BPBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 1002
•26 April 2024
BPBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1002 (26 April 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0781
Re:BPBR
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date of decision: 26 April 2024
Date of reasons: 3 May 2024
Place:Canberra
The decision under review is affirmed.
………………………………….
Senior Member O'DonovanCatchwords
Applicant fails character test on basis of custodial sentence greater than 12 months – application to review exercise of discretion to cancel visa – Albanian citizen – multiple convictions associated with cultivation of cannabis – inconsistencies between basis of sentencing and version of events given to the Tribunal – serious offending – risk of re-offending due to criminal associations – limited ties to the Australian community – expectations of the Australian community – formative years and family in Albania – discretion to cancel exercised
Legislation
Migration Act 1958
Sentencing Act 2017 (SA)
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
HZCP v Minister for Immigration and Border Protection [2018] FCA 180
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367Secondary Materials
DIRECTION NO 99: VISA REFUSAL AND CANCELLATION UNDER SECTION 501 AND REVOCATION OF A MANDATORY CANCELLATION OF A VISA UNDER SECTION 501CA (23 JANUARY 2023)
REASONS FOR DECISION
Senior Member O'Donovan
3 May 2024
The applicant is an Albanian citizen. She first came to Australia in 2011. On 1 February 2024 the applicant’s Five-Year Resident Return visa was cancelled. The delegate was not satisfied that the applicant passed the character test and decided to exercise the discretion conferred by section 501(2) of the Migration Act 1958 (Act) to cancel the visa.
The applicant applied for review of that decision on 9 February 2024.
It is not disputed that the applicant does not pass the character test. The applicant fails the character test as a result of a lengthy prison sentence being imposed following her plea of guilty to offences relating to the hydroponic cultivation of cannabis in houses where the electricity supply had been diverted to avoid metering (2017 offences). The only question to be determined is whether I should exercise the discretion conferred by section 501(2) to cancel the visa. When exercising that discretion, I am required to consider Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (‘the Direction’) made under section 499 of the Migration Act 1958. I will elaborate on the requirements of the Direction further below.
Having considered the evidence and had regard to the considerations raised in the Direction and other submissions made by the applicant, I have decided that her visa should be cancelled. The decision under review is affirmed. My reasons for this conclusion are set out below.
Evidence
The documentary material before me consisted of the G Documents and the following exhibits:
Exhibit No.
Description
Pages
G Docs
G-Documents
1-148
A1
Medical certificate confirming the applicant’s pregnancy from Dr Bushati dated 14 February 2024
A2
Australian Associated Press article: ‘Domestic violence deaths in Australia cast shadow over International Women’s Day’, 8 March 2024
1-6
A3
Canberra Times article: ‘Seven charged in domestic violence incidents’, 18 March 2024
A4
Unredacted sentencing remarks of Judge Barrett, 14 March 2019
1-6
A5
Albanian Marriage Certificate of AD and EC, dated 14 March 2024, and photos dated 1 September 2023
A6
Family Law Act 1975 Divorce Order dated 18 November 2014
A7
Albanian Birth Certificate of GN dated 5 May 2016
A8
Marriage certificate GN and EC dated 21 August 2017
A9
Passport of GN issued 6 April 2012 (expired)
A10
Facebook page KN and GB/GN, dated 13 December 2017
A11
Statement Alfie Nure dated 10 March 2024
A12
Witness statement Bricela Cela dated 11 March 2024
A13
Witness statement of Margaret Mwangi dated 12 March 2024
A14
Facts of personal history in the applicant’s Statement of Facts, Issues and Contentions
Page 2, line 82 – page 3, line 109
page 3, line 115 – page 6, line 279
A15
Statement of Sabbu Maharjan, undated
A16
Statements of Hainite Tamoa dated 10 March 2024 and 16 October 2023
G2, 76
Witness statement of Bricela Cela dated 17 October 2023
G2, 82
Statement of Viera Stark dated 19 November 2023
In addition I heard oral evidence from the following witnesses:
(a) The applicant
(b) Ms Brikela Cela
(c) Mr Alfi Nure
(d) Ms Margaret Mwangi
(e) Ms Viera Stark, psychologist
The applicant gave evidence with the assistance of an interpreter. Her comprehension of English when spoken by others was good, as was her spoken English. For some periods she gave evidence without the assistance of an interpreter. There were however periods where either the applicant or her representative asked for the assistance of the interpreter in order for her to understand the questions and to provide the answers.
It is clear from the evidence that for a number of years the applicant associated with people involved in the organised cultivation of commercial quantities of cannabis. Her level of involvement is an important question to be answered when determining if the applicant is likely to re-offend. She was originally sentenced in relation to the 2017 offences on the basis that she had knowledge of the cultivation and received a benefit.
However, in the course of giving evidence in these proceedings the applicant sought factual findings from the Tribunal that are quite different from the basis on which she was sentenced for her crimes. This raises a technical legal question that must be addressed before any fact finding is done. It also raises serious doubts about the reliability of the evidence that the applicant has given to the Tribunal. Consequently, I address these questions first. Once the framework for making findings of fact has been established, I set out my conclusions about the facts of this matter and the evidence on which those findings are based if any finding is controversial. Finally, I undertake an analysis of the relevant considerations identified in the Direction as well as other matters raised by the applicant.
Fact finding principles
It is important to note at the outset that the discretion to cancel the applicant’s visa is triggered because the applicant has a substantial criminal record. A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more or 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[1] On 14 March 2019 the applicant was sentenced in relation to three offences – cultivating a commercial quantity of cannabis plants for sale, diverting electricity, and possessing prescribed equipment. She pleaded guilty in relation to those offences. She was sentenced to a head sentence of four years and two months in prison with a non-parole period of two years and one month. The sentence was suspended.
[1] See section 501(7).
The judge who sentenced the applicant in relation to the charges made a number of findings about the circumstances in which the applicant’s offending occurred. He also recorded information about a prior conviction for similar conduct. The sentencing transcript formed part of the evidence before me. It is clear from the sentencing transcript that the facts on which the sentencing judge relied came to him either through submissions from the applicant’s barrister or as a result of disclosures made by the applicant to a psychologist charged with preparing a report for the purposes of sentencing. It is also clear that the applicant was present in court when the findings were read out by the sentencing judge.
The applicant gave evidence to the Tribunal about the circumstances of her crimes. That evidence was in many respects inconsistent with the findings of the sentencing judge in relation to the 2017 offences. The narrative given by the applicant to the Tribunal concerning her first crime (a 2013 offence) was also quite different to the version of events recorded by the sentencing judge. The first question this raises is, what scope do I have to depart from the factual basis on which the applicant was sentenced in relation to the offences that led to the applicant’s visa cancellation?
Departure from the factual basis of sentencing
The extent to which I can make findings inconsistent with the findings of the sentencing judge is limited.
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (which I will refer to as HZCP 2019) albeit in a different but related statutory context, that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[2] The Court made clear that if the failure to satisfy the character test is due to a criminal conviction or sentence then it assumes that there is confidence to be reposed in the fact of the conviction or sentence and the facts on which it was based. I must accept that the applicant has been sentenced in a manner that means she does not pass the character test. I am not authorised to go behind the essential facts on which the sentence depends.[3] I cannot reach different conclusions about the essential facts upon which the applicant’s sentence depends.[4]
[2] [2019] FCAFC 202 at [68] (‘HZCP [2019]’).
[3] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [194].
[4] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [89] (‘HZCP [2018]’).
HZCP 2019 includes a reminder that it is for the sentencing court alone to decide the sentence to be imposed and for that purpose the sentencer must find the relevant facts. Justice McKerracher emphasised in that case that ‘a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge’s conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important’.[5] It goes without saying that if the facts were different to those found by the sentencing judge the sentence may have been very different, and the statutory threshold for a finding that the applicant does not pass the character test might never have been reached.
[5] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [73], citing The Queen v Olbrich (1999) 199 CLR 270.
Importantly in the case of this applicant, the Sentencing Act 2017 (SA) was applied. It sets out the sentencing principles which govern the imposition of the sentence. Relevantly it provides:
(1)In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant:
(a) The nature, circumstances and seriousness of the offence…
…
(5)For the purposes of subsection (1)(a), the court must only have regard to the matters personal to the defendant that the court is satisfied are causally connected with, or have materially contributed to, the commission of the offence, including (for example) the defendant’s motivation in committing the offence and the degree to which the defendant participated in its commission.[6]
[6] Subsections 11(1), (5).
The consequence of subsection (5) is that the applicant’s state of knowledge and level of participation in the crime will affect what the appropriate sentence to be imposed should be. Consequently, the Tribunal cannot depart from the sentencing judge’s findings about the applicant’s state of knowledge and level of involvement in the crimes for which she was being punished.
The position is however different in relation to the applicant’s other offences, which do not form the foundation for the conclusion that the applicant does not pass the character test. In relation to those offences and sentences the applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation them. The principles to be applied by the Tribunal when considering evidence concerning these matters was summarised by Justice Bromberg in his first instance decision HZCP v Minister for Immigration and Border Protection[7] (which I refer to as HZCP 2018). These principles are summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG[8] at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[7] [2018] FCA 1803 at [41] - [77].
[8] [2018] VSCA 155.
In relation to the 2017 offences for which the applicant was sentenced in 2019 and for which she received a sentence in excess of 4 years, I am bound by the essential findings. That is not the case in relation to the sentencing judge’s findings about offences to which the applicant pleaded guilty in 2013.
In the sentencing remarks for the 2017 offences it is clear that the basis on which the applicant was sentenced was:
(1)The applicant permitted other people to use a property which she was the lease holder of (known as the Kilburn property) to cultivate cannabis;
(2)The applicant understood that this was an ongoing operation at least for the period of the lease agreement (which ran to 22 May 2017);
(3)The growers were to pay the rent;
(4)The applicant permitted the growers to divert the electricity;
(5)In exchange for allowing the growers to use the premises to cultivate cannabis, the applicant had flights to Europe paid for and she was to receive a financial benefit of $2,500;
(6)The applicant never received the promised $2,500.
These elements are identified as the basis for the sentence imposed and I cannot make any finding of fact which would undermine any of the essential findings. In relation to the 2017 offences the sentencing judge also made what I will describe as peripheral findings. These are factual findings which are not critical to the essential findings. An example of a peripheral finding is the finding that the reason for the applicant’s flight to Europe was that her mother had terminal cancer. That is a finding which I regard myself as free to depart from if there is a proper evidentiary basis for doing so.
In relation to the applicant’s other offences, I can depart from the conclusions which any sentencing judge or magistrate reached, but there is a heavy evidentiary onus which must be discharged before I would do that. I have applied these principles in my fact finding.
Damage to the applicant’s credibility as a result of multiple versions
Given that it is possible for me to depart from some aspects of the version of events recorded by the sentencing judge in the factual findings which I make, it is appropriate to also consider the impact on the applicant’s credibility arising from the fact that she has given versions of the events surrounding her crimes which differ in significant respects.
In these proceedings the applicant gave extensive evidence about the 2017 offences which led to her pleading guilty and receiving a four-year and two-month prison sentence. The evidence contradicted almost every factual finding of the sentencing judge. I now have two starkly different versions of events concerning the cannabis cultivation that led to the 2017 offences.
The first is contained in the sentencing remarks of Judge Barrett made on 14 March 2019. Judge Barrett found as follows:
(1)The applicant leased 2 premises in Adelaide – one in Kilburn for six months from 21 November 2016 to 22 May 2017 and another in Flinders Park from 13 September 2016 to 13 September 2017;
(2)In December 2016 the applicant received news from her family that her mother had been diagnosed with breast cancer and had a week to live;
(3)The applicant contacted a friend, AF, to ask if she could borrow money for the air tickets to Italy and he agreed to give the loan on condition that he was allowed to live in the Kilburn property;
(4)With the money provided the applicant flew to Italy where the applicant saw her mother just before she died. A few days after the funeral AF rang the applicant and demanded the money for the airfares immediately. AF said that if the money was not paid immediately then he would grow cannabis in the Kilburn property;
(5)Because the applicant was sad because her mother had just died and had no money she ‘did not care if he grew cannabis there’;
(6)When the applicant returned to South Australia in late January 2017, AF picked the applicant up from the airport and told the applicant that there were cannabis plants at Kilburn and that once the plants were fully cultivated the debt to him would be fully repaid;
(7)The applicant then moved out of the Kilburn property because she did not want to stay there while the plants were there. The applicant moved into the other property on which she had a lease at Flinders Park;
(8)The Flinders Park property was a house the applicant shared with her ex-partner EP in 2016;
(9)Equipment which could be used for the hydroponic cultivation of cannabis (including an electrical transformer, potting soil and sacks containing potting soil and nutrients) were located at the Flinders Park property. The sentencing judge sentenced the applicant on the basis that the applicant knew that the equipment was in the house and had been or would be used in the production of cannabis.
(10)The applicant’s husband GN was not implicated in any of the offending.
In the Tribunal, the version of events given by the applicant was quite different. The version she gave was as follows:
(1)In 2016 the applicant was living at a property in Campbelltown Adelaide. She knew a man called AF. She knew AF through a cousin in Spain. AF introduced her to GN: a man who she would subsequently marry in August 2017;
(2)AF advised the applicant that GN needed a house;
(3)The applicant, because she felt sorry for GN, started looking for a house for him. When they found a house, GN said he had lost his passport, so the house was rented in the applicant’s name. This was the house in Flinders Park. The house was just for GN to live in. The applicant continued to rent in Campbelltown;
(4)The applicant then moved out the Campbelltown house and rented the Kilburn house late in 2016. She signed the lease and did not live with anyone in that house;
(5)The applicant and GN began a romantic relationship around this time;
(6)In December 2016 the applicant’s parents were involved in an accident in Albania and so she returned there for a visit. The applicant stated that her mother never had cancer and she is still alive today. Photos of the applicant’s mother attending her wedding in 2023 were taken into evidence;
(7)When the applicant returned from Albania at the end of January 2017 she was picked up at the airport by GN and taken to the Flinders Park house. She never returned to the Kilburn house even though she had been living there prior to her departure for Albania. GN told her that he was doing building work on the house so she couldn’t stay there.
(8)The applicant knew nothing about what was going on at the Kilburn house;
(9)She was arrested by police in June 2017. That was the first she knew of GN’s activities and the growing of cannabis at the Kilburn house.
(10)She married GN in August 2017.
There are few similarities in the stories which the applicant told the Tribunal and the findings of the sentencing judge. Most critically the applicant denies any knowledge of the fact that the Kilburn property was being used for cannabis growing. She denies that she gave any permission for cannabis growing to occur and she denies that she received any benefit from the persons responsible for the growing of cannabis. She was simply the fall guy for an undertaking that she knew nothing about prior to arrest. In light of the principles laid down in HZCP (2018) and approved in HZCP (2019), I cannot accept this new version of events. The applicant, by advancing it, is seeking to deny many of the key elements which underpinned the judge’s sentence imposed in relation to the 2017 offences – in particular, that the applicant knowingly allowed properties of which she was the lawful occupant to be used in the commission of a crime, and that she received a benefit from doing so.
In addition, the advancing of a second version of events does significant damage to the applicant’s credit more generally. It is important to record the circumstances which led to the judge making his findings of fact concerning the 2017 offences. It is clear that many of the facts relied upon by the sentencing judge were derived from a psychological report prepared by a Dr Lim. The judge stated many of his findings using the formulation ‘you told Dr Lim’. The applicant in her evidence to the Tribunal had some recollection of meeting with a psychologist for the purposes of sentencing. It is clear from the sentencing transcript that the applicant was present in court on 14 March 2019 when she was being sentenced, and she was represented. I am satisfied that by 2019 the applicant’s English skills were good enough to communicate reasonably clearly and understand what was being said. So much is indicated by the answers the applicant gave to the judge’s questions in the transcript. In addition, the evidence before the Tribunal establishes that the applicant was able to form a close friendship in 2019 speaking only in English.
I am satisfied that the large discrepancy between the version relied upon by the sentencing judge and the version given to the Tribunal is not the product of poor English or mistranslation. I am satisfied that the discrepancy between the version given to the Tribunal and the version relied upon by the sentencing judge is the product of deliberate dishonesty on the part of the applicant. I am unsure on which occasion the applicant was being dishonest and in relation to what matters. She was certainly never candid enough with the Tribunal to admit that she was the author of any lies on which the sentencing judge relied.
There was also a significant discrepancy between the version of events given to the sentencing judge via the psychologist Dr Lim in relation to the applicant’s first crime in 2013 and the version given to the Tribunal.
The version given to Dr Lim was that the applicant moved to Adelaide in March 2013. A cousin from Albania put the applicant in touch with another Albanian national who was in Adelaide. The cousin asked the person to take care of her. This individual was in Australia on a fake passport. When he met the applicant, he asked her to enter into a fake marriage. The applicant refused. Several days later he rang and asked to meet the applicant at a property at Hallett Cove for a ‘catch-up’. When the applicant met him, he overpowered her and raped her. The applicant’s screams alerted the neighbours who called the police. By the time the police arrived her assailant had left, and when the police searched the house they found 9 cannabis plants. The applicant was charged with cultivation and possession of prescribed equipment. The applicant says that she pleaded guilty in order to be released from custody.
Regrettably the sentencing remarks in relation to the 2013 offence were not available to the sentencing judge in 2019, nor were they available to the Tribunal. The sentencing judge did however have what is called ‘the apprehension report’ from the police, which is a report of the applicant’s arrest. It is said to record that the police attended the address because of a disturbance. They found nine cannabis plants in the house and that the applicant told police that she was living at the premises and under duress and caring for the plants.
The version taken by police is inconsistent with the version the applicant gave to Dr Lim, which is that she was simply a visitor at the premises. The applicant suggested in these proceedings that the police did not understand what she was saying as a result of her having poor English.
The third version of events I have available to me is the version the applicant gave in evidence to the Tribunal about the circumstances in which the 2013 offence was committed. In the version given to the Tribunal the applicant says that she had recently arrived in Adelaide in 2013. She was in temporary accommodation and had met a Vietnamese woman there. The two of them decided to look for a house together. While they were walking down the street they bumped into a total stranger who happened to be Albanian. He said he had a house they could look at. For reasons that were not explained, only the applicant went with this stranger to his house. When the applicant got to the house she was sexually assaulted by the stranger and two other men who were at the house. The neighbours called the police as a result of her screams and the men fled. When the police arrived she was out the front of the house. The police entered the house and began removing cannabis plants from the house. That was the first time that she realised there was cannabis growing in the house. She tried to explain to the police that she had just been raped but the police could not understand her. They arrested her, she pleaded guilty and following her release went to live at rape crisis accommodation before moving to another house where she hid away for about a year.
There are material differences between the version the applicant gave to Dr Lim and the version she gave to the Tribunal – the identity and number of perpetrators of the sexual assault being the most glaring. Both versions are inconsistent with the understanding police gathered when the applicant was first arrested, which was that she was living in the house where the cannabis was being grown and that she was living there under duress.
I do not accept the applicant’s explanation that these differences are the product of confusion arising from language difficulties and the absence of an interpreter. As I have previously indicated I am satisfied that the applicant had a good command of English by 2019 when she was giving information to Dr Lim, and she had the benefit of an Albanian interpreter when giving her version to the Tribunal. The versions of events given are sufficiently different that I cannot regard either as reliable. Further, the versions given are different to the views formed by police concerning the circumstances of the 2013 offence revealed in the apprehension report and are inconsistent with the applicant’s guilty plea.
In these circumstances I do not regard the applicant as a truthful witness. I am not prepared to accept her version of events unless it is corroborated by other material or can be regarded as adverse or neutral as far as her interests are concerned.
This is reflected in the findings of fact which I am prepared to make.
Findings of fact
The following represent my findings of fact. To the extent that any are controversial I have referenced the evidence on which I rely.
The applicant was born in Albania in September 1983.
She was one of six children: three brothers and three sisters. One of her brothers is deceased, and the other two live in France and the United Kingdom. Her two sisters until recently have been resident in Albania, but now live in Italy and Greece. Her parents are still alive and live in Albania.[9]
[9] Given that the applicant has provided photos of her mother to the Tribunal I am prepared to accept that she did not die of breast cancer in 2016. In my assessment the account given of the applicant’s mother’s death to the sentencing judge is a peripheral finding that I can depart from.
In 2009 the applicant married an Australian citizen of Macedonian background named VC. She arrived in Australia in 2011 sponsored by her husband on a temporary visa. She lived with him in Sydney. The applicant’s visa was later converted to a permanent visa and then a Resident Return visa.[10]
[10] A Resident Return visa allows the visa holder to leave Australia and return as a permanent resident.
The applicant wished to have children but it was discovered that her husband was unable to father children. They decided to divorce.
In February 2013 the applicant returned to Albania to visit family and she stayed there until April 2013. Soon after her return the applicant moved to Adelaide.
In August 2013 the applicant was found guilty of ‘cultivate cannabis plant – artificially enhanced cultivation and possess prescribed equipment’.
I do not accept (as the applicant contends) that she was implicated in this crime as a consequence of being in the wrong place at the wrong time. Nor do I accept that she decided to plead guilty just to secure release from custody. I am satisfied that she was involved in some way in the cultivation of the cannabis crop and that the evidence in the police apprehension report obtained by the sentencing judge in 2019 is likely to be accurate – namely that the applicant was living at the premises and caring for the cannabis plants but under duress. I do not discount the possibility that the applicant was sexually assaulted by criminal associates at some point around this time, but the large discrepancies in her versions of how the sexual assault/s occurred make it difficult to reach an affirmative conclusion on that question.
The applicant returned to Albania for two months in 2014 and for three weeks in 2016. The applicant had no employment from 2011 until 2016. She was on Centrelink benefits and received support from her first husband. At some point in 2016 the applicant began work as a waitress at a restaurant called Pasta Deli.
In the second half of 2016 the applicant met GN, who she would marry the following year.
In September 2016 the applicant entered into a 12-month lease on a property in Flinders Park. In November 2016 the applicant entered into a six-month lease in relation to a property at Kilburn. In December 2016 the applicant left Australia for Albania. I am satisfied that she did not leave Australia, as the sentencing judge believed, because her mother was dying of cancer. I also doubt that she left Australia for the reason she claimed in her evidence to the Tribunal (because her parents had been involved in an accident). I am uncertain why the applicant left for Albania at that point in time. However, I proceed on the basis that the applicant’s air fares to Europe were paid for by the persons responsible for cultivating the crop at Kilburn. This benefit was provided to the applicant because she allowed the perpetrators to grow cannabis at the premises.
I am satisfied that the applicant was aware that the Kilburn house was being used to grow cannabis and that the electricity at the premises had been diverted. Consistent with the findings of the sentencing judge I am satisfied that it was AF who provided the benefit. The applicant returned to Australia on 30 January 2017.
The applicant was not picked up at the airport by GN but by AF as determined by the sentencing judge. It is worth noting that the applicant did not list GN as her emergency contact on her incoming passenger card (which she did do in 2019) but listed a friend of hers, Mr Al Sheikhly. This provides a substantive reason for doubting the applicant’s evidence that she was in a relationship with GN at this point in time and that he collected her at the airport. Even if I was free to depart from the sentencing judge’s findings concerning who collected the applicant at the airport, I would not do so on the basis of the evidence given to the Tribunal.
The applicant was arrested by police on 5 June 2017 at her Flinders Park residence. Police found prescribed equipment which could be used for growing cannabis there. The applicant knew that the equipment was there and what its intended use was. The applicant was charged with cultivation and related offences. She eventually pleaded guilty to those offences and was sentenced in relation to those offences in 2019.
Between her return to Australia and August 2017 the applicant formed a romantic attachment with GN. The couple were married in August 2017 and I am satisfied that the relationship was a genuine one.
The applicant’s marriage to GN was clearly troubled. The applicant’s evidence in relation to the marriage was as follows:
The marriage to GN was very unhappy …. Her new husband was controlling, violent and threatening. She was surprised when she found that he was involved in criminal activities and was using at least one false name. He held a knife to her [which in the applicant’s oral evidence was upgraded to evidence that he stabbed her in multiple places] and she was extremely frightened. She did not dare to say anything to the police in her own defence or openly ask them for help.
…
The applicant lived in fear of GN and his criminal associates. She did not dare to tell the truth as to the reality of her own life and the coercive, manipulative, and controlling hold GN and, by association, other criminals associated with him, held over her.[11]
[11] Applicant’s Statement of Facts, Issues and Contentions, paras [39]-[40].
I accept that the applicant was scared of GN and his criminal associates.
It appears that for Facebook purposes at least he used the pseudonym Berisha. He was also referred to by that name by the sentencing judge in 2019 who noted that the applicant married him within the first few months of meeting him (although the date of the marriage recorded in the sentencing remarks is clearly wrong[12]). The applicant submitted in the Tribunal proceedings that referring to the applicant’s husband using the surname Berisha was a serious error on the part of the sentencing judge and casts doubt on the factual accuracy of much of what the sentencing judge found. I do not accept that submission. The more likely explanation (when the sentencing remarks are read as a whole and keeping in mind that the evidence establishes that GN used Berisha as a pseudonym on Facebook), is that the applicant told Dr Lim that Berisha was her husband’s name in order to protect his identity in the sentencing process. In any event, nothing turns on this finding. I am bound by the sentencing judge’s findings for the most part, none of which suggested that GN was involved in the 2017 offences.
[12] The evidence before the Tribunal includes a copy of a marriage certificate dated 21 August 2017.
As noted previously I am satisfied that the marriage was genuine. It is however unclear whether the applicant ever lived with GN after she married him. On 4 September 2018 the applicant was back before the Adelaide Magistrate’s Court charged with cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and diverting electricity from the power system. The charges were ultimately not proceeded with, when an assessment was being made as to whether the applicant was suitable to be released on bail to home detention, her cousin Vinni who lived at Henley Beach was identified as the contact and the address to which she would be released, not any address where her husband was known to live.
In November 2018 the applicant moved house. Her address for home detention was changed to an address at Mawson Lakes which appears to have been some kind of boarding house. It was here that the applicant met Margaret Mwangi, who became her flatmate and close friend until the applicant left for Sydney in 2020.
Ms Mwangi gave a picture of the relationship between GN and the applicant which differed in some respects from the applicant’s account, Ms Mwangi was a self-evidently credible witness. Her recall of events, dates and places was clear and every word of her evidence had the ring of truth about it. I have no hesitation in accepting both the general tenor and the more precise details of the evidence she gave about the applicant’s relationship with GN.
Ms Mwangi’s evidence was that she met the applicant in 2018 when she moved into the place at Mawson Lakes. She met GN, who helped the applicant to move in. When she first met GN she observed that he was nice and supportive. He was polite and introduced himself as the applicant’s husband. In January 2019 Ms Mwangi and the applicant moved to a share house at Holden Hill. GN would often come around and Ms Mwangi was able to observe their relationship. Initially they struck her as a very together couple - cooking meals together and treating each other well. The applicant disclosed to Ms Mwangi that she was subject to home detention and that ‘there was involvement in something illegal, taking the blame for her ex, since she had to, given her residency in Australia and his lack of residency which would have been an automatic deportation for him’. The applicant however never disclosed the nature of her involvement.
The relationship between GN and the applicant however began to deteriorate, and Ms Mwangi observed a significant change in the applicant’s mood and demeanour. In early to mid-2019 the applicant started to isolate herself in her room and was always on a phone call with her family members and frequently crying. Ms Mwangi also observed verbal fights between the applicant and GN and would often have to take steps to defuse the situation. She became scared of GN and did not like his presence in the house. She did however state that she never saw him engage in physical violence.
Eventually the applicant explained to Ms Mwangi that GN was a chronic gambler who had blown their savings and was now demanding her pay cheques as well. GN would also borrow both the applicant’s and Ms Mwangi’s cars and incur fines and never offer to pay them back. GN was extremely jealous of the applicant – checking her text messages and social media accounts for contact with other men.
In March 2019 the 2017 offences were dealt with in the Adelaide District Court. A custodial sentence was imposed but the sentence was suspended. The 2018 charges however remained outstanding.
In April 2019 the conditions of the applicant’s home detention were modified so that she could work longer hours.
In June 2019 the 2018 charges were dropped. In September 2019 the applicant flew to Albania. When she returned she filled out an incoming passenger card. On that card she identified GN as her emergency contact and her address as Holden Hill where she lived with Ms Mwangi. She correctly identified that she was resident returning to Australia. She also put a cross next to the answer ‘no’ in relation to the question ‘do you have any criminal conviction/s?’ Given that she had been sentenced in relation to serious crimes six months before, I am satisfied that the applicant deliberately provided false information on that occasion. There is nothing to indicate that the applicant otherwise misunderstood the terms of that particular form.
On 21 January 2020 the applicant was convicted of failing to comply with a bail agreement and given a 7-day suspended prison sentence.
As GN’s behaviour deteriorated the applicant formulated a plan to move to Sydney to get away from him. In 2020 the applicant moved to Sydney and blocked all contact with GN. She changed her phone number and closed social media accounts and anything else that he could use to find her. She continued to visit Adelaide on a monthly basis.
In April 2021 she was found guilty of failing to comply with a direction relating to border closures arising from COVID restrictions. The applicant crossed into South Australia in circumstances where she was prevented from returning to Sydney but was not permitted to enter South Australia. The offence was found proved but no penalty was imposed.
On 31 May 2022 the applicant was found guilty of driving a motor vehicle while her licence was suspended. The applicant explains this offence as being the result of GN incurring fines without her knowledge with the result that her licence was cancelled without her knowledge.
The applicant commenced work in Sydney working in a biscuit or muffin factory. At some point she met her now husband AD who lives in Albania.
In August 2023 the applicant travelled to Albania and in September 2023 she married AD. For present purposes I am willing to proceed on the basis that the marriage is genuine.
When the applicant returned to Australia from Albania in September 2023 she was pregnant with her new husband’s child.
The day after the applicant arrived in Australia she was advised that the Department was considering cancelling her visa.
At some point the applicant was referred by her GP, Jennifer Ho, to Viera Stark, a psychologist working at Bondi Junction. Ms Stark was chosen because she was identified by the applicant’s migration lawyer Ashnita Goundar as a person with whom she regularly worked.
The applicant sought treatment for distress following the notice regarding the intention to cancel her permanent residency. The diagnosis at the point of referral was an adjustment disorder with low mood.
Ms Stark saw the applicant on three occasions. Care was discontinued because Ms Stark’s rooms were a significant distance from where the applicant lived. After the applicant’s second attendance Ms Stark prepared a report. The report was not the result of any specific request for a report. On Ms Stark’s evidence, the report seemed to be something she did spontaneously on the basis that she knew the applicant was a client of Ms Goundar and it was the kind of report which would be useful to a person in the applicant’s circumstances. There was no formal request for a report and no set of questions. Ms Stark indicated that she was not paid for the report. It was something which she just decided to do. None of this evidence seemed plausible, but for present purposes I am prepared to accept that the report was done on that basis.
Ms Stark’s assessment was as follows:
The client presented as significantly depressed. Her scores on the DASS (a self report psychometric test) show that her Depression is Severe, Anxiety is Extremely Severe and Stress is Extremely Severe. She had poor affect and was tearful, sad and anxious.
[BPBR] is very upset about her situation, particularly as she now has a husband overseas and is 10 weeks pregnant. She values this stable and loving relationship in which she has fulfilled her dream to have a family.
Despite her depressed mood my client has been working at a biscuit factory where she works many shifts. She is keen to support herself financially.
It is my opinion that [BPBR] is unlikely to reoffend. In the past she was dependent on a nefarious partner who ill-treated her, such that she feared for her life and that of her sister and family overseas. Following that trauma, she has re-established herself, seeking out a new relationship, supporting herself by working hard in a factory where she is a valued employee, and planning ahead for the welfare of her unborn child.
Following questioning by the respondent’s representative and the Tribunal, Ms Stark made clear that the opinion she expressed was not a professional opinion. She did not use any of the tools of a forensic psychologist and the views were just what she thought rather than the product of the application of expertise of a psychologist to the known facts. She conceded that she had not had regard to the Tribunal Guideline on Persons Giving Expert and Opinion Evidence.
In my assessment the report was not an expert report, which involves applying a body of knowledge to the facts of the case. It reads like a piece of advocacy for the applicant. I place no weight on the report.
The applicant saw Ms Stark on one further occasion after the report was prepared. Treatment with a psychologist has not been pursued since then. The applicant is not on any regular medication for the treatment of a psychological condition.
On 1 February 2024 the respondent’s delegate cancelled the applicant’s visa.
If the applicant’s visa remains cancelled she will be returned to Albania. She has a husband and both parents still living there. She grew up speaking Albanian and can live with her parents.
In the course of considering the relevant considerations, I will make incidental findings of fact as necessary.
CONSIDERATION
In considering whether to exercise the discretion to cancel the visa I must have regard to the matters contained in the Direction. Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9, as relevant, when I am deciding whether to exercise the discretion.
The Direction is divided into ‘Primary’ and ‘Other’ considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight ‘Other’ considerations more highly in appropriate circumstances).
The primary considerations are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) Whether the conduct engaged in constitutes family violence;
(c) The strength, nature and duration of ties to Australia;
(d) The best interests of minor children in Australia;
(e) Expectations of the Australian community.
The other considerations are:
(a) The legal consequences of the decision;
(b) The extent of impediments to the applicant establishing and maintaining basic living standards if removed;
(c) The impact on victims;
(d) The impact on Australian business interests.
I am also required give consideration to any other matters advanced by the applicant.
Having considered each of the considerations and weighed them, I am satisfied that I should exercise the discretion to cancel the applicant’s visa. Consequently, the visa cancellation decision stands.
Primary Considerations
Protection of the Australian Community
In considering the protection of the Australian community I am required to keep in mind that the Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I also need to have regard to:
(a) The nature and seriousness of the applicant's conduct to date; and
(b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
Applying these factors to the applicant's circumstances, I approach the matter on the basis that the applicant’s crimes are serious. In particular, assisting with the commercial cultivation of cannabis, on a number of occasions at a number of locations, constitutes a serious offence. It indicates that the applicant was involved in organised criminal activities undertaken for the purpose of distributing an illegal drug in the Australian community. The harms attributable to the use of cannabis include that it can and does have a significant and permanent deleterious effect on the mental health of some users.
The seriousness of the offence is demonstrated by the fact that the applicant received a custodial sentence in relation to the 2017 offences of four years and two months. Even though the custodial sentence was suspended, the imposition of a custodial sentence is at the top of the sentencing hierarchy. It reflects the seriousness with which the offences in which the applicant engaged are treated by the criminal courts.[13]
[13] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
The applicant has been convicted of multiple offences relating to the commercial production of cannabis in 2013 and 2017. There is no trend of increasing seriousness at this point, and it is possible that she no longer associates with the network of people necessary to undertake the operations she was involved in between 2013 and 2017. Although she has been convicted of other crimes since she was convicted of the 2017 offences, they do not appear to be a continuation of the offending which characterised her time in Adelaide.
The cumulative effect of the applicant’s offending demonstrates a disregard for the law. In addition to the cannabis cultivation offences, the applicant’s failure to comply with the border closure direction demonstrated a willingness to break the law even when the rules were made clear to her by persons in authority. The applicant’s conviction for a failure to comply with a bail agreement shows a similar disregard for the law.
The applicant also provided false or misleading information to the Department by failing to disclose her prior criminal offending on her incoming passenger card in 2019. While I am prepared to accept that some of the other incoming passenger cards may have been misunderstood by the applicant, I cannot accept that the denial of any criminal convictions on an otherwise accurately filled out incoming passenger card, was anything other than a deliberate decision to provide false information to the department.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must 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 resulting harm caused is so serious that any risk that it may be repeated may be unacceptable. The applicant’s criminality is not conduct of that kind, but the risks posed if the applicant’s conduct is repeated are serious.
Nature of the harm
The applicant’s drug cultivation offences create a risk to Australian citizens. The capacity of the drug cannabis to very adversely affect the mental health of some of its users is well known. That is the risk of greatest concern arising from the applicant’s conduct.
The applicant’s disregard for the law by crossing borders to avoid COVID restrictions also had the potential to harm the community by spreading the virus during lockdowns.
Likelihood of the applicant engaging in further criminal conduct
In relation to cannabis cultivation it is difficult to determine how likely it is that the applicant will re-offend. I do not accept Ms Stark’s assessment that it is unlikely that the applicant will re-offend. That report is not an expert report and, given the circumstances in which it was produced (discussed at [76] – [79] above), I consider it has no value.
I also do not accept the general tenor of the applicant’s case, which is that the applicant’s offending was specifically linked to her relationship with GN and now that the relationship is over, no further offending is likely.
In my assessment the applicant’s criminal offending began before she had even met GN and the 2017 offending occurred largely independent of his influence. I am satisfied that the applicant began minding crops for someone in an organised group in 2013. She did so under duress. At that point in time the applicant did not know GN. Consequently, there is someone else with whom the applicant has interacted who at that time had some kind of hold on her and could induce her to engage in criminal activity.
GN’s involvement in the 2017 offences in my assessment was peripheral, despite the applicant’s evidence to the Tribunal that he was centrally involved in those crimes. I am satisfied that the applicant was not in a relationship with GN at the start of 2017 when she returned from Albania. GN is not named as the emergency contact on the incoming passenger card and the applicant has previously stated that she married GN only a few months after meeting him. The couple were married in August 2017. The applicant was very vague in her evidence about when the relationship began.
In those circumstances I do not accept the applicant’s claims that it was her husband who drew her into involvement with organised criminal activity. The applicant was already involved with criminals prior to meeting GN.
In the absence of a detailed understanding of how the applicant was drawn into the cannabis growing network in the first place it is difficult to assess how likely it is that she will be able to avoid doing work for that network again. When she was giving evidence to the Tribunal the applicant was clearly scared of threats that could be made against her and her family and believed that, if the threats were made, she could not go to the police. In these circumstances there is a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences.
Accordingly, there is a risk that the applicant will reoffend and the potential consequences for members of the Australian community are serious.
The Protection of the Australian Community consideration weighs against revocation of the applicant’s visa cancellation.
Family violence and best interests of minor children
The applicant has never committed an act of family violence. The consideration is neutral. There are no minor children whose interests have been identified as affected by this decision. The consideration is neutral. I address the applicant’s contention that I should take into account the fact that she is a victim of family violence under the heading ‘other considerations’.
Strength, nature and duration of ties to the Australian community
The applicant has no immediate family in Australia. Her siblings all live overseas. Her parents both live in Albania. Her current husband lives in Albania.
The applicant arrived in Australia in 2011. She was married to her first husband but the relationship failed. The applicant does however remain in touch with him and is close to his mother. The applicant is not close to her other ex-husband GN. She has cut off all contact and is hoping to avoid ever seeing him again.
The applicant has a number of close friends who submitted statements or gave evidence on her behalf. I will assume for present purposes that all of these friends have a right to remain indefinitely in Australia unless the evidence indicates otherwise.
Margaret Mwangi
Ms Mwangi met the applicant in 2018. They lived together until 2020 when the applicant moved to Sydney. They are very close – Ms Mwangi considers the applicant to be like a sister to her. They are in very regular contact and they see each regularly when the applicant returns to Adelaide. Ms Mwangi does not have a right to permanently reside in Australia.
Brikela Cela
Ms Cela has known the applicant for roughly 5 years. She met the applicant in Sydney when attending an Albanian community event and they are close friends. The applicant prior to Christmas 2023 drove to Canberra to help Ms Cela when she was sick and unable to care for her children. The relationship is clearly close.
Alfi Nure
Mr Nure is also a friend of the applicant. He has known her for three years. He is an Australian citizen. He came down from Sydney to give evidence personally in the Tribunal on the applicant’s behalf. The relationship is clearly close. He says that he sees her as his sister.
Hainite Tamoa
Ms Tamoa met the applicant in 2020 when she was working at a muffin factory at Taren Point in Sydney. They no longer work together. It is unclear how close they are now although it is clear Ms Tamoa holds the applicant in high regard.
Sabbu Maharjan
Sabbu Maharjan has known the applicant for one year and they are friends. She holds the applicant in high regard.
Other evidence
The applicant submitted a statement from Mustafa Al-Sheikhly but decided not to rely on the statement after she was unable to make Mr Al-Sheikhly available for questioning by the respondent at a suitable time.
In addition to the friends who provided statements and gave evidence on the applicant’s behalf, the evidence shows that the applicant has held numerous jobs since her arrival in Australia. She did not work when she first arrived in Australia, or for a number of years after she moved to Adelaide in 2013. The applicant was on Centrelink benefits until around 2016 when she got a job in an Italian restaurant. After she left Adelaide the applicant has worked in a muffin factory and worked delivering parcels and as a cleaner and a kitchen hand.
In summary, the applicant has no close relatives in Australia. She did not grow up in Australia. She was not ordinarily resident in Australia in her formative years. She began offending only two years after arriving in Australia. She did not begin working in Australia until 2016, so has been a contributing member of the Australian community for less than eight years. She has three close friends in Australia and a smattering of other people who she knows through work or prior relationships.
The applicant’s ties to Australia are quite weak. This consideration weighs in favour of non-cancellation but not very strongly.
Expectations of the Australian Community
As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The applicant has disobeyed the law on multiple occasions since her arrival in Australia. This consideration weighs against the applicant.
Other considerations
The applicant accepts that at this point in time the legal consequences of any decision to cancel, the impact of such a decision on victims, and the impact of such a decision on Australian business interests are not relevant at this point in time. I agree with that assessment. I have given them neutral weight.
Extent of impediments faced in Albania if removed there
I must consider the extent of any impediments that the non-citizen may face if removed from Australia to her home country, in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The applicant grew up in Albania. She went to school in Albania until she was 16. She speaks Albanian. She worked in a factory for many years after she left school. The applicant’s parents still live in Albania and she has visited them regularly since moving to Australia. She now has a husband waiting for her in Albania. The applicant’s siblings have left Albania to live in other countries. Her brothers departed because of a blood feud.[14]
[14] See page 3 of the applicant’s SOFIC at line 126.
I am satisfied that the applicant is relatively young and physically healthy. She has had a mental health setback since hearing about the possibility that her visa may be cancelled, but at present she is not on medication nor is she receiving regular therapy. There are no language or cultural barriers that the applicant will face if she is returned to Albania. Her family can provide her with social and economic support, if necessary, on her return. I do not consider that she faces any significant impediments to maintaining basic living standards on her return to Albania. This consideration is neutral.
Other considerations
I have also given consideration to the fact that the applicant is pregnant and her child is due in June 2024. As the father of the child is in Albania and the applicant has family support in Albania, I am satisfied that the impending birth of the applicant’s child does not provide a reason not to cancel the visa, although it may influence the travel arrangements.
The applicant’s representative also made numerous statements to the effect that the applicant was a victim of a sexual assault and a victim of domestic violence, and urged the Tribunal to take those matters into account in deciding whether to affirm or revoke the cancellation of the applicant’s visa.
In relation to the claim that the applicant was a victim of a sexual assault in 2013, that is not a matter that has been established to my satisfaction. The applicant has given two very different versions of the event, where the circumstances leading to the event and the number and identity of the perpetrators differ. I am not willing to take into account an event that I am not satisfied occurred.
In relation to the applicant’s contention that she was a victim of family violence, I am satisfied that that was indeed the case. During her marriage to GN the applicant was subject to violent and controlling behaviour, and it is all to the good that she has escaped that relationship. If I was persuaded that that relationship was the cause of her criminality, the circumstances of her criminality would have a very different complexion in light of that violence, particularly now that the relationship with GN has ended. But I am not persuaded of that fact. The applicant’s criminal associations pre-date her relationship with GN. Family violence may have played a role in her being charged in 2018, but the evidence before the Tribunal indicates that her previous criminal activity was unrelated to it. In those circumstances, the fact that the applicant was a victim of family violence at a particular point in time does not persuade me that her personal circumstances should be treated as providing a consideration which outweighs the community protection consideration in this case.
Decision
The applicant’s criminal offending weighs in favour of cancelling her visa. It is possible that the applicant’s serious offending is now behind her, but given the unsavoury nature of her connections in Adelaide and the influence they had over her, I cannot be confident that that is the case. There are no factors that weigh heavily against cancellation. Although the applicant has good friends who will be sad to see her return to Albania, none of the connections are strong enough to outweigh in importance the protection of the Australian community. In those circumstances I have decided to exercise my discretion and determined that the applicant’s visa should be cancelled.
The decision under review is affirmed.
135. Date of hearing:
136. 16-17 April 2024
137. Date final submissions received:
138. 17 April 2024
139. Applicant representative:
140. Mrs Marion Le (MARN 9256617)
141. Solicitor for respondent:
142. Ms Emma Letcher-Boldt
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