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

[2024] AATA 1337

BGVN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1337 (1 May 2024)

Division:GENERAL DIVISION

File Number:          2024/0861

Re:BGVN

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:1 May 2024

Place:Sydney

The decision of the Respondent dated 7 December 2023 to cancel the applicant’s Special Category (Subclass 444) visa under subsection 501(2) of the Migration Act 1958 (Cth) is set aside, and in substitution, it is decided to exercise the discretion under subsection 501(2) not to cancel the applicant’s visa.

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

Emeritus Professor P A Fairall, Senior Member

Catchwords

MIGRATION – Migration Act 1958 (Cth) – cancellation of visa under subsection 501(2) – Direction No.99 – long term residence since infancy – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community –– extent of impediments if removed – very serious offending – assessment of risk of recidivism – decision under review set aside

Legislation

Migration Act 1958 (Cth)

Cases

Bugmy v The Queen [2013] HCA 37
DKYX v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185

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

Emeritus Professor P A Fairall, Senior Member

3 June 2024

INTRODUCTION

1. BGVN (the applicant) was born in New Zealand in 1987 and is now 37 years old.[1] Apart for a 10-month period in 2001, she has lived in Australia for the past 35 years.[2] Her parents separated in New Zealand soon after she was born, and she and her older brother came with their mother to live in Australia. Despite her more than three decades of residence in Australia and absorption into the Australian community, she is a non-citizen, and holds a Class TY Subclass 444 Special Category (Temporary) visa.

   [1]  G3a, 15.

   [2] G11, 120.

2. Her mother re-partnered in 1992 and had three children.[3] The family environment was one of heavy drug and alcohol use.[4] When her mother was unable to cope, she would live with her grandparents. In early 2001, her grandmother contacted her father in New Zealand, and it was agreed that she would go and live with him for a period. She did not get on with his partner and was back in Australia by the end of 2001.[5]

   [3] G7, 55.

   [4] S11, 34.

   [5] Transcript, 1 May 2024, 47.

3. At the age of 16, a brief romantic relationship ended in tragedy when her boyfriend committed suicide. She started drinking and using drugs.[6] She told a psychologist that apart from alcohol and cannabis, she was using amphetamines, cocaine, ketamine and MDMA. Methamphetamine (Ice) was the most problematic, which she was using at least twice a week.[7]

   [6] G10i, 111.

   [7] S21, 70.

4. She partnered with BH at 17, and they had their first child the following year. Her second son was born in 2009. Her heavy drug use abated as she drifted away from her previous circle, but she continued to use cannabis.[8]

   [8] S21, 71.

5. Unfortunately, in 2012, her partner was implicated in a workplace accident, and the subsequent legal proceedings traumatised the couple. Their relationship broke down in 2015, and the children went to live with their father.[9]

   [9] G10c.

6. Her living conditions deteriorated during 2016 and 2017. She had a relationship with a girlfriend that was clearly not healthy. She was hospitalised in 2017 after she cut her wrists superficially and then called 000.[10] According to material before the Tribunal, it was her second attempt at self-harm,[11] the first when she drove at a tree, and not to be her last.[12]

   [10] G10g, 106.

   [11] S21, 72.

   [12] Transcript, 1 May 2024, 62.

7. Until 2017 she had no criminal record in NSW.[13] Her behaviour deteriorated badly during this year. She was caught shoplifting for baby formula on 20 March 2017.[14] She failed a driver’s blood drug test on 26 March 2017, as she had done previously on 15 December 2015. There were two episodes of property damage involving her girlfriend. On 26 March 2017 she damaged a window while attempting to recover a phone her girlfriend had grabbed from her.[15] On 23 June 2017, she smashed her girlfriend’s windscreen with a metal tyre lever.[16]

   [13] There was also an outstanding warrant issued in Queensland in 2016 relating to the alleged passing of counterfeit notes when buying petrol at a Caltex service station in Goondiwindi: S1, 1.

   [14] The applicant and her co-accused stole an Artie Zone 24 can collapsible shopping bag valued at $14.55 and two Gold Comfort Baby Formula valued at $26.00 each, with a total value of $66.55: S1, 24.

   [15] S6, 21; G10, 84.

   [16] S9, 27; Transcript, 1 May 2024, 73.

8. These matters were all dealt with on 22 December 2017, when she was remanded in custody because she was then on bail in connection with much more serious offences for which she was arrested on 17 July 2017.[17] This incident involved the commission of two offences on 12 July 2017. The first incident involved an attempt by her accomplice to snatch the handbag of a 76-year-old woman. The woman fell against a wall and was hurt in the attack. The second incident involved snatching the bag of a 33-year-old woman.[18] The attacks were carried out by a male accomplice while the applicant remained in a car parked in the vicinity. A stolen debit card was subsequently used to withdraw money from an ATM, giving rise to several charges of obtaining property by deception. When interviewed by police she gave false information as to the identity of the driver, giving rise to a further charge. She was subsequently charged as a participant in a joint criminal enterprise.

   [17] G10, 84.

   [18] S12, 39.

9. On 1 May 2018, she was committed for trial.[19] On 7 June 2018 she was granted bail on condition that she reside at Odyssey House Therapeutic Community (Rehabilitation).[20] After two very short stays, she left the program. She remained in the community for about six months and was returned to custody in December 2018 for breaching her bail conditions.[21]

   [19] S11, 31.

   [20] S13, 44.

   [21] G10i, 113.

10. On 7 February 2019, she entered pleas of guilty to stealing from the person and aggravated robbery. On 10 April 2019, she was sentenced in the District Court of NSW. The sentencing judge found, Whitford J., found that she was less culpable than the principal offender.

    In relation to the attempted robbery of the first victim there was limited violence employed for a short period of time. Furthermore, there was no violence threatened or fear caused in the moments prior to the bag grab. Any injury occasioned was the indirect result of the failed bag grab and violence was not inflicted for its own sake. The victim was vulnerable on account of her age. Both offences were committed in broad daylight in public without any attempt to conceal the vehicle registration plates. Both offences may be categorised as featuring only short term planning, if any. Also indicative of the poor planning and limited sophistication of the offending is that almost immediately after the commission of the second offence [her accomplice] used the [second victim’s] bankcard, to purchase various low value items from several petrol stations in the Canterbury, Campsie and Belmore areas.

    As was submitted on behalf of the offender, self-evidently no thought was given by the offenders to concealing their offending or avoiding detection through CCTV. Furthermore, the use of the bankcard in plain view of CCTV almost guaranteed the ultimate apprehension of the offenders. As was submitted for [the applicant] both offences were high risk and for relatively little reward.[22]

    [22] S11, 32-33.

11. The applicant was sentenced to an aggregate term of two years imprisonment, commencing 16 June 2018, with a non-parole period of one year commencing on the same date and expiring on 15 June 2019. She was also convicted of goods in custody and sentenced to a community correction order for a period of two years.[23] At the time of sentence she had been on remand for 297 days.[24] In passing sentence, the judge made the following comments about the applicant’s prospects of rehabilitation.

    Some of the matters highlighted in the psychologist’s report as representative of the deprivation are the fact that the offender’s mother was a heavy drinker, her father was physically violent towards family members including the offender. At the age of 13 the offender suffered a needle stick injury in her step-father’s home…[25]

    The whole of the evidence suggests that both the offender and the community would benefit from [the applicant] receiving extensive supervision upon her release, ideally for a period longer than would be permitted by application of the statutory ratio. On account of her limited criminal history and her limited custodial experience, and her need for an extended period on parole in order to successfully re-integrate into the community, and in particular, in light of her considerable need for drug rehabilitation as well as mental health treatment, both of which would be best supervised by Community Corrections, I make a finding of special circumstances… [26]

    It seems to me though [the applicant] did not give evidence on sentence and it makes it much harder to judge, the material before me does tend to support the likelihood that she has reasonable prospects of rehabilitation if appropriately supervised, in receiving the treatment and the intervention generally that she plainly requires. She has taken positive steps on a voluntary basis to address the substance abuse issues that she has. There is one incident on her custodial history that calls into question perhaps, the efficacy of the steps that she has taken. It was submitted on her behalf, that that incursion related to sleeping tablets. That may or may not be so. I can only speculate about it but even if it involves some kind of relapse, one might not think that necessarily unreasonable in the context of a battle against an addition. The voluntary steps that have been taken over a period of time by [the applicant] satisfy me that she is genuinely motivated to address by appropriate treatment and programs, her problem with substance abuse. It is also clear that she has continuing support within the community, particularly from her immediate family. That support will of course be important in her re-integration into the community, and maintenance by her of the treatment that she requires. (Emphasis added) [27]

    [23] S10, 29.

    [24] S11, 31.

    [25] S11, 34.

    [26] S11, 35-36.

    [27] S11, 36.

12. On 26 April 2019, her visa was cancelled, and she made representations to the Department of Home Affairs asking the decision-maker to revoke the decision. When the non-parole period expired on 15 June 2019, she was released from prison and detained pursuant to section 189 of the Migration Act1958 (Cth) (the Act) in Villawood Immigration Detention Centre (VIDC).

13. On 15 October 2019, her visa was reinstated when the decision-maker decided to revoke the cancellation decision.[28] The letter contained a stern warning (typed in bold) about the possible consequences of future offending.

    Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds. The decision-maker indicated that your case was very finely balanced. They considered your criminal history to be serious. They asked that you be given the following warning:

    ‘You must refrain from further offending and continue to rehabilitate, especially given your chronic substance abuse issues. You should not expect any further leniency. The protection and safety of the Australian community is of paramount importance and a salient consideration. The Government has a zero tolerance policy on violent offending and this kind of behaviour will not be tolerated again. Neither will any further dishonesty, driving or domestic violence offending.’

    You should be aware that if you re-offend you may be removed from Australia permanently and this warning will be taken into account.

    [28] G9, 75.

14. On the same day, she signed an acknowledgment.

    I, BGVN acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered.[29]

    [29] G9, 82.

15. Unfortunately, she did not heed this warning, and on 12 August 2021 she was arrested following a home invasion, which the Respondent summarised as follows:

    In summary, on the night of 12 August 2021, the applicant and at least two male co-offenders broke into the home of a Vietnamese family whom they believed to have money hidden in the house. They first cut the power supply, then entered the house with torches and cable ties with which to subdue the occupants. The co-offenders falsely identified themselves to the occupants of the house as New South Wales Police and told one of the victims that she “had been under observation for some time” and was “under arrest”. They then asked the victim if she was holding money in the house. The victim resisted verbally and physically and was raising the alarm, until one of the co-offenders struck her to the face. The offenders then attempted to look for money or items of value in the house, but eventually absconded when the occupants resisted and continued to try to call police. The sentencing judge found that the applicant had played a lesser role in the offences, finding that her most significant action was in relation to one victim, whom she effectively “rounded up” and directed from one room to another in the house, to subdue him. The sentencing judge noted that although the more serious acts of violence were not committed by the applicant herself, she was being sentenced for her part in a joint criminal enterprise involving incidents that were reasonably foreseeable.[30]

    [30] Respondent’s Statement of Facts, issues and Contentions (RSFIC), [10].

16. On 22 November 2022, she was convicted in the District Court of NSW of four counts of stalk/intimidate intend fear physical etc harm (personal) and one count of aggravated break and enter with intention to commit a serious indictable offence, with four counts of common assault and an offence of impersonate police officer taken into account on a Form 1, for all of which she was sentenced to an aggregate term of imprisonment of three years and six months, with a non-parole period of 18 months.[31]

    [31] National Criminal History Check (NCHC) dated 6 November 2023: G6, 38.

17. The applicant’s background was the subject of careful examination by Judge McGrath SC in sentencing remarks delivered in the NSW District Court on 22 November 2022. His Honour provided a detailed account of her difficult life which he described as one of ‘severe if not profound deprivation’.[32] His Honour noted that there was significant violence in the family home and that her stepfather was violent towards her.

    [32] G7, 55

    Her stepfather was both an alcoholic and drug addict, and her mother was an alcoholic. Her mother was not abusive, but there was constant violence within (56) the home, becoming so significant at times that, on what is estimated to be about 20 occasions, BGVN’s maternal grandparents had to step in to take her and her siblings for different periods of time to save them from the violence in the home.

    She reports being the victim of sexual abuse by her stepfather from the age of 7, and that it went on until she was aged 9. She never reported this, stating that it happened so long ago, what was the point in doing so? Her family moved around constantly, being constantly evicted from houses and moved perhaps ten times.

    In terms of schooling, BGVN attended kindergarten, primary school and then high school from year 7 before moving back to New Zealand for a year and returning to Sydney. The reason that she returned to New Zealand was that her mother had been off the rails at the time, as described. After returning to Sydney, she did not go back to school, but completed a Certificate III in Retail at TAFE and commenced working. She eventually went back to TAFE and did her year 10 equivalent and commenced a Certificate III in Youth Work, but she did not finish.

    At age 14, BGVN suffered a significant trauma. Having met a young man who was 18, she started going out, and they were a couple for 2 years. He took his own life when BGVN was about 16 years of age. This was traumatising for her. He had been a positive influence in her life, and it confused her as to why he would take his life.

    At the stage he took his own life, he had been working and had bought a house. The trauma was such that she turned to alcohol and drugs at this point to numb her pain, and there was no one else in her life who was willing or (56) able to help her get through it.

    In terms of BGVN’s alcohol and drug history, she commenced consuming alcohol in New Zealand with her father at the age of 13, and this casual use of alcohol did not become serious until after her boyfriend committed suicide when she was 16. She continued drinking heavily until she had her first child herself at the age of 19. She first smoked cannabis at the age of 15 and again did this socially until the suicide of her boyfriend, when she daily abused cannabis until about the age of 19. She reported experimenting with other drugs.

    BGVN became involved in a relationship and had two children. After the breakdown of that relationship with the father of her children in 2015, BGVN found herself returning to drug use, commencing to use ice on a daily basis between the years 2015 to 2017. At this time, she was imprisoned for 11 months. She got Court bail to go to drug rehabilitation but failed this after 2 days and relapsed into further drug use. At the end of 2018, [the applicant] was imprisoned again for 7 months.

    After release from prison and detention centre, she described attempting to get her life back on track and was doing well. By November 2019, she had signed a lease. By December 2020, she had a job.

    She was working. Then the pandemic hit in March 2020, and she lost her work. She struggled to find employment and again relapsed into ice use until she found work in March 2021. She managed to hold a job but was still using ice up until the date of her arrest. Her arrest for this matter, of course, was in August 2021.

    The background to the offending is further that, in May 2021, she (57) reported falling pregnant to her then abusive partner, but in the weeks leading up to these offences she suffered a miscarriage. BGVN reported that this impacted her significantly and then, after being out of work again and finding her mind constantly bombarded with racing negative thoughts about past incidents and potential future incidents, that she turned more and more to illicit substances as a means of numbing her mind and numbing her pain.

    She reported getting involved in this offence as a means to both support herself and her addiction to drugs. It is significant that this offending took place at the time of the COVID-19 pandemic and the circumstances particularly individual to BGVN.

    BGVN is someone who has an employment history. She was first employed when she was aged 14 at Best And Less, but after her boyfriend died of suicide she struggled to find a will to work. She got work when she was 17 in a factory, and she worked there until shortly before giving birth to her first child at 19.

    She worked part-time for another 7 years, in 2010 obtaining a security licence and working in security from 2010 to 2015 whilst also working at a cleaning role. She also worked at the Ingham’s chicken factory. When her relationship with the father of her children fell apart and she stopped working, as noted, she turned heavily towards illicit substances again.

    Having lost her work at St Vincent’s in Auburn from the COVID-19 pandemic in March 2020, she remained out of work until March 2021, when she was working at the All Brands outlet until she was arrested in August 2021 whilst still involved in the use of drugs. I note that, from several sources, I have been told that her employer at All Brands has agreed for her to return to (58) work, although I do not have confirmation from the employer themselves.

    As noted, BGVN is 35 years old. She is the mother of two children who are now aged 16 and 13, and the relationship with the father of the children ended after a series of incidents. The psychologist reports that, as BGVN’s life spiralled out of control from 2015 onwards, she gave up her children to their father for the sake of their stability, but she now has a relationship with him. She reports from 2015 onwards having four failed relationships and realises now that all the partners she has picked had nothing going for them and had been leeching off her.

    In the psychologist’s testing and in combination with the history that he has taken from her – as I say, much of which is confirmed by her mother – he reports diagnoses of generalised anxiety disorder, major depressive disorder and substance use disorder. In the opinion of the psychologist, in his professional opinion, he states that there is a psychological link between BGVN’s mental health conditions and the offences before the Court.

    He is of the professional opinion that the psychological link stems from her impaired decision-making ability in the lead-up to and during the offending period. The psychologist cites research indicating a strong correlation between anxiety, depression and impaired decision making which may affect a sufferer in many aspects of their life, and as described by BGVN herself.

    And [the psychologist] is of the opinion that ongoing psychological intervention and drug counselling will help to reduce BGVN’s risk of reoffending.

    Indeed, he has gone to the trouble of setting out a detailed treatment plan that she might follow in the community. The Court takes several things from this report, supplemented by the evidence of BGVN’s mother. As noted, her (59) background is one of what I would describe as profound depravation and instability.[33]

    [33] G7, pp 55 – 59.

1. His Honour also discussed the High Court decision in Bugmy v The Queen [2013] HCA 37. In that decision the relevance of a deprived upbringing was considered by the High Court in relation to the sentencing exercise.

   As the High Court of Australia noted in the seminal case of Bugmy v The Queen – and I paraphrase from paras 43 and 44 – the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

   The Court also noted that the effects of profound childhood depravation do not diminish with the passage of time or with repeat offending, and it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision.

   The Court can understand BGVN’s spiral into alcohol and drug abuse, not just as a result of her unfortunate background, but the trauma of her first boyfriend, who was a stabilising influence in her life, killing himself, and then the abusive relationships that she has subsequently suffered. And, indeed, when she did manage, as she has on many occasions through her life, to obtain stable employment, the effect of the COVID-19 pandemic [interfered with] her chances of stability.

   The Court, of course, in Bugmy, did note that an offender’s deprived background does not have the same mitigatory relevance for all of the purposes of punishment because the purposes of punishment are conflicting, and this makes the exercise of a sentencing discretion difficult, but the Court gave the example of an offender whose childhood exposure to extreme (60) violence and alcohol abuse may explain that offender’s recourse to violence when frustrated, such as his moral culpability for the inability to control that impulse may be substantially reduced.

   However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender, and these conflicting purposes of sentencing come into play in BGVN’s case, of course. I find that her moral culpability for the offending that she took part of in this light is significantly reduced by the circumstances of her upbringing surrounded by alcohol abuse, violence and, indeed, sexual abuse upon her – an environment where alcohol and violence were normalised and she had no guidance from parental figures providing her with a moral compass to live her life, compounded by the trauma she suffered at a young age from her boyfriend’s suicide. This, of course, explains her continued falling back into drug abuse and committing crimes to attempt to fund that drug abuse, as occurred in the circumstances of this offending. However, the Court must be mindful in sentencing BGVN to take into account all the purposes of sentencing, including protection of the community from her commission of other offences.

2. In terms of assessing the likelihood of recidivism, his Honour stated:

   In these circumstances, I have received other material which I find bodes well for protection of the community and prospects of rehabilitation. I have received two reports from officers of the Corrective Services, Offender Services and programs unit of the Silverwater Correctional Centre, one dated 13 September 2022 and the other 28 September 2022, both speaking of a program which BGVN has undertaken in custody called the Addiction Support Program. I note that it is fully described in the material as (61) received, and it is a program which is described as a rolling program, and it is designed to facilitate remand offenders.

   …

   The Addiction Support Program consists of a number of modules, each of which has four sessions, and is directed at helping to identify and increase strengths that support lifestyle choices that do not include drugs or alcohol.

   Participants enter the program voluntarily and BGVN has commenced addiction support programs on 31 May this year and 6 September this year, and it’s reported that her participation is of a high standard. I have also received in evidence the reference letter from EN, who is BGVN’s case worker through the Women’s Justice Network. The case worker reports that BGVN has been supported by the network since October 2021. The case worker has had regular contact with her and has witnessed a positive transformation in her behaviour and attitude.

   It is reported that BGVN has taken it upon herself to address her addiction issues. She has completed remand addictions. She has completed regular appointments with the psychologist and also talking to the psychiatrist to address her mental health issues.

   It is reported that the tools she has taken away from engaging in these supports has   transformed BGVN’s attitude to what has brought her in to (62) custody. It is reported that she has no contact with the past cohorts of negative peers and that she is looking to the future. BGVN has discussed completing her youth work certificate post release and returning to the employment she had pre-custody, and, again, the case worker reports that her previous employer continues to support her and is happy for her to return to her previous work.

   It is reported that she now has regular contact with her two children and that the contact with her children and the work she is accomplishing herself has led her to express regret and remorse for the offences she committed. She is described as a willing and proactive participant in the Women’s Justice Network mentoring program and the program is in the process of matching her with a mentor.

   The case worker plans to keep in contact with BGVN post-release to work together alongside her mentor to meet her goals and transition back into the community as a positive and productive woman. She will be supported to find long-term accommodation; recommence her youth work studies and gain employment.

   BGVN has stated herself that she will need support accessing mental health and drug and alcohol services to maintain her recovery in both areas. It is reported that she has shown great determination and commitment to taking the necessary steps to prove she is more than capable and fit to return to her children and the community, and she is highly motived and self-sufficient in working towards these priorities.

   I note that, in the sentence assessment report I received dated 1 November 2022, the author speaks of BGVN’s apparent acceptance of (63) responsibility for her offending, stating that the fact that she was using illicit drugs and a victim of domestic violence within her relationship at the time is no excuse for her offending. She stated that she is disgusted and ashamed by her behaviour and acknowledged she needs to initiate positive change in her life.

   She recognises the influence of her negative peers which impacted on her poor decision-making skills. She candidly admitted that when she was misusing substances, that she was not compliant with any mental health medication. She acknowledged the seriousness of her offences and the fear that her actions caused the victims, and that she noted they should feel safe in their own home.

   Her assessment was as a medium risk of reoffending, according to the Level of Service Inventory, and the Community Corrections office has formulated a supervision plan for when or if she is released to the community which appears completely consistent with the treatment plan formulated by the psychologist, who reports that BGVN has acknowledged that she has never really attempted treatment for her underlying conditions, apart from a very short and unsuccessful rehabilitation stay, but now she agrees to the need for psychological intervention as well as drug counselling to improve her condition and, of course, as I have noted, she has willingly and voluntarily, with the support of the Women’s Justice Network and the offender services programs at Silverwater Prison, undertaken such courses and benefited from them.

   In all these circumstances, I find that her prospects of rehabilitation are better than guarded if she continues to avail herself of the supervision and (64) treatment that she acknowledges she needs, and that her risks of reoffending are correspondingly lessened. In all these circumstances, protection of the community, of course, does need to be given effect by any sentence I impose but a great portion of protection of the community will be the rehabilitation and re-entry of BGVN into the community in a supervised and therapeutic manner that will enable her to be a good mother and a good, productive member of the community and lessen her risk of committing offences.[34]

   [34] G7, pp 60 – 65.

3. On 14 March 2023, the Department sent a Notice of Intention to Consider Cancellation (the Notice) of her Class TY Subclass 444 Special Category (Temporary), to which she did not respond.[35] On 7 December 2023, a delegate of the Minister cancelled the applicant’s visa for the second time.[36]

   [35] G3a, 15.

   [36] G3a, 15.

4. On 13 February 2024, she applied to the Tribunal for review of the decision of 7 December 2023.

   FINDING ON THE CHARACTER TEST

5. A person sentenced to a term of imprisonment of 12 months or more does not pass the character test, by reason of the combined operation of paragraphs 501(6)(a) and 501(7)(c) of the Act. The sentence imposed on the 22 November 2022 satisfies the threshold identified in paragraphs 6(a) and (7)(c). These convictions and sentences are not disputed by the applicant. The Tribunal therefore finds that the applicant does not pass the character test.

6. As noted, the delegate decided on 7 December 2023 to exercise the discretion under subsection 501(2) to cancel the applicant’s visa on the basis that she did not pass the character test. The nature of these merit review proceedings is that the Tribunal is required to reconsider the matter afresh, considering all relevant material available to the Tribunal.

7. For the reasons outlined below, I have decided not to exercise the discretion under subsection 501(2) to cancel the applicant’s visa. The reviewable decision is therefore set aside.

   THE HEARING

8. The Respondent was represented by Mr L. Dennis, Solicitor, Mills Oakley, and the applicant was initially unrepresented.

9. The matter was originally set down for hearing on 15 April 2024. The applicant did not appear, and the matter was adjourned to 18 April 2024.

10. On 18 April, the applicant appeared without legal representation and requested an adjournment. She said that she had applied for legal aid and expected that it would be granted. She also stated that she had been injured in an assault in the city on 12 April and had therefore been unable to attend the hearing on 15 April. She provided a medical certificate. The Respondent did not oppose an adjournment, and the matter was set down for hearing on 26 April 2024.

11. On 26 April Ms M. Lewis, solicitor of the Crossover Law Group, appeared at short notice for the applicant. She indicated that she had just received instructions and had not had time to prepare. She sought an adjournment, which was not opposed by the Respondent.

12. Taking account of the 2-day rule,[37] any further adjournment required the matter to be heard on or before the 1 May, to comply with the 84-day rule.[38]

    [37] Migration Act 1958 (Cth), ss 500(6H) and/or 500(6J).

    [38] Migration Act 1958 (Cth), s 500(6L)(c).

13. The Tribunal indicated that it would hear the application on 1 May, which allowed for the filing of documents and information relied upon by the applicant up to midnight on 26 April. To her credit, Ms Lewis did file several references and a comprehensive Statement of Facts, Issues and Contentions just before midnight.

14. On 1 May, the applicant gave evidence and was cross-examined by the Respondent. The applicant’s mother also gave evidence. The representatives of each party then made final submissions. After a short adjournment, the Tribunal rendered an oral decision, setting aside the decision under review. 

15. On 15 May, the Respondent requested written reasons.

    EXERCISING THE DISCRETION TO CANCEL VISA UNDER SUBSECTION 501(2)

16. Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in considering whether to exercise the discretion under subsection 501(2) to cancel a non-citizen’s visa.

17. Part 1 of the Direction provides a set of principles to which the Tribunal should have regard when applying these considerations. I note the principles referred to in paragraph 5.2 and especially the following:

    (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 noncitizens 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.

18. Part 2 provides that the Tribunal must have regard to five primary considerations in section 8 and four other considerations in section 9. The considerations identified in the Direction are not exhaustive.

19. The section 8 primary considerations are as follows:

    ·Protection of the Australian Community (PC1)

    ·Family violence committed by the non-citizen (PC2)

    ·The strength, nature, and duration of ties to Australia (PC3)

    ·Best interests of minor children in Australia affected by the decision (PC4)

    ·Expectations of the Australian community (PC5)

20. The section 9 other considerations are as follows:

    ·Legal consequences of decision under section 501 (OC1)

    ·Extent of impediments if removed (OC2)

    ·Impact on victims (OC3)

    ·Impact on Australian business interests (OC4)

    PC1: PROTECTION OF THE AUSTRALIAN COMMUNITY

21. The Direction states:

    8.1 Protection of the Australian community

    (1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2) 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.

    Paragraph 8.1.1. The nature and seriousness of the non-citizen’s conduct to date

22. Paragraph 8.1.1(1) of the Direction identifies certain offending as being viewed by the Australian government and the Australian community as very serious (violent or sexual crimes, crimes against children, and family violence) or at least serious (forced marriages, immigration offences, etc).

23. The applicant’s offending history has been summarised above.

24. The Direction relevantly provides that the Tribunal must have regard to the sentence imposed, the frequency of the non-citizen’s offending, and the cumulative effect of repeated offending.

25. I have noticed the various sentences above. In relation to imprisonment, I note that she was sentenced to three months’ imprisonment for shoplifting in 2017, two years’ imprisonment (non-parole period of one year) for stealing and aggravated robbery in 2019, and three years and six months (with a non-parole period of 18 months) for the home invasion offences committed in 2022. She also received a community corrections order for 24 months having custody of goods suspected of being stolen in/on premises, and various fines.

26. Imprisonment is the most severe sentencing option available to a court with the length of the sentence reflecting the gravity of the offending and the purposes of punishment, including the personal characteristics of the accused.

27. It is, however, notable that when the applicant received her first sentence of imprisonment (three months for shoplifting and property damage) she had only had one conviction (a driving offence) for which she received a 12-month bond, as well as an outstanding warrant in Queensland relating to possession of counterfeit money in July 2016. In other words, this is not a case where the applicant comes before the Tribunal with an entrenched criminal record. Her offending did not commence until she was almost 30 years old.

28. Under paragraph 8.1.1(1)(g) of the Direction, the Tribunal is required to consider whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status. As noted above, the applicant has previously received a stern warning about the possibility of visa revocation. When asked about this she said that she did not focus on its meaning. She thought she might get into trouble if she offended but never that she might be deported.[39] Her explanation about this is wholly unsatisfactory.

    [39] Transcript, 1 May 2024, 80.

29. The applicant accepts and I find that her offending is serious. Under the Direction violent crimes are to be regarded as very serious. Although she was not the principal offender in the robberies on 12 July 2017 or the aggravated break and enter on 12 August 2021, her willingness to participate in such joint criminal enterprise involving the probability of personal injury should certainly be regarded as very serious offending.

    Paragraph 8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

30. Paragraph 8.1.2(1) of the Direction provides:

    (1)  In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

31. This provision refers to the Government’s view about the Australian community’s tolerance for any risk of future harm. Where a person receives a long prison sentence for a very serious offence (as in the present case), a finding that any risk of repetition is unacceptable will often be made. However, the risk of repetition does not conclusively determine whether to exercise the discretion under subsection 501(2) to cancel a non-citizen’s visa even though they fail the character test.

32. Paragraph 8.1.2(2) of the Direction provides:

    (2)In assessing the risk that may be posed by the non-citizen 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 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).

1. The nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct or other serious conduct will obviously depend on the nature of the criminal offending or serious misconduct. The applicant’s criminal record reveals crimes of violence which, if repeated, would constitute a serious risk to individuals and the community.

2. I turn to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct.

3. I refer to a Psychological Assessment report prepared by a registered psychologist in 2019.[40]

   [40] Report dated 15 March 2019 by Ms T. registered psychologist: S21, 70; G9, 94.

   Substance use

   BGVN began using alcohol and cannabis on weekends at age 14, but reports her use was unproblematic until age 16, when she began using “anything I could get my hands on” to cope with her boyfriend’s death by suicide. For several months she reports using a range of substances including amphetamine, methamphetamine, cocaine, ketamine, and MDMA, as accessible to her, as well as drinking heavily and smoking cannabis. She reported that methamphetamine (ice) was the most problematic, as she was using at least twice a week. However, after partnering with BH she reports she “slowed down and drifted away” from her drug-using friends and stopped using everything other than alcohol and cannabis.

   During her pregnancies, BGVN reports she abstained from all substance use. In the following years she reports she drank alcohol only occasionally and would use illicit drugs such as amphetamine (speed) or MDMA around once a year on special occasions. However, in 2015 she relapsed to ice use following a culmination of life stressors, including the end of her relationship with BH, termination of an unplanned pregnancy, and stress surrounding her night shift-work at Ingham’s. Initially she was using small amounts, estimating around 0.2g over a week, however this soon escalated to daily use, and BGVN reports that at the time of her arrest she was using nearly a gram per day. (A number of features of abuse and dependence were prominent in [her] account of her substance use and these were further explored in a semi-structured interview. BGVN reports that her ice use felt beyond her control, as she was using more often and in greater amounts than intended, with several unsuccessful attempts to moderate or cease her use. She was unable to carry out usual activities without using and spent most of her time either using or accessing ice. BGVN experienced cravings to use, increased tolerance to the effects of ice, and withdrawal symptoms when she detoxified after entering custody. She also reports physical and mental health impacts including dental pain, malaise, fatigue, and auditory hallucinations when she had been awake for several days. [Her] reported symptoms are consistent with a DSM-5 diagnosis of Stimulant Use Disorder, with a Severe presentation.

   BGVN’s reports she did not access any drug treatment or support services prior to entering custody as she was unsure what was available, and also felt stigmatized in seeking help. As previously noted, however, BGVN was bailed to Odyssey House in 2018 and had two brief admissions, leaving on both occasions to reunite with her girlfriend. She reports that prior to her second admission she had had a five-day ice binge and had readmitted herself of her own accord, being concerned about her use.

   …

   4.1 Formulation and opinion

   BGVN reported a somewhat troubled family background with early exposure to family violence and parental substance misuse. In her teens, she was handed between several different caregivers across Australia and New Zealand, with associated disruptions in education and care, and fluctuating levels of supervision which likely served to further destabilise her and increase her risk of antisocial behaviour. At age 16, BGVN began heavily abusing substances as a means to cope with her grief over her boyfriend’s death. She reports that this initial foray into drug abuse was short-lived, as she subsequently partnered, started a family, and spent some years leading a prosocial lifestyle. However, in 2015, she faced a culmination of serious life stressors and relapsed to ice use, quickly becoming dependent and resorting to theft offences to fund her habit.

   As set out in the body of the report, it is my opinion that BGVN meets criteria for Stimulant Use Disorder (severe) and would have done so at the time of the index offence. Though she provided only a limited account of the offences, it is likely in my opinion that there, is a nexus between her diagnosis and offending conduct, as she was heavily addicted to methamphetamine and this would have provided a financial motivation for her to participate in a robbery. I note that as BGVN reports having been abstinent from drug use since entering custody, her condition may be in early remission, in a controlled environment.

   Based on her presentation, self-report, and responses to psychometric measures, I do not make any further diagnosis of BGVN at this time. While she reports some symptoms of depression, these appear to be subclinical at present and are likely reactive to the custodial environment. However, her reported history of self-harm and suicidal behaviour is a cause for concern and she should continue to be subject to review and management while she remains in custody. Additionally, given her reports of auditory hallucinations it is my recommendation that she is referred for psychiatric review.

   Based on the available information, it appears that BGVN’s substance abuse and dependence has been the primary risk factor associated with her offending, and as such presents as the principal treatment target for the purposes of future risk management. Given the chronic nature of her methamphetamine addiction it is my opinion that BGVN would be at significant risk of relapse in the absence of therapeutic supports. However, it is encouraging to note that she shows insight into the harm associated with her substance use and accepts the need to participate in both custodial and community-based treatment. She was able to provide a clear account of her setbacks in previous treatment attempts, accepted responsibility for these, and it appears she is exploring alternative options for the future.[41]

   [41] S21, 74.

4. I note that the sentencing judge recently found that her prospects were better than guarded if she continues to avail herself of supervision and treatment.[42]

   [42] G7, 64-65.

5. Over past years the applicant has made some attempts to obtain professional support. I note a reference provided by Ms RA, Services and Programs Officer, Mary Wade Correctional Centre, dated 2 April 2019 stating that the applicant had engaged with the Services and Programme staff to participate in the Remand Addictions Programme covering the following topics: understanding change; urges and cravings; problem solving for better living; and self-management planning. She had at that point attended seven sessions and contributed to all sessions.[43]

   [43] G10d.

6. I also note a reference dated 19 July 2022 provided by EN, Case Worker, Woman’s Justice Network;

   BGVN became a client of WJN in order to be better supported while taking a different approach post release. [She] has a number of positive key factors that will contribute to her making a full and positive transition back into society. [She] engages with our programme on a regular basis and expresses her desire to stay out of prison and return home to her two sons AB 15 yrs and CD 12 yrs. [She] is proactive, expresses herself well and is eager to make positive changes in her life, for herself and her sons. [She] is currently in the process of being matched with a WJN Mentor who is providing crucial social and emotional support during this time.

   This letter is to inform you that [she] is doing all that she can to better herself whilst in custody, and returning into society would support [her] making changes that are vital to achieving her goals to have her children by her side, employment and a drug and crime free life. [She] will be supported by WJN for sometime post release and also be working closely with her Mentor who will provide support in [her] transition back into society.

7. The applicant said that she saw a case worker from the Women’s Justice Network “3 or 4” times. She said that her involvement with this support network did not really take off because they could never find an agreed time to meet.[44] Understandably, the Respondent contended that little weight should be given to these efforts.[45]

   [44] Transcript, 1 May 2024, 83.

   [45] Transcript, 1 May 2024, 124.

8. I note the letter dated 10 April 2024 from WS, an Odyssey House alcohol and drug (AOD) treatment worker. The letter refers to the applicant’s attendance on 51 days for two treatment programs: AOD Recovery and Wellbeing, and SMART recovery, run by the well-respected organisation.[46] The letter advises that the applicant completed a range of counselling topics of relevance to her, such as coping with urges and cravings, bingeing, maintaining abstinence, learning how to reduce use, coping with lapses, relapse management, managing conflict, distress tolerance, managing stress, managing boredom, managing anxiety, depression, grief and loss, employment issues stroke work issues, communication issues, relationship issues, parenting issues, avoiding negative influences, negative thinking patterns, social connection issues and assertiveness.

   [46] Member File, item 1d.

9. On 16 May 2023, the applicant refused to provide an oral fluid sample, for which she was fined $700 with six months licence disqualification.[47] Under cross-examination she agreed that she had declined to provide a fluid sample when she stopped by police. She said she felt persecuted by the police all the time, and that they “are always out to get me”.[48] She said she told the police that she was “not doing it and for them to charge her”.

   [47] NSW Local Court, 11 August 2023: G6, 38.

   [48] Transcript, 1 May 2024, 66.

10. Although she is on parole until 11 February 2025, her reporting obligations to Community Corrections of NSW are currently suspended.

11. On the positive side, she has stable accommodation, having signed a lease for a unit with the NSW Land and Housing Corporation on 21 November 2023.[49]

    [49] Residential Tenancy Agreement, Member’s File, 1e.

12. She also has an offer of accommodation from her friend HY, who has previously provided her with some employment as a cleaner.[50]

    [50] Transcript, 1 May 2024, 58, 83.

13. The Tribunal is required to consider the protection of the Australian community as a primary consideration in deciding whether to cancel the applicant’s visa.

14. Any reasonable assessment of the prospects of recidivism depends on an assessment of her capacity to abstain from the use of recreational drugs and the excessive consumption of alcohol. Her tendency to resort to drugs in times of stress increases the prospects of harm to the community.

15. The protection of the community weighs heavily in favour of cancelling the applicant’s visa.

    PC2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

16. Although some of her offending in 2017 appears to have arisen from relationship difficulties with her girlfriend, there is no suggestion that they were in a domestic relationship. The Respondent accepts that there is no evidence of family violence committed by the applicant, and that this consideration is not relevant in these proceedings.

    PC3: STRENGTH, NATURE AND DURATION OF TIES

17. Paragraph 8.3 states:

    (1) 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.

    (2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (3) 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.

    (4) 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 noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their 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

    Impact on immediate family members

18. The Applicant has a strong and vibrant support network. Her immediate family consists of her two sons: AB (17) and CD (14). She has an older brother and three younger half-sisters, born in in 1996, 1997 and 1998. She is also close to her mother (NV), who supported her during these proceedings, and to her aunt NN. They all live in Australia and have a right to do so indefinitely.[51] Her children are Australian citizens.

    [51] Birth certificates: G10k, 117; 118.

19. Members of her immediate family attended the hearing in support of the applicant. These included her mother NV, who gave evidence, her current partner (SN), her stepson EF (who was available to give evidence but not required), her brother, and her older son (AB).

20. Her mother (NV) provided a statement dated 6 April 2024:

    I am writing this letter of support for my daughter, BGVN, regarding the cancellation of her visa. My name is NV, and I am BGVN's mother. I have been closely involved in the process concerning the cancellation of her visa over the past year, and I believe it is imperative to share some crucial insights into BGVN's circumstances and her struggles. Over the past year, BGVN has been faced with the daunting task of navigating the complexities of the visa cancellation process. However, despite my persistent efforts to encourage her active participation, I have observed her reluctance to engage fully in this process. As a concerned mother, this has troubled me deeply, prompting me, to reflect on the underlying reasons behind her behaviour. Upon introspection, I realised that BGVN's life journey has been married by significant emotional distress and a profound sense of abandonment, particularly stemming from her strained relationship with her father. Despite being her place of birth, Australia has been our home since arriving here in 1989, with BGVN only returning to New Zealand in 2000, when she went to spend a year with her father.

    However the experience had a profound impact on her, with her father's absence in her childhood. BGVN has experienced profound emotional turmoil due to her father's emotional disconnection and abandonment. Furthermore the profound impact of her father's absence on her life choices and behaviour patterns. Her history of reckless behaviour and tumultuous relationship s with men can be traced back to her deep-seated feelings of abandonment and emotional vulnerability. Despite enduring abusive behaviour from her former relationships. In her last relationship BGVN found herself in a perilous situation, culminating into a life threatening encounter. It is crucial to acknowledge that BGVN's actions were influenced by her vulnerabilities and the predatory nature of those around her, rather then a deliberate intent to cause harm. BGVN's encounters with the criminal justice system have further compounded her trauma and exacerbated her existing mental health issues, including post - traumatic stress disorder (PTSD). The lack of adequate legal representation and support during her legal proceedings has only served to exacerbate her distress and hinder her ability, to engage with the process effectively. As a mother and witnessing my daughter's suffering, and the systemic failures that have contributed to her predicament fills me with a sense of sadness and frustration. It is evident that BGVN's disengagement from the visa cancellation process is not out of apathy or indifference but rather a coping mechanism in response to her traumatic experiences and ongoing mental health struggles. Therefore, I implore you to please consider the complexities of BGVN's circumstances and the underlying trauma that has shaped her life's journey when adjudicating her appeal before the tribunal, it is imperative to recognise that BGVN is not just a statistic or a case file but a vulnerable individual in dire need of compassion, understanding and support in conclusion, I urge you to please approach BGVN's case with empathy and humanity, acknowledging the profound impact of her traumatic experiences on her mental health and decision making abilities. By affording her the opportunity for a fair and just assessment of her circumstances, we can pave the way for her rehabilition (sic) which she has been attending her drug and alcohol sessions on a regular basic. Thank you for your attention to this matter.

21. The applicant was asked about other family members. She said she was close to her godson (GH), her second cousin’s son. She was also close to a teenager by the name of EF, who she described as her “stepson”. She befriended him through her friend HY. He was one of HY’s son’s friends. In 2023, he was “thrown out of home” and had nowhere to stay. She had taken pity on him and offered him accommodation.[52]

    [52] Transcript, 1 May 2024, 87.

22. EF provided a reference dated 26 April 2024 for these proceedings. He described her as his mum.

    I am writing to you about my Mum BGVN's visa cancellation. BGVN is much more than a mum, she is someone's daughter, sister, auntie and somebody's partner. A loved one who has been there for all of us no matter what she has gone through. BGVN has always been there when I was at my lowest and thanks to her I am not dealing with depression anymore.

    Our relationship has always been good and she has been backstabbed so many times and still cares for them. I watched her get assaulted by a drunk stranger and she still took him home so he was off the streets and safe, she is as much as an angel can be in a person. Mum has always kept up with everything that I and the rest of the family are going through and always put us before herself. She is a very magnificent woman and think should be given a second chance she has changed her life around so heavily and made an impact on everyone. Mum is the person in my life I go to if I am struggling and anxious or hurt. I love her. she will always put her children in a safe space and hid us from any bad things happening around us and will always be the best person in my life. I can't think of how broken this family would be without her please give her one last chance.

23. Her partner, SN, provided a positive character reference dated 5 April 2024:

    BGVN consistently exhibits honesty, kindness, and empathy in all of her interactions - qualities that make her a truly remarkable individual. Despite facing significant challenges in life - including enduring multiple forms of abuse from me as I struggled with failing mental health issues - she has always demonstrated remarkable resilience, compassion, and a commitment to healing both herself and our relationship.

    It is important to note that when I was released from prison and found myself homeless while struggling to reintegrate into society, it was BGVN who extended a helping hand and took me off the streets. She provided me with a safe haven along with emotional support during an incredibly challenging time in my life. Her selflessness and compassion made an invaluable difference in my life.

1. The applicant said her family would be seriously and adversely affected by her removal to New Zealand. She also referred to some 40 aunts and uncles and 20 nephews and nieces who live in Australia.[53]

   [53] G10, 89.

2. In terms of the broader community, she claimed to volunteer one day a week for a Jewish charitable organisation that feeds the homeless. A reference signed by Rabbi BK was provided stating:

   I wanted to express my heartfelt gratitude for your incredible dedication as a volunteer … Your selfless contributions have made a significant impact on our community. Your efforts … truly matter. Your dedication brings hope, joy, and light to those who need it most. Thank you for your kindness and commitment to our mission. We are truly fortunate to have you on our team.

3. The applicant’s formative years were spent in Australia. She has lived in Australia since the age of two apart from a year spent in New Zealand as a teenager. She was educated in Australia.

4. I find that the applicant’s removal from the country would occasion extreme emotional distress upon members of her family, including especially her mother, children and stepson. Her new partner would also suffer.

5. The strength, nature and duration of her ties to the Australian community are very strong. This primary consideration weighs strongly in favour of exercising the discretion not to cancel the applicant’s visa.

   PC4: BEST INTERESTS OF MINOR CHILDREN

6. Paragraph 8.4 provides that decision-makers must make a determination about whether cancellation or refusal under section 501 is, or is not, in the best interests of a child affected by the decision.

7. The applicant has two biological minor children in Australia: AB (17) and CD (14). She also has close relationships with her godson (GH) and stepson (EF).

8. I note the reference provided by her son, AB.

   I am writing to you with a heavy heart regarding my mum's 501 visa cancellation. To me, BGVN she is more than just a mother; she is my pillar of strength, my confidante, and the unwavering source of love in my life.

   Throughout my entire existence, my wonderful mum was always by my side. From attending school functions to guiding me through challenging homework assignments, she has always been my unwavering support system.

   Our bond is unbreakable. I share everything with my mum, and her honesty has transcended our relationship. Despite her past missteps, she openly discusses her experiences with me, emphasizing the crucial life lessons she has learned. Through her own stories, she has instilled in me the importance of steering clear of negative influences such as drugs and crime.

   Witnessing her transformation has served as a profound lesson for me, causing me to reconsider my own choices when faced with potentially dangerous paths.

   The mere thought of my mum being uprooted from my life fills me with utmost despair. Her absence would undoubtedly leave an irreplaceable void in my soul and cause a ripple effect of anguish.

   I humbly implore you to reconsider the decision to cancel my mum's 501 visa. Granting her the opportunity to remain by my side would not only preserve the sanctity of our bond but also nurture the foundation upon which my future is built.

9. I note the Respondent’s submission set out in the RSFIC.

   34. The Respondent accepts that it would be in the best interests of the applicant’s children for her visa not to be cancelled. However, the Respondent contends that the weight given to this consideration should be tempered by the fact that the applicant has not has custody of her children since 2015 and has had a limited parenting role (8.4(4)(a), (e)). The applicant has been living apart from her children since 2015 because of the breakdown of her relationship and to protect her children from her substance abuse and related problems. There is a risk that the applicant will not perform a positive parenting role having regard to her past behaviour and noting that the children are teenagers and AB is almost 18 (8.4(4)(b)). While the applicant has had access to her children and appears motivated to maintain a relationship with them, her past behaviour and any further relapse or offending will likely have a negative impact on her children (8.4(4)(c)). As teenagers, it is likely that the applicant’s children would be able to maintain contact with the applicant via electronic means. It appears that that the parenting role for the applicant’s children is being fulfilled by their father (8.4(4)(a), (e)).

   35. The Respondent accepts that this consideration should be given some weight against cancellation.

10. I also note that her children AB and CD are cared for by their father.

11. Under cross-examination, the applicant told the Tribunal that when she went to prison in 2017 the boys went to live with their father permanently. She did not have custody. She saw them every week and took them to whatever they were doing. “We just go and hang out”. She said that her oldest son was always at work and that her fourteen-year-old son CD was angry with her: “… I let him and his brother down and I have to accept that. I have to wear it… but he knows I’m his mum.” [54] Her relationship with the boy's father was amicable but strictly about the kids.

    [54] Transcript, 1 May 2024, 85.

12. She was asked whether she would stay in touch with her boys if she went back to New Zealand. She said she would, but it would be difficult.  At the present time, they have a good living arrangement because their grandparents live in a granny flat at the back of her ex-husband’s home.

13. This is not a case where abuse was directed by a parent at his or her children. It is more akin to a case of abandonment or neglect that results, all too often, from domestic abuse and family breakdown, especially when accompanied by drug addiction or alcoholism.

14. Until the breakdown of her marriage there was no basis for criticism of her parenting. There is nothing to suggest that she was a bad or neglectful parent. Circumstances changed during the breakdown of her marriage from 2012 to 2015, which led to her descent into drug taking, alcohol abuse and criminal offending. There is material in the sentencing comments which acknowledges the applicant’s history and personal circumstances as significant factors in her offending and resulted in a finding of special circumstances by the sentencing judge.

15. The Tribunal also accepts that she has played a significant role in the life of her stepson EF, and that they have known each other for approximately a year.

16. Given the applicant’s volatility and vulnerability, and her propensity for self-harm, and the lack of meaningful family supports in New Zealand, there is a significant risk that her children would suffer a profound sense of loss and anxiety were she to suffer removal from this country. The notion that they could simply move on with their lives is somewhat fanciful.

17. The applicant is far from a perfect parent, and I cannot rule out a significant possibility of a risk of relapse. The question for the Tribunal is whether cancellation of her visa is in the best interests of minor children affected by the decision, taking account of the various factors referred to in paragraph 8.4(4) of the Direction.

18. I find that it is in the best interests of her own minor children AB and CD, and her stepson EF and godson GH, that her visa is not cancelled.

    PC5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

19. Paragraph 8.5 provides:

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

    (2)…

    (3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

20. The applicant’s SFIC states:

    75. The Tribunal is open to either follow the narrow approach determined by FYBR v Minister for Home Affairs [2019] FCA 500 or the much broader approach taken by Honour Griffiths J in DKYX v Minister for Home Affairs [2019] FCA 495 where it was indicated that all other circumstances relevant in every case must also be taken into account.

    76. We however submit that the language of Direction No.99, as opposed to previous Directions, supports the decision made in DKXY16.

    77. The other relevant circumstances in this case in considering the expectation of the Australian community is the fact that the applicant spent effectively all of her life in Australia including her upbringing and trauma experienced leading to drug use and a life of crime.

    78. Consistent with Direction no.99 paragraph 5.2(5), the Australian community will “generally afford a higher level of tolerance of criminal and other serious conduct by the non-citizen who lived almost all of her life in the Australian community” since the age of 2.

    79. Nonetheless, the Applicant contends that should the Tribunal choose to follow a narrow approach finding that this consideration weighs against the application, that the other primary and other considerations do outweigh this primary consideration.

21. The Respondent relies on the Federal Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) for the proposition that it is not for the Tribunal to determine for itself the expectations of the Australian community, rather the Tribunal must give effect to the ‘norm’ that the expectations of the Australian community lie with the applicant’s visa refusal. FYBR was a decision on a previous Determination made under section 499 of the Act (Direction No. 65). FYBR has been heavily cited by the Tribunal and the Federal Court, in decisions on the Direction and the two previous Directions (No. 65 and No. 90).[55]

    [55] See, for example, Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68, a decision on Direction No. 90.

22. Although the expectations of the Australian community, as declared by the Australian government to be a ‘norm’, are static and will usually point against revoking the cancellation decision, the weight to be accorded this expectation, within the complex matrix of all relevant considerations, is variable. It is contingent upon the specific features of the case.[56]

    [56] See DKYX v Minister for Home Affairs [2019] FCA 495.

23. I find that the expectations of the Australian government and community weigh in favour of exercising the cancelling the applicant’s visa.

    OC1: LEGAL CONSEQUENCES OF DECISION

24. Paragraph 9.1(1) of the Direction provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

25. This consideration is neutral.

    OC2: EXTENT OF IMPEDIMENTS IF REMOVED

26. The Direction requires the Tribunal to consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand, in establishing herself and maintaining basic living standards, considering her age and health, whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to her in New Zealand.

27. There are no relevant language or cultural factors that would create a significant impediment to resettling in New Zealand.

28. The Tribunal is satisfied that her family supports in New Zealand are minimal and that she does not have a positive relationship with her father. Apart from the period in 2001 when she stayed with him, she has not had a meaningful relationship with him. Moreover, according to the applicant’s mother, he was physically abusive to her and was seriously afflicted by alcohol and drug use.

29. The applicant’s alcohol and drug addiction have been recounted above. In evidence, the applicant said that she had seen a psychologist but not a psychiatrist and that she was aware that she had these underlying issues that “need to be diagnosed”.[57]

    [57] Transcript, 1 May 2024, 83.

30. The applicant has a significant history of self-harm. The incidents include driving her car into a tree and several deliberate overdose attempts. On at least one occasion she was hospitalised and involuntarily detained for a brief period.[58] That she was not seriously injured or killed in any of these incidents would appear to be a matter of luck. I take this history into account in assessing overall the impediments that she may face in establishing basic living standards in New Zealand.

    [58] G10g, 106.

31. It is reasonable to expect that her removal from Australia will be associated with heightened stress. The probability of her resorting to drugs and alcohol as a coping mechanism is very real. This will constitute an impediment to her in establishing herself in New Zealand.

32. I am satisfied that the impediments she may face if returned to New Zealand are significant, and that this weighs in favour of a decision not to cancel the applicant’s visa.

    OC3 AND 4: IMPACT ON VICTIM AND BUSINESS INTERESTS

33. No evidence was elicited on these matters which are not relevant to these proceedings.

    CONCLUSION

34. A significant factor in the present case is that the applicant is a long-term resident of Australia. She has lived here nearly all her life. Her formative years were spent here. In a letter to the Department in relation to her (first) visa cancellation, she stated:

    I recently became aware, through the Department of Home Affairs, that I first came to Australia when I was a few months old. A little later, my mother relocated me to Australia. My entire living memory is Australia. I have lived here since 1989, since I was a toddler. I consider this my home, my boys' home and that of my family.[59]

    [59] G10, 90.

35. Unless her visa is reinstated, the applicant will remain an unlawful non-citizen, and liable to removal from Australia, regardless of the length of her residence here, and whether or not she was brought here as an infant before she had any say in the matter.

36. The Tribunal is bound to apply to the Direction. Under the Direction, the safety of the Australian community is a primary consideration, but it is one of five primary considerations.

37. The Direction states that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.

38. I make the following findings:

    (a)The following considerations favour cancelling the applicant’s visa:

    ·Protection of the Australian Community (PC1)

    ·Expectations of the Australian community (PC5)

    (b)The following considerations favour not cancelling the applicant’s visa:

    ·The strength, nature, and duration of ties to Australia (PC3)

    ·Best interests of minor children in Australia affected by the decision (PC4)  

    ·Extent of impediments if removed (OC2)

    (c)The following considerations are either not relevant or neutral:

    ·Family violence committed by the non-citizen (PC2)

    ·Legal consequences of decision under section 501 or 501CA (OC1)

    ·Impact on victims (OC3)

    ·Impact on Australian business interests (OC4)

39. Thus, two of the primary considerations (PC1, PC5) weigh in favour of cancelling the visa, and two weigh against cancellation (PC3, PC4). One of the other considerations (OC2) also weighs against cancellation. I emphasise that this is not merely a numbers game, and the Tribunal is required to assess each of the relevant considerations and weigh them against each other and in combination.

40. The applicant’s criminal behaviour is inextricably linked to her tragic upbringing, the breakdown of her relationship with the father of her two children in 2015, and her loss of employment when the pandemic hit in 2020. Her use of drugs and alcohol is a significant cause of her offending.

41. I am satisfied that despite the very serious nature of her most recent offending, the Tribunal should not exercise the discretion in subsection 501(2) to cancel her visa. Neither the circumstances of her offending, nor the subjective circumstances of her life, require an adverse visa decision. In my view, cancellation of her visa under the circumstances described in the sentencing judge’s remarks quoted at length above would be an excessive response and impose a crippling burden on her and her immediate family.

    DECISION

42. The decision of the Respondent dated 7 December 2023 to cancel the applicant’s Special Category (Subclass 444) visa under subsection 501(2) of the Migration Act 1958 (Cth) is set aside, and in substitution, it is decided to exercise the discretion under subsection 501(2) not to cancel the applicant’s visa.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 3 June 2024

Date(s) of hearing:	26 April, 1 May 2024
Solicitors for the Applicant:	Ms M. Lewis, solicitor of the Crossover Law Group,
Solicitors for the Respondent:	Mr L. Dennis, Australian Government Solicitor