Campbell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1879
•21 June 2021
Campbell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1879 (21 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2018
Re:Catherine Faye Campbell
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:21 June 2021
Date of written reasons: 25 June 2021
Place:Brisbane
The decision under review is affirmed.
............................[sgd]..........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – review of decision under s 501CA(4) of the Migration Act 1958 (Cth) refusing to revoke a mandatory cancellation made under s 501(3A) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – where there is a substantial criminal record – whether there is another reasons to revoke the mandatory cancellation – consideration of Ministerial Direction Number 90 – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HZCP and Minister for Immigration and Border Protection (2019) 273 FCR 121
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Decision
Catchwords
Legislation
Cases
Secondary Materials
Reasons For Decision
Background
Issues
Does the Applicant pass the character test?
Should the Tribunal exercise its discretion to revoke the mandatory cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
A preliminary point
Summary of Applicant’s offending
Pre-2000 New Zealand Criminal History
2009–2010 Traffic Offending
2011 Fraud offences
2009–2011 Fraud and perjury charges
Application of Factors in Paragraph 8.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Negative factors informative of risk
Positive factors informative of risk
Conclusion on risk
Conclusion: Primary Consideration1
Primary consideration 2: family violence
Primary consideration 3: the best interests of minor children in australia
Identification of relevant children
Consideration of factors
Conclusion: Primary Consideration 3
Primary Consideration 4: The Expectations of the Australian Community
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
Other Considerations
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian Community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
Strength, nature and duration of “other ties”
3. Strength, nature and duration of “other ties” – family and other social links
Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
Reasons For Decision
Senior Member Theodore Tavoularis
25 June 2021
Background
Catherine Faye Campbell (“Applicant”) is a citizen of New Zealand who is approximately 43 years old. Her visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) on 21 August 2018 under s 501(3A) of the Migration Act 1958 (Cth) (“Act”).
She made representations to have the mandatory cancellation of her visa revoked as required by s 501CA of the Act. The delegate decided not to revoke the mandatory cancellation of the Applicant’s visa on 6 April 2021.
The Applicant applied to this Tribunal for a review of the mandatory cancellation decision dated 6 April 2021.
A hearing was held on 8 June 2021 before me. Written evidence was received by the Tribunal as described in Annexure A to these reasons. Oral evidence was received from a number of witnesses.
On 21 June 2021, to ensure the Tribunal discharged its statutory function on or before 29 June 2021 in accordance with s 500(6L) of the Act, I caused the Tribunal to publish my decision in this matter in short-form.[1] A copy of the short form decision is attached to these reasons and marked Annexure B. I now publish my reasons for that short-form decision.
[1] Khalil v Minister for Home Affairs [2019] FCAFC 151 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered at a later time): See [41]–[48].
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant can satisfy the Tribunal that she passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 50CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[2]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[3]
[2] (2018) 267 FCR 320.
[3] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[4] I will address each of these grounds in turn.
[4] (2019) 271 FCR 326 [21].
Does the Applicant pass the character test?
I am therefore satisfied that the Applicant does not pass the character test.
Should the Tribunal exercise its discretion to revoke the mandatory cancellation of the Applicant’s visa?
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[5] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[6]
[5] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[6] Direction, -paragraph 6. See also Direction paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Sections 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[7]
[7] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[8]
[8] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in s 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
A preliminary point
As will be ventilated in my later discussion regarding the Applicant’s risk of recidivism, there is a persistent theme of denial, obfuscation or sheer refusal on the part of the Applicant to accept her commission of the relevant offences. This statement needs to be conditioned by reference to the relevant seven-count indictment presented against her and on which she was tried.[9] For present purposes, the Applicant does not deny commission of the offence particularised in Count 1. Further, Counts 4 and 6 were quashed by the Court of Appeal and were not subsequently re-prosecuted.
[9] R2, 15–16.
The Applicant maintains a position of denial, obfuscation, and sheer refusal to accept responsibility persists with reference to Counts 2, 3, 5, and 7. The Applicant was unsuccessful in appealing those Counts to the Court of Appeal. Despite that appeal outcome, the contention now propounded is that it is open to her to advance before this Tribunal a factual context about her commission of the offending particularised at Counts 2, 3, 5 and 7 which is inconsistent with the factual context that gave rise to her respective conviction on those Counts. For reasons that follow, I reject that contention.
The Applicant has, in effect, latched onto a distinction drawn by Colvin J in HZCP v Minister for Immigration and Border Protection (“HZCP”) between two mutually exclusive categories of decision-making powers which rely on criminal history.[10] The first category is comprised of powers which have two characteristics:
(a)the power relies on the fact of a particular criminal conviction or sentence; and
(b)the statute does not include a further power to go behind the conviction or sentence in the exercise of the power.[11]
[10] (2019) 273 FCR 121.
[11] HZCP, [181].
The second category is comprised of powers which, in contrast, have two different characteristics:
(a)criminal convictions or sentences are relevant to the exercise of the power; and
(b)the power does not have the criminal conviction or sentence as either:
(i)the power’s jurisdictional foundation; or
(ii)one of the factual matters that must be acted upon in the exercise of the power.[12]
[12] HZCP[183].
The Applicant submits, in substance, that there is at least one power in s 501CA(4) which fits into the second category. She further submits that the sentence imposed for the offence which she admits to committing is enough to satisfy s 501(7)(c) of the Act. She argues that because this sentence satisfies s 501(7)(c) of the Act, she is not calling into question the mandatory cancellation or the essential facts giving rise to the Tribunal’s jurisdiction.[13]
[13] A1, 6[30]–[31].
The first observation to be made about this argument is that it appears to incorrectly assume that there are multiple powers in s 501CA(4) of the Act. There is only one: the power to revoke the mandatory cancellation. But even if there were multiple powers, the Applicant’s argument would still, in my respectful opinion, fail. That is because the power in s 501CA(4) of the Act depends on the facts of an Applicant’s convictions or sentences and the Act does not provide an auxiliary power to go behind the conviction. As Colvin J explained, later in the same reasons:
“The legislated process applicable in this case begins with a legislative direction to the Minister to cancel a visa based upon the occurrence of particular types of convictions and sentences. It is the character and seriousness of those convictions and sentences that condition the statutory requirement to cancel the visa. The legislature acts upon the confidence that can be entrusted in the criminal process by which the convictions and sentences might arise and gives them a particular consequence, namely cancellation of a visa. Further, the structure of s 501CA(4)(b) reinforces that conclusion because the ameliorating or qualifying power to revoke the cancellation does not confer authority to question the factual basis for the convictions and sentences. It confers a power to revoke if the decision‑maker is satisfied that one of two limbs is met.
[…]
In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.”[14]
[14] HZCP, [191], [195] (Colvin J), [63] (McKerracher J, concurring). Cf HZCP, [158]–[167] (Derrington J, dissenting).
Therefore, I (1) base my analysis of the instant matter on the facts which underly the Applicant’s convictions for the offences; and (2) draw on other sources only to the extent they do not contradict the facts underlying the convictions on Counts 1, 2, 3, 5 and 7 of the indictment on which she was sentenced by Judge Burnett in 2018 and her remaining convictions.
Summary of Applicant’s offending
Before making findings on the relative level of seriousness of the Applicant’s offending, I will set out a short chronological summary of her entire criminal history for ease of reference.
Pre-2000 New Zealand Criminal History
The material contains reference to the Applicant’s history of offending in New Zealand.[15] Her offending in that country runs from September 1995 to July 1996. The following table summarises the relevant offending and sentencing outcomes:
[15] G, 34.
Court
Result Date
Offence Date
Offence description
Result
Auckland HC
9 Oct 1997
11 Jul 1996
Conspiring to deal with class A Drug
Convicted and sentenced
Non-residential periodic detention
9 months
Auckland HC
9 Oct 1997
22 May 1996
Conspiring to deal with Class A Drug
Convicted and sentenced
Non-residential periodic detention
9 months
Auckland HC
6 Sep 1995
1 Sep 1995
Possess Cannabis Plant
Convicted and sentenced
Fine: $120
The Applicant has been forthright about her drug offending in New Zealand. She says the offences were committed when she was 17 years old and attending university in Auckland. In her written statement,[16] she speaks of going through a phase of experimentation with cannabis with her university friends. While doing this, police found her in possession of one cannabis cigarette. This is the charge that was committed on 6 June 1995 and for which she was sentenced on 1 September 1995. While an offence per se, it would be unfair to attribute any level of seriousness or severity to it.
[16] A2, 1.
The situation is different – marginally so, but still different – in relation to the other two offences. Once again, the Applicant is to be complimented for her forthrightness in explaining these two offences. During her first year at university, aged 17 or 18 – during the abovementioned experimentation phase with drugs – she says she “was charged and convicted of conspiring to supply ecstasy and LSD because of conversations that had been recorded between [her] friends and [her] […]”.[17]
[17] A2, 1[10].
Two things can be noted about this other chapter of her offending. First, “conspiring to supply” dangerous drugs is a different level of offending to possession. Second, the local police were concerned enough about this unlawful activity to clandestinely record conversations between the Applicant and her friends in order to effectively detect the offending and obtain convictions for it.
With specific reference to this relatively short history of offending in New Zealand, the Respondent makes reference to that history and notes that the Applicant received convictions for three drug offences.[18]
[18] R1, 9[32].
2009–2010 Traffic Offending
I will turn now to discuss the Applicant’s history of offending in Australia. First, I will deal with her initial three traffic offences which I have tabulated as follows. It should be noted that the following table is compiled from the QP9 Material in the Respondent’s Tender Bundle.[19] The “outcome” commentary derives from the Applicant’s own written evidence. As best as I could search the material, I could not find any reference to a formal traffic history document.
[19] R2.
Date Committed
Offence
Explanation and Outcome
17 Jan 2009
Driving an unregistered vehicle
“[…] I had thought the registration had been paid, but that was not the case. I ended up paying the registration fee shortly after this incident. I do not remember if I was fined or punished for this offence.”[20]
Drive uninsured vehicle
36. The Applicant acknowledges in her written statement that she did commit the offence of driving an uninsured vehicle.[21]
Permit vehicle to be used with registration … plates which have been recorded as cancelled/lost/stolen/destroyed/damaged
In her written statement, the Applicant acknowledged the offending and accepted it involved “driving [a] vehicle which had number plates that had been cancelled”[22]
[20] A2, 3[26].
[21] See A2, 3[25].
[22] A2, 3[25].
This level of traffic offending is more demonstrative of poor record-keeping and attendance to paying bills than a wanton disregard for the safety of other road users. It is “traffic offending” per se, but it is not traffic offending redolent of the Applicant representing a risk to the community.
The material contains two further traffic/driving offences. First, on 20 December 2009, the Applicant was detected while driving a vehicle under the influence of alcohol. The relevant police summary in the material says the following:
“Upon requirement made and direction given, the defendant supplied a specimen of his [sic] breath on an instrument operated by an authorised officer. At 01:43 hrs on the 20th day of December 2009 the concentration of alcohol as indicated by such analysis to be present in the breath of the deft was 0.071 grams of alcohol in 210 litres of breath.”[23]
[23] R2, 22.
Earlier in this police summary, it is recorded that the Applicant made admissions she had consumed “1 x bottle of wine” before driving the vehicle in which she was detected. In her written statement, the Applicant purports to say that her recollection does not square with what is recorded in the police summary. She says she consumed “a glass of wine and a rum ball for dessert”[24] at a friend’s house during a Christmas dinner and then, while driving home, was detected and tested. She says two further things, one of which, to my mind, makes some measure of sense. The other one makes no sense.
[24] A2, 3[27].
First, she says “I don’t think I have ever consumed a full bottle of wine by myself and if I had there is no way I would only have a blood alcohol concentration of 0.071.”[25] It does not require specialised knowledge in haematology to comprehend that someone who consumes an entire bottle of wine (approximately 8–9 standard drinks) in the course of an evening and who then is tested for blood alcohol concentration will, more than likely, have a blood alcohol concentration above the legal limit.
[25] A2, 3[27].
Second, and alternately, she says that “if I had consumed a full bottle of wine, it must have been many, many hours before I was driving in order for my BAC to be as low as 0.071”.[26] The difficulty with this contention is that she must surely have known, or subsequently be able to say, over what period of time she may have consumed the full bottle. The other point of concern is that despite telling us several sentences earlier that she had never consumed a full bottle of wine, she then says “[i]f I had consumed a full bottle of wine […]”. Viewed in its totality, little credibility can be allocated to this second aspect of her contentions about the drink-driving offence.
[26] A2, 3[27].
In terms of the level of seriousness, this drink driving offence must be contrasted to her abovementioned three other traffic offences. The earlier three were not redolent of a risk to other road users. It cannot be denied that drink-driving results in impaired driving, which presents an immediate risk to both the driver affected by the alcohol and other users of carriageways which can be adversely affected by that driver’s impaired driving. It is not unreasonable to find that this drink-driving offence is at a different and demonstrably higher level of seriousness than the earlier three offences.
The Applicant’s final traffic offending involved her driving a motor vehicle without a driver’s license on 26 May 2010.[27] Once again, her offending in this regard is more redolent of an inadequate level of attention to detail in terms of record keeping than a wanton disregard for the safety of other road users. The relevant police record says the following:
“A check of the deft’s driver licence revealed that she had recently completed a 3 month disqualification period (10.02.2010 to the 09.05.2010) and had not returned to the Dept of Transport to gain a new driver licence. When questioned the deft stated that she thought once her disqualification period had ended she would be right to drive again on that driver licence.”[28]
[27] R2, 29.
[28] R2, 29.
She is forthright in explaining the basis of the offending:
“[she] thought that a license was automatically reinstated after the disqualification period ended, but the police explained that is what happens with a license suspension, not a disqualification […]”[29]
[29] A2, 3[28],
I repeat and rely upon my findings about the nature and level of seriousness of this offending referable to her above-tabulated traffic offences.[30]
[30] See [37], above.
2011 Fraud offences
On 5 December 2016 at the Mackay District Court, the Applicant was convicted of fraud following a hearing before Judge and jury. It was alleged that in March 2011 she defrauded her insurance company in relation to an insurance claim over her car. The police alleged she was involved in the purported theft of the vehicle for the specific purpose of making a fraudulent insurance claim to a value of $3,100.[31] The jury did not accept the Applicant’s version of events and duly convicted her.
[31] R2, 12.
Her Honour Judge Dick SC imposed a fine in the sum of $1,200 for the fraud upon the insurance company. It was further ordered that the Applicant pay the sum of $3,155.67 by way of restitution within a period of 12 months from the date of conviction. In default of payment, Her Honour ordered that the Applicant be imprisoned for one month.
2009–2011 Fraud and perjury charges
The factual context of this dimension of the Applicant’s offending derives from the various dishonest ways in which she sought to derive benefits from the estate of the late Christopher Neil Butler, who died on 18 September 2011. As is demonstrated in the following tabulation, the Applicant’s conduct was predicated on obtaining certain material benefits from assets held by Mr Butler. She registered Mr Butler’s vehicle into her own name and sold it (Count 1). She fraudulently transferred his house to a trust, the beneficiaries of which were herself and her two sons (Count 2, fraud with a circumstance of aggravation).
The nature and type of evidence the Applicant gave or sought to rely on to explain/excuse/ameliorate her conduct also resulted in convictions for certain “derivative offences”. She issued proceedings claiming family provision from Mr Butler’s estate by falsely propounding a de-facto relationship with him that apparently ran for a period of more than two years. She was unsuccessful in those proceedings. In those proceedings, she led certain evidence including affidavits. Those affidavits were relied on in the family provision trial. After she lost the family provision trial, an allegation was made against her that she had falsely sworn in both and written and oral evidence to matters concerning her respective relationships with Mr Butler and another man, namely, Jeremy Johnson. It is this spoken and written evidence that spawned the remaining Counts on the indictment.
For ease of reference, I have tabulated the five convictions of the Applicant relevant to this aspect of her offending. Those convictions occurred on 8 March 2018 at the Rockhampton District Court following a trial before judge and jury.
Offence description and count no.
Committed
Unlawful Conduct
Sentencing Details
Fraud – dishonestly gain benefit/advantage
Count 1
16 Nov 2011–29 Nov 2011
The Applicant fraudulently transferred ownership of a vehicle into her own name and then sold the vehicle
18 months imprisonment
Fraud – dishonestly gain benefit/advantage – value of/over $30,000
Count 2
27 Jul 2011–20 Sep 2011
The Applicant fraudulently transferred ownership of a house to a trust, the beneficiaries of which were herself and her sons
6 years and 6 months imprisonment
Making a false declaration
Count 3
6 Jun 2012
The Applicant falsely declared in an affidavit that she had travelled to Mackay to visit Mr Butler
12 months imprisonment
Making a false declaration
Count 5
28 Jun 2012
The Applicant falsely declared in an affidavit that she met Mr Butler on a number of occasions between February and August 2009
2 years and 6 months imprisonment
Perjury
Count 7
20 Nov 2012
The Applicant falsely gave testimony that she would see Mr Butler on a monthly basis 2009, with such false testimony touching on a matter material to a question in a pending proceeding.
12 months imprisonment
The following relevant notations can be made about the Applicant’s offending:
·she was sentenced on a concurrent basis by His Honour Judge Burnett at the Rockhampton District Court on 8 March 2018;
·a parole eligibility date was set as at 27 March 2021. His Honour made a pre-sentence custody declaration of seven days from 28 February 2018 to 8 March 2018;
·the Applicant had further convictions at the end of the abovementioned jury trial before Judge Burnett;
·the Applicant appealed six of her seven convictions to the Queensland Court of Appeal. The appeal related to Counts 2–7 of the indictment. The Appeal outcome was that her convictions on Counts 4 (making a false declaration) and Count 6 (perjury) were set aside, with a new trial for those two Counts ordered. Ultimately, the prosecution discontinued those charges; and
·the balance of the appeal outcome otherwise involved dismissal of the remaining grounds of appeal in relation to the existing convictions imposed by Judge Burnett at the end of the trial on 8 March 2018.
The above tabulation thus represents the totality of the Applicant’s offending under this particular heading as well as the totality of the sentences imposed for that offending.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
With specific reference to paragraph 8.1.1(1)(a) of the Direction, this Applicant’s offending does not feature (1) violence or sexual criminal offending; (2) crimes of a violent nature against women or children; or (3) acts of family violence. This specific paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
With specific reference to paragraph 8.1.1(1)(b) of the Direction, the following findings can be made:
(i)Her offending does not involve causing a person to enter into or being a party to a forced marriage;
(ii)Her offending does not involve crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials in the performance of their duties. I am mindful of Mr Butler’s relatively sudden passing in September 2011. However, he was not incapacitated or disabled when Ms Campbell perpetrated her frauds against him and his property. Thus, paragraph 8.1.1(1)(b)(ii) is not engaged.
(iii)With specific reference to sub-paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Respondent has not propounded this component of the Direction. I have checked the Transcript. There is no reference to this specific sub-paragraph by either party’s representative in oral submissions.
(iv)None of her conduct is captured by sub-paragraph 8.1.1(1)(b)(iv). This sub-paragraph is not relevant to the instant determination.
With specific reference to paragraph 8.1.1(1)(c), the exception relating to specifically classified crimes does not apply to this Applicant’s matrix of offences. The determination of weight allocable to this sub-paragraph can thus only occur by an analysis of the sentences imposed upon the Applicant for her crimes. The following tabulation constitutes a summary of the sentences imposed on the Applicant for the totality of her offending. It should be noted that the following summary of her sentences takes into account the two convictions quashed on appeal on 25 June 2019:
Court Date Offence Penalty 5 Dec 2016 Fraud Fine: $1200
Restitution: $3,155.678 Mar 2018 Making false declarations Imprisonment: 12 mo 8 Mar 2018 Perjury Imprisonment: 12 mo 8 Mar 2018 Fraud Imprisonment: 18 mo 8 Mar 2018 Making false declarations Imprisonment: 2yrs 6mo 8 Mar 2018 Aggravated fraud Imprisonment: 6yrs 6mo Total Imprisonment 12 years, 6 months
On any reasonable view, the totality of custodial terms imposed upon the Applicant for her offending is significant. It cannot be construed in any other way. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[32] The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process.[33]
[32] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
[33] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
The other notable point about these sentences is that they were not imposed over a very lengthy offending period such that the length of the period could explain the extent of the custodial sentences.
The Applicant accrued her 12 years and six months of prison time in an offending period comprising just 15 months. From the commencement of her offending history in Australia, judicial sentencing officers have felt compelled to impose significant custodial terms. In other words, the Applicant’s offending that has come before judicial sentencing officers has been so serious that they have been left with no option but to go to a position of last resort and immediately impose quite significant head custodial terms.
There can be little to cavil with the finding that the sentences imposed by the courts for the crimes of this Applicant very strongly militate in favour of a finding that her offending has been of a very serious nature. Out of an abundance of caution, I point out that I have not taken into account whatever sentencing regime was imposed upon the Applicant for her traffic history. For the predominant[34] part of this aspect of her offending, she received administrative-type punishments in the way of fines. I do not consider that those types of punishments constitute a “sentence imposed by the courts” for that offending.
[34] Note: for her drink driving offence, the Applicant would have likely been dealt with by a Magistrate’s Court. However, no material relating to this appearance is before the Tribunal.
With specific reference to paragraph 8.1.1(1)(d) of the Direction, it is necessary to contextualise how the description of “frequency” is to be analysed in terms of the allocation of weight pursuant to this sub-paragraph. It is possible for an offender to offend frequently over a long offending history such as, for example, the commission of, on average, one offence per year across a 20 year offending period. This is not how this Applicant has offended.
I am of the view the Applicant is a “frequent offender” but that the frequency of her offending has been concentrated over a relatively condensed period. As will be noted from the above tabulation of her offending history,[35] the sequence of time during which her offending history evolved can be succinctly stated thus:
·in or after March 2011, the Applicant defrauded her insurance company by making an insurance claim over her car;
·between July and September 2011, she committed the fraud involving Mr Butler’s residential property;
·in November 2011, she committed the fraud involving the transfer of Mr Butler’s vehicle into her name and then on-sold that vehicle to a third-party buyer;
·on 6 June 2012, the Applicant made a false declaration about the extent of her relationship with Mr Butler;
·on 28 June 2012, she made a false declaration about the number of occasions she met Mr Butler between February and August 2009; and
·on 20 November 2012, she committed perjury in testifying that she would see Mr Butler on a monthly basis in 2009.
[35] See [50], above.
Thus, the Applicant’s offending history in Australia (excluding her traffic history) runs for approximately 20 months and involves the commission of six offences. On any reasonable view, this is a concentrated and intense level of offending within a relatively compressed timeframe. The offending is redolent of the Applicant not only doing one or two wrong things – such as purporting to unlawfully take Mr Butler’s car and home – but it seems to be the result of the Applicant taking extreme, and ultimately unlawful, steps to explain her position or to otherwise protect herself from the adverse consequences of her conduct. In this sense, her offending has been “frequent” across the approximate 20 month period of its commission. During this 20 month period, she committed something in the order of 3 very serious offences per annum.
Trends of increasing seriousness can be more readily ascertained in longer offending histories. Given the relative brevity of this Applicant’s period of offending, it may, at first blush, be thought difficult to ascertain any trend of increasing seriousness. In its Statement of Facts, Issues and Contentions (“SFIC”), the Respondent approaches this analysis by having regard to the nature of offences dealt with on specific sentencing dates. That approach may, with respect, be the incorrect way to conduct the analysis. While I may disagree with the way in which the Respondent conducts the analysis, I nevertheless reach the same conclusion about the element of increasing seriousness.
My approach to the analysis is to have regard to chronology of actual offences (not court dates) in the dot-point sequence of the Applicant’s offending in the abovementioned paragraph [62]. That sequence reveals that the Applicant’s offending commenced with a circa $3,200 fraud committed on an insurance company in March 2011. The offending related to her own property – her car. Further fraudulent conduct occurred between July and September 2011 but greatly increased in seriousness because it involved a residential property belonging to Mr Butler worth hundreds of thousands of dollars. This theme of fraudulent offending persisted in November 2011 when the Applicant fraudulently transferred Mr Butler’s motor vehicle into her name and on-sold it shortly after Mr Butler died.
The remainder of the Applicant’s offending involved further acts of dishonesty, this time in the realm of manufactured and self-serving evidence designed to purportedly explain or to otherwise cover the unlawful tracks of her previous fraudulent conduct. It was committed on 6 June, 28 June and 20 November 2012. This manufactured and self-serving evidence resulted in a multiplicity of convictions for making false declarations and for perjury. It was designed to perpetuate or preserve the position she achieved by commission of her fraud offences during 2011. As such, there can be no cavilling with the finding that her conduct in 2012, at the very least, builds on the crimes she committed in 2011. I have no difficulty in finding that this aspect of her offending (ie, that committed in 2012) does represent an increase in the seriousness of her offending.
Having regard to the totality of her history and its manner of evolution, I have no hesitation in finding that this Applicant’s offending is at once frequent and that it does contain a trend of increasing seriousness. This sub-paragraph (d) therefore militates very strongly in favour of a finding that the totality of her offending has been very serious.
With specific reference to paragraph 8.1.1(1)(e) of the Direction, the Applicant’s offending is not offending that can be said to impact an entire community or class of persons such as, for example, offences relating to the production and supply of unlawful drugs and/or offending against minors. Rather, it is offending designed to benefit herself that has impacted upon a strictly limited group of victims comprising, primarily, the late Mr Butler and members of his immediate family who saw fit to protect his interests by resisting claims by the Applicant and otherwise calling her conduct into account.
With this type of offending, it is often instructive to look at what criminal courts have thought of it. Here, the Tribunal has the benefit of the impression of at least three judicial officers who have made certain comments and findings about the nature of her offending. Those comments and findings, for all intents and purposes, adequately identify the cumulative effects of the Applicant’s offending because experienced and cautious judicial officers have seen and dealt with such conduct previously and almost always contextualise their comments about a guilty person’s offending in terms of similar offending they have previously dealt with.
The Applicant’s unlawful fraudulent conduct and the resulting, and equally serious conduct aimed at perpetuating and protecting those frauds, gives rise to the following cumulative effects:
·she has irretrievably impugned her own reputation within the Australian community as a result of her conduct. Judge Burnett thought her conduct “can only be described as wicked.”[36] His Honour otherwise thought the totality of her conduct constituted “quite plainly wicked offending.”[37] In a similar vein, Judge Dick SC, in sentencing the Applicant in 2016, classified her offending as “cold-blooded fraud”[38];
[36] G, 36.
[37] G, 37.
[38] R2, 12.
·her conduct has consumed an inordinate amount of court resources in the form of (1) a civil trial in which she contested a claim for family provision over the estate of Mr Butler which ultimately went nowhere; (2) two criminal trials before judge and jury resulting in multiple convictions; and (3) an appeal before three Appeal Court judges that resulted in the quashing of two convictions but with no substantive impact on the time she spent in actual custody. This was not lost on Judge Burnett who sheeted home blame for the delay in the disposition of the prosecution against the Applicant to her own doing:
“I note the Crown’s submission that it has taken a considerable body of time for this matter to reach trial and to be disposed of. Much of that delay is, I think, a matter of your own doing, although in fairness, the trial was complex. It did have a number of adjournments, at least one because of the Court’s failure to allocate sufficient time for its disposition”[39]
[39] G, 38.
[My emphasis and underlining]
·her conduct has involved Mr Butler’s grieving family in no doubt emotionally trying and financially disadvantageous litigation and associated costs in protecting Mr Butler’s estate from the adverse effects of the Applicant’s very serious offending. As noted by Judge Burnett:
“But for their tenacity, and their prosecution through the civil Court, seeking first, obviously, to have administrators appointed, and then seeking to respond to your application for family provision, you may well have succeeded in depriving the deceased’s estate of this very valuable property,”;[40]
[My emphasis and underlining]
·Judge Dick SC thought the Applicant’s fraud on the insurance company was an attack on the fabric of the Australian community:
“You set out to defraud the insurance company, and, of course, when people do that, all they do is drive up premiums for everybody else, and make it much harder to get claims in, because the insurance companies don’t believe them. So it is an attack, really, on our social life.”[41]
[My emphasis and underlining]
[40] G, 38.
[41] R2, 12.
I am of the view that the abovementioned cumulative effects of the Applicant’s offending each militate in favour of a finding that her offending has been of a very serious nature.
With specific reference to paragraph 8.1.1(1)(f) of the Direction, it should be noted that the Applicant came to and settled in Australia in September 2007. In 2010, she had occasion to make a trip back to New Zealand. Upon her return to Australia she was required to complete the usual and necessary incoming passenger card. A copy of the relevant card appears in the material and it is dated 6 April 2010.[42] This card contains the following question: “If you are NOT an Australian citizen: […] Do you have any criminal conviction/s?” The Applicant responded by ticking the “No” word.
[42] G, 228.
As outlined earlier, the Applicant had three convictions for drug offences committed in New Zealand between 1995 and 1997. This offending history would have been known to her at the time she was completing the subject passenger card. As well, the card refers to “if you are NOT an Australian citizen”. It was surely known to the Applicant at the time she was completing this card that she was not an Australian citizen.
The Applicant purports to explain the wrongly completed passenger card by saying:
“I do know that I was aware of New Zealand’s “clean slate” law which provided that you did not have to disclose criminal convictions that occurred more than seven years ago if you did not get sentenced to prison.”[43]
[43] A2, 4[33].
Such a contention is to be rejected. I do not accept that any New Zealand legislation governs completion of an incoming passenger card created by Australian legislation. There is no reference in the card to the impact of any foreign legislation in the way the card is filled out. The card does not, for example, provide that if offences are committed in an overseas country and the legislation operates such as to deem those convictions as spent, then there is no need to disclose them in this card. No such reference appears on the face of the card.
Put simply: (1) the Applicant knew of her drug offending in New Zealand between 1995 and 1997; and (2) she knew she was not an Australian citizen at the time she completed the card. As such, she knowingly failed to be candid about her offending in New Zealand. While not necessarily of any determinative weight, I am of the view that the Applicant’s conduct in wrongly completing the subject incoming passenger card militates in favour of a finding that the totality of her conduct has been of a very serious nature.
With specific reference to paragraph 8.1.1(1)(g) of the Direction, it can be noted that the Applicant has not re-offended since being formally warned by the Respondent or any other comparable entity about the consequences for her immigration status. She has not received anything from the Respondent or anyone else about the consequences of further offending in terms of her migration status to remain in Australia. Further, her offending has not been the subject of a previous cancellation by the Respondent. Given the absence of any of these elements, this sub-paragraph (g) is not relevant to the instant application.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the seriousness of the Applicant’s fraudulent conduct, informed by the weight allocable to sub-paragraphs (c)–(f) inclusive, I am of the view that the Applicant’s offending can be readily characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non- citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
There seems to be a meeting of the parties’ minds with specific reference to this sub-paragraph (a). In her SFIC, the following contention is made with reference to the nature of future harm resulting from any further offending by this Applicant:
“38. In relation to the Applicant’s risk of reoffending, the Applicant adopts the finding of the delegate at paragraph [42] of the written reasons that:
[…]
b) any future offending by the Applicant may result in financial loss to members of the Australian community.
39. The Applicant adopts the reasons of the delegate leading to the conclusion reached at paragraph [42] of the written reasons.”[44]
[44] A1, 8[38]–[39].
Paragraph [42] of the Delegate’s reasons is expressed thus:
“Should she [re-offend] with further fraud related offending, it may result in financial loss to members of the Australian community.”[45]
[45] G, 24.
In the Respondent’s SFIC, the following contention is made:
“The Minister submits that the nature of the harm if the applicant were to reoffend is serious and likely to involve financial harm to Australian individuals and businesses.”[46]
[46] R1, 10[35].
I am of the view that the Australian community’s tolerance for any risk of future harm from further fraud and dishonesty-based offending of the level committed by this Applicant is already very low. It is not a misconstruction or misunderstanding of the evidence around her offending to suggest (and find) that the harm that would be caused from repeated offending by this Applicant is so serious that any risk of its re-commission may be unacceptable to the Australian community.
Were she to re-commit her fraud and dishonesty-based offending in the future, her offending could quite conceivably result in significant and even catastrophic financial harm to members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Any approach to an assessment of the Applicant’s risk of recidivism is, to my mind, best made on the basis of identifying the positive and negative factors informative of her risk of recidivism. I will address each list of those factors in turn.
Negative factors informative of risk
No expert medical or psychological evidence regarding risk
There is no independent report from a suitably qualified expert or clinician about any psychological symptomatology that can now be identified and which can be said to have been – at whatever measured level – causative of the Applicant’s inclination to commit repeated offences involving fraudulent and dishonest conduct. The first element that could be explained by such independent assessment and reporting would involve identification of the factors causing the Applicant to offend. The question would be along these lines: why is it that the Applicant feels inclined to derive a financial benefit from defrauding an insurance company about the loss of a motor vehicle, or trying to secure the title to someone else’s home into her own name rather than taking the course that would be followed by the significant majority of the rest of the population, which involves engagement in remunerative employment, accumulation of saved funds, and the borrowing of funds from a financier?
The next question for an expert clinician would involve an explanation of why the Applicant has propounded and continues to propound reasons and excuses for her appalling conduct in circumstances where those explanations patently lack any credibility and are otherwise self-serving and just plainly false.
These two seminal questions require expert examination, analysis and reporting from a suitably qualified expert. This has not occurred and, if anything, it harms the Applicant’s prospects of successfully demonstrating any measure of rehabilitation and, in consequence, in reliably propounding a particular level of recidivist risk. This is not to say that the Applicant does not have prospects of rehabilitation. I think she does and Judge Burnett shared those thoughts. In his sentencing remarks, His Honour noted “a need to recognise the prospect of rehabilitation”[47] of this Applicant. His Honour noted her involvement in the real estate agency business in Mackay and also took note of her role as a parent for her two biological and two stepchildren. His Honour thought those factors stood in her favour and that they reflected “[…] some prospect at rehabilitation.”[48]
[47] G, 40.
[48] G, 40.
This is the difficulty that arises for the Applicant. While she has appreciable prospects with regard to rehabilitation, they remains mere “prospect[s]”. This rehabilitation has not been formally undertaken. No expert has assessed her and the Tribunal does not have any independent assessment of whether factors previously predisposing her to offend have been identified and, if so, whether they are under any sort of remedial management and control.
The predominance of fraudulent and dishonest offending
Aside from her three drug convictions in New Zealand and her traffic offending in Australia, the Applicant’s unlawful conduct has been dominated by a predisposition to apply fraudulent and dishonest means to achieve her desired outcomes from a given situation. On one view, this may be regarded as sheer recklessness involving her thinking that she can get away with anything. She may have deluded herself into believing she is somehow smarter than those who could detect and prosecute her unlawful conduct.
On the other hand, she may hold the view that if she propounds a position of defence or justification for long enough, then those enquiring into her conduct will eventually find the exercise of calling her behaviour into account to be “too hard” and will simply abandon the exercise and allow her to get away with her offending. Once again, experience has taught her otherwise.
As also noted by Judge Burnett in his sentencing remarks, apart from her predominantly fraudulent and dishonest offending, she has “an otherwise unblemished history”.[49] But this predisposition towards fraudulent and dishonest means of obtaining defined financial advantages and benefits is a factor in the Applicant’s psychopathology that remains unexplained. For so long as that remains the case, one can not reliably form any view about her level of risk of again committing offences in the realms of fraud and dishonesty.
[49] G, 40.
This predominance or propensity to resort to fraudulent means to achieve an outcome did, to my mind, reach its apotheosis in the way in which she sought to secure ownership of Mr Butler’s home into her own name. In his sentencing remarks, Judge Burnett defines “the deal”[50] that the Applicant had reached with Mr Butler: she was to raise funds amounting to approximately one half of the value of the subject property. These funds were intended to pay out the mortgage. In exchange for that payment, the Applicant was to become a joint owner in the property. There is nothing untoward in “the deal” and the way it was originally intended to be executed.
[50] G, 37.
But the Applicant deliberately failed to adhere to “the deal”. She wanted to acquire a full interest in the ownership of the property, yet she did not want to pay anything for it. Her conduct was specifically designed and intended to achieve this outcome. Lawyers could have been engaged to give effect to, and advise on, “the deal”. There is no suggestion that either Mr Butler or the Applicant could not afford to engage legal representation. “The deal” could have been lawfully structured by those lawyers in one of two ways, both of which could very well have been to the benefit of the Applicant.
First, upon the Applicant raising the funds and paying out the mortgage, she could have been simultaneously recorded on the title to the property as a tenant in common with Mr Butler. This would have entitled her to deal with her half share in the property on a virtually unfettered basis. Second, and perhaps even more beneficially for the Applicant, “the deal” could have been structured in such a way that upon providing the necessary funds to pay out the mortgage, the Applicant could have been recorded on the title as a joint tenant with Mr Butler. The benefit for the Applicant in this second scenario is that upon Mr Butler’s passing, she would – by the operative effect of the joint tenancy – have acquired a 100% interest in the title to the property on a completely lawful basis.
I accept that there are certain ethical considerations will have needed to have been taken into account in any such transaction. But this would have been the responsibility of the legal representatives. They would need to be sure that (1) Mr Butler had sufficient capacity to engage in such a transaction, and (2) that it was probably in the best interests of both the Applicant and Mr Butler that they be separately represented in the transaction to ensure it had ethical efficacy and that it was otherwise at arm’s length.
The Applicant’s greed was such that neither of the above scenarios were acceptable to her. She did not want to pay half the value of something to accept and hold a half interest in that something as a joint tenant. She did not want to pay half the value of something to secure the right (as a joint tenant) to potentially acquire 100% of that something in the event of the passing of Mr Butler. Instead, she wanted to pay nothing to secure a 100% interest in something – that is – the home of Mr Butler. As described by Judge Burnett, this “[…] conduct can only be described as wicked.”
Lack of insight into her offending
An unfortunately consistent theme of the Applicant’s evidence is a stubborn refusal to express any measure of remorse for her prior offending. She no doubt accepts that her offending has been a negative feature of her life and that if things could happen again, she most probably would not want to re-experience it. But that is a different thing from her (1) openly and candidly acknowledging the nature of her wrongdoing and (2) expressing deep and sincere regret for the harm it has caused others and the significant measure of resources it has consumed. There is no such remorse or regret expressed by this Applicant.
There are two resulting sub-factors from the Applicant’s failure to express any measure of remorse. The first sub-factor relates to a failure to appreciate outcomes arising from a detailed examination of the offending conduct and the drawing of inferences from evidence led in those investigations or trials. As often happens with offenders who commit this type of non-physical and mostly document or fact-based offending, they form the view that their explanation for what they have done will somehow trump the results of investigations and inquiries into their conduct by others. These offenders fail to take the inferential thinking of others into account when their conduct comes under close scrutiny. An example of this sub-factor can be readily found in a very recent statement (from June 2021) of the Applicant where she purports to explain her version of a past fraud conviction involving the purported loss of her motor vehicle:
“Theft of vehicle and associated insurance claim
35. On 2 March 2011 I attended a real estate seminar at the Windmill Hotel in Mount Pleasant, Mackay. I attended the seminar with my then friend [Mrs X].
36. I parked my car in Windmill Hotel’s car park at about 6:45pm. When I returned to the car at about 9:45pm it was missing. I subsequently called the police and reported the car as stolen.
37. The car was not immediately located and I made an insurance claim with NRMA. I was ultimately paid the amount of $3,155.67 by NRMA.
38. In December 2011 the car was found at the home of [Mr and Mrs X]. Apparently they told the police that I had asked to leave the car there so that I could make a fraudulent insurance claim, but that is not true. I say ‘apparently’ because both [Mr and Mrs X] refused to provide the police with witness statements in relation to the car.
39. Following this I received threats from [Mr and Mrs X] that if I did not withdraw my complaint to the police about the stolen vehicle I’d ‘end up in a wheelchair or worse.’ I was genuinely fearful of those threats (I would prefer not to state why as I do not want any future trouble) and as a result of [Mr and Mrs X’s] threats I withdrew my complaint to the police about the theft of my vehicle on August 2012.
40. I completely deny that I engineered or arranged the theft of my vehicle on 2 March 2011 or that I in any way intended to defraud NRMA Insurance. I had no knowledge, and continue to have no knowledge, of how the car ended up at [Mr and Mrs X’s] house in December 2011, when it was located by the police.”[51]
[My emphasis and underlining]
[51] A2, 4.
It is pertinent to examine and comment on the above purported explanation:
·paragraphs 35–37 are unremarkable and effectively comprise the Applicant “setting the scene” for what is to follow;
·in paragraph 38, she purports to involve Mr and Mrs X into her conspiracy by suggesting that the car was simply “found” at their home. In this paragraph, she purports to implicate Mr and Mrs X by suggesting they apparently told the police that she had asked them to leave her car with Mr and Mrs X to make a fraudulent insurance claim;
·in paragraph 39, the Applicant, as it were, ups the ante and purports to allege that Mr and Mrs X apparently became aggressive towards her and that they threatened to harm her if she did not withdraw her complaint to the police about the vehicle being stolen. In other words, the Applicant purports blame Mr and Mrs X for the removal of whatever veneer of credibility she sought to attach to her conduct (i.e. the report to the police about the vehicle apparently being stolen).; and
·In paragraph 40, having purported to implicate Mr and Mrs X in a way that she thinks best suits her propounded position of innocence, the Applicant reverts to type and “completely denies” any conduct tantamount to fraud. She says she did not intend to defraud the insurance company, yet willingly received their money. She says she has no idea about how the car ended up at the house of Mr and Mrs X.
The Applicant claims that Mr and Mrs X “told the police that I had asked to leave the car there so that I could make a fraudulent insurance claim”. The car had been found on Mr and Mrs X’s property. It is surely not believable that Mr and Mrs X would have admitted to participating in a conspiracy.
This is a form of “case study” of the Applicant’s typical conduct in terms of the position she has taken with regard to her offending. She is always the innocent party and, in terms of any basis of trying to explain her conduct, usually finds herself in a minority of one. In virtually every instance of her fraudulent and dishonest offending, it has occurred via her involvement only and not in concert with anyone else. To the extent that someone has been involved (such as Mr and Mrs X), they are said to be causative of whatever adverse outcome she has suffered as a result of her conduct.
As mentioned earlier, these types of offenders fail to take into account the capacity of others to logically examine the sequence of the Applicant’s conduct and to draw inferences from what she has to say about it and how things finally transpired. This was not lost on Her Honour Judge Dick SC who, in sentencing the Applicant for this conviction of fraud, called the conduct “cold-blooded fraud”. The nature of the Applicant’s conduct and her subsequent explanations for it do not, in my view, make any characterisation of that conduct any different now.
The second resulting sub-factor relates to the Applicant’s willingness to convince others to accept her innocence on the same grounds as propounded by her. The evidence is replete with statements from her de-facto partner and a number of her social contacts whereby they express a firm belief that she has done nothing wrong and that the respective processes represented by law enforcement and civil and criminal trials (as well as a review on appeal) have all arrived at the wrong outcomes. Most of the witnesses had little or no knowledge about the details and intricacies of the evidence giving rise to the Applicant’s convictions. Others purported to say they had read and analysed both transcript and other documentary material from a past proceeding involving the Applicant and that, in their opinions, the outcome was somehow wrong. One acted as a “McKenzie Friend” of the Applicant for her trial in 2018. None of those witnesses were legally qualified or otherwise adequately experienced to express a views as to the Applicant’s guilt or innocence.
This propensity to convince and compel others of her innocence is, in itself, a component of the Applicant’s lack of insight into her offending. She has convinced herself she has done nothing wrong. She has also sought to likewise convince others of the same thing. The Applicant’s persistent refusal to accept responsibility for her wrongdoing and to otherwise express some measure of remorse for the totality of its impact is a factor that does not speak well about the level of her rehabilitation and her risk of recidivism. Whether this lack of remorse increases her risk of re-offending if returned to the community is something that will only be known with the passage of time. In the predictive exercise required by this component of the Direction, the best that can be said is that the Applicant’s absence of remorse can lead to no finding other than her risk of recidivism being little or no different now to what it was prior to her most recent removal from the Australian community.
Absence of completed rehabilitative courses
The Applicant has not completed any rehabilitative courses while in either criminal custody or immigration detention. This is sought to be explained thus:
“Queensland Corrective services did not have any rehabilitative courses available for prisoners who had committed fraud-related offences. Unlike people who had been convicted of drug and/or alcohol related offences or violent offences, there are no specific offences for people convicted of fraud or dishonesty-related offences”[52]
[52] A2, 13.
That said, the Applicant has not been entirely dilatory during her time in prison. She says she has tried to use her time in prison to improve herself as much as she could. She speaks of participating in courses and training as part of her ongoing university studies “which included a course on Ethics and Professional Practice”.[53]
[53] A2, 13[98].
While I do not doubt this evidence, there is nothing in the material suggestive of the extent to which this course on “Ethics and Professional Practice” can now be said to be relevant to any assessment of her recidivist risk in the realm of fraud and dishonesty based offending. I have reviewed the content of the Applicant’s written “Ethical Position Paper” comprising part of the assessment in the “Ethics and Professional Practice” course.[54] As I understood it, this was an assignment written as part of the Applicant’s study towards gaining qualifications as a counsellor. It did not involve any analysis of the prevention or explanation of conduct giving rise to fraudulent and dishonesty-type offending.
[54] A2, 104–113.
Positive factors informative of risk
Time spent in the community
I have earlier recounted the sentencing remarks of Judge Burnett about the significant delay in the finalisation of the Applicant’s criminal charges.[55] As will be recalled, His Honour was in no doubt that the delay was attributable to the Applicant. Be that as it may, the practical outcome has been that the Applicant spent a not inconsiderable time in the community from the date of her last offence (2012) until her removal from the Australian community in March 2018. During that approximate six year period, the Applicant did not re-offend and no other convictions are recorded against her. I have had regard to paragraph 8.1.2(2)(b)(ii) of the Direction which instructs me to “give weight to time spent in the community”. I have given the Applicant’s time in the community weight. However, I discount some of that weight because it took place in the paradigm of her awaiting resolution of the matters with which she has been charged, convicted and sentenced. To my mind, the real test of her propensity to offend will occur upon her return to the community were she successful in this Application.
[55] See G, 38.
In the sense of the Applicant’s capacity to refrain from offending upon a return to the community as a person with no pending legal or other issues to contend with, that propensity remains to be tested. The level of her involvement with (1) her family, (2) additional study, and (3) her local community during the abovementioned approximate six year period is, to an extent, suggestive of a possibility that she might revert to this type of non-offending lifestyle if returned to the community as a result of this application.
The Applicant’s representations to the Queensland Parole Board
In her application for parole made in September 2020, the Applicant identified certain “key risks” and other reasons for which she is “getting back on track” such as to now represent a minimal risk of recidivism. She told the parole board the following:
“Key Risks:
I am aware that there are people and community organisations available to guide and help me through difficult times. I will not ever be getting myself in trouble again. And I do not want to return to prison.
Getting back on track:
[…]
I have missed so many milestones and I do not want to miss out on any more time with [my children] […] I am confident that I will not ever get back in trouble again and this is reinforced by my job prospects […]”[56]
[56] G, 191.
Two things can be said about what she told the parole board. First, the level of her rehabilitation has reached no higher than her apparent awareness about “people and community organisations” being available to guide and help her “through difficult times.” There is no mention of how those “difficult times” have previously caused her to offend and to what extent any re-emergence of those “difficult times” will cause her to do so in future. As well, having an awareness about possible rehabilitation comes nowhere near having undertaken such rehabilitation.
Second, the Applicant contends her low risk of recidivism is “reinforced” by her job prospects and the responsibility she feels towards her children. Neither of these factors served to prevent the Applicant from very seriously offending in the past and there is little to suggest those specific factors will prevent any future offending by her.
Other aspects of the character references
A number of witnesses have provided both written and oral evidence about certain aspects of the Applicant’s offending. Some of what they have to say should be examined from the perspective of ascertaining the Applicant’s risk profile. I will address each of the relevant witnesses and their evidence in turn.
In her own statement, the Applicant speaks of having “…absolutely no intention of getting into any trouble with the law in the future and only want to make sure my sons keep going in the right direction, I can live my life out with Mark [her de facto partner] and make a positive contribution to the community as a counsellor.”[57] Further in this statement, the Applicant said the following:
“I understand that you may be forced to conclude that I did commit all the offences I was convicted of and that I was ‘wicked’ as the sentencing judge described me. But even if that is what you conclude, I hope you can see from how I have lived my life over the last eight years, including the five I was on bail, that as I stand before you today, I am not a ‘wicked’ person, am not at risk of harming anyone, and am just a committed mother, partner, daughter-in-law and friend who wants to go home to her family after being separated from them for over three years. Please let my sons and my family move on with our lives.”[58]
[57] A2, 16[124].
[58] A2, 17.
Mark Pocock is the de-facto partner of the Applicant. He first met her in 2012 at a social gathering. They commenced a personal relationship in “about January 2013”.[59] Mr Pocock speaks of the role the Applicant played in the administration of his earthmoving business. There is little or no doubt the Applicant will assume a similar role if returned to the community. Mr Pocock bought out the interest of his former business partner in the earthmoving business in 2014. With reference to the Applicant’s contribution, Mr Pocock goes on to say:
“From the time I took over the whole of the business in 2014 to the time Catherine was imprisoned, Catherine handled all the administration, marketing and bookkeeping for the business. She set up the accounts in Xero, designed and trademarked our company logo and designed and maintained our website. Catherine made sure we allocated money for all our tax and BAS requirements, advertising budget, and she arranged marketing and sponsorships with some local sports clubs that our children played for. She did this while also working for Flight Centre fulltime from 2014-2016 and then while she was studying at university full time in 2017.”[60]
[59] A2, 22.
[60] A2, 23.
With reference to the second proposition in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Applied to the instant facts, and based on the totality of my foregoing analysis, it is clear that the Applicant has breached Australian law as can be seen from her multiple convictions for offending in the realm of fraud and dishonesty. I have outlined my analysis of the recidivist risk she represents if allowed to remain here. I have found that (1) the Applicant’s offending represents a breach of the Australian community’s expectation that she will comply with Australian laws while in Australia; and (2) there is an unresolved and unacceptable risk that she will breach that expectation if allowed to remain here.
Having regard to the totality of the evidence relating to the circumstances of this specific Applicant, I am of the view that the normative expectation must be applied such that weight allocable to this Primary Consideration 4 in favour of non-revocation is of a strong level. I so find.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not continue to hold a visa. In particular, paragraph 8.4(2) stipulates an Australian community expectation that the Australian government “can and should” cancel the visa of a non-citizen in such circumstances. This paragraph 8.4(2) then enumerates the abovementioned factors that are informative of this expectation and the weight allocable to it. To my mind, none of those factors are engaged by this Applicant’s conduct.
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant should be permitted to remain in this country. To my mind, none of the abovementioned components in paragraph 5.2 of the Direction aid the Applicant.
Having regard to the specific Principles appearing at paragraph 5.2(3)–(5) of the Direction, I am of the view that the Australian community would expect that the Applicant should not continue to hold a visa on account of the very serious crimes she has committed in this country. I make this finding not withstanding the length of time she has resided in Australia. Her time in Australia does not meet the requirements of Principle 5.2(4) such that she has not lived in the Australian community for most of her life, or from a very young age.
Conclusion: Primary Consideration 4
Considering all relevant factors, and with particular regard to my findings about the cumulative extent to which the propositions in paragraph 8.4(1) and 8.4(2) apply to the Applicant, I find that this Primary Consideration 4 weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
There seems to be unanimity between the parties about the non-relevant nature of this Other Consideration (a). The Applicant says “It is not submitted that this Consideration is relevant to the determination of the present application for review.”[91] The Respondent says “There is no suggestion on the evidence […] that this consideration is relevant to the review.”[92] I respectfully agree with the combined position of the parties. This Other Consideration (a) is not relevant to the instant application.
[91] A1, 11.
[92] R1, 13.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The position taken by the Respondent is that this Other Consideration (b) “…does not weigh in the applicant’s favour and is neutral.”[93]
[93] R1, 14.
The Applicant settled in Australia on a permanent basis on 11 September 2007, aged 30/31 years, and aside from some very brief periods outside of Australia, she has spent the majority of her time in this country since her arrival.
I turn now to the three components determining weight allocable to this Other Consideration (b). First, in terms the Applicant’s age and state of health,[94] she is now 43 years of age and it can be fairly said – both from her own evidence and any objective analysis - that she has a significant portion of her working life before her. In her Personal Circumstances Form (“PCF”), in response to the question “Do you have any diagnosed medical or psychological conditions?”, the Applicant ticked the “No” box. She made reference to having received grief counselling. She also referred to a need to “see a counsellor in the future when I need to talk – grief is with me still.”[95] Her PCF discloses no medical or psychological condition. The PCF says nothing about any medication or other treatment for any such condition. There is no reference to any treating clinician for any such condition(s).[96]
[94] Direction, 9.2(1)(a).
[95] G, 106.
[96] A2.
Since completing her PCF, the Applicant has had a further development with her health. She summarises it thus:
“105. Since being in immigration detention the lump on my breast has changed and become sorer. I saw a doctor at Brisbane Immigration Transit Accommodation on 25 May 2021 who referred me for an ultrasound and a biopsy. I had biopsy done on 1 June 2021 and am currently awaiting the results. This medical issue is currently causing me some anxiety, although I am hoping it is nothing sinister.”[97]
[97] A2, A14.
This evidence is corroborated by respective pathology and radiology evidence contained in the material.[98] The relevant pathology report refers to:
“Clinical notes: Left breast 2 o’clock solid vascular 26mm lesion for histeopath (core biopsy)[…]
Microscopic:
[…] The overall features in this material favour a benign phyllodes tumour.”
[98] See R3; R4.
Aside from the abovementioned issue relating to the growth in her breast, the only other health issue raised by the Applicant in her PCF refers to “grief”. With reference to the treatment of both issues, it is safe to find that New Zealand is a country at a mostly similar stage of economic and governmental development to Australia. It follows that in terms of the delivery of social services, New Zealand will be able to offer the Applicant a similar level of care and treatment for her two issues. While perhaps not to a level identical to that which she may have experienced in Australia, I am of the view that both of these issues can be adequately dealt with by the level of medical and social support that will be available to the Applicant in New Zealand.
There is therefore little to cavil with the proposition that the Applicant’s psychological and physical symptoms can be adequately dealt with in New Zealand, where she will have access to the same level of treatment as is currently available to other citizens of that country.
Second, it is necessary to consider whether there are any “substantial language or cultural barriers”[99] to the Applicant returning to New Zealand. The movement records make it clear that she has made multiple return trips to New Zealand since she settled in Australia in September 2007. Further, she has spent approximately the first two-thirds of her life in New Zealand and had her children there. She was born and raised in New Zealand. It cannot be said that any return to New Zealand presents her with a novel or substantial language or cultural barrier impeding against her successful resettlement there. To the extent she may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude her successful re-settlement there.[100]
[99] Direction 9.2(1)(b).
[100] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101] per Senior Member Kelly.
Third, it is necessary to enquire into the extent of any social, medical and/or economic support available to the Applicant in New Zealand.[101] As mentioned, it can be safely found that the level of medical care and governmental social support in New Zealand is at or about the same level as that available to the Applicant in Australia. To repeat, the Applicant will have access to those things in the context of what is generally available to other citizens of New Zealand.
[101] Direction, 9.2(1)(c).
As mentioned, the Applicant also has an employment history in Australia. She is in the process of undertaking additional study to obtain qualifications as a counsellor. There is little evidence in the material to cavil with the contention that the Applicant would be able to find similar work upon her return to New Zealand and to otherwise transfer her studies to an equivalent institution in New Zealand for the obtaining of qualifications as a counsellor.
In addition, the Applicant has parents who reside in New Zealand. Her parents are separated and they each live in different small towns. Her mother lives in Timaru and her father lives in Napier. As mentioned by the Applicant in her written material:
“116. If I am forced to return to New Zealand, I intend to live in Auckland. While my parents live in New Zealand, they are both on fixed incomes and live in small towns with little employment opportunities or opportunities for me to continue my studies. Both my mum and my dad have told me that although they will always support me emotionally, they are unable to assist me financially or with housing.”[102]
[102] A2, 15–16.
The Applicant’s position is corroborated by the written and oral evidence of her mother and the written evidence of her father. In her evidence in chief, the Applicant’s mother said the following:
“Mr McComber: If Catherine is forced to return to New Zealand what type of support could you provide to her in New Zealand?
Ms S. Campbell: The only real support that I can supply to Catherine here in New Zealand would be emotional support. I’m retired, I’ve been retired for six years. I’m working part-time at the moment doing COVID immunisations or vaccines. That will only last probably until the end of the year, and it is only part-time. I could not afford to have Catherine stay here with the boys or even alone it would be too much on our financial - or it would be a financial burden for me, yes.
Mr McComber : And (audio malfunction) New Zealand where would you see her living in New Zealand?
Ms S. Campbell: Catherine would probably have to live in a city, and she would have to try and get a job. Timaru is a very small place. It’s a population of about 47,000. It’s not very big at all. There aren’t an awful lot of jobs here. Her chances of getting a job here and being able to support herself would be fairly low, so I would envisage Catherine having to live in either Auckland, Wellington or Christchurch in order to get a job, yes.”[103]
[103] Transcript, 53, lines 36–47; 54, lines 1–4.
While her prospects in Australia are more positive, it cannot be safely found that if compelled to return to New Zealand, the Applicant would not be able to derive economic means to support herself. She is not of an age that would preclude or minimise her prospects of employment. While I accept the current downturn in the travel industry attributable to the COVID-19 pandemic, she has work experience in that industry and would likely be able to find employment in that area when the travel business improves. Further, upon the obtaining of her qualifications as a counsellor, it can be safely found that her prospects of finding work in this field in New Zealand are broadly the same or similar to her prospects of doing so in Australia.
Finally, while it can be accepted she will not receive anything substantial by way of economic support from either or both of her parents, the level of governmental and community healthcare support she will receive in New Zealand will be the same as that available to other citizens of that country.
To my mind, having regard to the relevant componentry of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) is of moderate weight in favour of the Applicant such that her visa status to remain in Australia should be restored to her. This finding seems parallel to the submission made on behalf of the Applicant to the extent that “…the impediments she would face if removed to New Zealand weigh somewhat in favour of revocation.”[104]
[104] A1, 11.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Again, there appears to be unanimity between the parties about this Other Consideration (c). The Applicant says:
“In circumstances where there is no evidence available to the Tribunal of the impact of a decision under s501CA on members of the Australian community, including any victim of the Applicant’s offending, the Applicant submits that this consideration must way neutrally.”[105]
[105] A1, 11.
The Respondent’s position is thus:
“There is no suggestion on the evidence before the Tribunal that this consideration is relevant to the review. As such, it should be given neutral weight.”[106]
[106] R1, 14.
I respectfully concur with the common position between the parties. Accordingly, the only safe finding can thus be that a neutral level of weight is allocable to this Other Consideration (c).
(d) Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors. They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests.
I will consider each in turn.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The first task is to identify the Applicant’s immediate family in Australia. I am in a dilemma in terms of which people constitute the Applicant’s “immediate family” for the purposes of the Direction. I have sought to define the term “immediate family” by having regard to both the Act and while the term “family” is defined therein, there is no definition of “immediate family”. Having regard to the plain meaning of the term, I comprehend it to involve a relationship between the Applicant and a particular individual without there being someone “in between” that relationship.
For example, I would define Mark Pocock as part of the Applicant’s “immediate family” in Australia by virtue of his undisputed status as the Applicant’s de-facto spouse. By way of further example, I would define either or both of Children O and H – if they were over 18 years of age – also as the Applicant’s immediate family in Australia. Of course, both of those biological children are under 18 years of age and are not relevant to this Other Consideration.
Having regard to the material, the dilemma I am experiencing derives from whether or not I should include the Applicant’s mother-in-law and father-in-law as part of her “immediate family” in Australia. To do so would involve me ignoring the “in-between” status of Mark Pocock insofar as the Applicant’s relationship with her mother-in-law and father-in-law is concerned. Out of an abundance of caution, I will treat the Applicant’s in-laws as belonging to the third element or category of persons relevant to paragraph 9.4.1 of the Direction.
As I have earlier recounted, Mr Mark Pocock and the Applicant have been in a de-facto relationship since January 2013. They first met in 2012 and their relationship started in January 2013. They appear to have been together on a continuous basis until her removal from the Australian community in 2018. There can be no dispute that together, they conduct a blended family. Children O and H (the Applicant’s biological children) reside constantly with the Applicant and Mark Pocock. Mark Pocock’s biological children, Children K and N, are with him every second weekend, school holidays and at any other time agreed to by Mr Pocock and the biological mother of her two children.
Not only has the Applicant been a fundamental part of Mr Pocock’s personal life, and as the mother of his two biological children, she has also played a fundamental role in their overall family life and his business interests as well. Mark Pocock bought out the interest of another owner in the Scenic Rim Earthmoving Business in 2014. Since that time he has been the sole owner of that business. From the time he took over a full interest in the business (2014) until the time the Applicant was taken into criminal custody (2018), according to Mr Pocock, the Applicant played a fundamental role in the administration, marketing and bookkeeping requirements of the business.
I have already quoted a portion of his statement which spoke about her role in maintaining the accounts of the business, protecting its intellectual property and ensuring the business met its tax obligations. Impressively, the Applicant attended to these fundamental business tasks while she was working on a full-time basis for Flight Centre between 2014–2016 and while she was studying on a full-time basis at university in 2017. It is thus not difficult to reach a finding that the business life of Mark Pocock will be adversely affected in the event of the Applicant’s removal from Australia. It is not practical or realistic to suggest that the Applicant will be able to discharge her administrative role for the business from New Zealand.
Of further impact upon the life of Mr Pocock will be the equally fundamental role the Applicant played in the family and domestic life of the blended family unit they established. I am satisfied that the Applicant has taken on her two step-children as her own on the specific occasions when they are under her care within her household. But more deeply than that, in terms of what will adversely affect Mr Mark Pocock, is the loss of the Applicant’s “hands-on” motherhood and domestic responsibilities that she conducted before going into custody.
As mentioned by Mr Pocock in his evidence, the Applicant took the lead in driving the children around for their various activities in the afternoon and on weekends. She took the lead in taking the children (biological and step-children) to their various appointments such as the dentist and to parent-teacher interviews. According to Mr Pocock’s evidence (which I accept) the Applicant maintained a keen and high-profile involvement in the sports played by Children O and H by volunteering with those clubs, helping with fundraising, arranging for shared transport with other parents to ensure the children attended each of their playing fixtures as well as arranging for Mr Pocock’s business to provide sponsorship to the relevant sporting clubs.
While it may be said that Mr Pocock has somehow managed to cope by doing these domestic duties on his own, I am not of the opinion that this effort is maintainable by him for much longer. It is therefore not difficult to find that, similar to the adverse impact on his business, there can be little to cavil with the proposition that Mr Mark Pocock’s domestic and family arrangements will also be adversely affected upon the Applicant’s removal to New Zealand. I am of the view that first element of paragraph 9.4.1 militates in favour of the Applicant’s visa status being restored to her.
Strength, nature and duration of “other ties”
In determining the extent of the Applicant’s “other ties”, it is necessary to consider the question of how long the Applicant has resided in Australia and whether she came here as a young child. There are two tempering sub-elements to be taken into account as part of consideration of this second component of paragraph 9.4.1. The Applicant arrived in Australia in September 2007 (on a final basis) aged 30/31 years. She is now 43 years of age. She has resided here for over a decade. She commenced offending in Australia in March 2011 – just three and a half years after arriving here. I therefore find the Applicant began offending “soon after arriving in Australia”. Therefore, pursuant to paragraph 9.4.1(2)(a)(i), less weight should be allocated to the Applicant because she offended soon after arriving here.
The next enquiry refers to the extent to which the Applicant can be found to have positively contributed to the Australian community. The Applicant has a positive history of work for remunerative employment in Australia. She would obviously have been paid for her work at Flight Centre. While the material is not clear as to whether she is an “employee” of the Scenic Rim Earthmoving business, there can be no doubting the very important role she has played in that business to date.
The material contains a letter from one of the Applicant’s co-workers during her time at Flight Centre. In this statement dated 1 October 2018, Ms Amber Cassidy said the following about the Applicant’s capacity at work: “she immediately struck me as a hardworking, family oriented and very loyal person and we were very happy to have Catherine become part of our very small-knit regional team.”[107] There is no requirement to repeat the comments of Mark Pocock who has provided evidence about the very important role played by the Applicant in the administration of his earthmoving business.
[107] G, 112.
The material is replete with repeated references to the Applicant’s community-minded spirit and her willingness to assist and to “be there” as a positive presence in the lives of others. Multiple witnesses have spoken about the quite significant role she has played in the fabric of her local community, be it in the form of (1) acting as a volunteer and facilitator for sports events relating to both her children and the children within her social circle; and (2) acting as a type of counsellor and support person to those around her who are experiencing personal difficulty or who otherwise are seeking some kind of external assistance. As the witness Ms Anette Reeves said, “Catherine was […] my go to girl before she went to prison. She always had an open ear and would try to make me smile.”[108]
[108] A2, 31.
I am satisfied that the Applicant – via her employment history and her community-minded spirit – has made an impressive level of positive contributions to the Australian community. I am of the view (and I find) that a strong measure of weight is allocable to her pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction.
3. Strength, nature and duration of “other ties” – family and other social links
The relevant people who fall within the ambit of this specific category are people comprising any family or social contacts who are Australian citizens or who otherwise have an indefinite right to remain in Australia. As I understood the material, the people falling within that category comprise:
·The Applicant’s mother-in-law and father-in-law: I have earlier recounted the difficulties experienced by the mother-in-law in caring for her husband whose health has been gradually failing to the extent he has required to be placed into full-time care. There is clear evidence that the Applicant does have a quite close and devoted relationship with Mr Pocock’s parents. She cared for the father-in-law before he was taken into care and continued to do so in order that the mother-in-law might have some respite and time to herself. There can be little or no question that the family relationship between the Applicant and her in-laws is a close one.
·Also within this category are people with whom the Applicant has developed and established a quite close social bond. Each of the following witnesses have provided evidence for this hearing:
oNicole Kennedy has known the Applicant for about 7–8 years. In her spoken and written evidence, it is clear that she has a strong social/friendship bond with the Applicant. In her written statement she notes “[t]he three years that Catherine was in prison were really difficult for me. I missed having my close friend Catherine there to support me and I’ve had a very limited social life since she’s been away.”
oAnnett Reeves first met the Applicant in 2014. In her spoken and written evidence, there can be safely found to be a quite strong social/friendship bond between her and the Applicant. They first met in late 2014, and Ms Reeves has nominated the Applicant has her “go-to girl” prior to the Applicant going to prison.[109] Ms Reeves says that the Applicant has many “qualities that will make a positive impact on our society.”[110]
oMs Kylie Smith has been a friend of the Applicant for over 10 years. They first met in 2009 and they have become “close friends from then on […]”. She describes the Applicant as “a good person and her advice has helped me in times of need and I want to have that back”.[111]
oMs Jessica Nair has provided a character statement for the Applicant. She first met the Applicant at Griffith University on the Gold Coast in 2017. She says they have become “good friends”. She says “Catherine is the person I go to for advice and support, and I would be happy to call her my neighbour and close friend. Catherine and I have similar interests and bonded over our life experiences, business interests and university studies.”[112]
[109] A2, 31.
[110] A2, 32.
[111] A2, 37.
[112] A2, 38.
Having regard to the totality of the evidence relevant to this element of paragraph 9.4.1 I am satisfied that the extent of the Applicant’s strength, nature and duration of ties with each of the people within this third category is such as to warrant the allocation of weight in her favour in the event she is removed from Australia.
I am therefore of the view that the abovementioned three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly, but not determinatively, in favour of restoration of the her visa status to remain here.
Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact her removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
The Applicant makes the contention that weight is allocable to this aspect of Other Consideration (d) due to the role the Applicant has played in assisting Mark Pocock with administrative tasks associated with the Scenic Rim Earthmoving business. The contention is that since the Applicant’s incarceration in March 2018, Mark Pocock has been required to attend to doing the actual earthmoving work of the business as well as attending to its administrative tasks and other “paperwork-type” requirements. The contention is that the absence of the Applicant from an administrative role in the earthmoving business has “slowed the company’s growth and limited the services it can provide to the South East Queensland market”.[113]
[113] A1, 13.
This contention culminates with the suggestion that the Applicant’s removal from Australia would adversely impact the earthmoving business such as to attract the allocation of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.
This contention can, to my mind, be safely rejected by having regard to the plain terms of paragraph 9.4.2(3) of the Direction. Weight is generally only to be allocated pursuant to this sub-paragraph where non-revocation “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.” While a certain measure of credibility can be allocated to an administrative impact upon the business if the Applicant is permanently removed from Australia, the reality is that Mark Pocock has continued to operate the business for three years during the physical absence of the Applicant.
Further, it would appear some measure of succession arrangements have been contemplated. In one of her earlier statements, the Applicant said that in the event of her removal from Australia, “I’ll have to sign all of my rights to the house and the business to him [Mark Pocock] because it would be unfair of me to stay involved when I’m not around to help out.”[114] Ultimately, in the event of the Applicant’s permanent removal from Australia, there is little or no evidence that a non-revocation decision would impact upon the subject business such as to significantly compromise any major project or important service in Australia.
[114] G, 139[51]. Note also: the Applicant made this comment in an earlier statement she submitted at the time of making representations to the Respondent for revocation of the original mandatory cancellation decision. For the instant hearing, she has prepared a second statement. It appears in the material at Exhibit A2, 1–17. In this later statement, she makes it clear that it “supersedes and replaces in whole the unsigned, undated, unwritten statement provided to the National Character Consideration Centre in support of my request for revocation.”.
I agree with the position taken by the Respondent: while this consideration may yield some weight in the Applicant’s favour, it does not outweigh the combined cumulative weight I have allocated to other components of the Direction that weigh strongly against revocation.
Weight allocable to Other Consideration 4: links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the three specific components of the first part of Other Consideration 4, the totality of the evidence points to a strong, but not determinative weight, in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests) yields some, but certainly not determinative, weight in favour of the Applicant.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: moderate weight in favour of the Applicant;
(c)impact on victims: neutral; and
(d)links to the Australian community: strong, but not determinative, weight in favour of the Applicant.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 weighs strongly in favour of non-revocation;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 weighs moderately, but not determinatively, in favour of revocation;
·Primary Consideration 4 weighs strongly in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (d), even when combined with the moderate, but not determinative, weight I have attributed to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
I certify that the preceding 245 (two hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.
..............................[sgd]..................................
Associate
Dated: 25 June 2021
Date(s) of hearing: 8 & 9 June 2021 Advocate for the Applicant: Mr Joel McComber Solicitors for the Applicant: Sentry Law Advocate for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G Section 501 G-Documents
(paged 1‑265)- 14 April 2021 A1 Applicant’s Statement of Facts, Issues and Contentions (paged 1-13) 11 May 2021 12 May 2021 A2 Applicant’s Updated Tender Bundle
(paged 1-119)- 3 June 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1-15) 28 May 2021 28 May 2021 R2 Respondent’s Tender Bundle
(paged 1-30)- 28 May 2021 R3 Biopsy Report Dated 2 June 2021 (1 page) 2 June 2021 8 June 2021 R4 Biopsy Ultrasound Report Dated 3 June 2021
(1 page)3 June 2021 8 June 2021 ANNEXURE B
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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