what I mean, within a couple of days he told me he loved me. It was just, I think, more of I was trying to always fill a void, or always trying to, like – like, I just really wanted to be loved, I think.
MEMBER: Where were you working at this stage?---I’d just finished a contract working for McDonald’s headquarters. I was in customer service in there.
10 Transcript p.7 lines 30 – 40.
11 Transcript, p. 8 lines 3 – 8.
12 Transcript, p. 26, line 2.
All right, thank you.
MS TOMASSEN: And can you tell me a little bit more about what your relationship with JP was like?---It was pretty, like, highs and lows. It was very, like, some days it would be great, some days it would be really toxic, very controlling, very intense. Yes.
So can you explain to me generally what time period you were involved in a relationship with JP?---I’m pretty sure I met him at the end of December 2018, and then we were arrested in February 2019.13
The Applicant’s criminal offending history
19.BFBZ did not commit any crimes during her first seven years in Australia, and only became involved in criminal activities after her return from New Zealand, after dropping out of university. This was at a time when BFBZ was already by now addicted to drugs, after having worked in the sex industry as an escort in Auckland.
20.BFBZ’s offending then relates to only a very short epoch, mostly14 arising during the period of her maladaptive relationship with JP.
21.JP was a person already actively engaged in illegal activities, and ‘being with him during those times, he would say to me things like, don’t worry, you won’t get in trouble, you’re not involved. You’re just, like, sitting here, kind of thing’.15
22.BFBZ’s first criminal offence transpired on 15 February 2018, when she committed the offence of ‘drive vehicle, listed drug present in blood – first offence; possess/attempt to, prescribed restricted substance; and use offensive weapon to prevent lawful detention, etc’. BFBZ was sentenced for these events on 26 June 2019, and was placed on a community corrections order for 18 months, together with a requirement that she perform 100 hours of community service.16
13 Transcript p. 8 lines 19 – 44
14 The offence committed on 15 February 2018 does pre-date BFBZ’s relationship with JP.
15 Transcript p. 9 lines 15 – 19.
16 Applicant’s Tender Bundle (‘ATB’) p.66.
23.BFBZ told the Tribunal that on 15 February 2018 she had been with a female friend at the Bankstown shopping centre, after their consuming the drug ‘Ice’ together. At the time of their arrest BFBZ had been seated in the driver’s seat of her friend’s car, with the engine running. Unbeknown to BFBZ at that time, a group of three police officers on bicycles had also started to approach BFBZ and her friend: “A friend was sitting in the passenger side, suddenly she looked behind us and yelled at me to start going. I freaked out, because we were in Bankstown, which is a dodgy area. I had also never driven this car before, so I reversed very quickly, hit a car behind me, and then changed quickly to drive, rolled a few metres forward, and looked up to see three police officers”17 In the process, one of the police officers was nudged by the car, and thrown from his bicycle. BFBZ and her friend were then arrested, and were charged.
24.Shortly after this offence BFBZ met and commenced a relationship with JP. In a statement prepared for these proceedings BFBZ describes the chronology of events leading to her relationship with JP and her transition to more serious offending in the company of JP in these terms:
“After my offending in February 2018, I continued to hang around my friends who were bad influences.
In the middle of 2018, I had a brief relationship with a man called [redacted] and we moved in together. He was a good influence insofar as he got me to stop taking drugs, but he had his own issues.
I worked in an administrative role for the McDonalds Headquarters, as part of a seasonal contract for about four months. During that time, I had my own place.
In late 2018, [redacted] left me and my job with McDonalds finished. I had a lot more time to myself and I started hanging out with people who were drug users again. When I spent time with those kinds of people, I found that I would spiral into my drug use faster.
During this time, I met JP through a mutual friend.
17 ATB p. 67 paragraphs 68 – 71.
I had just been through a break-up, and I was feeling very down at the time. Initially, JP made me feel really good, told me lots of wonderful things, and sold me on a beautiful feature. He told me he was obsessed with me.
JP was using drugs, which encouraged me to use drugs alongside him. I got to the point where I was using drugs (ice and GHB) every day. I got whisked up in my emotions and my drug-fuelled relationship with JP]
I was only in a relationship with JP for a few months, but it felt like much longer.
I became aware that he dealt in drugs and stole cars. At the time, I had such low self-worth that I just sought out ‘bad guys’. I thought I was in love, so I rationalised everything he did.
Our relationship was a series of very high highs and very low lows. JP was very controlling. He controlled who I could speak to, where I could go, what I would wear and how I spent my money. He got up in my face and said some very nasty things.
At the beginning of our relationship, I was not involved in his offending lifestyle. He would tell me to stay at home.
I was very dependent on GHB and in the later stages of our relationship, JP would tell me that if I didn’t do a particular thing for him, he would withhold GHB from me. In retrospect, I think he was feeding me drugs to keep me controlled and docile.
I did not want to be involved in JP’s offending lifestyle, but my proximity to him made it impossible not to get involved. We had trust issues in our relationship, so we would go everywhere together.
I was using a lot of drugs, and my memory of what actually happened during this time is very limited. I remember generally helping JP with whatever he asked me to do. He would also use my phone all the time to message people, call people and look at the internet.
By this point in my life, I was ‘used to’ being treating poorly by men. I thought that this was what I deserved. Now, the thought of JP makes me sick. I wish I could go back and shake myself.”18
25.In relation to criminal offences committed by BFBZ during the period of her relationship with JP, BFBZ’s criminal history reveals the following:
26.On 26 July 2019 BFBZ was sentenced in the Downing Centre Local Court for two offences that had transpired in either late January or early February 2019:
-enter building/ land with intent to commit an indictable offence; and
-be carried in conveyance taken without consent of owner.
27.In relation to these two offences BFBZ says that she now has very limited memory of this offending, as she had been using ice prolifically at the time. By this stage BFBZ was in her relationship with JP and acknowledged that her (now) ex-partner JP already had an extensive history of stealing cars, and that on the date in question BFBZ had been with JP and engaged in similar acts. BFBZ recalls being the passenger in a stolen car that JP had previously taken from an underground carpark, somewhere in Sydney. As a consequence of this offending, BFBZ was sentenced to undertake a further two-year community corrections order.
28.Next, on 16 March 2020, BFBZ was sentenced in the Burwood local court on a further five offences, each of which had been committed on 16 February 2019:
-possess prohibited drug (x 2);
-enter enclosed land not prescribed premises without lawful excuse;
-possess or use a prohibited weapon without permit; and
-possess housebreaking implements.
18 ATB, p 67 – 68, paragraphs [72] – [86].
29.Consistent with the prior offending, BFBZ had again been in company with JP in an underground car park on 16 February 2019, when JP was again looking for cars to steal. They were approached by police. As the police approached, JP thrust a bag at BFBZ for her to hold, and shoved some housebreaking implements down the back of her pants. Inside the bag, police found a Taser, together with some marijuana, and the drug Ice. In consequence BFBZ was sentenced to a further 12-month community corrections order, along with another 75 hours community service. BFBZ was also ordered to undergo a 12- month drug rehabilitation program; as well as being fined $500 for each of the drug possession offences; and convicted (yet not otherwise penalised) for the offence of ‘enter enclosed land’.
30.On 25 November 2020 BFBZ was then sentenced in relation to three further offences:
-larceny valued at over $5,000 and under $15,000;
-‘be carried in conveyance taken without consent of owner’; and
-‘drive vehicle, illicit drug present in blood, etc’.
31.The first two of the offences listed (above) had been offences committed in approximately January or February 2019, when BFBZ was in her relationship with JP. BFBZ recalls her again being in company with JP whilst he was stealing cars, and also recalls JP taking tools from cars - which he later planned to sell to raise money for drugs. For the larceny offence, BFBZ was sentenced to a 15-month community corrections order as well as being ordered to undertake another 100 hours community service, which was later reduced (on appeal) to 50 hours. In respect of the ‘carried in conveyance taken without consent of owner’ offence, BFBZ was sentenced to a ten-month community corrections order. Meanwhile, the drug driving offence had occurred in either June or July of 2020. For that offence BFBZ was fined a further $550 as well as being disqualified from driving for an operational period of three months.
BFBZ’s index offending:
32.To date, all of the described offending for which BFBZ has been dealt with by the courts is comparatively minor. All of it is marked by the fact of BFBZ’s drug addiction, and her
keeping bad company, and most of these offences were committed whilst BFBZ was subject to the unhealthy, controlling influences of her erstwhile boyfriend, JP.
33.On 20 August 2021 BFBZ was sentenced after the conclusion of a criminal trial in the District Court of New South Wales to an aggregate term of imprisonment of five years with a non- parole period of two years, having been found guilty of robbery in company whilst armed with a dangerous weapon and purporting to exercise powers of a police officer with intent to deceive. These offence were committed on 30 January 2019, again in company with JP. Conviction on these offences was the event that ultimately triggered the cancellation of BFBZ’s visa.
34.According to the agreed facts presented to the District Court of New South Wales during BFBZ’s sentencing hearing on 12 April 2021, the male victim of these offences - ‘H’ - had been in contact with a person adopting the nom de plume “high-voltage Sophie” on an internet dating site.
35.On 29 January 2019, H had agreed to meet with “high-voltage Sophie” at a nominated address at Beverley Hills, Sydney. H then drove from Canberra to Sydney for these purposes, arriving in the early hours of 30 January 2019. After parking his car, H had walked towards the designated address and had telephoned whom he thought to be ‘high-voltage Sophie’ to announce his arrival, only to be told to “walk down the alleyway”, next to the nominated address. H then walked down the alleyway, as instructed, whereupon he was confronted by JP and a female co-offender.
36.JP and the female co-offender impersonated police officers, and ‘detained’ H, by means of their wielding a police taser, and threatening to use the taser on H, if he did not comply with their instructions. The assailants then robbed H of his car keys, mobile phone, and wallet. Credit cards owned by H, found in that wallet, were also later used to make unauthorised retail purchases, including female fashion items, that were delivered to an address in Far North Queensland.
37.BFBZ maintains that she was not involved in either of these offences, and that the female co-offender accompanying JP on 30 January 2019 was likely to have been JP’s sister, instead. Nonetheless, BFBZ accepts that she was found guilty of these offences after a jury trial in the District Court of New South Wales in which the prosecution had presented
an exclusively circumstantial case against her, and accepts that she was ultimately found guilty by a jury for these offences.19
38.BFBZ’s relationship with JP abruptly ended at the time of their arrest in February 2019 in relation to the armed robbery offence.
39.BFBZ then spent a number of days incarcerated on remand, before being released on bail, pending her trial. Because of the Covid-19 Pandemic there was then a lengthy delay, of many, many months, before BFBZ went to trial on these charges, with the trial not being conducted until 2021. During her time on bail pending her trial, BFBZ continued to reside in the community. BFBZ also obtained gainful employment in the hospitality industry; met her current partner ‘JF’; and, with the exception of one slip, BFBZ managed to abstain altogether from drugs:
“I really had a realisation in gaol that - [a] what am I doing moment - And I really wanted to fix myself, and I knew having men like this, I’m not fixing myself… So, I stopped using drugs. I then went and got my RSA and my RSG. I then went and got full-time work, and I started working. I was really just, kind of, focusing on, like, you know, what normal people do, like, hanging out with friends, going to work, saving money. I was attending my court things, continuing my parole things. And, yes, just really focusing on myself.”20
Other Witnesses heard before the Tribunal BFBZ’s current partner - JF
40.JF is the new partner of BFBZ. He is an Australian citizen of Pacific Islander descent, who works erecting formwork within the construction industry, in Sydney. At the time of his giving evidence before the Tribunal on 6 November 2023 JF indicated that he had been in a relationship with BFBZ for more than two years and indicated that he regards their relationship as permanent and as being likely to result in their progressing to having children
19 Transcript p. 21, lines 15 – 20.
20 Transcript p. 9 lines 26 – 35.
together.21 JF and BFBZ met during the period when BFBZ was on bail in the community, awaiting her forthcoming criminal trial. He is aware of her prior offending.
41.JF made a very favourable impression upon the Tribunal. JF appears to have become a strong, pro-social influence upon BFBZ, and to be a partner who is in marked contrast to BFBZ’s past unsavoury boyfriends:
My hope is that we have a nice stable family.
All right. So I also wanted to ask you about BFBZ’s offending?---Yes
So can you tell me what is your opinion about drugs?---I’m very anti-drugs.
And why?---I just believe that they’re no good mentally and physically for anyone. Okay.
And can you tell the tribunal what is your opinion on BFBZ’s past, and BFBZ’s criminal offending?---My opinion on it?
Yes?---So, that person is not her. She’s a very changed, and very different, person compared to her past.
And what do you think has changed now which has made a difference?---Well, she’s very anti-drugs. She’s adopted a lot of traits from me, in terms of health, and life decisions in general.
Yes. Can you give me an example?---For example, before she went to gaol, she was coming with me to the gym a lot. She was dieting, we were going on dates, doing a lot of healthy stuff. There was no drugs or alcohol involved, I’m very anti- drug and alcohol, very much into fitness, et cetera, and she adopted all of those traits with me.
And if BFBZ was released back into Australian community, how would you be able to support her?---We would be living together, we would be doing a lot of things together. I would be providing her a healthy stable relationship, and home for her. I can help her whether it’s mentally, financially, physically. It’s my job as a boyfriend to provide and protect.22
21 Transcript, p. 43, line 7, and line 20.
22 Transcript p.43-44, lines 20 – 02.
BFBZ’s Mother - Ms VC
42.Ms VC is the mother of BFBZ. She gave her evidence before the Tribunal via video-link from Qatar, where she is employed on a ‘fly in/fly out’ basis as the chief nurse-administrator for a private hospital group, comprising nine hospitals.23
43.VC informed the Tribunal that she and her husband had first moved to Australia from New Zealand in April 2011 together with their three children, for a ‘new start’ after a failed business enterprise in New Zealand. Although Australia has been their home base for more than 10 years now, VC has worked in the Middle East for about the past five years. Meanwhile, her husband (the stepfather of BFBZ since BFBZ was aged about 3) has remained in Australia with their children, which includes his step-daughter, BFBZ.
Now, what’s your take on that as a mother, what do you think happened?---Look, looking back now, I think that BFBZ didn’t have the network that she needed, because at that time we had a lot of change. Obviously, I came over here for the first time, we brought all three of them with us, because we waited till BFBZ finished her school to move over to Qatar the first time, and then BFBZ really wanted to continue her education, and we looked at all options. We looked at trying to find family she could live with somewhere, but there was no one really in Australia that she could live with, and we couldn’t afford to pay the full fees for university. So New Zealand was an option. You know, that first year seemed to be okay, she did struggle being on her own, she didn’t have the family support we thought she would have, and which was really disappointing from my part. You know, we tried to bring BFBZ over to us here in Qatar at that time, because that’s the same time as when we moved, when she transitioned into university. But the second year is when it all fell apart. Going from her first to second year, she just didn’t have support.
And she dropped out?---Sorry. Yes, the second year it really fell apart, and BFBZ just didn’t have that support she needed locally to keep her on track. 24
…
23 Transcript, p.49, lines 30-45.
24 Transcript, p. 50, lines 25-45.
No, when you were gone, in that time period you were talking to the Member about before? So when I was in Qatar last time, we’d lost BFBZ for a good two years, at least, with drugs and the path that she chose to take, and it was really hard. And some days I thought I was going to lose my daughter, to be honest. I was petrified I was going to get a call saying she was dead, because some days I didn’t know where she was, what she was doing, we wouldn’t hear for weeks. It was just, like, trying every which way to get hold of her. But I’m just so relieved that she has now turned around, and we’ve got BFBZ back.
And, Mrs (Redacted), what’s your opinion about BFBZ’s criminal offending? Look, I was pretty disappointed, I have to say, with what has occurred. I know that BFBZ has accepted what she did was wrong, and she’s accepted the punishment for that, and she’s now ready to live her life again as a law-abiding community member. But personally, I was absolutely devastated to know that my daughter had done those things.
And what do you think has changed now in BFBZ’s life which has made a difference? Look, I think unfortunately something had to break, and that was going to gaol, and I think BFBZ has really turned around and completely changed her whole – she got the help she needed, which was desperately needed. She got rehab, she had support, she’s been through a whole program of learning to make decisions, and think about the way she does things, and she’s got the right systems and supports. She understands we’re there for her, she knows that we’re there for her, regardless of may be or not be. I think now she has the tools to help her make the right decisions, instead of turning to something else, that would help her get through a day now.
Okay. And how will you and [your Husband] be able to support BFBZ if she’s released into the Australian community? Well, I guess, we have been supporting her now for the last three/four years. We’ve had to provide money, phone calls, phones, all sorts, while she’s not been able to look after herself. We are building a house currently in Western Australia, and our plan is that, if BFBZ comes out, she would live with us in [redacted] while my family are still there until our house is completed, then we would move back to [redacted], and BFBZ is more than
welcome, and she’s got a room in a part of our home. Our plan is to always have a base in Australia as our home for all of our children to come and go as they want to. And we are there for BFBZ 100 per cent, we always have been, and (indistinct words) 100 per cent.
And what other support do you think would be available to BFBZ if she’s released into the Australian community? She would get support with, like, family and emotional support from us (indistinct words), she would have opportunities to work, and to study now, we would have to look at ways of how we could support her to grow and develop as well. With my network in Australia of people that I work with or know, I could link her up with the right resources, and people to help her grow and develop as well. And there may be opportunities within my healthcare network that I have in Australia too.
And you mentioned earlier that you refer to Australia as your home base? Yes. Can you just tell me a bit more about what you mean by that? Look, basically Australia’s been our home now for over 10 years. We moved when my younger two were quite young, so they were five and seven, I think, at the time. That’s all they’ve never known as home, and they have done their last five years of schooling there as well. They have got no ties to New Zealand, there’s no job opportunities, and we have no home in New Zealand. It’s not somewhere we will be going back ever to live. We would go to visit, but never to live. Australia is where my work opportunities, or my husband’s work opportunities. And for our children as well, there’s more opportunity for them as they grow and develop into adults now too.
And what about your other family members, what’s their relationship like with BFBZ now? In Australia or New Zealand?
In Australia, I’m talking about your husband, and your two kids? They have a fantastic relationship. They talk every day. We have a family group chat on most days, you know, talking to each other. We often try and catch up on the weekends, we have a family chat. BFBZ’s been a great support for my youngest daughter, actually, who struggled with her exams recently. So, she was there emotionally, and guiding her, and supporting her. So, it will be great to have BFBZ back as part of our life if that’s possible.
And I suppose further on that point, why do you and your family need BFBZ to stay in Australia with you? Well, she’s an integral part of our family, she always has been, and it’s been really difficult not having her connected with us these last few years. But now we’ve got her back, she’s clean, she’s on the right path, we don’t
want to lose that again. Yes, she’s one of our family, and having her separated from us again, the way we have been the last three/four years, especially while she was locked up, would be devastating. Because if she’s living in New Zealand, and we’re in Australia, it’s just keeping us all apart once again.
And what would you be most concerned about happening to BFBZ if she had to go to New Zealand? My biggest concern is that BFBZ has no real support in New Zealand. She would be completely on her known. My parents are elderly, they are looking at moving into a retirement home, so they’re not really available to support her. I would be really fearful she would go back down the same path again. She’d end up on drugs, and working in areas that she wouldn’t be making the best decisions.
And just in general finally, why do you think that BFBZ should be allowed to remain in Australia? I think BFBZ’s made some really bad choices in her past, that she’s made some really good choices moving forward. She’s really turned herself around, she’s rehabbed herself, she’s taken the counselling, she’s taken the advice, she’s listened, she’s really worked hard, and she’s got goals now. She wants to have a job, have a career, even study. You know, she wants to have a family, and JF, her partner, as well, and have a life with him. And I think having that hope for her, and to be able to look forward is really important for her, and that would be an amazing opportunity for her if she could stay in Australia.25
Dr Jacqui Yoxall
44.Dr Jacqui Yoxall is a forensic psychologist, who gave her evidence before the Tribunal on 6 November 2023. Dr Yoxall undertook a psychological assessment of BFBZ on 27 October 2023 and has prepared a report on that assessment, now dated 31 October 2023.
45.In her evidence before the Tribunal, Dr Yoxall was asked to contextualise BFBZ’s offending and to elaborate on the finding in her report that BFBZ was now only a ‘low’ risk of re- offending in the future. In broad terms, Dr Yoxhall considers BFBZ’s offending as being an artifact of her post-traumatic stress disorder, leading to substance abuse and subsequently
25 Transcript p. 52-54, lines 5 continuing over to – p. 54, line 14.
addiction, and to have arisen in the context of BFBZ being an ‘easy target’ for coercive, controlling male partners:
Thank you. So in your opinion, what aspects of BFBZ’ life, and mental health, are important to give context to her offending?---In my opinion, the most substantial factors that are important for her reoffending is continued abstinence from illicit drugs, but also misuse of prescription drugs, and from alcohol. That was a key and substantial risk factor in her offending, it was more to that. The mental health issues, and the past trauma issues, were substantial, and they were issues that derive those drug use disorders. And so, resolution of - although one can never resolve a prior sexual assault – one can engage in a range of evidence-based interventions to come to terms with it to the point that they can live a functional life, and have less interference from post-traumatic symptoms, and less vulnerability to depression as a result. So, I would see the rape at the age of 16, followed by a range of disconnections with family, and a range of difficulties in adjusting at a time in one’s life where most people are having difficulties in growing up and becoming an adult, followed by a period of isolation at university in Auckland, and then a period of time working in the sex industry, as the trauma, and instability that then led her down the path from alcohol abuse into drug abuse. I’ve mentioned a fair bit in the report about post-traumatic stress. It’s a bit of a tricky one. We know that human beings response to trauma is varied, and not everybody who experiences a traumatic event will present with all of the criteria to have a diagnosis of post-traumatic stress disorder, it doesn’t mean they’re not affected by the trauma that they’ve been though. In BFBZ’s case, it’s my opinion that the combination of that prior trauma, poor undiagnosed and untreated mental illness, substance misuse disorders, drug use disorders, and then negative influence by others, particularly males where she had abusive relationships, were the contributing factors to her offending. The other component here is, for want of a better description, maturity. This offending occurred during quite a short period of time in her life, and there has been, in addition to all the other influences that she’s made changes in her life, a degree of maturation as well as intervention for those factors that I spoke about before.
Thank you. You also mention, on page 36, that BFBZ was highly vulnerable. In the context of her relationship with JP, can you please explain what you mean, I suppose, you’re a professional, what do you mean highly vulnerable?---What I meant by that was vulnerable to exploitation, and the negative - - -
MEMBER: There’s an element of predation here; isn’t there? It seems to be, at least on my reading of the facts of the case, an element of predation by her former partner. He detected her vulnerability, and exploited it?---Well, I’ve never met JP, and I can’t obviously assess him, or comment on his intentions. But I can certainly, from experience of many years of working with people that have been in exploitative predatory relationships, BFBZ certainly does present and describe her experiences with JP in that manner. So, I would say there’s a degree of predatory behaviour there present in that relationship. And I don’t think this is an uncommon story, unfortunately and sadly, for people who sometimes, from an unresolved trauma, can find themselves with a range of challenges that make it very difficult for them to identify who’s safe, and who’s threatening. And with the additional load of the deep shame she had from the involvement in sex work in Auckland, which for her, in particular, coming from the family she came from, with the background that she had, carried a high degree of shame, which then further distances her from her family, she’s got the drug use disorders onboard, she’s got the trauma onboard, she becomes a very easy target for somebody who’s manipulative, or chooses to be manipulative.
MS TOMASSEN: So, Dr Yoxall, with respect to all of that vulnerability and those aspects that you described earlier that give context to BFBZ’ offending; in your professional opinion, are those factors present now, and, if not, why?---No, I don’t think they are present now, and I think there’s quite a few reasons why they’re not present. I think the first thing is that the level of illicit drug use dependence that BFBZ had onboard, reportedly, at the time prior to, and then escalating during the period of time of that relationship, would have profoundly impaired her judgement. The actual nature of, and by definition of a drug dependence, is that one’s world, one’s day, revolves around sourcing, using, coming down from, and managing the effects of the drug, and that they can’t stop, even though they try to, and that they engage in a range of dysfunctional behaviours, and there’s a range of dysfunctional and negative outcomes from that behaviour, but they persist because they essentially can’t stop. She has tried to stop multiple times, and we talked about that in the assessment. But certainly, in terms of what are the factors that have changed, one of the biggest things is that she’s actually been clean now except, according to her, for a period of around three to four weeks in mid-2020 where, I understand, she obtained a driving under the influence of drugs charge. Apart from that, she reports
to have been clean now since early to mid-2019, if I’ve got my numbers right. And, of course, part of that period of time has been during incarceration where she’s been subjected to drug screens. So, the big thing is she doesn’t have that onboard to impair her judgement. She’s actually resolved one of the primary sources of shame, and post-traumatic stress – I’m not suggesting she should feel ashamed for being sexually assaulted at the age of 16 by an adult male – but I am stating that that does bring about a large amount of shame for victims, for survivors, which I prefer to call people who have survived a sexual assault. That’s no longer a secret, that’s been dealt with, or being dealt with, in therapy. Those that are close to her are aware of the things that she’s needed to keep from them. She’s now no longer disconnected from her primary family, from the people that do love her, and do want to support her, and are a prosocial influence, including her current partner. And she’s done a lot of work on managing her depression, understanding her depression, understanding her triggers and her risks to substance misuse. But I think, fundamentally, she’s worked through very, very, very, low self-worth, which made her highly vulnerable to the exploitation of others, and she’s now experiencing, and reports that she’s experiencing, what she considers to be a healthy relationship, and she can see the difference between previous unhealthy relationships, and the current one. And in the area of domestic violence, and dysfunctional relationships, with manipulative or narcissistic partners – I’m not suggesting JP is any, I’ve never met him – but in that area of work that I’ve done, a large amount of change comes from learning, understanding, developing insight, about cycles and patterns, and then making active changes in terms of how one interacts. And BFBZ, in my opinion, demonstrates an ability to engage in substantial self-reflection to consider and weigh up all of those pieces, and she can articulate how she’s changed in her views and beliefs about herself and others.26
…
Thank you. Finally, I’ll take you to page 37 of your report. Page 37, you come to the overall conclusion that BFBZ’ current risk of reoffending is low; can you please explain to the tribunal why, in your overall professional opinion, or your structured professional judgement as you said earlier, why you come to this conclusion?---I’ve
26 Transcript p. 60 lines 10 – p.62 line 24.
come to the conclusion because, in my opinion, there aren’t fundamental issues here in terms of antisocial traits, or overall leanings to antisocial behaviour. She essentially had a stable upbringing, she had substantial trauma that rolled into further substantial trauma. In a very brief period of her life to date, but a very intense period of her life to date, she developed and had a substantial drug misuse disorder, and a range of exploitative relationships, particularly one, and it’s in that context that the offending occurred. Those risk factors now, each one has been addressed, and there has been substantial and measurable change in regard to each of those factors. She now has a range of support mechanisms in place, she has reached out and obtained treatment, she appears motivated, she appears inciteful. She also appears to be very fearful of deportation, and that appears to be a substantial deterrence to further offending or to engagement with anybody who may be associated with any form of offending. So, she’s now, if I’m correct, 26/27 years old – 27 years old. In my opinion, she has really good prospects of living a functional prosocial life.27
46.The Tribunal accepts all of the unchallenged uncontradicted expert evidence given by Dr Yoxhall, and the conclusions that Dr Yozhall has reached regarding the risks of BFBZ engaging in further criminal conduct.
ISSUES
47.The issues for determination before the Tribunal are:
(a)whether the Applicant meets the requirements of the character test as defined in section 501 (subparagraph 501CA(4)(b)(i)); and
(b)if he does not, whether there is another reason why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).
27 Transcript p. 63, lines 26-47.
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
48.In August 2021, the Applicant was sentenced before the District Court of New South Wales to an aggregate term of imprisonment of five (5) years, for the offences of ‘In company rob while armed with dangerous weapon and Impersonate police officer and exercise powers/functions’. As a consequence, the Tribunal can now only find that BFBZ has a ‘substantial criminal record’, and that BFBZ cannot pass the character test: s.501(7).
49.Consequently, the task for the Tribunal reduces, to an exercise the discretion in s.501CA(4)(b)(ii), to consider whether there is now ‘another reason’ why the original visa cancellation decision under s.501(3A) should be revoked?
50.In considering whether to exercise the discretion, the Tribunal is bound to comply with any Directions made under the Act by virtue of s.499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.
51.The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s.501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
52.The principles contained within 5.2 of the Ministerial Direction are as follows:
1 Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2 Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3 The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in
conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4 Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5 With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6 Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
53.Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, being:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);
(4)the best interests of minor children in Australia (‘Primary Consideration 4’); and
(5)expectations of the Australian community (‘Primary Consideration 5’).
54.The Ministerial Direction then stipulates ‘Other Considerations’ which must also be taken into consideration:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
55.Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non- refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
(a) The nature and seriousness of the Applicant’s conduct to date
56.The Respondent Minister submits28 that when having regard to the relevant factors within the Ministerial Direction, and for the following reasons in particular, BFBZ’s offending should now be categorised by the Tribunal to be “very serious”:
-Violent crimes are considered by the Australian government and the Australian community to be “very serious”. The Applicant was convicted in the New South Wales District Court on 20 August 2021 for offences including robbery in company whilst armed with a dangerous weapon;
28 Respondent’s SFIC paragraph [24]
-The sentencing remarks from 20 August 2021 reveal that BFBZ had been on bail for previous charges at the time of the commission of these offences, and the sentencing judge accepted that considerable public harm is done when an offender impersonates a police officer and purports to exercise their powers - thus undermining the public’s trust in the police. His honour concluded that ‘purporting to exercise the powers of a police officer is a serious offence which requires stern condemnation’.29
-BFBZ has also been convicted of larceny, drug offences, various break and enter offences, and possessing weapons.30
-BFBZ has also been convicted of driving offences. Consistent with what has been previously observed by the Tribunal in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45] and in QJYD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51], driving offences committed by BFBZ should also now be treated by the Tribunal as “serious”.31
-regard also needs to be had for the fact that BFBZ has been sentenced to terms of imprisonment for her offending, as circumstances in which an offender has been sentenced to a term of actual custodial imprisonment should be viewed as a reflection of the objective seriousness of the offence.32
-further regard also needs to be had for the frequency and cumulative effect of BFBZ’s offending, noting that she has committed 16 offences over a period of two years. The Respondent Minister submits that the frequency of BFBZ’s offending has also increased over time and the seriousness of her offending has ‘trended upwards’.33
29 Respondent’s SFIC paragraph [27].
30 Respondent’s SFIC paragraph [28].
31 Respondent’s SFIC paragraphs [29] – [30].
32 Respondent’s SFIC paragraph [31].
33 Respondent’s SFIC paragraph [32].
57.On behalf BFBZ, it is submitted34 by Samuta McComber Lawyers that, although the index offence for which BFBZ has been convicted is objectively serious, the extent of any violence was noted by the sentencing judge as having been ‘limited to threats of violence only’, and that BFBZ had played ‘a lesser role’ in the offending, in circumstances in which her former partner (JP) had been able to exercise considerable coercive control over BFBZ; and that none of her other criminal offending has involved any actual acts of violence.
58.Ultimately, the Tribunal does regard BFBZ’s index offending as ‘very serious’. Armed robbery in company can only be considered as an objectively serious crime, and the seriousness of it in this instance is heightened by the luring of H towards his fate by means of false pretences; as well as the further deception entailed by the impersonation of police officers by H’s assailants. The objective seriousness of this offence is then only underscored for the Tribunal by the fact of the five-year head sentence imposed on BFBZ.
(b) Risk to the Australian community
59.As well as the nature and seriousness of any offending to date, paragraph 8.1(2) of the Ministerial Direction requires that the Tribunal also take into account any ‘future risk’ to the Australian Community as part of its overall assessment of the weight that is to be attached to Primary Consideration One.
60.When assessing the risk of harm to the Australian community that may now be posed by an Applicant, a decision-maker must have regard to, cumulatively, the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
34 Applicant’s SFIC paragraphs [31] – [46].
61.The Respondent Minister submits that BFBZ’s criminal history is such that a broad range of harms might now befall the Australian community in the event that BFBZ were to re-offend again in the future, and that the seriousness of her offending is such that any risk of re- offending is now ‘unacceptable’.35 When making that submission, the Respondent Minister alludes to each of the following:
-The Tribunal is entitled to speculate as to what might happen in the future by reference to evidence of what has occurred in the past.36 To this end it is submitted that BFBZ has a lengthy and diverse criminal history, and any claims that she will not re-offend in the future should be assessed in the context of the frequency of her past offending, and to the fact that ‘past punishments have not had any apparent rehabilitative or deterrent effect’;
-BFBZ has been a long-standing drug user, and many of her offences have been committed under the influence of drugs. BFBZ has provided only limited evidence of having undertaken any form of drug rehabilitation, and there is only limited evidence of any sustained sobriety outside imprisonment and her resolve to remain drug free has not yet been tested in the community;
-BFBZ’s family has not served as a protective factor in the past, and nor have periods of stable employment. No compelling evidence to suggest that these same supports would be any more effective in the future has been produced before the Tribunal by BFBZ: LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93].37
62.On behalf BFBZ it is submitted38 that, in the event that BFBZ were to re-offend, then the harms caused to the Australian community could be quite substantial, yet that the actual likelihood of BFBZ re-offending is now very low. In this light - and although it is conceded that this primary consideration now weighs against revocation of the visa cancellation decision - it should not be viewed by the Tribunal as outweighing Primary Considerations
35 Respondent’s SFIC, paragraph [34].
36 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36].
37 Respondent’s SFIC, paragraph [35].
38 Applicant’s SFIC, paragraphs [47] – [82].
Three, Four; and ‘Other Consideration’ Two, which it is submitted now collectively weigh in favour of a decision to revoke the visa cancellation decision.
63.Ultimately, the Tribunal is not persuaded that BFBZ now represents as any kind of significant risk of re-offending for any type of offence, in the event that she were to be allowed to remain residing in Australia, and the Tribunal is persuaded by the ‘low risk’ of re- offending assessment conducted by Dr Yoxhall. The Tribunal notes that BFBZ has undertaken a range of rehabilitative efforts (as described by Dr Yoxhall in her report), and that BFBZ has engaged in these programs in an appropriate manner, which is in contrast to prior court-ordered programs which were not engaged with appropriately, at a time when BFBZ was still in the thrall of drugs and being misled by JP. Drugs - and particularly the likes of JP - are no longer an influence upon BFBZ, who appears to have matured, and developed far greater insight. The Tribunal considers that any future risk is now ‘low’, and is thus a ‘tolerable’ risk, and now at a level that is able to be accepted by the Australian community. This risk determination by the Tribunal has the consequence of considerably reducing any adverse weight that would otherwise attach to Primary Consideration One, had the risk of future offending been assessed by the Tribunal to be higher than as has now been found.
64.In the Tribunal’s determination Primary Consideration One must therefore be assessed as now weighing ‘heavily’ (as opposed to ‘very heavily’) against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION TWO – FAMILY VIOLENCE
65.Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction).
66.There is no evidence before the Tribunal suggesting that BFBZ has engaged in any acts of family violence. Accordingly, this primary consideration attracts neutral weight.
PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
67.Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction).
68.Decision-makers must also consider the strength, duration, and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction). Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and
(ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non- citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).
69.The Respondent Minister submits39 that the Applicant would be able to continue to maintain contact with her family in Australia via electronic means, or conversely that members of her family in Australia will still be able to visit her in New Zealand, and, although this Primary Consideration should be considered as weighing “somewhat” in BFBZ’s favour, any weight in favour of revocation of the visa cancellation decision should not be considered by the Tribunal as outweighing Primary Considerations One or Five, each of which it is submitted should be assessed as weighing heavily against revocation.
39 Respondent’s SFIC paragraphs 40 – 44.
70.BFBZ arrived in Australia when aged 15 and has been ordinarily resident in this country since 19 April 2011. BFBZ also completed her high school education in Australia; such that the Tribunal considers that BFBZ has been resident in Australia during her ‘formative years’,40 and for approximately 40% of her total lifetime.
71.All of the Applicant’s close family members are in Australia: including her mother, her stepfather, her siblings and her domestic partner, JF, who is considered by the Tribunal to be an important pro-social influence upon BFBZ.
72.BFBZ has only limited family and other connections in New Zealand, such that the Tribunal considers that BFBZ’s ties to Australia should now be considered to be far stronger, more substantial and more enduring than are any remnant ties held by BFBZ to New Zealand, as her country of birth. In the Tribunal’s assessment, Primary Consideration Three now weighs ‘very heavily’ in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.
73.In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
(c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;
(d)the likely effect of separation and the ability to maintain contact; and
(e)whether there are other persons who already fulfil a parental role in relation to the child.
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has
40 Ministerial Direction paragraph 8.3(4).
otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
74.BFBZ does not have any minor children of her own, however she does have a relationship with her partner JF’s four minor siblings, who are aged nine, eight, six, and five years of age. The Respondent Minister contends41 that only very limited weight should now be given to the best interests of these minor children, in circumstances in which these children live with their biological father, who fulfils the parental role, and in circumstances in which there is only limited evidence in relation to BFBZ’s interactions with these children, and in circumstances in which BFBZ’s relationship with these children has been marked by periods of absences, and wherein her future relationship with them might be continued in all events after a deportation, by electronic means.
75.The Tribunal accepts the evidence of both BFBZ and her current partner JF regarding the extent and nature of BFBZ’s interactions and dealings with the minor siblings of JF. On balance, the Tribunal considers that the best interests of these minor children are now best served by a decision to revoke the visa cancellation decision, and the Tribunal now attaches a ‘moderate’ measure of weight to Primary Consideration Four in support of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
76.Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter and remain in Australia (paragraph 8.5(1)).
41 Respondent’s SFIC, paragraph [47].
77.Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as now outlined in paragraph 8.5 of the Ministerial Direction, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a deeming provision: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.
78.The Respondent Minister submits42 that this primary consideration now weighs heavily against revocation of the visa cancellation decision.
79.On behalf BFBZ, it is submitted43 that, although this primary consideration weighs ‘marginally against’ revocation of the visa cancellation decision, it should be considered by the Tribunal that this Primary Consideration is now still outweighed by Primary Considerations Three and Four, taken in conjunction with ‘Other Consideration’ Two. When making that submission, Samuta McComber Lawyers particularly seek to emphasise the following:
·It is undoubtedly the case that BFBZ has breached the expectations of the Australian community
·under paragraph 5.2 of the Ministerial Direction greater tolerance is generally extended towards those whom have lived in Australia from a very young age
·generally, less tolerance applies in the case of criminal conduct by non-citizens who are the holders of ‘limited stay’ visas. However, BFBZ was the holder of a Subclass 444 visa, which is not a ‘limited stay’ visa, as it is a visa category that enables ‘indefinite’ residence in Australia
42 Respondent’s SFIC, paragraphs [48] – 52].
43 Applicant’s SFIC, paragraphs [114] – [126].
·BFBZ has lived in Australia for in excess of 12 years, and for in excess of 77% of her adult lifetime, and has been engaged productively in the life of the Australian community - both as a student and in a number of employed roles in the hospitality industry - during that time
·Pursuant to the Ministerial Direction, the Australian community ‘could be expected to’ afford BFBZ a somewhat higher level of tolerance, for her criminal conduct, in all the circumstances of her offending and the context in which it was committed.
80.Ultimately, the Tribunal considers that Primary Consideration Five does still weigh against revocation of the visa cancellation decision yet that in all the circumstances some greater tolerance for BFBZ’s criminal conduct is required as part of a proper exercise of the discretion. BFBZ’s circumstances include her being the survivor of sexual assault, giving rise to symptoms of anxiety, low self-worth and PTSD, which - in turn - lead her towards drug addiction, which then facilitated her being predated upon, and coercively controlled by her former partner, JP. In these specific circumstances and those others as described in by Samuta McComber in their submission, the Tribunal determines that it is appropriate that the weight that attaches to this primary consideration in favour of non-revocation should be reduced, from what might otherwise be assessed as ‘heavy weight’ to instead become only ‘moderate weight’ in favour of non-revocation.
OTHER CONSIDERATIONS
81.It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) Legal consequences of the decision
82.Under paragraph 9.1 of the Ministerial Direction decision-makers are required to be mindful of Australia’s non-refoulement obligations. In the current case non-refoulement does not arise as an issue requiring consideration. In these circumstances this consideration weighs neutrally.
(b) Extent of impediments if removed
83.Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health; whether there are substantial language or cultural barriers and any social, medical and/or economic support that will be available to them.
84.The Respondent Minister submits44 that this Other Consideration does not weigh in BFBZ’s favour, and should attract ‘only neutral’ and at best ‘only minimal’ weight in favour of revocation mandatory visa cancellation. The Tribunal does not accept that to be a reasonable submission, given the available evidence.
85.During the giving of her evidence, Dr Yoxall observed that a requirement that BFBZ be deported back to New Zealand would have a substantially retrograde impact upon BFBZ’s trauma recovery:
Okay?---It’s very important. I think if she was separated from her family, [if] she had to return to New Zealand and re-establish her life, I think there would be substantial impact to her mental health, and her overall functioning, and I think, sadly, a lot of the work that she’s done, albeit post the offending and not before the offending, but she can’t change the history now, I think a lot of the work that she’s done would unfortunately be at risk to unravel. And that’s not because I don’t think that what she’s done isn’t measurable, and isn’t clear change, but when circumstances remove all of those supports from an individual, and they’re dealing with another range of substantial loss and trauma, being separated from your family, et cetera, et cetera, then that can obviously create a vulnerability to a relapse to depression, and even if it wasn’t a relapse to substance use.45
44 Respondent’s SFIC paragraphs [56] – [63], particularly at [62] and [63].
45 Transcript p. 63, lines 14 – 25.
86.BFBZ’s mother similarly observed during the giving of her evidence that the absence of close family supports in New Zealand had been at the root of BFBZ ‘going off the rails’ when BFBZ had been sent to New Zealand for her university studies:
I also understand that you have a brother and a sister that live in New Zealand as well?---Yes, that’s correct.
So, if it was the case that BFBZ did have to return to New Zealand, I assume that you would reach out to your siblings and see what kind of support they could provide her in getting set up over there?---And that’s exactly what we did when she went back the first time, and that’s exactly why she didn’t have any support. So, we did all that when she went back to New Zealand for university, and they were (indistinct words) to support her, and she had nothing.46
87.The Tribunal is not at all persuaded that BFBZ will have adequate social or emotional supports in New Zealand, and considers that BFBZ is apt to find herself in a situation where she is at risk of a very steep decline in her mental health and well-being if deported. Although New Zealand is a country with similar social welfare and health care supports to those available in Australia, BFBZ is considered by the Tribunal as likely to face very extensive impediments, in terms of re-establishing herself in New Zealand, and the Tribunal considers that her specific mental health circumstances and personal history are such that BFBZ would face considerable difficulties in terms of being able to accessing appropriate supports in New Zealand if separated from her family and partner. In the Tribunal’s assessment, this consideration now weighs ‘heavily’ in favour of revocation of the visa cancellation decision.
(c) Impact on victims
88.Under paragraph 9.3 of the Ministerial Direction, decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is or is not allowed to return back to the Australian community.
46 Transcript p. 55 Lines 32 – 43.
89.It is agreed as between the Applicant and the Respondent Minister that there is no evidence as to the impact of either revocation or non-revocation of the visa cancellation decision on any of the victims of BFBZ’s offending. The Tribunal concurs with that assessment. Accordingly, this consideration weighs neutrally.
(d) impact on Australian business interests
90.In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
91.BFBZ does not now claim - and there is no material available before the Tribunal to suggest
- at this other consideration is applicable. Accordingly, this Other Consideration also now weighs neutrally.
CONCLUSION
92.In summary the Tribunal concludes as follows regarding each of the Primary and Other considerations:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – heavy weight in favour of non-revocation;
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – neutral weight;
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) –
very heavy weight in favour of revocation of the visa decision;
(4)the best interests of minor children in Australia (‘Primary Consideration 4’) – very
moderate weight in support of revocation of the visa decision; and
(5)expectations of the Australian community (‘Primary Consideration 5’) – moderate weight in favour of non-revocation.
Other Considerations:
(a)legal consequences of the decision – neutral weight;
(b)extent of impediments if removed – heavy weight in favour of revocation of the visa cancellation decision;
(c)impact on victims – neutral weight; and
(d)impact on Australian business interests – neutral weight.
DECISION
93.Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated 30 August 2023 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercises the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams
……………[SGD]….……………
Associate
Dated: 26 April 2024
Date of Decision: 23 November 2023
Solicitor for Applicant: Ms Rachel Tomassen (Samuta McComber Lawyers)
Solicitor for Respondent: Mr Chris West (Sparke Helmore)
ANNEXURE A
Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
G Documents
R
-
14
September 2023
2
Acknowledgement Receipt of Notification of NCC Decision
R
31 August
2023
20
September 2023
3
Applicant’s Statement of Facts, Issues and Contentions
A
5 October
2023
5 October
2023
4
Respondent’s Statement of Facts, Issues and Contentions
R
20 October
2023
20 October
2023
5
Applicant’s Tender Bundle (Parts 1 and 2)
A
-
5 October
2023 /
1 November
2023
6
Respondent’s Tender Bundle
R
-
20 October
2023
7
Applicant’s Reply Submissions
A
31 October
2023
31 October
2023
0
9
0