Brown and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 280

Brown and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 280 (4 November 2024)
Applicant/s:  Eden Zivarna Grace Brown
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/5848

Tribunal:General Member J Cipolla
Place:Sydney
Date:4 November 2024

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
General Member J Cipolla
Catchwords
MIGRATION – cancellation of Applicant’s Class TY Subclass 444 Special Category (Temporary) visa – serious offending – burglary – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 500(1)(ba), 501(2), 501(6)(a), 501(7)(c), 501CA(4)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131
CKL21 v Minister for Home Affairs [2022] FCAFC 70
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Secondary Materials
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
BACKGROUND

Ms Brown (the Applicant) is 26 years old. She was born in New Zealand and relocated to Australia with her parents when she was 2 years old. The Applicant has resided in Australia since that time.
According to the evidence before the Tribunal it is clear that the Applicant had a challenging childhood in Australia. Her parents separated when she was 7 years old and the intervening years after this event were difficult. The Applicant was also the subject of a sexual assault by a stranger when she was 7 years old, and this event had an impact on the Applicant’s life choices later in her life.
The Applicant resided with her mother after her parents separated and they moved many times during her childhood with the Applicant attending 8 schools in Australia, 6 of these before the age of 10.
The evidence indicates that when the Applicant was 15 years old, she experienced a relationship breakup that took a significant toll on her mental health and that she attempted suicide.
In 2015, when she was 18 years old, she met the father of her son K, and they commenced a relationship in April 2016, with the Applicant falling pregnant within 3 weeks of the commencement of that relationship.
After the birth of her son, the Applicant suffered with post-natal depression.
The evidence indicates that the Applicant’s relationship with K’s father was characterised by domestic violence and chronic drug abuse and the Applicant left the relationship when she was 7 months pregnant. Over time, there has been an on and off resumption of the relationship which has always been characterised by violence, ongoing drug abuse and escalating criminality.
The Applicant’s drug abuse over time led to heightened interaction with the criminal justice system and has led to the acquisition of a significant criminal record that runs for 9 pages.
OFFENDING HISTORY
The Applicant’s offending commenced in December 2014 at which time the Applicant was charged with the assault and obstruction of a police officer.
The offending in the intervening years included multiple motor vehicle offences, possession of dangerous drugs, possession of property having been deemed to be used in connection with drug related offences, contravention of court orders, bail breaches, possession of drug taking utensils, failure to appear in court, receiving tainted property, breach of probation orders and fraud and burglary which led to the commission of an indictable offence. (see G3 & G4 pages 36-42)
The evidence indicates that over time there was an escalation in the offending. With respect to her most serious offending the evidence indicates that the Applicant was sentenced to 18 months of imprisonment on 11 November 2022, and reference to the sentencing judge’s comments are indicative of his significant concerns. The judge noted that persons with chronic drug addictions exercised little restraint over their behaviour and further to this they showed an inherent disregard for the rights and interests of others. The judge formed a view that Ms Brown’s presence in the community posed a danger to the community.
The offending that led to the imposition of a custodial sentence included robbery with actual violence armed/in company/personal violence offences that occurred on 25 April 2021.
The facts before the Tribunal indicate that the Applicant and her co-offender entered another person’s premises with the objective of stealing Xanax tablets. During the robbery a struggle ensued, and the Applicant threatened the victim with a fire extinguisher and used it to strike her in the buttocks while the Applicant’s co-offender pulled the victim’s hair, causing her to fall to the ground. The Applicant and her co-offender stole the victim’s keys, her handbag and her telephone and left the house with the co-offender driving a stolen motor vehicle.
On 26 January 2022, the Applicant was charged with unlawful use of a motor vehicle used to facilitate the commission of an indictable offence and with the dangerous operation of the stolen motor vehicle. The facts before the Tribunal indicate that with respect to this offence the Applicant drove the stolen car onto a footpath towards a family of pedestrians who had to take evasive action to avoid being hit by the car. The family included an infant and a child in a pram.
The judge in sentencing the Applicant with respect to this offending described her conduct as “hateful”, “atrocious”, and indicative of a complete disregard for the rights and interests of other people. The judge noted that the offending occurred within the context of chronic drug addiction and evidenced that the Applicant was not able to exercise restraint with respect to her behaviour and was oblivious to how her behaviour could impact anybody else.
The evidence before the Tribunal indicates that the Applicant has been the subject of a substantial number of motor vehicle offences that have involved her driving motor vehicles without a licence to do so, including as noted above, driving a stolen car onto the footpath endangering pedestrians and entering a roundabout in the wrong direction, speeding and using a motor vehicle to evade police.
The evidence before the Tribunal indicates that the Applicant has had a previous Subclass 444 visa cancelled by the Minister on 12 April 2019, due to her criminal history. The Applicant sought revocation of that decision and the Minister at that time decided to revoke the cancellation decision on 28 August 2019 and the Applicant was issued with a formal warning by the Minister. The Applicant signed an undertaking with respect to the revocation not to engage in further criminal conduct.
In 2021, the Applicant was convicted of breaching a community service order. In 2022, the Applicant was convicted with respect to failure to appear in court. Further to this in 2022, the Applicant was convicted of a breach of bail conditions, and a further series of offences pertaining to fraud, dangerous operation of a motor vehicle and contravening an order with respect to obtaining access to stored information.
On 29 March 2021, the Applicant was convicted of breaching a community service order and the evidence before the Tribunal indicates that despite being issued with a formal warning by the Minister with respect to her offending, the Applicant’s offending continued unabated between April 2021 and February 2022.
On 12 August 2024, due to ongoing offending that attracted the mandatory cancellation provisions under the Migration Act, a delegate of the Minister decided not to revoke the Applicant’s visa cancellation under s 501(4) of the Migration Act 1958 (Cth) (“the Act”).
This is the reviewable decision before the Tribunal.
The Applicant lodged an application for review of this decision with the Tribunal on 13 August 2024. The Tribunal’s jurisdiction to review that decision is pursuant to s 500(1)(ba) of the Act.
The evidence is clearly indicative of the Applicant possessing a substantial criminal record and therefore she does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Act. Accordingly, the central issue for the Tribunal to determine is whether there is another reason why the visa cancellation should be revoked.
APPLICANT’S STATEMENT OF FACTS ISSUES AND CONTENTIONS
A Statement of Facts, Issues and Contentions (SFIC) was received from the Applicant’s representative Dr Marianne van Galen-Dickie (the representative) from Sisters Inside, a community advocacy service for women in the criminal justice system. The SFIC is dated 18 September 2024 and has been duly considered.
The SFIC notes that this is the second request that the Applicant had made to the Minister seeking the revocation of the cancellation of her Subclass 444 visa and that the Tribunal is able to consider a second revocation and set aside the cancellation if it is correct and preferable to do so.
The SFIC provides extensive background information with respect to the Applicant. The SFIC notes that the Applicant arrived in Australia from New Zealand as a 2-year-old and that her parents separated when she was 6. Her childhood was characterised by moving from one accommodation to the other. Her father was not able to provide her with a stable lifestyle and whilst under her mother’s care, the Applicant was sexually assaulted by a stranger when she was 7 years old. The SFIC notes that the sexual assault impacted the Applicant’s relationship with her parents, her schooling, and her future partner relationships when she transitioned to adulthood. Her background also contributed to her drug addiction, her exposure to extreme domestic violence and to her associated criminality.
The SFIC notes that the Applicant has one son K who is currently residing with his paternal grandmother and that she shares custody of her son with his father Mr James who is currently in prison.
The SFIC notes that invariably the Tribunal has to deal with two issues before it. The first is whether the Applicant passes the character test and if not, whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. The SFIC confirms that the Applicant does not pass the character test as a matter of law, due to the fact that she had received a prison sentence greater than 12 months and was therefore taken to have a substantial criminal record in accordance with s 501(6)(a) of the Act.
The SFIC addresses the relevant discretionary considerations with respect to the prospective revocation of the Applicants visa. The SFIC notes that the Applicant agrees with the sentencing judge’s remarks in relation to her most recent offending, describing the Applicant’s behaviour as ‘distasteful’ and ‘disgusting’.
With respect to risk to the Australian community the SFIC notes that the Applicant has not been able to spend time in the community since her last offence and that she is currently detained at the Villawood Immigration Detention Centre. The SFIC notes that the Applicant’s offending was inextricably linked to her drug abuse and her relationship with her former partner Mr James. Once again reference is made to the fact that the Applicant was the subject of sexual abuse by a stranger when she was a young child, the impact of her broken family, frequent moving about as a child and adolescent and to Australian studies that have shown that children who suffer sexual abuse have a significantly higher rate of criminal offending.
The SFIC notes that the Applicant’s exposure to drugs began early in her adolescence. The SFIC notes that the Applicant had not to date participated in appropriate clinical treatments to assist with her trauma. The SFIC notes that attempts by the Applicant’s mother to obtain reasonable support for the Applicant with respect to her drug dependency was difficult to obtain. The SFIC notes that addiction to drugs is a serious medical problem and the associated behaviour with respect to the addiction should be considered appropriately.
The SFIC notes that the Applicant was incarcerated in 2019 for nine months and held in the Villawood Detention Centre for three months after she served her term of imprisonment. The SFIC notes that the Villawood Detention Centre is known publicly for rampant drug use amongst detainees. The SFIC makes reference to a number of reports confirming the propensity for detainees to use drugs and access drugs in the detention centre.
The SFIC notes that it is important for the Tribunal to take into account the fact that the Applicant’s drug addiction comes within the parameters of a medical issue and that “overcoming addiction is an iterative lifelong process that relies on a number of factors. An honest assessment and acknowledgement of their addiction by the addict. A change in social and living environment. Support by family, friends, and community. Stable accommodation. Stable employment.”
The SFIC notes that the Applicant was not able to access these crucial support mechanisms when she was released from prison in 2019 and that her transfer to a closed environment, in immigration detention with access to illicit drugs exacerbated her addiction.
The SFIC notes that after the Applicant was released from Villawood in 2019, that she initially lived with her sister, Shontelle Cross, for a brief period of time and managed to remain drug-free, gain employment, and reside with her young son. However, by December 2019 she returned to a relationship with Mr James and fell back into chronic drug use and criminality.
The SFIC notes that the Applicant lived with Mr James and their son until February 2020 at which time the child was removed from their care to live with his paternal grandmother.
The SFIC notes that the Applicant has provided “a frank and poignant statement” with respect to her criminal behaviour, the impact of her violent relationship and the impact of drug addiction on her life. The SFIC also makes reference to an assessment of the Applicant by a psychologist, Dr Hatzipetrou in September 2024.
The SFIC notes that with respect to the Applicant engaging in further criminal or serious conduct, the Applicant had learnt a powerful lesson since her last immigration detention at Villawood. The Applicant noted that the conditions in Villawood appeared to be the same as in 2019, however the Applicant entered detention at a different stage of her recovery. The Applicant was placed on a medically supervised program in prison to assist her withdrawal and reliance on drugs. The SFIC notes that the Applicant has managed to avoid illicit drugs for the past two years, and this is largely attributable to her incarceration. The SFIC notes that during the period of the Applicant’s incarceration she worked as a landscaper and a kitchen hand, in addition to this she undertook training in construction and furniture making and engaged in a number of programs in prison to ensure that she would have accommodation and drug rehabilitation support in the first six months of her release from prison. The SFIC notes that unfortunately these programs were withdrawn from the Applicant due to the cancellation of her visa and her subsequent status as a non-visa holder.
The SFIC notes that the Applicant expressed insight into her offending and the impact on victims. The Applicant noted that her offending must have instilled fear and that her behaviour was ‘disgusting’. The SFIC notes that the Applicant considers the time that she has spent in jail to be a positive factor in saving her from a downward spiral. The SFIC notes that the Applicant had taken opportunities offered to her in prison to ensure that she does not reoffend and engaged in courses specifically with respect to her drug usage. The SFIC makes reference to the programs completed by the Applicant whilst in prison aimed at addressing her addiction.
The SFIC notes that despite the Applicant not having any psychiatric symptoms she suffered with PTSD which was affected by her past drug dependency, chronic trauma, and dysfunctional interpersonal relationships.
The SFIC notes that Dr Hatzipetrou, determined that the risk of the Applicant reoffending in the long-term “is likely to be moderate and the risk of reoffending in the next few days is low. Given her history as a child and young adult this is a reasonable assessment.”
The SFIC at point 87 notes that if the Applicant was to be released into the community she would have accommodation with her friend Ms McLachlan. However, it also notes at point 110 that Karli McMillan had offered the Applicant stable accommodation upon her release. It notes that upon release into the community the Applicant would be subject to strict parole conditions. The SFIC notes that the Applicant has made tentative post release appointments with a psychologist to address her past trauma and her drug use.
Point 90 of the SFIC notes that “while her newfound commitment to remain health (sic) and change her life has not been tested in the community, she has experienced a continued period of abstinence which forms a sound basis from which she can pursue long-term rehabilitation. It provides a sound foundation for her to face future challenges and allows her to work with her family and friends to rebuild her life.”
The SFIC goes on to posit that the Applicant’s recovery from chronic drug addiction will ameliorate the risk of reoffending in the future.
The SFIC notes that the Applicant started rebelling against her mother. With respect to the strength and nature and duration of the Applicant’s ties to Australia the SFIC notes the following: The Applicant has spent the majority of her life in Australia including her formative years arriving when she was 2 and completing all of her schooling in Australia. The evidence that has been adduced indicates that the Applicant’s family continues to offer support to the Applicant and encouragement to rebuild her life despite her history of drug abuse and offending.
The SFIC notes that the Applicant’s 7-year-old son K is an Australian citizen and there will be impact on him if his mother is removed from Australia. The Applicant’s father, and half-sister and half-brother, along with her nephews and nieces and cousins, would be impacted by the Applicant’s removal from the country.
The SFIC notes that the Applicant’s father suffers with depression and anxiety and considers the Applicant to be strong support person in his life and that he would miss his daughter ‘terribly’ if she was removed from Australia.
The SFIC notes that the Applicant’s half-sister has provided insight into the Applicant’s childhood and her relationship with her parents describing the Applicant’s upbringing as ‘turbulent’. The SFIC notes that the Applicant’s mother is currently residing in New Zealand but intends to return to Queensland. The SFIC notes that the Applicant’s strong ties to Australia weigh significantly in favour of revocation.
With respect to best interests of minor children in Australia affected by the decision, the SFIC notes that the Applicant has a 7-year-old son K who is an Australian citizen and as noted, currently resides with his paternal grandmother. His father remains incarcerated. The SFIC notes that the Departmental delegate placed significant weight on this factor, however noted that it was open to the Applicant to relocate her son to New Zealand with her in the event that she was removed, noting that she had legal custody of her son and that her son had no contact with his father. The SFIC notes that this observation of the delegate needed to be corrected. The SFIC notes that “Ms Brown does not have legal custody of K, because there has been no legal change to the normal parent custody for him. This means his father shares custody regardless of the contact he chooses, or his mother Tamra, allows him to have with his son. His father Reese James would need to approve the travel of K to New Zealand. As the relationship between Ms Brown and Rhys has broken down and is not one that will be renewed the likelihood of them granting her the right to take K permanently to New Zealand is small or negligible.”

The SFIC notes that despite her incarceration the Applicant remains in constant contact with her son and that her son visited her in immigration detention in Brisbane before she was transferred to Villawood in Sydney. The SFIC notes that there are concerns within the Applicant’s family unit that in the event that she is removed from the country there is a chance that her son K could end up in foster care.
The SFIC notes that the removal of the Applicant would have a substantial impact on the welfare of K and would remove the Applicant from participating in decision-making pertaining to K’s life in Australia. The SFIC states that significant weight should be given to this consideration with respect to revocation.
With respect to the expectations of the Australian community the SFIC notes that “the tragic circumstances that have led to her drug addiction and offending occurred here in Australia when she was sexually assaulted as a seven year old child on father’s day” and hence this consideration should be given some weight against revocation.
The SFIC notes that with respect to other considerations the Applicant’s mental health should be taken into consideration and that the recent examination of the Applicant by Dr Hatzipetrou found that the Applicant demonstrated emotional distress, was at risk of self-harm, exhibited symptoms of PTSD and had a prior history of attempted suicide. The SFIC notes that based on this evidence the Tribunal needed to consider these risk factors to the Applicant’s mental health if she was returned to New Zealand.
The SFIC also makes reference to the substantial impact family violence had upon the Applicant. The SFIC notes that the Applicant and her son K had been victims of family violence when the Applicant was in a long-term relationship with Mr James. The SFIC notes that despite Mr James’ long history of criminal offending and drug abuse, he is an Australian citizen, and he will not be removed and will remain Australia’s responsibility going forward, and that the Tribunal should consider the impact that Mr James has had on the Applicant being a major factor contributing to her potential permanent expulsion from Australia.
The SFIC concludes the removal of the Applicant from Australia will have a substantial impact on the Applicant’s son and that this weighs significantly in favour of revocation.
STATEMENT OF MS BROWN
The Applicant provided a statement which was annexed to the SFIC and which the Tribunal has duly considered. In her statement the Applicant makes reference to the first revocation of her Subclass 444 visa in 2019 and what transpired after her release from immigration detention at this time.
The Applicant stated that when she was released from the Villawood Detention Centre and returned to Queensland that her family and then, 2 year old son, picked her up from the airport. The Applicant resided with her sister and her sister’s family and that she had her son in her care. The Applicant applied for a job and managed to get her son into daycare with his cousins. The Applicant advised that she obtained a job at Woolworths which she loved and that she would work each day and pick her son up from daycare at the end of her working shift. The Applicant stated that “this went on for a few months until I started seeing my son’s father RJ again, we started using drugs again which then took me away from my work responsibilities and soon after I quit my job never going again. New Year’s Eve came, and I went to Logan, and visited my dad, I ended up never going back to my sisters and a whole new world of pain started. By February my son went to his grandmother’s house and because of the DV relationship that was the last time I had him in my care.”
The Applicant stated that from this time in 2019 she went down the rabbit hole of continuing drug abuse and criminality. The Applicant also stated that she was subject to gruesome incidents of domestic violence at the hands of her former partner Mr James. The Applicant also outlined that her time in prison and in detention had given her an opportunity to withdraw from drugs and abstain from drug taking. The Applicant further advised that during her period of incarceration she had undertaken courses and that upon release into the community she intended to undertake counselling and obtain a mental health plan. The Applicant states that “my whole life is here, I cannot even begin to imagine what I would do if I had to move to a different country and start a whole new life there surrounded by strangers, the thought of that terrifies me and breaks my heart.”
STATEMENT OF SHONTELLE CROSS
The Tribunal also received a comprehensive statement from Shontelle Cross, which the Tribunal has duly considered. Ms Cross noted that the Applicant was her half-sister. She advised that she had not seen the Applicant since early 2020. She advised that she and the Applicant are working on repairing their relationship. Ms Cross stated that the Applicant’s father was “one of the first people in her life to give her access to heavy drugs in her early teenage years. He has ‘given a roof’ to her but it has always come with a life of drugs too. He should never have been a parent.”
Ms Cross notes that the Applicant was sexually assaulted by a friend of the family when she was around nine years old. She describes the Applicant as having been loving, kind, thoughtful, energetic and strong minded. She advised that the Applicant is part of the Australian community and has lived in Australia since she was an infant.
Ms Cross notes that the Applicant experienced severe domestic violence at the hands of her former partner Mr James. Ms Cross stated that she believed that the Applicant was remorseful for her offending, that she was clean of drugs since her incarceration. Ms Cross states that “I believe it will instigate a lot of questions around K’s [Pseudonym] ongoing care and putting at risk of being in the care of his father who is not safe or fit, or possibly into foster care. The reason for this is that K’s grandparent who has been caring for him for the past few years has expressed that she did not expect to have him for all of this time and that she is struggling with his behaviour. She has been through so much with her own son (RJ) and is now parenting a boy who has trauma -related behaviours”.
Ms Cross noted that in the event that the Applicant was deported to New Zealand that she would have to give serious consideration to parenting K. She advised she has two children of her own residing in a small three bedroom house and that the Applicant’s son’s needs are high given that he suffers with trauma symptoms associated with PTSD and has been diagnosed with ADHD. Ms Cross posits that it is imperative that the Applicant’s visa be restored so that she can be a part of her son’s life without separation.
STATEMENT OF STEPHEN BROWN
The Tribunal also received a statement from the Applicant’s father Mr Stephen Brown which it has duly considered.
Mr Brown acknowledges his daughter’s criminal history and advised in his statement that he was “shocked and saddened to realise the extent and severity of her actions.” Mr Brown noted that when the Applicant was first released from detention in 2019 that she resided with her older sister Shontelle which had a positive influence upon her, however by early 2020, the Applicant had resumed the relationship with Mr James which led to a spiral of drug abuse and criminality. Mr Brown notes that his family migrated from New Zealand to Australia in 2000. Mr Brown noted that he had worked in Australia as a concreter until he injured his back in a work-related accident and that he would be heartbroken if his daughter was deported to New Zealand. Mr Brown stated that he does not wish to relocate to New Zealand. Mr Brown stated that his daughter has only known Australia as her home and that her life appears to have turned around as a consequence of the past two years of imprisonment. Mr Brown noted that a stable friend of the Applicant’s had offered her accommodation if she is released back into the community.
STATEMENT OF TANIA MCMILLAN
The Tribunal received a statement from the Applicant’s mother Tania McMillan. Ms McMillan notes the family relocated from New Zealand in 2000. She notes her daughter’s drug addiction has manifested as a consequence of events in her early childhood, sexual abuse, two absent parents, and an abnormal and unstable upbringing. Ms McMillan notes that her daughter’s entire life has been based in Australia and that she has no association with New Zealand. Ms McMillan acknowledged that she was currently residing in New Zealand and was planning to return to live in Australia. Ms McMillan believed that her daughter’s separation from her son would have an adverse impact on both her daughter and her grandson. Ms McMillan noted that her daughter had made significant progress in relation to her drug addiction while she had been incarcerated. Ms McMillan believed that it would be useful for her daughter to be placed in a long-term rehabilitation program to assist with her recovery from drug abuse. Ms McMillan stated that her daughter was an inherently good person and should be given another chance.
STATEMENT OF NATASHA MILLAR
The Tribunal received a statement from Natasha Millar dated 16 September 2024. Ms Millar noted that she had known the Applicant since she was 12 years old. Ms Millar states that she was aware of the Applicant’s drug abuse history and criminal history. Ms Millar stated that the Applicant’s relationship with Mr James had been problematic. Ms Millar believed that the Applicant was committed to rebuilding a life with her son. Ms Millar noted that the Applicant had spent her entire life in Australia and had deep ties to Australia. Ms Millar strongly supported the revocation of the cancellation of the Applicant’s visa.
The Applicant’s representative provided documents from the Australian Bureau of Statistics with respect to the characteristics and outcomes of childhood abuse. The Applicant’s representative also provided a report with respect to the impact of immigration detention on detainees prepared by the Commonwealth Ombudsman and the response to this report from the Department of Home Affairs. The Applicant’s representative also provided an article from the Guardian Australia from February 2022 with respect to the extent of illicit drug use and access to drugs in the Villawood Detention Centre. The Applicant’s representative also provided a copy of a report from the Parliament of Victoria from August 2022 pertaining to an inquiry into children affected by parental incarceration. The Applicant’s representative also provided a report into child sexual abuse and criminal offending dealing with the link between child abuse and long-term offending from the Centre for Forensic Behavioural Science Swinburne University Melbourne.
PSYCHOLOGISTS REPORT 17 SEPTEMBER 2024
The Tribunal also received an extensive report from Dr Luke Hatzipetrou, a psychologist, dated 17 September 2024 who undertook a psychological assessment of the Applicant on 5 September 2024.
Dr Hatzipetrou examined the Applicant’s current circumstances. He also took a relevant social history from the Applicant examining her family circumstances, education, and her vocational/non-vocational background. He also conducted an examination of the Applicant’s familial relationships, peer relationships and her intimate relationships. Dr Hatzipetrou also examined the Applicant’s medical history, her drug and alcohol history, her forensic history and her psychiatric history.
Dr Hatzipetrou also conducted a mental state examination, a psychological assessment that included personality and psychopathology, and assessment of somatic/cognitive dysfunction, emotional dysfunction, thought dysfunction and behavioural dysfunction. He then went on to conduct a comprehensive risk assessment of the Applicant, an assessment of her future plans, a response to her prospective deportation and an opinion. The report running 23 pages has been duly considered by the Tribunal for the purposes of this review.
The report at page 8 makes extensive reference to the Applicant’s drug and alcohol history. It notes that the Applicant experimented with alcohol at the age of 12 and was regularly consuming alcohol on Friday and Saturday evenings after she secured a fake identification. The Applicant’s alcohol consumption decreased when she fell pregnant and over time her alcohol consumption was infrequent as she focused on illicit drugs. The report notes that at age 13 years the Applicant experimented with cannabis and abused cannabis on a daily basis. The Applicant stated that cannabis was not a preferred substance. The Applicant’s drug use then traversed into heroin and cocaine and the Applicant also experimented with MDMA. The Applicant confirmed that she was exposed to methamphetamines at age 16. The Applicant smoked methamphetamines because she liked the feeling of numbness that this drug induced. The Applicant confirmed daily abuse of methamphetamines and the development of a dependency to methamphetamines. The Applicant claimed that she ceased methamphetamines after she fell pregnant with her son at around age 19 and abstained from them until after her son was born. The Applicant confirmed a relapse for methamphetamines after the birth of her son which she used to facilitate weight loss after her pregnancy. The report notes that the Applicant “maintained the severe abuse of methamphetamines until her incarceration.” The report does not note whether this was the Applicant’s first period of incarceration or second period of incarceration. The report notes that the Applicant abused prescription medications over 2021 such as Lyrica and that it was this abuse that led to her conviction for armed robbery. The Applicant claims that at the time of this offending she was impacted by Lyrica and has no memory of the offence. The Applicant gave evidence that since being incarcerated she had completed drug and alcohol treatment programs. The Applicant advised that she abused cannabis when she was incarcerated in the Villawood Detention Centre on the first occasion of incarceration in that facility.
The report makes reference to the Applicant’s forensic history. That history notes a protracted criminal history that emerged in 2014 (assault and obstruct a police officer). Much of the Applicant’s offending occurred with her former partner Mr James. The report notes that in 2018 the Applicant was incarcerated for drug related offences for a period of six months. After release, the Applicant was convicted of fraud and receiving tainted property, likely to be stolen. The Applicant was also charged with the unlawful use of motor vehicles and the report notes that from 2021 the Applicant acknowledges poor compliance with respect to court orders. The report notes that the Applicant described a period of being “on the run” whilst perpetrating fraud offences such as not paying for fuel. The Applicant also reports that she and her ex-partner Mr James were actively evading police due to outstanding warrants for their arrest.
The report notes that the Applicant confirmed convictions for burglary and unlawful use of motor vehicles arising from her entering unlocked cars searching for money.
The report notes that “in May 2023, Ms Brown had been in the company of a co-offender and had ingested Lyrica and GHB. Ms Brown confirmed this co-offender had been a “new acquaintance”. Nonetheless, she attended a house with the co-offender and observed children in the house ‘passed out’. Ms Brown observed a woman was selling drugs to these children. Ms Brown confirmed her co-offender then ‘bashed’ the victim and they had taken the keys to a motor vehicle. Furthermore, Ms Brown confirmed she had struck the victim with a fire extinguisher and then fled with the co-offender. Ms Brown confirmed that she had been a passenger in the vehicle which was operated by the co-offender.”
The report makes reference to Ms Brown being involved in dangerous driving offences such as driving towards a man that she alleges had thrown something at her car.
The report notes that Ms Brown, as a consequence of her offending, actively evaded police and actively breached bail conditions and continued to offend to access monies to enable her to abuse illicit substances.
The report notes that the Applicant’s criminal history extends from December 2014 through to the time of her incarceration in 2022. The pattern of offending was largely focused around stealing related offences and non-compliance with orders previously made by the courts. The report notes that “Ms Brown’s involvement in robbery with violence did reflect an intensification of this offence pathway.”
The report makes reference to the sentencing comments of Magistrate O’Driscoll on 11 November 2022 describing the Applicant’s criminal history as “deplorable”. The same Magistrate noted that the Applicant had completed drug rehabilitation programs and courses while she was held in the Brisbane Women’s Correctional Centre.
The report also refers to the sentencing comments of District Court Judge Devereux on 23 May 2023 with Judge Devereux making reference to the Applicant’s “bad traffic record” and her “disregard for somebody else’s rights and interests.” The report notes that Judge Devereux acknowledged the Applicants unhappy familial background and the chronicity of her drug addiction.
The report included an assessment of the Applicant’s emotional dysfunction. With respect to the Applicant’s emotional dysfunction the report notes that “she may be at risk for self-harm, preoccupied with suicide and death, and at risk for current suicidal ideation and attempts. This possible risk may be exacerbated by poor impulse control and substance abuse.”
The report notes that the Applicant experiences significant anxiety problems and exhibits features of PTSD and anxiety. The report notes that the Applicant “likely experiences subjective incompetence and shame and lacks perseverance and self-reliance.”
The report addresses the Applicant’s behavioural dysfunction. The report notes that the Applicant reports “serious antisocial behaviour and very likely has been involved with the criminal justice system and has difficulties with individuals in positions of authority. She also very likely acts out when bored, fails to conform to societal norms and expectations, and has antisocial characteristics. She likely has a history of criminal and/or antisocial behaviour and experiences conflictual interpersonal relationships. She also reports significant substance abuse, and indeed likely has a history of problematic use of alcohol or drugs, including misuse of prescription medication, is sensation-seeking, and has had legal problems as a result of substance abuse. She reports engaging in problematic impulsive behaviour. She indeed likely engages in non-planful behaviour and has poor impulse control and a history of hyperactive behaviours”.
The report at page 14 includes an assessment and evaluation of the Applicant’s risk of violent offending. The report notes that the Applicant presented with relevant risk factors which included historical problems with violence as an adult along with antisocial behaviour also as an adult. The report notes that “these historical factors, violence and antisocial behaviour, are relevant for ongoing future management.”
The report notes given a history of childhood sexual abuse and the Applicant being the victim of repeated domestic violence that she had to date not participated in an appropriate treatment program for those traumatic experiences.
The report notes that “Ms Brown presents with a history of a severe substance dependency disorder primarily consisting of amphetamines. Moreover, Ms Brown’s drug dependency disorder is a relevant and heavily weighted risk factor. To this end, Ms Brown’s criminal history largely consists of drug -related offences and associated behaviours, such as stealing.”

The report notes that the Applicant had a history of problems with supervision, evidenced by her failure to comply with judicial orders to appear.
The report notes that the Applicant did not present with a serious mental health disorder such as a psychotic disorder. However, the implementation of testing indicated a mild depressive disorder and post-traumatic stress disorder that was currently in remission. The report notes that the Applicant had insight into her ongoing need for treatment particularly relationship problems and with respect to substance abuse.
The report notes that the threat of deportation to New Zealand has been a great source of distress to the Applicant. This stress has led to heightened anxiety.
The report notes that the Applicant had been reluctant to separate from her partner and the father of her son due to fear of reprisal and a genuine fear for her safety. After separating from the father of her child the report notes that the Applicant engaged in subsequent relationships which were compromised by her abuse of illicit drugs.
With respect to the referral question namely the Applicant’s estimated risk of violent recidivism the report notes that this was likely to be “moderate.” The report notes that “Ms Brown substance dependency disorder, depression and traumatic experiences are relevant historical and clinical risk factors.”
The report notes that the Applicant appeared to be motivated to engage in meaningful employment with the goal of achieving financial independence and was motivated to achieve greater stability in her personal relationships going forward.
The report notes that during periods of drug abuse the Applicant gravitated “towards individuals within the drug community and experiences further decline in mental health, which, in turn, impacts on her capacity for self-regulation and judgement.”
The report notes that the Applicant accepts her previous offending was not consistent with the Australian community standards and that the Applicant did not attempt in his interview with her to justify these behaviours. Dr Hatzipetrou notes that the Applicant “had reasonable plans to manage her substance dependency disorder and maintain abstinence through counselling, pharmacological interventions and drug tests. Ms Brown understood the importance of detaching from previous ties in the community, including individuals with shared interests in illicit drug use. Moreover, Ms Brown identified previous barriers in accessing early treatments in the past and accepted this had being concealed from others. Ms Brown has not previously sought to engage in appropriate clinical treatments for her mental health problems and trauma, yet possesses the requisite cognitive abilities and motivation and has supports to benefit from these interventions, which would decrease her risk of reoffending and, more so, improve her overall functioning and quality of life.”
In conclusion the report notes that “the task of determining whether Ms Brown “passes” the Australian character test presents as a much more complex decision. To this end, further consideration regarding the clinical nature of these factors and their onset is required as they contribute to her offence pathway and, more so, had been barriers in engaging in appropriate treatment and rehabilitation services. Ms Brown’s ongoing involvement in evidenced-based treatment and supports would contribute to a positive prognosis in the future. Whilst the decision regarding Ms Brown’s appeal is respectfully in the hands of the Tribunal, it is anticipated these findings may assist in the impending proceedings.”
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Tribunal received a Statement of Facts, Issues and Contentions (SFIC) from the Respondent’s representative dated 8 October 2024. That document has been duly considered.
The submission notes that the Applicant concedes that she does not pass the character test because of the fact that she has a ‘substantial criminal record’. The submission notes that the issue before the Tribunal in the proceedings before it is whether there is ‘another reason’ to revoke the non-revocation decision having regard to Direction 110 - Migration Act 1958-Direction under section 499- visa refusal and cancellation under s 501.
The submission notes that the Applicant’s representative submitted that “due to the fact that this is a second request for revocation, the de novo decision is focused on Ms Brown’s offending after her release in 2019.” The respondent asserts that this component of the Applicant’s submission cannot be accepted because of the fact that Direction 110 requires the Tribunal ‘must consider the specific circumstances of the case’ and ‘information and evidence from independent and appropriate sources should be given appropriate weight.’ Further to this that there is no ‘focus’ on a particular period of time.
The submission notes the Direction 110 states with respect to the principles to be applied includes that ‘non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of… staying in, Australia.” Further that Australia has ‘low tolerance’ to criminal or other serious conduct and the tolerance ‘may’ be ‘higher’ if the non-citizen has ‘lived in the Australian community for most of their life, or from a very young age.’
The submission makes reference to the primary considerations that the Tribunal must take into account in Direction 110. The submission notes that the new Direction 110 states that the primary consideration ‘protection of the Australian community’ is generally to be given greater weight than other primary considerations.’ The submission notes the other primary considerations are whether the conduct engaged in constituted family violence, strength, nature and due duration of ties to Australia, the best interests of minor children in Australia and the expectations of the Australian community. The submission notes that apart from these primary considerations, Direction 110 also contains three other considerations which are the extent of impediments if removed and the impact on Australian business interests.
The Respondent’s submission posits that for the following reasons the Minister submits that the correct or preferable decision is to affirm the non-revocation decision.
The submission makes extensive reference to the Applicant’s offending history noting that the Applicant’s first offence was committed on 31 December 2014. The submission notes that with respect to a number of offences the Applicant was placed on a number of six-month good behaviour bonds which she failed to comply with.
The submission further notes that the Applicant’s offending continued unabated until August 2022. The submission notes that on 12 April 2019 the Applicants subclass 444 visa was cancelled by the Department. As a consequence of the cancellation of the Applicant’s visa the Applicant was held in Villawood Immigration Detention centre between 24 May 2019 and 28 August 2019. The submission notes that on 28 August 2019, after considering the Applicant’s response to the cancellation of her visa, that the Departmental decision-maker decided to revoke the decision to cancel the Applicant’s visa. The Applicant was formally warned about the consequences of her conduct and was subject to a warning that “if you engage in further criminal or serious conduct, this may again result in your visa being cancelled on character grounds.” The submission notes that on 28 August 2019, the Applicant signed a written acknowledgement of that warning.
The submission notes that despite the revocation of the 12 April 2019 cancellation, and the issue of a warning which the Applicant signed and acknowledged, that on 29 March 2021 the Applicant was sentenced in the Beenleigh Magistrates Court with respect to assault or obstruct police officer in licensed premises and the conviction was recorded and a fine imposed. The submission also notes that on 11 November 2022, the Applicant was sentenced with respect to 20 offences committed between 2 September 2021 and 29 August 2022. That as a consequence of this offending, sentences of imprisonment were imposed on the Applicant. On 8 March 2023, the cancellation decision that is the subject of this review was made. The Applicant was sentenced at the Beenleigh District Court on 5 May 2020 to offences where concurrent prison sentences were imposed. The submission notes that on 19 June 2023 the Applicant was sentenced at the Beenleigh Magistrates Court for offences committed in January 2022.
The submission notes that on 10 November 2023, the Parole Board of Queensland (the Board) considered an application made by the Applicant for parole on 24 June 2023. The submission notes that the Board formed a preliminary view with respect to the Applicant which was “that the risk the Applicant presented to the community currently is unacceptably high and your application should be declined.” Reasons for the decision was that the Applicant was serving a substantial prison sentence with respect to a substantial criminal record.
The submission notes that on 25 January 2024 the Board wrote to the Applicant refusing a parole application on the basis that there was no new information contained in the submission which would sufficiently alleviate the Board’s concerns expressed in the letter of 24 November 2023, noting outstanding charges in New South Wales and consenting to the Applicant lodging a new parole application on 15 March 2024.
With respect to the primary considerations pertaining to the nature and seriousness of the Applicant’s conduct, the submission from the respondent notes that there has been a long-standing history of criminal offending and an escalation in violent crime over that time. On 5 May 2023, the Applicant was sentenced for driving a stolen motor vehicle onto a footpath and at a family group that included children and with such proximity that she ran over a skateboard and another person put their hand through the car window. The Applicant was convicted of robbery with an intention to steal Xanax with a co-offender. That offending was described as the Applicant and her co-offender punching the victim and demanding the victim’s car keys, jumping on top of the victim with the Applicant wrapping her arm around the victim’s neck and applying pressure. Further to this that the Applicant and her co-offender stole the victims motor vehicle. The respondent submitted that with respect to the nature and seriousness of the conduct that the Applicants substantial criminal record did not reduce the weight of this consideration against revocation.
The submission notes with respect to the risk to the Australian community should the Applicant reoffend, that this primary consideration is based on a predictive assessment of risk. The submission notes that in making a predictive assessment of risk in the future that it requires an assessment of the regularity in which an offending event has occurred in the past and whether the conditions with respect to the offending have changed or that other events have intervened to disrupt the cycle of regularity in offending.
The submission states that the Applicant’s substantial criminal record clearly establishes that she regularly committed offences of increasing seriousness between December 2014 and August 2022 and that since the cessation of the offending the Applicant has been in the Villawood Detention Centre.
The submission notes that the Tribunal in the conduct of the review must have regard to the view of the government that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The submission notes that in this case “the Applicant’s potential harm has increased to a very serious violent crime attracting a substantial sentence of imprisonment and that accordingly a tolerance for future risk of future harm is very low.”
The Respondent notes that the psychologist who assessed the Applicant determined that the Applicant had not engaged in offence-specific programs or in any rehabilitation programs that target critical risk factors that contribute to the offence pathway.
The submission notes that even on the Applicant’s own evidence that there is “a moderate to high risk of general reoffending and a moderate risk of violent reoffending. The Applicant submits that this is a reasonable assessment. The Minister submits that the Tribunal would assess each type of risk of reoffending as higher than this because the conditions under where the Applicant offended regularly and with increasing seriousness are unchanged in significant respects.”
That the Applicant’s violent offending was very serious in nature and would be viewed as such by the Australian community and the Australian government.
The submission confirms that the Applicant’s offending did not constitute family violence.
With respect to the strength, nature and duration of ties to Australia, the submission notes that the Applicant has five immediate family members in Australia and that some of those family members have provided references on behalf of the Applicant.
The submission notes that the Applicant has a son K, and that the Tribunal would afford this fact significant weight. The submission notes there is no evidence of the Applicant contributing positively to the Australian community through employment, volunteer work or other pursuits since she completed her schooling. The submission notes the Applicant’s submission that this consideration should be given significant heavyweight in favour of revocation. The respondent on behalf of the Minister accepts that the revocation is in the Applicant’s son’s best interests, however, that overall this consideration is outweighed by other primary considerations.
With respect to the expectations of the Australian community the submission notes that the Australian community would expect that non-citizens obey Australian laws whilst in Australia and that the Applicant’s substantial criminal record weighs heavily against revocation.
In considering other considerations the submission notes that Australia does not have non-refoulement obligations to the Applicant. The submission notes that the Applicant has been in Australia since she was two years old and that if she was removed to New Zealand it would be to a country she is not familiar with and that she has not travelled to since 2014. The submission acknowledges that this would cause some impediments for the Applicant who has untreated mental health needs and who is recovering from substance abuse and domestic violence at the hands of her ex-partner. However, the submission posits that there would be no reason to think that the Applicant could not avail herself of social, medical or economic support in New Zealand offered to New Zealand citizens by its government. The submission notes that the weight to be afforded to this consideration should be moderated because of the fact that the Applicant will soon be 27 years old and is wanting to re-enter the workforce, that there are no substantial language barriers for the Applicant in New Zealand and that her mother Mrs McMillan, currently resides in New Zealand and has done so since and that Mrs McMillan does not intend to return to Australia for a few years.
The submission notes that the impact on Australian business interests is irrelevant.
The submission notes that the Applicant raises two further considerations namely the impact upon her and her son K of domestic violence and an assumption made by the Departmental delegate about the Applicant’s son K moving to New Zealand. The submission notes that the Minister has properly addressed these considerations under paragraph 8.4 of Direction 110.
In conclusion the respondent states that “the Applicants regular and increasingly serious offending between December 2014 and August 2022, including after a formal warning in August 2019, means the general approach should be applied such that the protection of the Australian community should be given greater weight than other primary considerations (paragraph 8.2). This primary consideration weighs very heavily against setting aside the non-revocation decision. Likewise, the expectations of the Australian community weigh very heavily against the Applicant. That relative weight may be moderated to some limited degree taking into account the Applicant’s personal circumstances. These considerations are not outweighed by K’s best interests, the strength, nature and duration of the Applicant’s ties to Australia, the impact of her removal on her immediate family members in Australia and/or the extent of impediments if removed. This is so even if K’s best interests are given significant weight. It follows that the correct or preferable decision is to affirm the non-revocation decision”.
REPLY TO RESPONDENTS SFIC
The Tribunal received a response from the Applicant’s representative to the Respondent’s SFIC.
The submission dated 16 October 2024 has been duly considered by the Tribunal. The submission notes that the respondent acknowledges that the Applicant suffered sexual abuse at age 7 and that she was a victim of domestic violence.
The submission notes that the Applicant’s relationship with Mr James has now ended.
The submission notes that a Queensland Corrective Services file from 2019 provides evidence of the Applicant being the victim of domestic violence at the hands of her ex-partner Mr James. The files indicate concerns if the Applicant was to resume the relationship with Mr James. The submission notes statements provided by the Applicant’s family members indicate the negative influence that Mr James had upon the Applicant.
The submission notes that a failure to take into consideration the steps that the Applicant has taken towards ending her dependency on drugs, attributable to the underlying cause of child sexual abuse and domestic violence, would be a failure to acknowledge the devastating impact of these acts on children and young women that are exposed to them.
The submission notes that the Tribunal needs to take into account that the Applicant has been the victim of sexual and domestic abuse from a young age as well as her criminal history.
The submission notes that the psychologist report from Dr Hatzipetrou establishes that the Applicant has insight into the reasons for her offending.
The submission notes the Applicant has a commitment to addressing her substance addiction through counselling.
The submission implores the Tribunal to examine the positive steps that the Applicant has taken towards recovering from her addiction.
The submission notes that rehabilitation is a fundamental principle of Australia’s criminal justice system and that Direction 110 recognises this and includes consideration of rehabilitation in subparagraphs 8.1.2(2)(b)(ii) and 8.2(3)(c).
The submission acknowledges the need to consider time spent outside incarceration and attention in the broader community. However, the submission notes that this does not preclude the Tribunal take into account the efforts that the Applicant has made towards her rehabilitation from detention and incarceration.
With respect to parole applications the submission notes that the Applicant has a record of breaching parole conditions when under the influence of illicit drugs or in the company of her former partner Mr James.
The submission notes that on recommendation of the Queensland Parole Board, the Applicant completed the moderate intensity substance intervention program.
With respect to the strength nature and duration of ties to Australia, the Applicant’s representative notes that consideration should be given to the impact of the Applicant’s family members as indicated in their respective statements provided to the Tribunal at review. The submission also notes that if the Applicant is removed from the country, it will have an impact on the Applicant’s son K, namely that family members will be caring for K or if he is removed by the authorities they will be impacted by his removal.

In conclusion, the submission notes that “this is Eden’s second revocation request she is cognitive of the fact that this is asking a lot from the Australian community. However, she is also clear that this is her last chance to make amends and be with her family. The inability to rebuild the trust her family had in her and build a future for her son will affect her siblings and her parents as well as K. She asked that the decision be made for their benefit as well as hers.”
The submission also included a supplementary statement from the Applicant dated 16 October 2024, along with a supplementary statement from Ms Cross dated 16 October 2024. Both these statements have been considered by the Tribunal.
REVIEW HEARING 21 AND 22 OCTOBER 2024
The Tribunal conducted a review hearing on the 21 and 22 October 2024. The Applicant attended the hearing in person and was represented by Dr Marianne van Galen-Dickie, a registered migration agent in the review.
The Minister was represented by Ms Sophia Russo of HWL Ebsworth Lawyers who instructed Mr James Walker a Barrister from Wardell Chambers who appeared at the review hearing.
At the outset of the review hearing the Tribunal explained the role of the Administrative Review Tribunal in reviewing the Departmental decision pertaining to the cancellation of the Applicant’s Subclass 400 visa under s 501(3A) of the Migration Act. The Tribunal also detailed the way that the hearing would be conducted and the prospective outcome of the review proceedings.
The Applicant’s representative advised that the Applicant was 27 years old and had lived for 25 years in Australia arriving in the country as a two-year-old. The Applicant’s representative noted that by way of background the Applicant had suffered sexual abuse at the hands of a stranger at age 7, abuse that was dealt with by the criminal justice system in Queensland and led to the Applicant receiving victims compensation. The Applicant’s representative noted that the Applicant was introduced to marijuana by her father at a young age and that she became a mother to her son K when she was 20 years old. The Applicant suffered in her relationship with the father of her son Mr James who was a chronic drug addict with his significant criminal history and who subjected the Applicant to domestic violence.
The Applicant’s representative noted that this was the Applicant’s second revocation request and that the Applicant has been active in pursuing this request for revocation of the cancellation and noted the substantial period that the Applicant had been drug-free as a result of her imprisonment and immigration detention since 2022.
The Respondent’s representative noted that the Applicant had been resident in Australia since age two and also noted the tragic events that had unfolded over the course of the Applicant’s life including the sexual abuse that she suffered as a seven year old child and the domestic violence that she experienced at the hands of her former partner Mr James. Mr Walker noted that the Applicant had engaged in serious and repeated offending and that there was no evidence that the Applicant had engaged in drug rehabilitation in the community. Mr Walker posited that the Applicant presented an ongoing risk to the Australian community. Mr Walker noted that there had been incidences of poor behaviour whilst the Applicant was in protective custody.
Mr Walker noted that the Applicant’s son K, who is currently age 7, is in the care of his paternal grandmother Tamra James and has been for an extended period of time. Mr Walker noted that the Minister accepts that K’s best interests is a significant consideration in the context of the review. Mr Walker noted that the Applicant’s son had been in the care of his paternal grandmother for an extended period of time and at times had been in the care and control of the Applicant’s mother Ms McMillan. Mr Walker noted that the Applicant had been regularly removed from the community and subject to imprisonment and immigration detention because of her ongoing offending and that she had limited ties to Australia. Mr Walker noted that there had been an escalation in the Applicant’s offending over time and an increase in its seriousness. Mr Walker noted that there had been a comprehensive summary of the offending in the joint tender bundle at pages 476-484. Mr Walker also made reference to sentencing comments by the District Court with respect to the Applicant’s offending found in the joint tender bundle at pages 713-716.
Mr Walker noted that despite previous cancellation of the Applicant’s visa due to her criminal offending and subsequent imprisonment led to a previous cancellation of her visa. This cancellation was revoked in August 2019 on the basis of submissions made to the Department on the Applicant’s behalf and Mr Walker noted that the Applicant was issued with a warning with respect to the impact of any future offending which could lead to the cancellation of her visa again.
Mr Walker noted that the Applicant had long history of poor compliance with bail conditions, community correction orders and parole conditions. Mr Walker also made reference to the psychological assessment conducted of the Applicant and the assessment of the Applicant’s future risk of reoffending. Mr Walker made reference to the weight that should be apportioned to the primary consideration with respect to the protection of the Australian community and that in the construct of this case that this consideration should be given significant weight. Mr Walker posited that the protection of the Australian community and the risk to the Australian community of further offending outweighed other primary considerations including the best interests considerations pertaining to the Applicant’s son K.
Mr Walker stated that he wished to briefly address the legal questions. Firstly, that the Applicant’s rehabilitation has not been tested in the community and reference was made by Mr Walker to the Federal Court case of Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at 174 and 179 and the joint judgement of Justices Charlesworth and O’Callaghan. In that case, the justices noted that the Applicant’s rehabilitation in the community had not been properly tested. Mr Walker submitted that conversely, the Applicant’s rehabilitation had not been tested for any significant period of time in the community with Mr Walker noting that the Applicant’s attempts at rehabilitation has occurred through engagement of programs in prison and in immigration detention. Mr Walker also stated that the Applicant’s representative’s argument that her rehabilitation had been evidenced in the ‘community’ being the community she resided within at Villawood did not constitute the community at large.
Mr Walker stated that the second legal question was with respect to the submission by the Applicant’s representative about the availability of illicit drugs in immigration detention. Reference was made by Mr Walker to the case of XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131. The case touched upon rehabilitation and time spent in the community.
APPLICANT’S HEARING EVIDENCE
Evidence was elicited at hearing from the Applicant. The Applicant advised that she arrived in Australia as a 2 year old with her parents from New Zealand and moved to Logan in Queensland, which is situated south of Brisbane. In the intervening years the Applicant went to a large number of primary and high schools to suit her parents employment and as a consequence of their fractured relationship. The Applicant advised that when she was around 6 or 7 she was living with her father and was reliant on support from neighbours from time to time.
The Applicant confirmed being sexually assaulted when her family were holding a State of Origin party. The Applicant stated that her relationship with her mother deteriorated after the assault. The Applicant stated that growing up was not ideal within her family unit. The Applicant described moving between her father and her mother. The Applicant stated that her father abused alcohol and ‘smoked weed’ and that she lived with both parents until the age of 12. The Applicant stated that she was introduced marijuana by her father and also alcohol by her father and started consuming both alcohol and marijuana from a young age. The Applicant stated that when she was around 12 or 13 she went to live with her half-sister Shontelle, and that during her schooling she attended multiple primary schools, multiple high schools, and that she was suspended from school and then eventually expelled from high school for a fake photograph that was posted on social media of her smoking an e-cigarette which led to her expulsion. The Applicant stated that when she was 13 she stayed with a friend, and that her father also lived with them for a time. The Applicant stated that around age 15 she started undertaking studies in childcare and that she started dating a man by the name of Reece (not Mr James the father of her child).
The Applicant stated that she started to clash with her father about not being able to spend time with her boyfriend and that she moved in with her mother for a period of time. The Applicant stated that her mother owned a home on the Gold Coast and that when she was in about grade 11 she was studying childcare, living in her mother’s house and at this stage started to use methamphetamines. The Applicant stated that she was introduced to methamphetamines by people that she met around that time. The Applicant stated that she was dating a 21 year old man at that time, Mr Voss. The Applicant described using drugs with Mr Voss. The Applicant stated that around this time she fell pregnant to Mr Voss and had an abortion. The Applicant described having a fractured relationship with her mother at this time and of her father expressing to have suicidal tendencies at this time threatening to gas himself in his car.
The Applicant stated that after she broke up with Mr Voss she was heartbroken and that she moved in with her father. The Applicant stated that for a period of time she was working in childcare for an organisation called Guppies in Caboolture. Whilst working in childcare the Applicant learnt that she would be paid compensation for being the victim of crime when she was 7 years old and that she was awarded $45,000 of which some went to legal costs. The Applicant stated that around this time she obtained a car but would often drive without a valid licence. The Tribunal asked the Applicant whether prior to receiving compensation monies the Applicant’s parents were aware of her drug abuse. The Tribunal asked the Applicant whether there had been any discussion about the compensation monies that she had been awarded being used towards drug rehabilitation. The Applicant stated that there was no such discussion between her parents with respect to these issues.
The Applicant described meeting Mr James and falling pregnant. The Applicant described fighting with Mr James on a regular basis and she believed he paid her a lack of attention during the pregnancy and was often abusive and nasty towards her. The Applicant also stated that Mr James was unfaithful. The Applicant stated that she and Mr James moved to a remote suburb called Yarrabilba, that she was often on her own and the area was poorly serviced by public transportation. The Applicant stated that she moved in with her mother towards the end of her pregnancy. The Applicant stated that Mr James was jailed for offending prior to the birth of their son K, and she believed that he was jailed for breach of parole conditions, dangerous driving, and drug-related offences.
The Tribunal asked whether Mr Voss had a criminal history and the Applicant confirmed he did. The Applicant stated that Mr James had an extensive criminal history and had been imprisoned on a number of occasions.
The Applicant stated that she first went to prison for a range of offending that included break and enters, driving offences, being in possession of stolen goods and receiving tainted property.
The Tribunal noted that in most states of Australia a person is able to get their license at age 16 and that there is a mandatory requirement that they engage in a minimum of 100 hours of supervised driving by fully licensed driver. The Applicant stated that she would drive from time to time while she was on her learners permit without having a supervisory driver in the vehicle. The Applicant stated that her decisions in this respect were probably impacted by her drug use. The Applicant also refers to the fact that she lived in a remote location that was poorly serviced by public transportation and then when she did drive unaccompanied, she did try to ensure that she drove to the best of her ability.
The Applicant was asked where her son K resided when she was imprisoned on the first occasion. The Applicant stated that he was with his paternal grandmother for six months and with her mother for three months. She advised that her son was around 2 and a half at the time. The Applicant advised the Tribunal that Mr James was in prison at this time for new offences and that she was not sure of the nature of the offending.
The Applicant was asked about the nature of her son’s visitations to her when she was in prison on the first occasion and the Applicant advised that her mother facilitated visits from time to time.
The Applicant was asked whether she used drugs when her son was in her care and control, and she advised that she did, and claimed that despite this she provided attention and time to her son and never neglected his needs. The Applicant stated that on the first occasion that she was imprisoned she spent six months in prison then three months in the Villawood Detention Centre (VDC). The Applicant stated that she was not using methamphetamines in prison, but she did use methamphetamines at the time of her first detention at the VDC.
The Applicant was asked about who organised for legal representation with respect to the first revocation of her visa. The Applicant stated that her mother did.
The Tribunal asked the Applicant whether she was aware of the ramifications of the cancellation of her visa on the first occasion. The Applicant stated that she did not fully note the repercussions of the first cancellation. She stated that she spent a week with her son upon release from detention so that they could re-familiarise themselves with one another. She then spent between around 3 months with her sister Shontelle and had her son in her care.
The Applicant was asked about the engagement of a lawyer after the revocation of her visa on the first occasion. The Applicant stated that her mother engaged a lawyer who advised her about the revocation and that when this happened she was abruptly released from the VDC and flown back to Queensland. The Tribunal asked the Applicant whether her family discussed the consequences of the revocation with her. The Applicant confirmed that they did discuss the consequences with her and both her mother and Shontelle expressed to her how lucky she was in respect of the revocation of the cancellation.
The Applicant advised the Tribunal that she lived with Shontelle and her family for about three months. She described this period as being stable. The Applicant confirmed that within 12 weeks she returned to live with Mr James and began abusing drugs and once again engaging in criminality. The Applicant advised that she saw that K was not getting the attention that he deserved, at this point in time and that she formed the view that he would be better off living away from herself and Mr James. The Applicant stated that she approached Mr James mother, Tamra, and Tamra came and collected K. This was initially supposed to be a short-term arrangement, however, Tamra determined that it was inappropriate for K to return to his parents care due to their lifestyle and drug use and the arrangement became a permanent one.
The Applicant was asked what point in time her relationship with Mr James became more violent. The Applicant stated that Mr James would leave the house and go ‘missing in action’. The Applicant stated that if she raised his absences with him Mr James would become aggressive and violent. The Applicant stated that there was a domestic violence order in place with respect to herself and her son K. The Applicant stated that during the relationship with Mr James she was always worried about getting Mr James in trouble for breaching bail or parole conditions. The Applicant stated that Tamra would not allow access to K until she saw that the Applicant and Mr James were in a more stable place. The Applicant advised that Tamra brought K to visit her in immigration detention in July 2024.
The Applicant was asked about her relationship with her son. The Applicant advised that she maintained a relationship with her son through Teams video and that they enjoyed time speaking to one another and playing online games such as Fortnite. The Applicant advised that her son shared things with her. The Applicant was asked whether she had a parenting role with her son and she advised that she keeps the relationship ‘parent appropriate’ and that her son respects what she says.
The Applicant was asked whether the revocation process this time around was different. The Applicant stated that she had already gone through the revocation process once. The Applicant stated that she had given significant thought to the second revocation. The Applicant stated that she had sat down with a representative and had read through all the documents with respect to the cancellation and submissions made on her behalf. The Applicant stated that her chronic drug addiction was the sole reason for her being in this situation. The Applicant stated that her ongoing rehabilitation was her main goal. The Applicant stated that successful rehabilitation will be the best way for her to reach her goals and to have her son returned to her care. The Applicant acknowledged that she needed to stay away from Mr James. The Applicant stated that she had spent a lot of time in jail thinking about her circumstances. The Applicant stated that whilst incarcerated she had undertaken a lot of courses dealing with things such as triggers, emotions, and other aspects of drug use. The Applicant stated that she was engaging in courses for the right reasons rather than as part of court directions. The Applicant stated that she saw the importance of mental health plans.
The Applicant stated that she understood why the revocation was in place. The Applicant stated that she brought this upon herself and acknowledged it. The Applicant stated that if she is released back into the community that she will derive support from Shontelle and from two close friends. She will also derive support from her father. The Applicant stated that Shontelle was a good support and suggested ways to make life better. The Applicant stated that her two friends in the community had stable employment and were not involved in the drug scene. She advised that her friend Carli is a successful real estate agent and that her sister Shontelle had recently brought a real estate agency. The Applicant stated that she wanted to be part of her father’s life again.
The Applicant stated that the many years that she had spent in prison and in immigration detention were very lonely. The Applicant stated that she had three years to sit there by herself and think about the rest of her life and to choose how her life might look going forward.
EVIDENCE FROM TANIA MCMILLAN
The witness Ms McMillan is the Applicant’s mother. The witness advised that she wanted to provide a short description of the Applicant’s childhood. The witness stated that Stephen Brown the Applicant’s father and herself had been a previous de facto relationship. She advised that Mr Brown had two children to a previous marriage. The witness stated that when she fell pregnant with the Applicant that Mr Brown did not want another child because he had two other children and he asked the witness to abort the child but the witness advised that she could not do this.

Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of 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).
Tamra James currently fulfils the primary parental role for K. The Applicant is in regular contact with K via video. The evidence indicates that the Applicants role in K’s life is secondary in nature and that case derives the majority of parental support from Ms James.
The evidence provided on behalf of the Applicant with respect to this consideration notes that there are no custody arrangements with respect to K which means that Mr James shares custody with the Applicant of K.
Concerns were raised in the evidence before the Tribunal that if the Applicant’s visa remains cancelled that K may end up in foster care due to the inability of Tamra James to continue to provide that care to K.
However, evidence was adduced at the review hearing that indicated that in the event of the Applicant being deported to New Zealand, that Ms Cross and Ms McMillan would both consider stepping up to provide care to K to avoid him being placed into foster care.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
K is aged 7 and there is a reasonably lengthy time before he is an adult. To date K has been in the care of his paternal grandmother for almost 5 of his 7 years. When the Applicant has attempted to care for K in the past her attempts have been short lived as she recognised her domestic environment was not conducive to raising a child. At other times family members have intervened to care for K.
There is no evidence before the Tribunal of any Court orders relating to parental access arrangements. However, there is support from within the Applicant’s family and indeed from Ms James that the Applicant maintain a role in the life of her son.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
Given the Applicant’s drug abuse and offending history to date there is, in the view of the Tribunal, a strong chance that the Applicant may well slip into past patterns of drug abuse and hence criminality. The reason that the Tribunal has formed this view is the long period in which the Applicant has engaged in illicit drug use. The fact that the Applicant has not engaged in any meaningful and long-term residential drug rehabilitation. The fact that when the Applicant was detained in the Villawood Detention Centre in 2019 that she engaged in IV drug use. The fact that whilst in prison the Applicant was sanctioned along with some fellow prisoners for consuming hand sanitiser for its alcohol content. The fact that for most of his life the Applicant’s son has been in the care of his paternal grandmother due to his mother’s drug use and offending.
Of significant concern is the fact that the Applicant’s Subclass 444 visa had been previously cancelled by the Minister due to her offending and was revoked by the Minister with a warning not to engage in further criminal conduct. The Applicant’s addiction ran so deep that within a relatively short time after the warning was given the Applicant re-offended and the nature and severity of her offending escalated. The Tribunal, when these factors are considered cumulatively, leads the Tribunal to find that the Applicant’s past behaviour is a good predictor of her future behaviour.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
The evidence before the Tribunal indicates that the removal of the Applicant from Australia will inhibit her ability to have regular physical contact with her son and limit that interaction to phone and video calls or instances of a family Member taking K to New Zealand to spend time with his mother. The Tribunal is of the view that this is not a full substitute for being physically present with her son.
Regarding the Applicant’s nieces and nephews there is no information before the Tribunal that indicates that they will be negatively affected in any significant way if the Applicant is removed from Australia. Due to her long period of imprisonment and immigration detention she has largely been removed from their lives.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
As discussed Ms James already fulfills a parental role for K and evidence was provided by both Ms Cross and Ms McMillan which indicates that they would be willing to provide ongoing care to K in the event that Ms James was no longer able to fulfill that role.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The evidence adduced at hearing from the Applicant and Ms Cross and Ms McMillan is that K wishes to have a relationship going forward with his mother and that an effort to foster this has been in place since the Applicant has been in immigration detention.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any 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.
There is no evidence before the Tribunal to indicate that the Applicant’s son has been at risk of or subject to family violence. The Applicant gave evidence that for the brief period K resided with his parents that he was not neglected. The Applicant stated that she possessed sufficient insight to remove K from the environment when the drug taking, and criminality escalated. There is no evidence before the Tribunal with respect to K observing or being exposed to the domestic violence perpetrated by Mr James against the Applicant.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The evidence before the Tribunal indicates that K has spent almost 5 of his 7 years living with his paternal grandmother Tamra James. The reason that this arrangement manifested was because of the drug abuse and criminality engaged with by his parents. The Applicant’s representative in her SFIC made reference to the current research into the effects of incarceration of parents and children in Australia (see SFIC dated 18 September 2024 at point 128). This research made reference to the damage caused to a child as a consequence of the removal of the parent for specific periods of time due to incarceration. There is no independent evidence before the Tribunal with respect to the psychological impact of K’s removal from his parents for most of his life. There is evidence that K has exhibited signs of ADHD whilst in the care of Tamra James. The evidence before the Tribunal indicates that the brief periods that K has been returned to the Applicant’s care that the Applicant has struggled to sustain the role.
The evidence of Dr Hatzipetrou in his report at line 1010-1025 states that ‘Ms Brown has not engaged in offence-specific or rehabilitative programs that target the critical risk factors that contribute to the offence pathway.’ As discussed in this decision there is no evidence before the Tribunal that the Applicant has ever engaged with a residential or non-residential drug rehabilitation program in the community. The Tribunal finds that it would clearly be in K’s best interests if his mother had a record of such engagement suggestive of a more robust platform of rehabilitation. The fact is that the Applicant does not. This does not negate the benefit of the internal courses that the Applicant has engaged in whilst in prison and in immigration detention. Her engagement in such courses is admirable. However as identified by Dr Hatzipetrou, the Applicant’s failure to date to have engaged in offence specific or rehabilitative programs that target her specific critical risk factors that contribute to her offending, heightens future risk.
Having regard to the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh moderately in favour of the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs moderately in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
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 Applicant has breached this expectation through his criminal 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 which 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.
Paragraph 8.5(4) 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.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the following matters:
(a)The Applicant has a long history of drug related offending which includes robbery with violence, burglary, and fraud;
(b)The Applicant in the commission of a drug related robbery violently offended against a woman;
(c)The Applicant has engaged in the obstruction of police officers in the performance of their duties;
(d)The Applicant has committed a very long list of driving offences whilst not licenced to drive and which have involved her placing the public at significant risk of harm behaviour described by the courts as being atrocious;
(e)The Applicant has driven a stolen motor vehicle at a young family including a baby in a pram who had to take evasive action to avoid being hit;
(f)The Applicant has breached a number of Court orders, bail orders and parole conditions; and
(g)The Applicant has been convicted for her offending and served significant terms of imprisonment.
The Applicant’s significant history of criminal conduct raises serious concerns regarding her character. This is amplified by the fact that after having her visa cancelled by the Minister under s.501 of the Migration Act in 2019, and the Minister agreeing to revoke the cancellation, the Applicant after being issued with a warning by the Minister not to engage in future criminality, went on to re-offend on multiple occasions and the evidence indicates an escalation in the severity of this offending. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community as a whole weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs very heavily 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(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to New Zealand. Accordingly, the Tribunal does not consider this consideration to be relevant.
(b) Extent of impediments if removed
The Applicant is a young woman. She has acquired skills in childcare in Australia that would be translatable in New Zealand.
The Tribunal accepts the Applicant’s evidence that removal to New Zealand would cause her stress and anxiety. The Applicant has clearly suffered with her mental health due to the deleterious impact that her drug usage has had upon her. In addition to this as has been noted the Applicant was the subject of a sexual assault as a minor and that as a consequence, she developed post-traumatic stress disorder. The Applicant has a history of self-harm and as has been noted she made a suicide attempt at 15 after the end of a relationship which led to interaction with the Queensland mental health system. There is no evidence that with respect to any residual mental health issues or conditions that have been identified in the evidence that the Applicant would not, as a New Zealander, be able to avail herself of mental health support services in New Zealand.
The Applicant would not suffer any language or cultural barriers in New Zealand. The social, medical and economic support systems available in New Zealand are comparable to those available in Australia. Although the Applicant is unfamiliar with New Zealand, the impediments she would suffer in terms of support and indeed in accessing those supports would in the view of the Tribunal be minimal. The Applicant’s mother Ms McMillan is currently resident in New Zealand, and she will be living there for at least the next 14 months. Ms McMillan gave evidence that she would be able to provide emotional support to the Applicant and that when her house on the West Coast of New Zealand is renovated the Applicant will be able to reside there.
The Tribunal is satisfied that the Applicant may experience some initial difficulty establishing employment. However as noted the Applicant has qualifications and experience in childcare she has also undertaken vocational courses in prison and this may well assist her finding suitable employment in New Zealand. The Tribunal finds that this consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised if the Applicant was removed to New Zealand. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa. Firstly, the Tribunal having regard to the relevant discretionary considerations needs to be satisfied that the Applicant passes the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. The Applicant clearly does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)No weight is apportioned to Primary Consideration 2.
(c)Primary Consideration 3 weighs moderately in favour of the revocation of cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs moderately in favour of the revocation of cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh moderately in favour of the revocation of the cancellation of the Applicant’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 3, 4, and 5. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations.
The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the community. The Tribunal is reasonably satisfied that the safety of the community is best served without the Applicant’s presence within it.
Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant’s visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the Reviewable Decision.
DECSION

The Tribunal affirms the decision under review.

Date(s) of hearing: 21 & 22 October 2024

Advocate for the Applicant: Dr M van Galen-Dickie

Counsel for the Respondent: Mr J Walker

Solicitors for the Respondent: Ms S Russo, HWL Ebsworth

Date(s) of hearing:	21 & 22 October 2024
Advocate for the Applicant:	Dr M van Galen-Dickie
Counsel for the Respondent:	Mr J Walker
Solicitors for the Respondent:	Ms S Russo, HWL Ebsworth