Brown and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 1330
•25 May 2023
Brown and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1330 (25 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1383
Re:Sophia Reo Brown
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Justin Owen
Date:25 May 2023
Place:Sydney
The Tribunal sets aside the reviewable decision and substitutes a decision that the mandatory cancellation of the Class TY Subclass 444 Special Category (Temporary) visa is revoked.
..........................[SGD].........................
Deputy President Justin OwenCATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Justin Owen
25 May 2023
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 2 March 2023, not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).
The Applicant is a female New Zealand national born in April 1988. At the time of decision, she is 35 years of age. The Applicant has resided in Australia for 20 years, having arrived in 2003 as the holder of a TY-444 visa when she was 14 years of age.
The Applicant was convicted of a minor public nuisance offence in 2008 for which she received a bond. The Applicant’s next adverse interaction with the law was in 2018. Since 2018, the Applicant has been convicted of, or found to have committed, multiple offences that are overwhelmingly linked to the breakdown of her relationship with [redacted], her former partner and father of her two young Australian citizen children. These offences are described in more detail below.
Her visa was cancelled on 11 October 2022 under section 501(3A) on the basis that she did not pass the character test. The Applicant was duly notified of the mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. On 2 March 2023, a delegate of the Respondent refused to revoke the mandatory cancellation made on 11 October 2022. There followed an application to the Tribunal on 4 March 2023 wherein the Applicant sought review of the delegate’s refusal to revoke the decision made on 2 March 2023.
Sections 501(6)(a) and 501(7)(c) of the Act provides that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of her conviction on 2 December 2020 in the Magistrates Court of Queensland of offences including contravention of domestic violence order (aggravated offence), for which she was sentenced to twelve months imprisonment.
The Applicant concedes that she does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 11 May 2023. The hearing received oral evidence from the Applicant.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the Applicant’s visa should be set aside.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Relevantly, subsection 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Subsection 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the report of the Queensland Department of Corrective Services setting out the Applicant’s offending and convictions. Information in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), which the Tribunal accepts as accurate, indicates that the Applicant has been convicted of a range of offences since 2018. On 2 December 2020 in the Magistrates Court of Queensland, the Applicant was convicted of a number of offences including contravention of domestic violence order (aggravated offence), for which she was sentenced to 12 months imprisonment.
The Tribunal notes that the Applicant was also convicted in February 2022 of two counts of contravention of domestic violence order (aggravated offence), one count of breach of bail condition and one count of obstruct police officer, for which she was sentenced to 6 months of imprisonment to be served concurrently. In July 2022, the Applicant was also convicted of two further counts of contravention of domestic violence order (aggravated offence) and one count of commit public nuisance, for which she was sentenced to 9 months imprisonment to be served concurrently.
The Tribunal would also note the Applicant’s earlier convictions. In December 2018, she was convicted of contravention of police protection order for which she received a fine. In September 2019, she was found guilty of five counts of contravention of domestic violence order and sentenced to 15 months’ probation. In November 2019, the Applicant was convicted of three counts of contravention of domestic violence order (aggravated offence) and a count of breach of bail condition, for which she was given a 2-year probation.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test. The requirements of s501CA(4)(b)(i) of the Act are not met. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked.”
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90, in turn, was replaced by the Direction on 3 March 2023. The Direction is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.
The Direction sets out the principles that provides a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant or revoke mandatory cancellation decisions. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five primary considerations (“Primary Considerations”) that the Tribunal must take into account. The Primary Considerations includes:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out five other considerations (“Other Considerations”) which must be taken into account. The Other Considerations are:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
The Tribunal notes the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
In this case, it is not in dispute that the Applicant has made representations about the revocation of the cancellation of her visa. The requirements of s 501CA(4)(a) are met.
The Tribunal has had regard to the Applicant’s representations, as well as her submissions and evidence to the delegate. In addition, the Tribunal also has regard to the evidence subsequently provided to the Tribunal by the Applicant and the Respondent.
In her submissions, the Applicant concedes her past offending and acknowledges that the expectations of the Australian community weigh against her. The Applicant submits that her specific life circumstances – a history encompassing being the victim of sexual abuse as a child; a diagnosis of depression at a young age; the use of alcohol at the age of 15, the use of amphetamines at age of 21; and the suicide of her partner in 2016 and the accidental death of her sister in 2018 – are factors that individually and collectively have impacted upon her behaviour. The Applicant submits that that the interests of her two young children have been central to the vast majority of her offending and her actions have been linked to the breakdown of her relationship with her former partner. The Applicant submits that the best interests of minor children, as well as the strength, nature and duration of her ties to Australia, ultimately outweigh the other considerations.
The Respondent refers to the nature and seriousness of the Applicant’s offending and conduct, as well as the risk in the Applicant committing further offences or engages in serious conduct. These factors are relevant to the Primary Considerations of the protection of the Australian community, as well as the expectations of the Australian community. The Respondent submits that the Applicant’s criminal history should be viewed very seriously. The Respondent submits that the Applicant has a history of family violence and intimidation directed towards her former partner. The Respondent notes the Applicant’s recidivism and the volume and frequency of her offending is suggestive of a future risk of reoffending. The Respondent concedes that the best interests of the Applicant’s young children weigh in favour of revocation. The Respondent also concedes that the Applicant’s strength, duration and ties to Australia also weigh in the Applicant’s favour. However, the Respondent submits that there are other matters that should be considered.
The Tribunal’s considerations are set out below with regard to the Direction.
CONSIDERATIONS
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed), are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s conduct to date, the Tribunal notes the Applicant was convicted of a minor public nuisance offence in 2008 for which she received a bond. Since 2018, following the breakdown of her relationship with [redacted], the Applicant has been convicted of numerous offences, most of which have occurred in connection with [redacted]:
On 6 December 2018, the Applicant attended Moranbah Magistrates Court in relation to the charge of contravention of police protection notice. No conviction was recorded and the Applicant was issued a $650.00 fine.
On 10 September 2019, the Applicant attended Emerald Magistrates Court in relation to five charges of contravention of domestic violence order and two charges of breach of bail condition. No conviction was recorded in relation to all charges, and the Applicant was given a probation period of 15 months.
On 11 November 2019, the Applicant attended Emerald Magistrates Court in relation to several charges including contravention of domestic violence order (aggravated offence), breach of bail condition and wilful damage. No conviction was recorded in relation to all charges, and the Applicant was given a probation period of two years.
On 2 December 2020, the Applicant attended Townsville Magistrates Court in relation to several charges including possessing dangerous drugs, wilful damage domestic violence offence, possess utensils or pipes etc that had been used, breach of bail condition, and contravention of domestic violence order (aggravated offence). The Applicant had a conviction recorded on all charges and was sentenced as follows:
-Two counts of breach bail condition: seven days imprisonment on each count;
-Nineteen counts of breach of bail condition: one month imprisonment on each count;
-Three counts of breach bail condition: two months imprisonment on each count;
-Contravention of domestic violence order: three months imprisonment;
-Two counts of wilful damage: four months imprisonment on each count;
-Contravention of domestic violence order (aggravated offence): six months imprisonment;
-Assaults occasioning bodily harm: nine months imprisonment;
-Contravention of domestic violence order (aggravated offence): 12 months imprisonment; and
-Possession dangerous drugs, wilful damage domestic violence offence, possess utensils or pipe that had been used and breach of bail condition: not further punished.
On 4 February 2022, the Applicant attended Moranbah Magistrates Court in relation to several charges, including contravention of domestic violence order (aggravated offence), breach of bail condition and obstruct police officer. The Applicant had a conviction recorded on all charges and was sentenced as follows:
-Two counts of contravention of domestic violence order (aggravated offence): six months imprisonment on each count;
-Breach of bail condition: one month imprisonment; and
-Obstruct police officer: two months imprisonment.
On 29 July 2022, the Applicant attended Townsville Magistrates Court in relation to several charges including commit public nuisance and contravention of domestic violence order (aggravated offence). The Applicant had a conviction recorded on all charges and was sentenced as follows:
-Commit public nuisance: one month imprisonment;
-Contravention of domestic violence order (aggravated offence): one month imprisonment; and
-Contravention of domestic violence order (aggravated offence): nine months imprisonment
On 11 November 2019, the Applicant attended Emerald Magistrates Court in relation to several charges, including contravention of domestic violence order (aggravated offence), breach of bail condition and wilful damage. No conviction was recorded in relation to all charges, and the Applicant was given a probation period of two years.
The convictions of December 2020, February 2022 and July 2022 are objectively the most serious and concerning.
2 December 2020 convictions
In relation to the Applicant’s conventions on 2 December 2020, the Magistrate noted that the incident on 19 June 2020 was ‘the most serious, involving the assault occasioning bodily harm and the contravention of a domestic violence order.’ This incident arose when the Applicant was physically violent towards her former partner, [redacted], as a result of him coming to the defence of his brother, who was also the victim of assault by the Applicant. It was suggested that the Applicant had also suffered injuries as a result of this incident. The wilful damage offence related to the Applicant using a spanner to damage [redacted]’s rental car.
The Applicant states that the incident occurred when she went to [redacted]’s house to see her children, with [redacted]’s consent. When she arrived, she was challenged by [redacted]’s brother, who was intoxicated. He head-butted her and picked her up and threw her across the room. She claims [redacted] tried to intervene to stop the attack. She went to hospital to seek treatment for the injuries sustained. The hospital notes are consistent with the Applicant’s claimed injuries. In a statutory declaration, [redacted] stated that the Applicant was so frightened of his brother that she wet herself. None of this information was presented to the Court.
Three of the Applicant’s breach of bail condition charges related to the Applicant contacting [redacted]. 18 other breaches of the breach of bail condition charges related to the Applicant failing to report, in accordance with her bail conditions. The three other breaches related to the Applicant failing to make an application to change her place of residence.
4 February 2022 convictions
The Applicant’s convictions on 4 February 2022 relate to an incident on 16 December 2021. The police was called to a residence, where they observed the Applicant throw a metal scooter with force at a vehicle in the driveway. The Applicant was the respondent to a domestic violence order in relation to [redacted], the aggrieved person. The Applicant states she was going to check on her children, and she was defending herself in picking up the scooter, as [redacted] had been throwing planks of wood at her.
On 27 December 2021, police were again called to the address of [redacted], who informed them that the Applicant had come to his house unannounced and without permission and had entered the house, despite being asked to leave. She had gone to [redacted]’s bedroom and asked him to hit her. She eventually left after being asked multiple times to leave. After the Applicant left, [redacted] noticed that his laptop was missing. When contacted by the police, the Applicant denied being at [redacted]’s address, however a witness confirmed they had seen the Applicant enter [redacted]’s house.
The Applicant contends that on 27 December 2021, [redacted] hit her and threw her down the stairs when she went to visit her children.
On 28 December 2021, the police advised the Applicant that she was under arrest for contravention of the domestic violence order and breach of bail offences and asked her to unlock her door. The Applicant refused to do so, and the police broke through the door to arrest her.
29 July 2022 convictions
The Applicant’s conventions on 29 July 2022 for the first count of contravention of domestic violence order (aggravated offence) relates to an incident that occurred on 8 July 2022. [redacted] had agreed to bring their children to a motel in Mackay to enable the Applicant to see them. The Applicant returned to the motel after an afternoon of consuming alcohol. The Applicant approached [redacted]’s room, stood in the doorway and began filming him on her phone, then walked away. [redacted] came out of his room and the Applicant walked over to him and flicked a lit cigarette butt at his cheek, then attempted to set alight to his beard and the hair at the back of his head.
The Applicant disputes this version of events. She stated that she had arranged to meet [redacted] at the motel. She observed [redacted] and a female return to their room after drinking. She stated that [redacted] tried to hit her and that she did flick a cigarette butt away, but not towards [redacted]. She stated that she made no attempt to set fire to [redacted]’s hair.
The Applicant’s conviction on 29 July 2022 for the second count of contravention of domestic violence order (aggravated offence) relates to events that took placed between 8 July 2022 and 13 July 2022. The Applicant sent [redacted] several abusive and harassing text messages. [redacted] also received 150 unanswered phone calls.
In relation to the phone calls, the Applicant stated she was trying to contact [redacted] to ensure that their children had not been present when he and his female companion were using marijuana. She denies that she called her ex-partner 150 times, but admits that she sent a number of text messages to him as she was worried about their children. She also states that she received abusive and harassing text messages from [redacted].
The Applicant was released from gaol on Court Ordered Parole on 27 October 2022 and taken into custody by Australian Border Force. Her parole period ceased in April 2023. The Applicant is currently being detained at Villawood Immigration Detention Centre.
For the purposes of s 501, the Applicant concedes her past offending. As the Respondent pointed out at the Tribunal’s hearing, the Applicant pleaded guilty to a multitude of offences for which she was charged.
The Applicant submits that the vast majority of her offending has been low level and that the circumstances linked to her relationship with her former partner [redacted] contributed to her behaviour. These breaches include visiting [redacted]’s residence (which at times was her own residence), sending voluminous text messages to [redacted] and breaking objects that she states belongs to her.
The evidence before the Tribunal concerning the former relationship between the Applicant and her former partner is troubling. The evidence suggests that the Applicant and [redacted] have been both the victim and the perpetrator of family violence at different times (Tender Bundle, TB3/230 (“TB”)). The evidence suggests a fractured and toxic failed relationship (with ongoing shared parental responsibilities) between the parties, with their two young children regrettably being in the middle of this feud between their mother and father.
The Tribunal notes the comments of the sentencing judge from the Applicant’s December 2020 convictions where His Honour, whilst labelling the Applicant’s actions ‘deplorable,’ concluded that they are linked to the breakdown of her relationship with [redacted].
The Respondent submits that the Applicant’s criminal history between December 2018 and July 2022 should be viewed very seriously. The Respondent notes that the Applicant has been convicted of multiple offences including family violence, some of which have involved physical violence. The Respondent notes that other convictions involve the Applicant behaving in an abusive or intimidatory manner. The Respondent submits that the Applicant’s offending has become more serious over time, and more frequent since 2018. This has led to the expenditure of significant public resources in addressing her poor behaviour. The Respondent notes that the Applicant has been sentenced to terms of imprisonment on several occasions for her offending. The Respondent furthermore points out that the Applicant’s offending is increased by the fact that several offences were committed whilst she was on bail, subject to probation orders or domestic violence orders.
The Respondent notes that the multiple imprisonment sentences imposed by the Magistrate Courts is indicative of the seriousness of the Applicant’s offending. The Respondent further notes sub-paragraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker should consider that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. The Respondent also notes that the Direction states that custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending. The Tribunal agrees with the Respondent’s submissions and finds that the custodial term imposed by the sentencing judge is indicative that the Applicant’s offending was very serious.
The Tribunal finds that the Applicant’s criminal conduct is objectively serious. The Respondent in his closing submissions discussed the ‘varying accounts’ for the Applicant’s offending behaviour. The ‘varying accounts’ includes the accounts submitted by the Applicant, and the accounts outlined in the offending history contained in the Tender Bundle, which consisted of police reports and summaries of her offending. The Respondent submits that the Tribunal should prefer the latter when considering the offending, noting that the Applicant did in fact plead guilty to the offences she was convicted of:
MR CUNYNGHAME: But just lastly on that point between varying accounts I would also say that greater weight should be placed on the independent accounts also in circumstances where the Applicant has admitted to a history of drug use and also alcohol use around the time of her offending, which in my submission detracts from the credibility of her accounts of any offending history.
The Tribunal accepts the Respondent’s submission that the Applicant has demonstrated a continual and concerning disregard for the law, with bail conditions and domestic violence orders being ignored by the Applicant on a concerningly frequent basis. She did in fact plead guilty to the charges she faced and the Tribunal takes into account her drug and alcohol use around the time of the offending. Offending relating to the breakdown of a toxic relationship, that involves the custody of young children, is often contentious and deals with claims and counter-claims. The Tribunal appreciates the Applicant’s submissions that she is a victim of family violence and her behaviour is essentially motivated by her desire to protect and access her two young children, with whom she shares custody with her former partner. The Tribunal also accepts that the Applicant’s offending relates entirely to this fractured relationship, and the Applicant has never demonstrated any threat to the wider public. Yet as HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 (“HZCP”) makes clear, the Tribunal is compelled to deal with and address the actual offending of the Applicant. The Tribunal must deal with the Applicant’s conduct for which she was found convicted.
The Tribunal finds that the Applicant’s conduct is very serious. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22]. The Tribunal acknowledges paragraph 8.1.1(1)(c) and notes the imposition of a custodial sentence which is a reflection of the objective seriousness of an Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal notes the Applicant has been convicted of multiple offences. Since the breakdown of her relationship with her former partner, these offences have increased in frequency. The seriousness of the offences has increased during this time with continual contravention of domestic violence order (aggravated offence) offences and a general unwillingness to obey Court orders being characteristic of the Applicant’s behaviour. The offences are almost entirely related to the Applicant’s relationship with [redacted]. This does not detract from the seriousness of those offences.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The Applicant’s recidivism is a concern to the Tribunal, with the Applicant repeatedly ignoring a wide range of Court Orders and breaching restrictions upon her approaching [redacted]. The Applicant has repeatedly committed the same offences, including contravention of domestic violence order (aggravated offence) and breach bail condition. The Tribunal has considered the cumulative effect of the Applicant’s repeated offending.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no record or suggestion that the Applicant has provided false or misleading information of the Department, including by not disclosing prior criminal offending.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offences were committed in Australia. There is no record or suggestion the Applicant has committed an offence in another country.
Conclusion about the nature and seriousness of the Applicant’s conduct
The Tribunal has sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which the Tribunal has referred, the Tribunal finds the Applicant’s conduct can be characterised as very serious.
Risk to the Australian community should the Applicant commit further offences or engage in serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this applicant engaging in further criminal or other serious conduct.
The Tribunal’s task is to assess the nature of the harm to individuals or the Australian community in the event of this applicant engaging in further criminal or other serious conduct. To make such an assessment requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to reoffend and return to criminal conduct. The Tribunal has subsequently considered what harm would be caused if the Applicant returned to offending via the resumption of anti-social criminal behaviour that includes assault occasioning bodily harm, breach of bail condition, contravention of domestic violence order (aggravated offence), possessing dangerous drugs, wilful damage domestic violence offence, and possess utensils or pipes etc that had been used.
The Tribunal considers the nature of any harm, should the Applicant engage in further criminal or other serious conduct, is that of further escalation of the ongoing conflict between the Applicant and [redacted]. The Tribunal notes the Applicant has already been convicted of assault occasioning bodily harm. Whilst the Tribunal does not consider there is any harm to the wider Australian community should the Applicant reoffend (given her offending relates entirely to her former partner), the Tribunal notes the harm that could potentially be caused to her two children, who have previously witnessed the behaviour of both the Applicant and [redacted] when they have been in conflict with each other. The Tribunal considers that there is considerable ongoing harm and psychological damage that can be done to the children of the Applicant and [redacted] when witnessing anti-social and criminal behaviour.
The Tribunal therefore finds, that were the Applicant to reoffend, the nature of harm to individuals – namely her former partner [redacted] and their two children – would be very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) information and evidence on the risk of the non-citizen re-offending;
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence
The Tribunal has considered the risk to the community, should the Applicant reoffend. In making this assessment, the Tribunal has considered the risk of the Applicant reoffending.
The Applicant has submitted that there are multiple factors that affect the risk of her reoffending and ensure any risk of reoffending is minimal. She submits that her recovery from any dependency on illicit drugs (which she blames on her personal circumstances as discussed elsewhere in this decision) will strengthen her ability to cope with the stress of negotiating with her ex-partner and pursuing legal avenues for more assured access to her young children. This, it is submitted, will significantly reduce the risk of her reoffending. The Applicant further submits this she does not have an established history of drug offences. She concedes mixed success at ending her previous dependency on opioids. The Applicant submits that effectively addressing her addiction, which she holds was a coping mechanism due to her personal circumstances, is an important element on ensuring she does not reoffend.
The Applicant submits that her offending between 2018 and 2022 was also the result of a lack of diagnosis at that time of her psychological health challenges. She stated at the Tribunal’s hearing:
DR DICKIE: In terms of your offending which is what today will be about as well, can you tell me in your own words why you think you continue to offend during that four year span?
APPLICANT: Yes, it was because I hadn’t been fully diagnosed with my - with these problematic diagnoses because at the time I hadn’t been diagnosed with bipolar. I hadn’t been diagnosed with the PTSD. And so, then once - now that I’m diagnosed because it took that first initial - I only found out when I was first incarcerated that I had bipolar. I hadn’t - I didn’t know about bipolar until they got my records and then it had said there that I’d been diagnosed with bipolar from a doctor in Brisbane by the name of Arnold, Dr Arnold diagnosed me with that. And now that I have learnt that I’ve got these diagnoses and how to deal with them, and how to approach my - my inner feelings on leaving them there, rather than having them outburst into the world. I have now found the tools and the medication that is able to help me deal with those.
The Applicant has submitted that accessing a range of external support is key to managing any ongoing risk of re-offending. The Applicant states that she has faced complex trauma due to the combination of sexual abuse as a child, being the victim of family violence, the suicide of her partner in 2016 and the accidental death of her sister from an aneurysm. In that regard, she has submitted that any risk will be more effectively mitigated if she is in the community itself where she can more readily access a wider array of support services. These services include the Women’s Centre in Townsville to assist in finding appropriate accommodation, employment and financial assistance as required. The Applicant is a client of the North Queensland Women’s Legal Service who are assisting in any legal matters pertaining to parental orders; and her treating doctor to reengage with the Alcohol, Tobacco and Other Drugs (ATODS) program. The Applicant submitted that she would complete a further six sessions with North Queensland Psychology if released, before re-uniting with her children and recommencing the shared parenting agreement with [redacted]:
APPLICANT: And once I get the following six sessions done and making sure that my mental health is going to be – is going to be okay once released, then when I’ve – when I can go through all of that and when my family can tell me that, okay – because they’ve seen it in me before, you know? When they know that I’m okay, then that’s when I’ll go and spend time with my children. Yes, we’ve got a parenting agreement plan in there. And [redacted] said he’ll wait until I’m mentally stable to be a good mum. Then we can follow through with that.
The Applicant in her written statement states that she understands she has used drugs to blunt the pain of her personal circumstances and the impact this has had. The Applicant concedes that she was cut from a drug management program in 2022 after missing a scheduled dosing due to her travelling to Mackay to see her children. She concedes this had a detrimental impact upon her. She states she is attempting to be given access to a further program whilst in immigration detention.
The Tribunal notes that the Applicant has submitted both to the delegate and the Tribunal a significant amount of information pertaining to her personal circumstances, that she submits were critical factors that contributed to her past offending conduct. The Tribunal has included the information in the decision record (as did the delegate) as it has been held as relevant to any understanding of her past offending, and the risk of any future offending. The Tribunal notes that it is unable to confirm the veracity of all of the claims of the Applicant.
The Applicant submitted that after arriving in Australia, she completed high school as well as two certificate courses. She stated she was selected to play state-level netball when she was 14-15, represented her high school in athletics, participated in a trek for cancer, performed in front of the NRL and a cultural festival and volunteered for Lifeline.
The Applicant submitted she had endured several instances of sexual abuse as a child. She has submitted that she suffers from mental health issues including Post Traumatic Stress Disorder (PTSD), depression, bi-polar disorder, anxiety, panic attacks and post-natal depression.
In July 2016, the Applicant’s previous partner, Darren, committed suicide by hanging. The Applicant states she was the first to discover him deceased. The Applicant stated that her former partner’s family blamed her for his death and threatened her. She states she was not allowed to attend his funeral and was ostracised by their mutual friends. The Applicant claims she was severely traumatised by this event. The Applicant disclosed to a psychologist in 2016 that when she was in a relationship with Darren, she was injecting ‘ice’ and cocaine and admitted to continuing to use cannabis to calm her mood.
In August 2016, the Applicant commenced her relationship with [redacted]. She stated [redacted] had a history of drinking and immediately isolated her from her family and began to control her life. [redacted] was a member of the [redacted – name of gang]. It was submitted by the Applicant that he had spent time in prison for assault and was involved in a shoot-out with a rival gang. The Applicant has claimed she was the victim of violence and coercive control in her relationship with [redacted].
In July 2017, the Applicant claims [redacted] broke her nose, toe and smashed her head on the hand-brake of the car when the Applicant was three months pregnant. She subsequently took out a protection order against him. Following this, she claims [redacted] became more controlling, not allowing her to contact friends or family, or go to work or church. The Applicant states she felt trapped and unable to report [redacted] to the police. [redacted] told the Applicant that the police wouldn’t interfere due to his job of working in the mines.
A protection order was taken out against the Applicant in October 2017, following an incident where the Applicant claims [redacted] kicked her in the stomach when she was six months pregnant. As a result, she claims she got out of the car and threw beer bottles at the car. The police were called and [redacted] told the police that the Applicant was hysterical.
In 2018, the Applicant’s sister Lucy, who was a successful amateur boxer, died suddenly in New Zealand after sustaining a brain aneurysm while boxing. The Applicant had shared a close relationship with her sister and the Applicant stated this added greatly to her psychological stresses. [redacted] did not accompany her to New Zealand to turn off her sister’s life support or attend her sister’s memorial. The Applicant states this was [redacted]’s attempt at trying to control her by separating her from her family.
On 18 September 2018, when the Applicant was six months pregnant, the police were called following an argument between the Applicant and [redacted]. The Applicant submits that they were arguing over [redacted]’s lack of support following the Applicant’s sister’s death, and his claims of having a sexual relationship with a neighbour. The Applicant smashed some bottles outside. [redacted] told the police the Applicant was out of control.
The Applicant’s second child was born prematurely in 2019. The Applicant claims [redacted] refused to accompany the Applicant to the hospital or support her following the birth of their second child. [redacted] did come to visit her after the birth; however they began arguing when [redacted] refused to stay and help. The Applicant claims [redacted] hit her, knocking her to the ground. The police were called. The Applicant doesn’t believe [redacted] was charged for this assault.
Between June 2019 and August 2019, the Applicant’s contravention of domestic violence protection orders related to her calling the police when she was arguing with [redacted] and frightened of his behaviour. She states the police did not believe her and said she was making up false statements.
In August 2019, the Applicant was arrested for breaching a domestic violence protection order and was not allowed to return to [redacted]’s address where her children lived. She was very concerned for the safety of her children during this time.
On 22 December 2019, the Applicant and [redacted] were living together and started arguing. When [redacted] said that he was leaving, the Applicant threw a spanner which damaged [redacted]’s car, and she also broke things in the kitchen. The Applicant breached her bail conditions as she was trying to make contact with her children before they left Moranbah. She states she could not access a lawyer to make appropriate contact with her children, and was unable to obtain consent from police to move, as she was homeless and had no address to put down. As a result, the Applicant breached her bail conditions.
The Applicant has submitted that she loves and misses her children, that she is a proud mother, and maintained daily contact with her children whilst in and out of prison and in immigration detention. She submits her contact with her children is controlled by [redacted], and whilst she has been in immigration detention, she has not been allowed to speak to her children unless she tells [redacted] she loves him. The Applicant stated that [redacted] works night shifts and leaves the children in the care of random people and short-term girlfriends. North Queensland Women’s Legal Service intends to support the Applicant in seeking mediation to have her children live with her in Townsville, and to pursue court orders if this is not agreed. There is no evidence or claim before the Tribunal that the Applicant has been physically violent towards the children.
It is in this clearly challenging environment, the Applicant submits, that her descent into drug and alcohol abuse and her subsequent offending occurred. The Applicant conceded in cross-examination that her drug use was a contributing factor to her offending:
Mr CUNYNGHAME: And what about your drug use in the past, do you think that’s been a factor of your offending?
THE APPLICANT: Yes, probably.
It is her submission that the risk of reoffending can be mitigated through the access to external services to address her drug use, and legal services to resolve the ongoing conflict between herself and her former partner in relation to the Applicant’s access to their young children.
The Respondent submits that the Applicant’s risk of reoffending “remains unresolved and is therefore unacceptable.” The Respondent furthermore considers the evidence of rehabilitation achieved by the Respondent is limited and her insight into her offending is limited with her dismissal of certain past offending as “trivial.” The Respondent submits that the Applicant does not understand her own role in her troubled relationship with [redacted]. The Respondent states that the Applicant is a significant risk of reoffending.
The Respondent asserted four key reasons as to why the Applicant is at a significant risk of reoffending. First, the Respondent submitted that the Applicant’s history of substance abuse, which the evidence suggests, is linked to her offending. The Tribunal notes that the Applicant herself has submitted that she utilised illicit drugs as a coping mechanism for a range of traumas, which includes the challenges she has faced in her relationship with [redacted]. Her drug use has been submitted a factor in the Applicant’s offending, with the Applicant herself conceding that recovery from drug use would have a significantly reduce the likelihood of her committing similar offences in the future: “We contend that recovery from dependency will….significantly reduce her risk of committing similar breaches and offences” (Applicant’s SFIC at [49]).
The Respondent submits that the Applicant has not made the progress she claims to have made in recovering from a dependency on illicit drugs. At the Tribunal’s hearing the Respondent stated:
MR CUNYNGHAME: the Applicant’s drug use is unresolved and poses a significant risk to the Applicant offending in the future and that’s because her substance use, in my submission, is linked to her offending and I don’t think that’s a controversial submission in in circumstances where the Applicant accepts at paragraph 49 of her statement of facts, issues and contentions that recovery from drug dependency would significantly reduce the risk of further offending. That’s a submission that we would agree with and, at the moment, there is that dependency and, in my submission, the tribunal should have little, if any, confidence that she would cease using drugs if returned to the community.
The Respondent noted the Applicant’s evidence that she actively engaged with drug and alcohol services whilst incarcerated through Queensland Corrective Services in 2022, as well as her claims that she has abstained from drug use and is undertaking counselling whilst in immigration detention. The Respondent points out, however, that as recently as 24 January 2023, the Applicant tested positive for both Amphetamine type substances and Amphetamine (TB, TB1/24) whilst in immigration detention. The Respondent at the Tribunal’s hearing also pointed out a report from International Health and Medical Services dated 1 March 2023:
Mr CUNYNGHAME: It provides that the psychiatrist last reviewed you on 1 February 2023 and in summary it provides that you were continuing to use drugs and that you were fixated on wanting drugs such Seroquel and Diazepam and that the author of the report was concerned that you were indicating clear drug-seeking behaviour.
The Respondent submits that the Tribunal cannot be satisfied the Applicant has achieved sufficient rehabilitation. The Respondent rejects the Applicant’s claim that she needs to be free from criminal incarceration and immigration detention in order to fully engage with the supports she needs to free herself from any further drug dependency, noting the Applicant had a range of opportunities to make such attempts prior to detention or incarceration.
The Tribunal accepts that substance abuse has been a significant factor in the Applicant’s offending. The Tribunal accepts that the Applicant’s past history which has involved multiple sad and tragic events – the suicide of her partner, the accidental death of her sister and earlier child sexual abuse – have individually and collectively impacted upon the Applicant adversely and made her significantly more susceptible to a dependency on illicit drugs. That may provide some background or context as to why the Applicant commenced the use of illicit drugs. It does not, however, mitigate any ongoing risk or allow the Tribunal to overlook any ongoing link between the Applicant’s offending and her use of illicit drugs.
On the evidence before it, the Tribunal agrees with the Respondent that the Applicant’s claimed rehabilitation is, thus far, limited. The Tribunal accepts that the Applicant has made a number of efforts – which it is prepared to accept are genuine – to address her use of illicit drugs, including whilst being incarcerated. The Tribunal accepts the Applicant is genuine when she discusses wanting to focus on improving her life, caring for her children and moving on from any dependency. The Tribunal nevertheless notes with concern the drug test in immigration detention collected on 24 January 2023, where the Applicant tested positive for both Amphetamine type substances and Amphetamine. The Tribunal accepts that individuals wishing to rehabilitate can, and do, have lapses of judgement and moments of weakness. No coherent explanation, however, has been provided to the Tribunal as to how the result of such a test sits with the claims that the Applicant is effectively addressing her dependency, what is held as a cause of her broader offending. The Respondent furthermore pointed out at the Tribunal’s hearing the Applicant’s statement to her psychiatrist that “she will probably continue to use drugs for the rest of her life.” The Applicant responded that her statement concerned the use of antidepressants as opposed to other recreational drugs. The Applicant’s explanation does not assuage the Tribunal’s concerns about the Applicant’s ongoing risk of drug dependency. The Tribunal subsequently weighs this matter against the Applicant when assessing the risk of the Applicant reoffending.
Second, the Respondent submitted that the Applicant’s insight into her offending appeared limited, which indicates a risk of reoffending. The Respondent submitted that Applicant did not understand the seriousness of her own domestic violence offending and the role she herself played in what was clearly a poisonous relationship. At the Tribunal’s hearing, the Respondent explored the Applicant’s statement that some of the incidents that led to her convictions were “trivial:”
MR CUNYNGHAME: What do you mean – why do you – what do you mean when you use the word “trivial”? In what way were the incidents trivial?---
THE APPLICANT: Yes, I – some of the incidents was – like for instance, I was sentenced nine months for a text message calling him a woman basher – mind my language – dog and a (indistinct). I thought it was very trivial, you know, given the circumstances. I just couldn’t understand that I was being sentenced for nine months for that. And then there were other occasions that had occurred.
The Tribunal accepts the Respondent’s submission that the Applicant’s repeated offending, and regular disregard for Court orders, is indicative of a failure to grasp the totality and seriousness of her ongoing behaviour. As the Tribunal raised at the hearing, the Applicant has been remanded at least four times in the past, where after being released on bail, she subsequently breached her bail conditions. The Tribunal has reviewed the extensive evidence before it as to the Applicant’s history, including the Applicant’s submission dated 20 April 2023. The Tribunal is prepared to accept, as outlined by the Applicant’s advocate in her submission, that the Applicant has endured a wide and depressing range of events and issues through her life that have impacted adversely upon her mentally and had a subsequent knock-on effect upon her behaviour. Nevertheless, as conceded by the Applicant, the Tribunal cannot go behind the essential facts of the offending and subsequent convictions that underpins the exercise of the power to cancel the Applicant’s visa: (HZCP at [77]).
At the Tribunal’s hearing, the Applicant plainly stated that she understood her offending, regretted her behaviour and stated she was strongly committed to improving her behaviour. The Applicant in her written submissions has outlined the supports she will engage in, should the cancellation of her visa be revoked. The Tribunal nevertheless finds itself in some degree of agreement with the Respondent in relation to the Applicant’s insights into her offending, and agrees that her understanding as to the seriousness of her offending on some matters is a concern. For example, the matter concerning repeated text messages she sent [redacted] were dismissed by the Applicant as trivial in nature. This, combined with repeated offending and a preparedness to ignore Court orders on frequent occasions and confront [redacted], remains a concern to the Tribunal, despite the claims of the Applicant to have learned from these situations. The Tribunal subsequently weighs this matter against the Applicant when assessing the risk of the Applicant reoffending.
The Respondent noted a Queensland Corrective Services DFY Risk Assessment dated 11 May 2022 (TB, T2/43), has submitted that the Applicant had demonstrated a tendency to retaliate when she was not coping due to her mental health, substance abuse, and/or her former partner’s use of violence in their relationship. The Respondent has submitted that the Applicant had been able to avail herself of mental health support whilst in detention and incarceration.
Third, the Respondent contends that the ability of the Applicant to avail herself of such support – and avoid lashing out in the community – was untested and represented a risk of reoffending. This would be further emphasised by the untested ability of the Applicant to abstain from illegal drugs in the community. The Tribunal agrees that the Applicant’s successful use of mental health support has been haphazard, but notes there have been consistent attempts to engage with these services. The Tribunal considers the claim that the Applicant will not avail herself of support should the cancellation of her visa be revoked, is ultimately speculative. The Tribunal gives the Respondent’s claim limited weight.
Finally, the Respondent contends that the volume and frequency of the Applicant’s offending, and in particular the repeated breach of bail conditions and AVOs, indicates a risk of the Applicant reoffended. This, it was submitted, represented a “disregard for the Australian legal system and mechanism that have been put in place…to reducing the risk of recidivism.” The Respondent notes the Applicant’s submissions that she “deserves a second chance” (Applicant’s SFIC at [58]) but submits the Applicant has already been provided multiple chances and failed to avail herself of them. The Tribunal accepts that the volume and frequency of the Applicant’s offending has been a concern, as has her disregard for the law. The Applicant, through her written submission, has submitted that the Applicant’s addiction “should not be construed as a personality defect or ‘disregard for the law.’’” She submits that it is in fact a medical condition requiring medical and behavioural modification, modification which can be best achieved in the community. The Tribunal accepts that the Applicants volume and frequency of offending, and in particular the repeated ignoring of Court orders, is indicative of a risk of reoffending, even taking into account the factors that have influenced the Applicant’s behaviour. The Tribunal gives the Respondent’s claims some weight.
In oral evidence, the Applicant acknowledged her remorse and regret for her offending. Her explanations revolve around her desire to support her children and retain access to them.
The Tribunal has considered the various claims and factors contributing to the Applicant’s past offending conduct, and the risk of reoffending.
The Tribunal is satisfied, having considered the evidence before it, that there remains a risk of the Applicant reoffending, notwithstanding the external support she claims she will have around her in the community should the cancellation of her visa be revoked. The Tribunal does however accept that the Applicant’s experience of being incarcerated potentially mitigates against any future reoffending.
The Tribunal has considered the Applicant’s mental health and whether the addiction, depression and psychological challenges she has faced are indicative of a risk of future reoffending. The Tribunal accepts on the evidence before it that the Applicant has suffered considerable psychological and mental hardship due to her past experiences, as documented previously. The Tribunal accepts the evidence that such depression can have an impact on decision-making and cognitive processes, and result in “poor decision making,” as has been seen in the Applicant’s recidivism and willingness to ignore Court orders, and the laws of Queensland more generally.
In relation to rehabilitation, the Tribunal is only partly satisfied that the Applicant has illustrated genuine evidence of rehabilitation both whilst incarcerated and in immigration detention. The Tribunal notes the Applicant has made attempts to do so, and gives this some weight. The Tribunal again however notes its concerns with the drugs testing of the Applicant in January 2023 that indicated the presence of amphetamines.
The Tribunal also notes that the Applicant’s parole period ceased in April 2023. This means the Tribunal does not have the comfort of parole acting as a potential deterrent to any future reoffending by the Applicant.
The Tribunal has assessed the risk of recidivism by the Applicant. For the reasons above, the Tribunal is ultimately not currently satisfied she will not reoffend in relation to her former partner, [redacted]. That said, the Tribunal retains some hope, given her experience with incarceration in the criminal justice system and now the immigration detention system and visa cancellations, that this may have a profound and positive effect upon her future behaviour as she has stated.
Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction also contains a reference to paragraph 8.1.2(2)(c). With reference this specific paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen.’ It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatorily cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion about risk to the Australian community should the Applicant commit further offences or engage in serious conduct
The Tribunal has generally formed the view that, despite the Applicant’s participation in some rehabilitation programs and courses, her statement she would work towards addressing her drug dependency and would not engage in criminal conduct in the future cannot be accepted unequivocally, and the Applicant’s ability to do so is not without doubt. The Tribunal places significant weight on the fact that the Applicant has continued to access, at least once, amphetamines whilst in immigration detention. The fact that drug use is held out by the Applicant as a determinative factor in her criminal offending gives the Tribunal some genuine concerns, particularly when taking into account the Applicant will have greater access to illicit drugs in the general community. In these circumstances, the Applicant’s undertaking to address her use of illicit drugs and alcohol (which seems to have been a precursor to much of her offending conduct) has not been adequately tested. In evidence to the Tribunal, the Applicant conceded she may always have an interest in drugs. Whilst the Tribunal accepts that the Applicant does not wish to return to gaol, and that possibility would act as a deterrent, the Tribunal is not fully satisfied that, with the passage of time, the threat of gaol would act as an ongoing sufficient deterrent to future offending.
The Tribunal finds that the risk of reoffending remains. There is no parole period remaining to act as a potential impediment to reoffending should the Applicant return to the Australian community. That risk of reoffending is dependent on the Applicant’s use of illicit drugs and alcohol, and her ability to overcome her abuse of these substances. The Tribunal finds that were the Applicant to commit further offences or engage in serious conduct, the nature of the harm to individuals and/or the Australian community would be very serious.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
a)The Tribunal finds the nature and seriousness of the Applicant’s conduct has been ‘very serious;’
b)The Tribunal finds that were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be ‘very serious;’ and
c)In terms of recidivist risk, the Tribunal has, after a fulsome review of the evidence, concluded that the Applicant remains a risk of reoffending.
The Tribunal has formed the view that the Primary Consideration 1, protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Direction defines family violence as “violent, threatening or other behaviour by a person that…causes the family member to be fearful.”
The Direction, furthermore, states that a member of the person’s family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person. In the current case, the Applicant’s offending involved incidents of actual violence and intimidatory behaviour against her former partner and father of her two children, [redacted]. The Tribunal therefore accepts, as has been submitted by the Respondent, that these incidents or offences directed towards [redacted] are classified as family violence for the purposes of the primary consideration. The Applicant concedes that her own actions breaching Court Orders in relation to [redacted] constitute family violence.
The Applicant has submitted that the family violence provisions were “intended to cover grave actions of violence or coercive control against vulnerable members of the family” (Applicant’s SFIC [60]). The Applicant submits that the prescriptive nature of the Direction, however, can result in an outcome that is unintended. In this situation, the Applicant submits that [redacted] has essentially manipulated the Applicant in their ongoing dispute and that she is the victim of coercive control. As evidence of this, the Applicant points out that [redacted] radically changed his affidavit concerning the incident that led to the Applicant being convicted and gaoled for a purported assault on his brother and contravention of a domestic violence order. The Applicant notes that two months after the charges, [redacted] provided a new statutory declaration where he recanted his earlier evidence against the Applicant and instead declared that his brother had in fact assaulted the Applicant. The Applicant holds this situation up as an example of the coercive control [redacted] imposed over her, and his willingness to tell a different version of events when it suited him to have the Applicant return home. The Tribunal notes this evidence appears to have never been before the criminal justice system.
The Tribunal has some sympathy for the Applicant in such circumstances. The Applicant has also submitted that she too is the victim of family violence at the hands of [redacted]. The Tribunal considers the evidence strongly suggests the Applicant has in fact been the victim of both family violence and coercive control at the hands of [redacted]. The Tribunal considers the evidence suggests she may at times have acted in self-defence. The Tribunal accepts that the incidents and breaches of Court orders were related to the breakdown of the parties’ relationship and access of the Applicant to their children. The Tribunal notes that there is no evidence or claim of any family violence directed by her towards her children.
The Tribunal nevertheless notes, as the Respondent points out, that the fact the Applicant may have been a victim of family violence herself does not negate the consideration. It may be seen as a regrettable and a counter-intuitive situation, particularly given the evidence of family violence on both sides of the relationship. However, the Applicant’s partner’s own behaviour towards the Applicant is not for consideration. The consideration is concerned with family violence committed by the Applicant. The Tribunal notes that the evidence before it is the Applicant’s offending, which represents family violence. The Applicant’s offending did involve an increase of offending over time and an increase in the seriousness of her offending behaviour. It did involve multiple breaches of Court orders and physical assault. The circumstances of family violence have been set out in this decision and suggest the Applicant has used physical violence and threatened violence towards another person. The Tribunal is of the view these offences constitute family violence.
In considering the seriousness of the family violence engaged in by the Applicant, the Tribunal has had regard to the factors set out in paragraph 8.2(3) of the Direction. There is a trend of the conduct representing family violence as occurring more frequently and of increasing seriousness. The Tribunal has had regard to the cumulative effect of such acts.
The Tribunal has also taken into account the attempts at rehabilitation by the Applicant. The Tribunal notes the Applicant acknowledges her offending. As stated in her submissions, “she has expressed remorse and an understanding of the effect her mental health and drug use has had on her conduct. She has acknowledged the impact of her actions on her children and she has committed to continue with rehabilitation through consultation with her psychologist and general practitioner” (Applicant’s SFIC [72]). The Tribunal acknowledges the statement, and the Applicant’s strongly expressed oral evidence on the matter. However, the Tribunal notes its ongoing concerns as to the Applicant’s commitment to genuine and long-lasting rehabilitation, after the presence of amphetamines was discovered in January 2023 whilst in immigration detention. Drug use would appear to be a major contributing factor to the Applicant’s adverse interactions with the law, including family violence, notwithstanding the other issues previously discussed that have also had a corrosive impact upon the Applicant and led to adverse interactions with the law.
The Tribunal finds that some of the Applicant’s offending involved family violence and the Tribunal is not satisfied the Applicant, whilst exhibiting remorse and a stated willingness to improve her situation for the benefit of herself and her children, has full insight into her conduct.
The Tribunal has formed the view that the Primary Consideration 2, family violence, weighs against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of the Direction provides:
(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
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Tribunal notes this consideration just two months ago was elevated by the Commonwealth Government from an Other Consideration, to that of a Primary Consideration.
The Applicant submits her ties to the Australian community are of significant strength and duration. The Applicant arrived in Australia in 2003 at the age of 14. The Applicant represented Queensland and Australia in netball whilst at school. The Applicant completed her schooling in Australia and undertook a number of certificates for her studies post-secondary schooling. She has been in gainful employment for most of her adult life in roles including that of a retail manager, a kitchen hand and a cleaner. The Applicant’s mother and father reside in Australia (though the Applicant’s father is currently renovating a home in New Zealand and may retire there) as do her brother, brother-in-law and sister-in-law. A range of other family members are Australian residents. The majority of her friends are in Australia. The Tribunal has taken into account the correspondence submitted by family and friends as to the strength of the Applicant’s ties to Australia.
The Applicant gave birth to a son in 2018 and a daughter in 2019. Both are Australian citizens.
The Applicant has spent the majority of her life in Australia. The Tribunal accepts the Applicant is entirely integrated into the Australian community.
The Respondent accepted that the Applicant’s family would emotionally suffer if the Applicant was compelled to return to New Zealand. The Respondent pointed out that the Applicant’s formative years were spent in New Zealand. Although that may be the case, the Tribunal does not however accept that this diminishes the strength of her ties to Australia.
The Tribunal accepts that in the lengthy period of her stay in Australia, the Applicant has formed very strong connections in Australia, including family, employment, social and other links. The Tribunal has noted the supportive statements that were previously lodged to the delegate and accepts the Applicant has extensive and genuine social ties to Australia. One of the most obvious ties the Applicant has to Australia is her children, who are both Australian citizens.
The Tribunal accepts that the length of the Applicant’s residence in Australia is significant and that during her residence she has formed strong ties to Australia, including family, social, employment and other ties.
With reference to paragraph 8.3, the Tribunal has considered the impact of the decision on the non-citizen’s immediate family members in Australia. This includes family members who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal has also considered the strength, duration and nature of any family or social links generally with these Australian citizens. In the case of the Applicant, these include her own children, her parents, siblings, nephews and nieces.
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. The Tribunal notes the Applicant has two of her own biological children that are Australian citizens. The Tribunal has given considerable weight to the Applicant’s ties to her children, given that they are Australian citizens with a right to remain in Australia indefinitely.
The Tribunal notes that decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In this regard, the Tribunal notes that the Applicant has resided in the Australian community for twenty years. She has studied, worked and raised two young children. The Tribunal is satisfied she is essentially fully integrated into Australian society and the Australian community.
The Tribunal notes that 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. The Tribunal consider the Applicant has made a genuine and meaningful contribution through the workforce, through raising her two children, and indeed through representing her State and the Commonwealth in netball.
The Tribunal notes that less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia. In the Applicant’s case, the offending occurred nearly ten years after her arrival.
The Tribunal accepts that the Applicant’s strength, nature and duration of her ties to Australia are strong. She has strong links to her immediate and broader family in Australia. She has made a meaningful contribution through a commitment to being in gainful employment whilst in Australia and on a broader level through her two Australian citizen children. The Applicant has provided evidence that she has assisted her local community. The Tribunal considers the Primary Consideration weighs very heavily in the Applicant’s favour. The Tribunal accepts that her return to New Zealand would have a detrimental emotional impact upon her family in Australia. In particular, her two young children would be detrimentally impacted by the Applicant’s return to New Zealand. This is particularly the case as the children, who until adulthood, will remain permanently with her former partner in a care situation that, as discussed elsewhere in this decision, on the evidence before the Tribunal, is not at all ideal.
The Tribunal has formed the view that the Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs very heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia in Paragraph 8.4(4). Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two young Australian citizen children: a boy aged 5 years old and a girl aged 3 years old.
There is a signed shared equal parenting agreement between the Applicant and the father of the children, [redacted].
The Applicant submits that she is concerned about [redacted]’s care of their children and her inability to have any influence on who cares for them on a daily basis whilst she remains in detention. In her written statement to the Tribunal, she writes her children “also live with a man who is older than [redacted]. I have never met this person and I have not given permission for him to care for the children. I understand this man acts as babysitter for [redacted] if he cannot be home.” The Tribunal understands this individual to be [redacted – friend of Applicant’s former partner]. It was submitted that [redacted – friend of Applicant’s former partner] provides care for the children when [redacted] is away working overnight in the mining industry.
The Applicant discussed the anxiety she faces at being unable to do anything to physically protect her children, or to see them in person should anything go wrong, whilst she has been in gaol and subsequently immigration detention.
Whilst the Applicant concedes that [redacted] allows her to talk to the children via the telephone or FaceTime, she states that she is unable to undertake the daily routines of motherhood due to her detention. She expressed concerns that her role as a mother of her young children will diminish, particularly if the cancellation of her visa is not revoked and she will have to return to New Zealand, leaving her children with [redacted].
The Applicant points out that should the cancellation of her visa not be revoked, she will potentially be separated from her children until they are no longer minors. Given [redacted]’s criminal record, she states that he would not be able to travel to New Zealand with the children as minors so they can visit their mother. The Applicant states that there is no evidence [redacted] will in fact work to establish any means of physical contact between the children and the Applicant should she be removed from Australia. The Applicant’s advocate summarised the very likely consequences facing the Applicant at the Tribunal’s hearing:
DR DICKIE: There is a reality that a visa cancellation imposes upon an individual which is dramatically different to that reality that any formal sanctions of the court or incarceration may place on them. This is the reality that for the rest of their life or her life, she cannot return to Australia regardless of the circumstances. The reality that she’ll be forced to continue the relationship she has with her children by phone or FaceTime if and only if her former partner allows her contact. This knowledge has had an enormous impact on Sophia, as it would on any mother, and it’s bought the realisation that this is not a request for a second chance for her but a request for the last opportunity her children will have to ensure that she is physically present in their lives.
The Applicant has made multiple complaints to Queensland authorities as to the dangers she believed her children were in whilst in the care of [redacted] and [redacted – friend of Applicant’s former partner]. The Tribunal notes the evidence that these complaints have been investigated, including very recently, by Child Safety Officers and other authorities, who did not find any concerns and did not recommend any further action be taken. The Tribunal would also note that the records state neither [redacted] nor [redacted – friend of Applicant’s former partner] have any previous child protection history that relates to historic sexual abuse cases.
The Respondent states that the authorities found that there was no evidence of any harm or abuse of the Applicant’s children and that there were parental arrangements in place. The Respondent submitted that these factors somewhat tempered the weight the Tribunal ought to place on the best interests of the child as weighing heavily in favour of revocation of the visa cancellation. The Applicant’s representative in response stated:
DR DICKIE: And, finally, just - I’m a bit perturbed by the last series of things we went through with relation to the children and Sophia has legal custody, as much as [redacted] does, and in a normal environment if she was not incarcerated or in detention, but just living at home, having somebody else live in the house and care for the children when the father is away, and we know working in the mines he’s away overnight, the mother would have approval of that situation.
Now she has never met this man. She’s talked to him on the phone. She’s never approved him being there. She raised the concern she had first with her counsellor and talked to him about it. I think that showed a great degree of maturity, and the way she’s now reacting to things, and then she reported it to the police…. this is a mother who’s geographically and legally separated from her children, who hears something disturbing from her child, who experienced sexual abuse at the age of four and the age of 16 who raised that concern, and I think she raised that quite validly.
The Respondent quite correctly states that there is no evidence that the Applicant’s children are in danger. The Applicant’s advocate is however also justified, in the Tribunal’s opinion, to articulate the concerns of the Applicant given the circumstances outlined above. The Applicant has never met the man that is essentially babysitting her children overnight: children that she has joint legal custody for. Her isolation through incarceration and detention – combined with the history of the toxic relationship and her own personal history – not surprisingly led her to harbour concerns for her children’s safety. It is a difficult and unhappy situation. The relevant issue however for the Tribunal in all this is, do the parental and care arrangements in place lessen the weight the Tribunal should give to the best interests of the child as a primary consideration. The Tribunal accepts there is no evidence of the Applicant’s children in danger. The Tribunal does not however consider that the parental and care arrangements in place for the Applicant’s children are an effective substitute for the physical and ongoing involvement of their mother, who has joint custody, with their care and support.
Whilst conceding there is no current evidence that her children are in danger, the Applicant submits that [redacted] was the member of an outlawed bikie gang with a criminal history that includes violence. The Tribunal notes that there is also a Protection Order in force until 23 November 2023, put in place over four years ago by the Queensland Magistrates Court. The Court ordered that [redacted] must be of good behaviour towards both herself and their son, must not commit associated family violence against the child and must not expose him to family violence. The Applicant submits that [redacted]’s past acts of violence adds to her concerns for the safety of her children.
The Respondent states that any weight given to the consideration pertaining to the best interests of the child in favour of the Applicant should be tempered by the fact the Applicant has spent “a significant portion” of the children’s lives in immigration detention or prison which “necessarily limits the strength of the relationship.” The Respondent places limited weight on the workability of the signed shared parenting agreement between the Applicant and [redacted] given the tempestuous history of the relationship. Additionally, the Respondent questions how the Applicant will play a positive role in her children’s lives, given her record of rehabilitation.
The Respondent also claims the children may have suffered psychological harm from witnessing the Applicant’s family violence in the past. The Respondent states there are no significant concerns recorded by the authorities in relation to [redacted]’s parenting, and the safety of the children. The Respondent also claims the Applicant will continue to be able to maintain contact with her children through Facetime and other mediums should she be returned to New Zealand.
The Tribunal does not accept the Respondent’s submission that her detention has necessarily limited the strength of her relationship with her young children. The evidence suggests the Applicant has had frequent contact with her children through Facetime and the telephone. In her statement, she states she has attempted to explain to the children her absence. The Tribunal considers the Applicant’s love and regard for her children is genuine and, as a mother, she has a strong relationship with her children.
The Tribunal accepts that the question of future parenting agreements between [redacted] and the Applicant is a vexed one. The nature of the relationship, given the personal history of the Applicant and [redacted] respectively, is complicated and volatile. As was discussed at the Tribunal’s hearing, multiple Protection Orders remain in place that lists both the Applicant and [redacted] as the Respondent and the aggrieved respectively. The Applicant currently (until 2025) requires [redacted]’s written permission to attend his residence where their children reside. It is difficult for the Tribunal to make any confident prediction as to the form and format of any future shared agreement beyond giving some weight to the Applicant’s pronouncement that she has learned her lessons and will be committed to the children’s wellbeing and future. The Tribunal notes the Applicant’s mixed results in rehabilitation to date but has taken into account her stated commitment that she will prioritise the interests of her children and conduct herself in an acceptable fashion.
The Tribunal accepts the Respondent’s claims that the Applicant’s children may have witnessed family violence and suffered emotional harm. The Tribunal accepts that witnessing any such behaviour is distressing to children. The Tribunal however notes that the evidence strongly suggests the Applicant has been a victim of family violence as well as a perpetrator. The Tribunal does not in such circumstances consider she bears the entire responsibility for any past conduct the children may have witnessed.
In relation to the Respondent’s claim the Applicant can maintain her contact with her children remotely, the Tribunal does not accept that a telephone call or Facetime can, in any meaningful way, substitute for a five and a three-year-old the physical presence and support of their mother. Any relationship the Applicant will have with her children in their formative years by telephonic or electronic means will be of vastly different nature than the relationship they will have if the Applicant were to remain in Australia. The quality of that mother/child relationship cannot be replicated by telephonic or electronic means.
The Tribunal accepts the Respondent’s statement that the latest summonsed material from Queensland Department of Children, Youth Justice and Multicultural Affairs indicated no significant concerns to the welfare of the children in the care of [redacted]. Nevertheless, the Tribunal does consider that the children face a sub-optimal situation without the mother’s physical involvement in their lives. The Tribunal also notes that [redacted], as an employee in the mining industry, leaves the children in the overnight care of his friend [redacted – friend of Applicant’s former partner]. It is submitted that the Applicant has never once met [redacted – friend of Applicant’s former partner]. The Tribunal considers such a situation less than ideal, and appreciates the concerns any mother may have in their children being left in the care of a non-family individual they have never met.
The Tribunal accepts that the Applicant has a close and genuine relationship with her two young children, notwithstanding her separation from them whilst in gaol and immigration detention, and that physical separation has affected her children. The Tribunal accepts that if the Applicant is to leave Australia as a result of her visa being cancelled, it is likely to result in the further long-term separation – possibly for a decade or more – of the Applicant and her children. The Tribunal further accepts that the Applicant’s long-term separation from her children may also adversely affect the well-being of the children. The Tribunal is of the view that the children are at a formative age, where the effect of long-term separation on their relationship would be profound on them and have a corrosive impact on their wellbeing and development. The Tribunal has no strong confidence that [redacted] will make any arrangements to ensure the Applicant is able to physically see her children offshore if her visa cancellation is not revoked. The Tribunal considers that the potential impact on the children, who will essentially be separated from their mother for many years, is considerable.
The Tribunal notes its continued concerns as to the Applicant’s commitment to rehabilitation and illegal drugs. It does however consider that the threat of such separation represents a strong incentive for the Applicant to put into practice what she has claimed and permanently change her behaviour. The Tribunal notes the offered support of the North Queensland Women’s Legal Service to assist the Applicant in any legal matters pertaining to parenting orders so she can return to playing a meaningful physical role in the lives of her children. The Tribunal has formed the view that it is in the best interests of the Applicant’s son and daughter that the cancellation of the Applicant’s visa should be revoked.
The Applicant also refers to having a close relationship with her three nephews and two nieces. The Tribunal accepts the Respondent’s submission, as made clear by paragraph 8.4(4)(a), that less weight should be given if the relationship is a non-parental one. In the Tribunal’s opinion, the relationships, which the Tribunal accepts are close, cannot be considered as having the same weight and importance as a parental relationship. Whilst such relationships could be maintained in some degree even if the Applicant was overseas, the Tribunal acknowledges that the Applicant’s departure from Australia may affect the nature of such relationships with her nephews and nieces in the future.
The Tribunal has formed the view that the Primary Consideration 4, the best interests of minor children in Australia, weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR, the Court affirmed the approach, established in previous authorities, that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction: see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision maker must have regard to.
The Applicant concedes this Primary Consideration weighs against the Applicant, but submits this should be given limited weight and is not determinative. The Applicant submits that the Direction explicitly lists coercive control as a primary means of exercising power against a family member, and the Applicant had been subject to such family violence from [redacted]. The Applicant states that the toxic nature of her relationship she was in with [redacted] related to her offending. The Applicant again noted the outstanding Protection Order against [redacted].
The Respondent notes that the Applicant has committed crimes of violence and, in accordance with Paragraph 8.5(1), and the Principles 5.2(2)-(4) of the Direction, there Australian community would expect the Applicant does not hold a visa on account of her offending.
The Respondent notes the Applicant’s claim this consideration is modified by the impact of the Applicant’s toxic relationship with [redacted], the impact it has on their children, and the weight ascribed against revocation of her visa should be limited. The Respondent has stated that these factors “are not sufficient to justify a departure from the community’s expectations” and submits this primary consideration should have a heavy weight against revocation due to both the Applicant’s conduct and the potential harm that would be caused should she reoffend.
The Tribunal notes FYBR, where it was held by the Federal Court that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Paragraphs 8.5(1) and 8.5(4) of the Direction state relevantly:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct … the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia
…
(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.”
The Tribunal has found the Applicant engaged in ‘very serious’ offending. The question before the Tribunal subsequently is what the expectation of the Australian community is concerning a visa-holder who has engaged in very serious offending through a range of offences involving violence and has frequently disregarded Court orders, like that of the Applicant.
Paragraph 8.5(1) states 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. In this case, the Applicant has not obeyed Australian laws through offences that included assault occasioning bodily harm, contravention of domestic violence orders, breach of bail conditions and possession of drugs. The Tribunal found that this conduct was ‘very serious.’ The Tribunal considers the Australian community expectation, as a norm, is that the Government does not allow the Applicant to remain in Australia.
In her submissions, the Applicant discusses the attempts she has made to rehabilitate herself from the drug use, which she states was a key factor in her offending. She has asserted her willingness to rehabilitate, has shown remorse for her behaviour and stated she is willing to change her behaviour patterns with the support of various external bodies. The Applicant has submitted she is not a risk to the community and has made an undertaking to abide by the laws of Australia. Central to her claims remains the toxic relationship with [redacted] that was ultimately responsible for her offending.
As discussed previously, the Tribunal accepts that the Applicant has attempted rehabilitation both in immigration detention and whilst incarcerated. She has expressed remorse and a desire to change for the benefit of her children especially. The Tribunal however gives such claims limited weight, as the evidence that the risk of her reoffending is significant. The Tribunal notes that the Applicant has spent considerable time in gaol and immigration detention, not in the community, so she has not had the opportunity to test her claimed resolve to avoid factors like drugs that have impacted her offending. There is little probative evidence to support the Applicant’s contention that she will change her behaviour, avoid drugs and excess alcohol, and not reoffend because she has not had the opportunity to do so.
The Tribunal notes the Applicant’s undertakings to abide in the future with Australian law. Given the recidivism and ongoing non-compliance in the past, the Tribunal is of the opinion that the Applicant needs more time in the community to determine whether her remorse for her past behaviour and her undertaking not to reoffend are genuine.
The Tribunal is of the view that the risk of reoffending continues. The Tribunal has found the Applicant’s behaviour to be very serious.
The Tribunal notes Paragraph 8.5(2) of the Direction that directs that non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
f) worker exploitation.
The Tribunal notes that the Applicant has been convicted of offences that involve acts of family violence. Notwithstanding the Applicant’s explanation for this offending, the Tribunal concludes community expectations would weigh against revocation of the cancellation of the Applicant’s visa.
Notwithstanding the Applicant’s claims concerning [redacted] and his impact upon her actions, the Tribunal’s view is that the Australian community would expect that the Applicant should not hold a visa.
The Tribunal has formed the view that the Primary Consideration 5, expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
There is no claim by the Applicant, or evidence before the Tribunal, in relation to Australia’s international non-refoulment obligations.
No assessment by the Tribunal is necessary in this review.
The Tribunal has formed the view that the Other Consideration (a), Legal consequence of the decision, is of no relevance and gives it no weight.
(B) Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent notes the Applicant’s mental health issues and general health. The Respondent notes that the Applicant is relatively youthful and would have access to the same medical and social services generally available to all citizens of New Zealand. The Applicant’s work experience, it is submitted would assist in securing gainful employment.
The Respondent also notes that the Applicant lived in New Zealand until she was 14 years of age, meaning that there would be no appreciable cultural, social or linguistic barriers preventing the Applicant re-establishing herself there.
The Applicant did not press any significant impediments to her return to New Zealand beyond that of her Australian citizen young children. The Applicant conceded that she had family members in New Zealand and informed the Tribunal that her father intended to relocate permanently to New Zealand in the future for his retirement. The Applicant also stated she would receive support from her father if she returned to New Zealand and had friends there.
No concerns were raised in relation to health and treatment access in New Zealand. At the Tribunal’s hearing, the Applicant’s advocate stated:
DR DICKIE: Sophia doesn’t have any great impediments to removal, she has family in New Zealand. She could access the same amount of assistance with her mental health.
The Tribunal accepts the Respondent would face limited impediments upon returning to New Zealand beyond that of her children and her family members in Australia.
There are few other impediments to the Applicant. The Tribunal accepts the Respondent’s submissions that the Applicant’s age, employment skills and familiarity with New Zealand means that she would be able to effectively reintegrate into New Zealand society. The Tribunal accepts she would be able to utilise New Zealand health services, which are to all intents and purposes, equal to those offered in Australia. The Tribunal does acknowledge nevertheless that 20 years is a significant time, and there may be some limited general challenge in reintegrating into everyday life.
The Tribunal has formed the view that the Other Consideration (b), extent of impediments if removed, weighs slightly, but not determinately, in favour of revocation. The Tribunal has given the consideration very limited weight.
(C) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal about any victims of the Applicant’s offending.
The Tribunal has formed the view that the Other Consideration (c), impact on victims, weighs neither in favour nor against revocation.
(D) Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Respondent has made no submissions on this consideration. The removal of the Applicant from Australia will nevertheless not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal has formed the view that the Other Consideration (d), impact on Australian business interests, weighs neither in favour nor against revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s501 or s501CA: weighs neither in favour nor against revocation.
(b)extent of impediments if removed: weighs slightly in favour of revocation.
(c)impact on victims: weighs neither in favour nor against revocation.
(d)the impact on Australian business interests: weighs neither in favour nor against revocation.
CONCLUSION
The Applicant does not satisfy the character test. The Tribunal has subsequently considered whether there is another reason the decision to cancel her visa should be revoked.
A factor that weighs heavily against revocation is the Primary Consideration 1, the protection of the Australian community. The Applicant has committed a large range of offences and some that are objectively serious. Her recidivism and her preparedness to ignore multiple Court Orders in relation to her former partner remain an issue of real concern and the Tribunal retains concerns that she remains a risk of reoffending. Her haphazard ongoing rehabilitation efforts are of concern to the Tribunal. It has been submitted that the Applicant’s experience in Australia’s corrections system and her gaoling will act as a deterrent. The Tribunal notes the claim, but retains its concerns.
The Tribunal considers that there is a very serious risk to the Australian community should the Applicant commit further offences or engage in serious conduct. Specifically, the Tribunal considers the nature of the harm to individuals or the Australian community if the Applicant engages in further criminal or other serious conduct. Primary Consideration 2, which deals with whether the conduct engaged in constituted family violence, is also relevant and has been weighted by the Tribunal against revocation of the cancellation of the Applicant’s visa. The Applicant has committed family violence offences, notwithstanding the evidence before the Tribunal that the Applicant has also been a victim of such behaviour.
The nature of the Applicant’s offending and her disregard for the law (predominantly in relation to issues pertaining to [redacted] rather than the broader community) are such that her conduct is against the expectations of the Australian community. In considering the evidence before it pertaining to Primary Consideration 5, expectations of the Australian community, the Tribunal is of the view that because her offending was very serious, and involved family violence, the community expects that the Australian Government can and should cancel the Applicant’s visa. The Tribunal does however note that, in its opinion, the Australian community may have a slightly higher than usual tolerance for the Applicant’s criminal conduct due to the duration of her stay in Australia, her contribution to her community through employment and representative sport, and her role as the mother of two young Australian citizen children. The Tribunal would also submit that the circumstances of her tempestuous and depressing relationship with [redacted] – where she has also been a victim of family violence – would mean there may be a higher tolerance by the community in relation to her conduct.
The Tribunal concludes that the Primary Considerations 1, 2 and 5, which includes protection of the Australian community, the fact that the Applicant committed family violence offences and the expectations of the Australian community, all individually and collectively weigh against the revocation of the Applicant’s visa. The Tribunal has considered these primary considerations carefully and given them considerable weight against revocation.
The Tribunal however weighs the other two Primary Considerations very heavily against revocation and ultimately considers they are determinative in its decision. The best interests of minor children affected by the decision to cancel the Applicant’s visa have been given very heavy weight by the Tribunal after considering the evidence before it. The Applicant has two young Australian citizen children aged just five and three years of age respectively. The Tribunal accepts the Applicant is close to her children and plays a key role in providing them with emotional support and care. The Tribunal does not accept that her incarceration and detention detracts from the importance of her relationship as a mother with her children. The Tribunal accepts that the removal of the Applicant from Australia will have a considerable long-term adverse impact on the Applicant’s two children, and will potentially cause irreparable damage to the mother/child relationship.
The Tribunal has little confidence that the father of the children, [redacted], will make any efforts to ensure the children are able to physically spend any time with their mother should she be removed from Australia. [redacted]’s criminal record will make offshore travel challenging, even if he were minded facilitating such an ongoing relationship for the children. In the Tribunal’s opinion, the likely scenario is the Applicant and her two children will be separated physically for many years, in all likelihood until they are no longer minors and can travel independently. By this time, there may be little relationship remaining between the Applicant and her children, even if the parties can avail themselves of various electronic and telephonic communication in the interim. The Tribunal recognises furthermore that [redacted]’s employment in the mining industry means the children are currently being left in the care of an elderly man, who is a stranger to the Applicant, when [redacted] works overnight. The Tribunal considers the more preferable situation for the Applicant and the children is for new parenting orders to be put in place where the children have access to both their mother and father. The Applicant has legal support available for this to be concluded should her visa not be revoked.
The Tribunal also found the Primary Consideration pertaining to the strength, nature and duration of ties to Australia, weighed very heavily in favour of the revocation of the cancellation of the Applicant’s visa. The Applicant has strong links to her family in Australia, with her parents (her father until recently), siblings and wider family all residing in Australia. The Applicant has been in Australia for two decades, spending the bulk of her life in Australia after arriving as a child. She has studied, been in employment and in fact represented Australia in sport. The Tribunal is satisfied that her ties to Australia are strong. The Applicant’s ties to Australia are encompassed by a wide range of immediate family (including her two young children) and friends in Australia, and that her ties to Australia are of a considerable duration. The Tribunal would note that the delegate handed down his decision prior to this consideration being elevated to that of a Primary Consideration. The very recent elevation (from 3 March 2023) by the Commonwealth Government of the strength, nature and duration of ties to Australia from an Other Consideration to that of a Primary Consideration has, in the Tribunal’s weighing exercise of the various considerations, ultimately been determinative. This has led the Tribunal to conclude, after weighing all the considerations and all the evidence before it, in favour of revocation of the cancellation.
In relation to Other Considerations, only Other Consideration (b), extent of impediments to removal is of any relevance. This Other Consideration has been weighed slightly, though not determinately, in favour of revocation. The Tribunal considers the Applicant would face limited impediments were she to return to New Zealand, beyond her family members in Australia. Her age, employment skills, access to broadly equivalent health care and familiarity with New Zealand culture, would all mitigate against any challenges she might have.
It is necessary to weigh up all of the primary and other considerations.
·Primary consideration 1 weighs very heavily against revocation.
·Primary consideration 2 weighs against revocation.
·Primary consideration 3 weighs very heavily in favour of revocation.
·Primary consideration 4 weighs very heavily in favour of revocation.
·Primary consideration 5 weighs against revocation
·Other considerations (a), (c) and (d) are neutral.
·Other consideration (b) weighs slightly in favour of revocation.
The Tribunal acknowledges the seriousness of the Applicant’s conduct and considers that there are circumstances that are against the revocation. However, in the particular circumstances of this case, the Tribunal has determined that the best interests of minor children in Australia, the strength, nature, and duration of the Applicant’s ties to Australia and the impediments if removed very marginally outweigh other considerations. For these reasons, the Tribunal determined that the cancellation should be revoked. The Tribunal acknowledges that, should the Applicant be convicted of any offences in the future, consideration may again be given to the cancellation of her visa.
In the Tribunal’s view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. The Tribunal finds that there is “another reason” pursuant to s 501CA(4)(b)(ii) of the Act to revoke the original decision.
DECISION
The decision under review is set aside by the Tribunal and substituted with a decision that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen.
...................................................................
Associate
Dated: 25 May 2023
Date of hearing: 11 May 2023 Advocate for the Applicant:
Dr M van Galen-Dickie, Sisters Inside Counsel for the Respondent: Mr A Cunynghame, Sparke Helmore Lawyers
Annexure A – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Townsville Magistrates Court
10 June 2008
Commit Public Nuisance
Recognizance – $400.00
Good Behaviour – 6 months
Contravene Direction
Moranbah Magistrates Court
6 December 2018
Contravention of Police Protection Notice
Fine – $650.00
Emerald Magistrates Court
10 September 2019
Contravention of Domestic Violence Order (x5)
Probation – 15 months
Breach of Bail Conditions (x2)
Emerald Magistrates Court
11 September 2019
Contravention of Domestic Violence Order (Aggravated Offence) (x3)
Probation – 2 years
Breach of Bail Condition
Wilful Damage
Townsville Magistrate Court
2 December 2020
Breach of Bail Condition (x19)
Imprisonment – 1 month, concurrent
Breach of Bail Condition (x3)
Imprisonment – 2 months, concurrent
Breach of Bail Condition (x2)
Imprisonment – 7 days, concurrent
Assault Occasioning Bodily Harm
Imprisonment – 9 months, concurrent
Contravention of Domestic Violence Order (Aggravated Offence)
Imprisonment – 12 months, concurrent
Contravention of Domestic Violence Order (Aggravated Offence)
Imprisonment – 3 months, concurrent
Contravention of Domestic Violence Order (Aggravated Offence)
Imprisonment – 6 months, concurrent
Wilful Damage (x2)
Imprisonment – 4 months, concurrent
Possessing Dangerous Drugs
Not Further Punished
Wilful Damage Domestic Violence Offence
Possess Utensils on Pipes that had been used
Moranbah Magistrates Court
4 February 2022
Contravention of Domestic Violence Order (Aggravated Offence) (x2)
Imprisonment – 6 months, concurrent
Breach of Bail Condition
Imprisonment – 1 month, concurrent
Obstruct Police Officer
Imprisonment – 2 month, concurrent
Townsville Magistrates Court
29 July 2022
Commit Public Nuisance
Imprisonment – 1 month, concurrent
Contravention of Domestic Violence Order (Aggravated Offence)
Contravention of Domestic Violence Order (Aggravated Offence)
Imprisonment – 9 months, concurrent
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
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