Coker and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 754
•12 June 2025
Coker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 754 (12 June 2025)
Date:12 June 2025
Applicant/s: Coker
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2490
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date of Decision: 12 June 2025
Date of Written Reasons: 13 June 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), to set aside the decision under review made by a delegate of the Respondent on 18 March 2025 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
………………[SGD]…………
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct - the strength, nature and duration of ties to Australia – best interests of minor children in Australia - expectations of the Australian community – extent of impediments if removed - decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Criminal Code Act 1899 (Qld)Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666
Khalil v Minister for Home Affairs (2019) 271 FCR 326
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Statement of Reasons
INTRODUCTION
The Applicant’s visa[1] was mandatorily cancelled[2] on 30 July 2024. On 9 August 2024, she made the necessary representations in writing seeking revocation of that mandatory cancellation decision. By way of a decision made on 18 March 2025[3], a delegate of the Respondent Minister refused to revoke the mandatory cancellation decision. The Applicant now seeks merits review of this non-revocation decision in this Tribunal.
[1] Class TY 444 Special Category (Temporary) visa, hereinafter referred to as “the visa”.
[2] Pursuant to s 501(3A) of the Migration Act 1958 (Cth), hereinafter referred to as “the Act”.
[3] Pursuant to s 501CA(4) of the Act
The instant Hearing proceeded before me on 2 and 3 June, 2025 on an in-person basis. The Hearing received evidence from (1) the Applicant; (2) her husband, Mr Todd Coker; (3) her daughter, Ms Kelsi-Lee Coker; (4) her additional daughter, Ms Courtney Coker; (5) her son, Mr Peter Coker; and (6) the Clinical and Forensic Psychologist, Dr Luke Hatzipetrou. At the commencement of the Hearing, I sought and received the parties’ approval to a draft Exhibit List that had been circulated to them prior to the Hearing. That Exhibit List is now attached to these Reasons and marked ‘Annexure A’ and it comprises a true and correct summary of the entirety of the material now before the Tribunal.
AN IMPORTANT PROCEDURAL ASPECT OF THIS MATTER
This is an expedited application pursuant to s 500(6L)(c) of the Act. That section requires the Tribunal to make a decision in this application within the period of 84 days after the day on which the Applicant was notified of the decision under review. The 84th day in this matter fell on 12 June 2025. As mentioned earlier, the instant hearing proceeded before me on 2 and 3 June 2025.
There was barely a working week available to me for the preparation of detailed written reasons from the conclusion of the Hearing to the occurrence of the 84th day. I therefore caused the Tribunal to make (and publish to the parties) a decision - in short form - on 12 June 2025 such as to meet the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that short form decision.
Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326, I now publish my detailed written reasons within a reasonable time of my short form decision.[4]
[4] Khalil v Minister for Home Affairs (2019) 271 FCR 326 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 later): See specifically, paras [41]–[48].
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
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.
I am satisfied that the Applicant made the ultimately unsuccessful representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
a)whether the Applicant passes the character test; and if not
b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[5] On 27 February 2024, the Brisbane District Court imposed a head custodial term of five years and three months on the Applicant upon a conviction of “fraud – dishonestly gain benefit / advantage by employee value of at least $100,000.”[6] The Applicant has therefore received a sentence of imprisonment of 12 months or more[7] and thus has a “substantial criminal record”[8] which, in turn, compels this Tribunal to find she does not pass the character test.
[5] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[6] Pursuant to s 408C(1) the Criminal Code Act 1899 (Qld).
[7] Section 501(7)(c) of the Act.
[8] Section 501(6)(a) of the Act.
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa,[9] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[10] has application.
[9] Pursuant to section 501C(4) of the Act.
[10] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as “the Direction.”
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
I will now consider each of these primary and other considerations as may be relevant to the instant facts. Before doing so, I will note (and find) – consistent with the positions of the parties expressed in their respective Statements of Facts Issues and Contentions (“SFIC”) and / or their oral submissions at the instant Hearing that Primary Consideration 2 “family violence” and Other Considerations (a) “legal consequences of the decision” and (c) “impact on Australian business interests” are not relevant to determination of the instant application.[11]
[11] For the Applicant’s position, see A1, p 8, [50], [72]-[78]. For the Respondent’s position, see R3, p 9, [40]; p 12, [57]; p 13, [64].
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 that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian 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 allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to 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 and/or sexual 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending in Australia and New Zealand: an overview
The Applicant’s movement history appears in the material.[12] She is a citizen of New Zealand having been born in that country on 29 September 1969 and is now aged 55 years. Her initial arrival in Australia occurred on 10 October 1996 when she was 27 years of age. Her most recent arrival was on 18 November 2023. During the intervening 27 year period from initial arrival to most recent arrival, she spent about 10 years outside of Australia. This means she has spent about 37 years of her life outside of Australia and about 18 years of her life living in Australia. She has therefore spent about a third of her life in this country.
[12] R1, pp 120-121.
The Applicant’s offending history in Australia comprises the singularity of just one conviction for the abovementioned offence of “fraud – dishonestly gain benefit / advantage by employee value of at least $100,000.” The details of the fraudulent conduct giving rise to the conviction are aptly summarised in the Respondent’s SFIC.[13] In short compass, the Applicant held the position of Finance Administration Officer at MAX Employment Solutions Pty Ltd (“MAX Employment”) for the period 22 April 2012 and 18 November 2020. Max Employment facilitated assessments and eventual payments to psychologists involved in the provision of expert advisory services in disability assessments relating to young people.
[13] See R3, [24]-[27].
At all material times, Max Employment (via an associated entity known as Assessment Australia) held a state government contract for (1) the management of disability assessments of young people and (2) the payment of invoices rendered by consulting psychologists (also known as “vendors” and/or “contractors”) for assessments they had undertaken. The Applicant’s duties involved direct exposure to the payment facilitation process because her duties involved: (1) establishing new vendors in Max Employment’s payment system; (2) validating the credentials of those new vendors by entering their Australian Business Number (“ABN”) into the payments system; (3) processing Max Employment’s receipt of invoices received from consulting vendors; and (4) uploading those invoices into Max Employment’s payment system for payment.
As noted in the Statement of Facts prepared and relied upon by the prosecution at sentencing, “Between November 2017 and September 2020, the [Applicant] defrauded the complainant [Max Solutions] to the value of $381,330.10 by creating and submitting 178 false invoices, which were paid by the complainant [Applicant] company into bank accounts held by the defendant [Applicant] or her family members. The invoices submitted by the defendant [Applicant] related to 9 fictitious vendors the defendant [Applicant] created.”[14] The Applicant was detected as a result of an internal investigation conducted by Max Employment triggered as a result of the last of the nine false vendors established by the Applicant having an invalid ABN. The results of that investigation were furnished to the Police in March 2021. The Police then executed a search warrant at the Applicant’s residential premises on 21 June 2022 resulting in the Applicant being charged.
[14] R2, pp 1-2, [5].
As noted in the sentencing remarks, the Applicant made full admissions of her unlawful conduct to investigating Police when they initially approached her. She also entered an early plea to the charge and eventually came before the Brisbane District Court for sentencing on 27 February 2024 when the learned sentencing Judge[15] imposed a head custodial term of five years and three months. The Court further ordered the Applicant be eligible for parole after serving 18 months in actual custody. This means she will be eligible for parole on 26th August 2025.
[15] His Honour Judge Barlow KC DCJ.
The Applicant has compiled an unremarkable traffic history in Australia. The traffic history runs from May 2012 until June 2020. There are six traffic infringements: four infringements for exceeding the speed limit by less than 13 km/h and two for exceeding the speed limit by at least 13km/h but not more than 20km/h. These six infringements attracted the imposition of the cumulative total of 10 demerit points and $1,074 in fines. At no time have the Applicant’s driving privileges in Australia been suspended or cancelled. To the best of my understanding of the material, the Applicant does not have any history of criminal offending or traffic infringements in New Zealand or elsewhere.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
24.The Direction contains nine non-–exhaustive factors referrable to the assessment of the nature and level of seriousness of a non—citizen’s criminal offending in Australia. Paragraph 8.1.1(1)(a) of the Direction contains the descriptor of “very serious” in its chapeau for offending falling within its three constituent paragraphs. Likewise, the chapeau to paragraph 8.1.1(1)(b) carries the “serious” descriptor for offending captured by any one of its four paragraphs. The remaining seven paragraphs of 8.1.1(1) of the Direction do not carry an actual descriptor per se and a decision-maker must apply the evidence to such of those paragraphs as may be relevant as a means of arriving at overall finding about the nature and seriousness of a non-citizen’s conduct.
25.I will, in turn, address each of nine paragraphs insofar as they may engage the evidence before the Tribunal. An initial observation is that the nature of the Applicant’s conduct does not engage any of these nine factors. But to repeat, these nine factors are non-exhaustive. The significant seriousness of the Applicant’s conduct was not lost on the learned sentencing Judge when His Honour noted: “Nevertheless, although I take these factors into account, the fraud was a serious one involving a substantial amount of money committed over a substantial period of time. As you are no doubt aware, the maximum penalty is 20 years in prison, which reflects the seriousness which society considers this offence to have.”[16]
[16] R1, p 46, lines 11-14.
26.I have little difficulty in adopting the learned sentencing Judge’s impression of the nature of the Applicant’s offending. It seems clear His Honour thought the Applicant’s conduct to have been at least serious and, more likely, very serious. His Honour: (1) regarded as “substantial” both the amount of money taken and the period of time the criminality lasted; (2) told the Applicant the legislation dealing with her offending carried a maximum penalty of 20 years imprisonment; (3) noted the learned Prosecutor’s submission that the Applicant effectively defrauded the taxpayer and that this should be seen as an aggravating factor behind her offending; and (4) took into account (to the extent possible) the existential threat the Applicant’s conduct now presented to her visa status to remain in this country.
27.Regard should also be had to the extent of the sentence imposed on the Applicant. None of her conduct was for offending precluded by paragraph 8.1.1(1)(c) of the Direction. A sentence of imprisonment is regarded as the last resort in the range of sentencing options available to a judicial sentencing officer. Ordering a convicted person’s removal from the community is a clear marker of the objective seriousness of the conduct sought to be punished.[17] To my mind, the very serious nature of the Applicant’s offending can be seen from the fact that – even as a first offender; even though she made full admissions of her conduct to Police; and even though she entered an early guilty plea – the learned sentencing Judge felt compelled to impose a head custodial term well in excess of five years.
[17] PNLB and Minister for Immigration and Border Protection (migration) [2018] AATA 162 at [22].
28.There is a contention in the Respondent’s SFIC to the effect that the Applicant’s conduct should now be found to have been “frequent” pursuant paragraph 8.1.1(1)(e) of the Direction. The contention seems to be that although her offending was a convicted singularity, the pattern of offending during that convicted singularity was frequent as can be seen from the creation of nine fictitious vendors and 178 false invoices. I will approach that contention with a degree of caution for a couple of reasons. First, the reference to “frequent” in paragraph 8.1.1(1)(e) must be read in conjunction with the language that follows it: “…..and/or whether there is any trend of increasing seriousness.” I think the term “frequent” contemplates a sequence or pattern of unlawful conduct and, in turn, compels a finding about whether that sequence or pattern of offending is demonstrative of a trend of increasing seriousness. This cannot be done with an offending singularity.
29.Second, while the Applicant’s singularity of offending was frequently committed across its span, she does not have multiple convictions for fraud where, for example, she has a conviction in 2014 for fraudulently taking say, $50,000; then another conviction for similar offending in 2018 where she was convicted of fraudulently taking $120,000; and then in 2024 when she receives her sentence for the current index offence for the fraudulent taking of almost $400,000. Then, one could comfortably say (and find) that her fraudulent offending has been frequent and that it has been escalating in seriousness. But that is not the case here.
30.The Respondent urges the Tribunal to have regard to the cumulative effect of the Applicant’s repeated offending as a gauge of its objective seriousness pursuant to paragraph 8.1.1(1)(f) of the Direction. This paragraph raises a similar conundrum to paragraph 8.1.1.(1)(e). The term “cumulative effect” appears before the reference to “repeated offending.” This Applicant has one conviction for fraud, not multiple convictions. The singularity of her conviction cannot comprise “repeated offending.” She has done a sequence of unlawful things over a period of time which were bundled into her conviction on one count of fraud. Her offending has doubtless harmed the Australian taxpayer in a demonstrably material way. But she does not have a multiplicity of convictions from which any cumulative effect(s) could now be gleaned.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. Principal among these paragraphs is 8.1.1(1)(c). Any paucity of applicable paragraphs in the Direction dealing with the nature and seriousness of this Applicant’s conduct will not dissuade me from a finding similar to that reached by the learned sentencing Judge. I am comfortably satisfied that this Applicant’s albeit single conviction should now be characterised as ‘very serious’. I so find.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In the SFIC filed on the Applicant’s behalf, it is said: We agree with the premise that if [the Applicant] were to reoffend in the same way it would affect an employer financially and may impose harm to those involved.”[18] This Applicant has committed what can be loosely a money crime, albeit in a substantial sum. Were she to re-offend in a similar way in future, it is reasonable to find that substantial monetary or material harm would befall a victim. On the one hand, the concession in the Applicant’s SFIC about the nature of future harm has been correctly made.
[18] A1, p5, [24].
On the other hand, in its SFIC, the Respondent goes further and contends that any repetition of the Applicant’s fraudulent conduct “…..could cause serious psychological, reputational and/or financial loss to the Australian community, and future deceptive or fraudulent conduct offending has the potential to cause substantial financial loss to individuals, businesses and the taxpayer……”[19]
[19] R3, p7, [36].
But in all reality, the question that arises from the instant facts is surely this: if she comes back into the community, who exactly will the Applicant harm? This question is necessitated because of two realities. First, if she applies for another job in virtually any sphere of employment, any reasonably-minded and responsible employer will ask whether she has any criminal convictions. She will be compelled to fully disclose the nature of the very serious fraud she perpetrated on Max Solutions and, ultimately, this country’s taxpayers. Such a disclosure will immediately disqualify her for any job involving the handling of, or exposure to, any job or task involving money in a given workplace. There is, to my mind, no prospect of her ever finding employment in, for example, a legal practice which traditionally operates a general account for its own expenses and a trust account for safe receipt and investment of clients’ funds.
Second, regard must be had to exactly what kind of remunerative work she will end up doing. At the risk of using simplistic examples, it is not unreasonable or unrealistic to suggest (and find) that her prospects of employment will forever be limited to work akin to being a teacher’s aide at a local school or assembling a component of some machinery on a production line or baking morning tea products for a catering company and presenting those items for packaging prior to dispatch to customers. In the circumstances suggested by these two realities where her employment prospects involve her being kept away from any transactional element involving a business’s money, it is difficult to see who she would harm.
There is a third scenario which devolves from the first two. If we assume she does not return to remunerative employment and instead remains at home to assist with the care of family members and to otherwise act as homemaker, spouse and grandparent, there is at least a conceivable risk she could resume her pattern of unrestrained gambling and attack her own family’s finances to satiate any such future need. After all, she did utilise her own son’s current but long dormant junior saver account – without his or anyone else’s knowledge - into which she diverted $25,098.94 of fraudulently obtained funds from Max Solutions. She also had no difficulty in squandering the joint funds of herself and her husband. She told the psychologist (Dr Freeman) that “We had a little savings account and I burnt through that. My husband didn’t look.”[20]
[20] R1, p 111, [3.3].
In such a scenario, there seems little to cavil with the proposition that the Applicant’s family members are by now very well aware of the nature and extent of the fraud she perpetrated on Max Solutions. They would, as it were, receive her back into their lives with their eyes wide open about what she has done and the harm she could visit upon them were she to fraudulently re-offend with regard to any aspect of the family’s finances. It is thus difficult to either suggest or categorize her own family members as potential victims of her future unlawful conduct. In any event, they (her family members) are now pressing this Tribunal to restore the Applicant’s visa status to remain here and be a constant presence in their lives.
But all of this is not to suggest the Applicant will not ever again harm anyone by any repetition of her past very serious fraudulent conduct even if her prospects of again finding herself in a position to do so are relatively remote. The range of people or entities who could be regarded as future victims will – by virtue of the need to disclose her past offending to future employers – be limited. Be that as it may, I am satisfied that any recommission of her past very serious fraudulent conduct – assuming she was ever again in a position to commit it – would occasion significant financial harm to any person or entity victimised by it. Given the ultimate victim of her past offending has been the Australian taxpayer, I will also find that the harm resulting from such a re-commission is so serious that any risk of its recommission would be unacceptable.[21]
[21] Pursuant to Paragraph 8.1.2 of the Direction.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The sentencing remarks from February 2024
The learned sentencing Judge accepted “The substantial funds that you [the Applicant] obtained were not used to fund a lifestyle, except to the extent that they were used to fund gambling. All of that money was wasted on gambling,…….: mostly on poker machines, I understand, if not totally.”[22] A contemporaneous report from the psychologist, Dr James Freeman was before the learned sentencing Judge. His Honour noted the history Dr Freeman took from the Applicant that involved her telling him about (1) her apparently unhappy childhood involving the commission of sexual offences against her and her siblings; (2) an alcoholic mother who resorted to the prostitution of herself and perhaps of the Applicant and her siblings.
[22] R1, p 45, lines 27-30.
The learned sentencing Judge also noted Dr Freeman’s opinion that these childhood elements may now be suggestive of a diagnosis of PTSD.[23] But the learned sentencing Judge was cautious about openly accepting both the Applicant’s self-reported story to Dr Freeman and Dr Freeman’s conclusion that she was suffering from PTSD. This was for two reasons: (1) those claims should be treated “……with a large handful of salt because they were such extreme claims with no form of corroboration at all,…..”[24] and (2) “….as a psychologist, Dr Freeman, notwithstanding his qualifications and experience, is not technically qualified to diagnose post-traumatic stress disorder although, no doubt, he can recognise the symptoms of it.”[25]
[23] Post-Traumatic Stress Disorder.
[24] R1, p 45, lines 37-39.
[25] R1, p 45, lines 41-44.
In the mind of the learned sentencing Judge, “The more important disorder in this case is [the Applicant’s] gambling disorder which [Dr Freeman] says, set the foundation for significant impulse control difficulties that led you, not only to gamble, but to obtain a source of funds for gambling from defrauding your employer.”[26] The learned sentencing Judge accepted that the Applicant had undertaken considerable efforts to ensure she did not offend again. His Honour noted the Applicant “…particularly sought to address your gambling addiction by attending counselling on a total of,…..41 occasions. A list of the dates on which you attended counselling indicates that you have been attending counselling since June 2022 on at least a monthly, and often more than a monthly, basis. For that you are to be commended, and I trust that you will continue to do so until someone qualified advises you that you have managed successfully to overcome that gambling addiction.[27]
[26] R1, p 46, lines 1-3.
[27] R1, p 46, lines 35-41.
In terms of a concluded view of the Applicant’s recidivist risk, the learned sentencing Judge concluded thus: “I accept, in the circumstances, that you are a very low risk of reoffending. But keep in mind, when you are released from prison, that you have to continue to get that counselling to ensure that you do not lapse back into some form of offending or some form of addiction, whether it be to gambling, alcohol, drugs or any form of addiction. I note that you have the full support of your family and a number of friends, who will, no doubt, help you to overcome any temptation you might have upon your release.”[28][My emphasis]
[28] R1, p 47, lines 1-7.
The Applicant’s evidence
In her latest statement, the Applicant recounts in quite graphic and harrowing detail the circumstances of her unhappy and abusive childhood. It is a story involving a multiplicity of players: her mother, herself, her siblings and the alleged perpetrators of what can only be described as the most shocking child abuse. The story includes episodes of not insignificant physical injury, the intervention of paramedic services and at least one admission to a hospital for the treatment of those physical injuries. But as the learned sentencing Judge observed, there is little corroboration of this self-reported story. There is no documentary evidence from the New Zealand equivalent of a Department of Child Safety about governmental intervention in the care of the Applicant and her siblings even though her statement says: “Eventually our neighbours called social welfare to report my mother and we came under their supervision.”[29]
[29] A1, Statement of Donna Coker dated 29 April 2025, [11].
There is no evidence of Police interest in any of the conduct self-reported by the Applicant which, if proven, would surely be found to be very serious. There is no corroborative statement from a fellow victim / sibling of the Applicant or any observer of this alleged conduct. A range of alleged perpetrators are said to have done a lot of bad things but there is no reckoning for any of them and no reporting of this to anyone. The Applicant’s mother is alleged to have prostituted herself, to have apparently done likewise with her children, to have physically harmed her children and, indeed, to have physically threatened a then 16 year old Applicant by breaking a glass and holding that broken glass to her throat as a means of threatening the Applicant’s safety.
But despite all of this self-reported behaviour, it all went nowhere in terms of any prosecution. She now claims to be estranged from virtually the entirety of her biological family in New Zealand. In the Applicant’s latest statement, the reported behaviour ends with the broken glass to the throat incident and then the narrative abruptly says: “She [the mother] snapped out of it [i.e holding broken glass to the Applicant’s throat] and looked at the broken glass and dropped it. I left home that day.’[30]The Applicant’s statement then segues into a discussion about her spouse, her children, how she is ashamed of her offending and the impact she will experience in the event of her permanent removal from Australia.
[30] A1, Statement of Donna Coker dated 29 April 2025, [34].
The Applicant takes considerable solace from her family. She describes her husband and life partner of over 30 years – Mr Todd Coker - as “…the most incredible man I have ever known. His family are his priority.”[31]Their first child – Kelsi-Lee Coker - was born in 1997. She was followed by Courtney Coker in 1999 who in turn was followed by Peter Coker in 2002. The Applicant and her husband should be rightly proud of their children. They have each embarked on solid careers and the two daughters already have had one child each: Kelsi-Lee has a two year old daughter (“Child L”) and Courtney has recently delivered her first child (a daughter, “Child K”) two months ago. Todd served in the Royal New Zealand Air Force which saw him and the Applicant live in Auckland, Wellington, Singapore and then Australia. In 2004, Todd completed a master’s degree in engineering in Melbourne. He and the Applicant and their three minor aged children relocated to Queensland in January 2008.
[31] A1, Statement of Donna Coker dated 29 April 2025, [36].
Following relocation, the Applicant secured a role as Queensland Logistics Manager for Werner Co, an international manufacturer of industry leading ladder and scaffolding products. He has held this role for well over a decade. The Applicant continued her role as homemaker and parent as she had done since 1997 while at the same time involving herself in volunteering roles that saw her serve a period of six years as president of the Parents’ & Citizens’ Association attached to the children’s school. She returned to remunerative employment in 2012 as an administration officer with Max Solutions and moved into their finance section in 2017.
It is, I think, notable that following her arrest for the fraudulent conduct perpetrated on Max Solutions, there was an almost four year period before she went to Court for sentencing and then to prison. During that almost four year interval, she worked on a six month contract with IENOVA and for two years in the payroll and finance section of MMM Holding. She did not re-offend during this almost four year period. Nor is there any suggestion she did anything wrong during her six year stint as volunteer president of the Parents’ and Citizens’ Association of her children’s school.
The Applicant told the instant hearing that if returned to the community, she will immediately assume a very much “hands-on” role in assisting her children – particularly her two daughters – who each have very young children of their own. This is necessitated by the financial position of her two daughters. Both daughters are in relationships where they and their partners must both work. Kelsi-Lee, her partner and their two year old daughter (Child L) currently reside with the Applicant and her husband (Todd) in their large five bedroom home in suburban Brisbane. They are in the process of building a home of their own which is expected to be completed by March next year. At that time, the other daughter, Courtney, her partner and their now eight week old baby (Child K) will move into the home of Todd and the Applicant so they too can save for a home of their own.
The clinical evidence
There two clinical opinions in the material. The first is that of Dr James Freeman dated 24 January 2024 and which was obtained for the purposes of the Applicant’s sentencing a month later on 27 February 2024. As I have noted earlier, the learned sentencing Judge appears to have accepted the submission from the Prosecutor about receiving the Applicant’s extreme claims of having suffered childhood trauma “……with a large handful of salt because they were such extreme claims with no form of corroboration at all,….” As I have alluded to earlier, I will also approach these claims with a similar degree of caution and circumspection. I therefore discount as unreliable any claim of childhood trauma now being a dispositive explanation for the conduct resulting in the Applicant’s incarceration.
The other predispositive factor propounded by the Applicant involved alleged bullying she experienced in the workplace of Max Solutions. She also reported this factor to Dr Freeman. She said the bullying started in 2017 when she was moved into the finance team at Max Solutions. Dr Freeman noted “More specifically, she reported being exposed to increasing levels of emotional distress at her place of employment (e.g., perceived levels of emotional bullying, demanding vocational roles, etc)…..”[32] She attributed the increased levels of workplace emotional distress to apparently being “…..”asked to find out how to improve efficiency [within the company’s accounting system]……they ignored me and dismissed all my suggestions.” “[33] I am hard-pressed to understand how, if at all, a rejected suggestion in a given workplace could so severely impact a person’s psychopathology such as to place them on a path towards a gambling addiction that, in turn, spawned a fraud on almost $400,000 on that employer.
[32] R1, p 110, [3.2].
[33] R1, p 111, [3.4]. Note reader: this is Dr Freeman quoting the Applicant in his report based on what he recorded her telling him during their consultation.
The other facet of the claimed workplace bullying involved a claim that she was being personally attacked and ridiculed in the Max Solutions workplace because of what she described as “Dumping Syndrome” disorder. Dr Freeman recorded this: “She reported that her level of distress was further amplified by ongoing difficulties with a “Dumping Syndrome” disorder, involving unexpected rapid gastric emptying of the bowels e.g., “I was a mess. By the time I got to work, I was thinking about hurting myself – driving my car into a tree. Then there were comments [from staff] about the smell, the accidents. I wasn’t eating or sleeping a lot.” ”[34] She repeated this evidence at the instant Hearing. Again, I have difficulty attaching credibility to this evidence. Most workplaces nowadays have “end of trip” facilities (or equivalent) where employees can shower after riding a bicycle to work. It stretches credibility to suggest Max Solutions did not have at last some facility allowing the Applicant to clean up after any such inadvertent or accidental soiling. There are surely perfumed wipes (or equivalent) available from a pharmacy for this type of thing as I am almost certain would be available to, for example, a patient carrying a colostomy bag. The Applicant could have surely had an emergency change of clothes available to change into after any such incident.
[34] R1, p 110-111, [3.2]. Note reader: this is Dr Freeman quoting the Applicant in his report based on what he recorded her telling him during their consultation.
I will therefore approach this two-pronged claim of workplace bullying with the same level of caution and circumspection as I did with the claimed childhood trauma. I am again hard-pressed to understand how, if at all, this claim of workplace bullying predisposed the Applicant towards a gambling addiction that saw her fraudulently relieve her employer of almost $400,000.
Ultimately, Dr Freeman concluded that “The [Applicant’s] risk of recidivism can be considered in the low-risk category due to a lack of displaying past criminal versatility.[35] Importantly, Dr Freeman was not called to give oral evidence to the instant Hearing and the Respondent was thus denied the opportunity of testing his evidence in cross-examination. This necessarily impacts the weight this Tribunal can allocate to Dr Freeman’s opinion on recidivist risk.
[35] R1, p 116, [12.5].
The second clinical opinion before the Tribunal is that of Dr Luke Hatzipetrou. His report is dated 29 April 2025 and was obtained for the purposes of the instant Hearing. Dr Hatzipetrou also gave oral evidence to the instant Hearing. On the first claimed predispositive issue of childhood trauma and any resultant PTSD, Dr Hatzipetrou took into account Dr Freeman’s observation that (1) the Applicant did not have a childhood / psychiatric treatment history and (2) that the Applicant’s claimed childhood experiences were now suggestive of symptoms reflective of PTSD but that such diagnosis was only provisional.
Dr Hatzipetrou was similarly coy about any extent to which this claimed trauma could now be found to be predispositive of any symptomatology explaining the very serious fraud perpetrated on Max Solutions: “Considering Dr Freeman’s opinions and the materials, Ms Coker did present with trauma symptoms that appeared to be directly related to exposure to parental neglect, domestic violence, and childhood sexual abuse. The reported symptoms, at times, present as a source of distress, yet they are mild in severity and did not appear to reach the clinical threshold for PTSD. On the balance of probabilities, Ms Coker had described a raft of symptoms consistent with PTSD that were likely to be evident during her adolescence and early adulthood.” [36] [My emphasis]
[36] A1, report of Dr Hatzipetrou, p 16, lines 638-645.
This finding led to a question from me during the oral evidence. I asked Dr Hatzipetrou why it was the case that despite these claimed traumatic events during her childhood the Applicant did not commit any offences for the preceding 48 years of her life until 2017 when she was placed in the finance team at Max Solutions? I asked him why, for example, is there no evidence of earlier “risky” type behaviour by the Applicant involving, for example, an extra marital affair or fraudulent conduct towards someone close to her, such as her husband, that involved a unilateral taking or hiding of their joint funds?
Dr Hatzipetrou responded by saying: (1) trauma manifests differently in separate individuals; (2) there were no earlier risky behaviours because people with such trauma are at risk of being behaviourally dysregulated or emotionally dysregulated; (3) the Applicant’s stable marriage was a protective factor; (4) there may have been earlier behavioural manifestations that neither the Applicant or her family members recognised as being high risk; and (5) the Applicant has been otherwise pro-social and engaging with individuals and the broader community around her.
On the second claimed predispositive factor, that of workplace bullying, Dr Hatzipetrou observed the Applicant “…was reportedly exposed to persistent bullying by an employee that spanned in excess of two years. Ms Coker felt unsupported by management and reported the onset of a depressing episode which included fleeting suicidal ideation. Moreover, the offence had emerged at this time.”[37] As best as I understood his evidence, Dr Hatzipetrou put the claimed dispositive factor of the workplace bullying no higher than this: “Ms Coker’s behaviour does appear unexpected and inconsistent with her personal history. ….the monies taken… were fed into Ms Coker’s gambling addiction. Ms Coker’s gambling behaviour was severe and had emerged during this period of bullying and lack of response from management, coinciding with the deterioration in her psychological functioning.”[38]
[37] A1, report of Dr Hatzipetrou, p 15, lines 576-579.
[38] A1, report of Dr Hatzipetrou, p 18, lines 695-700.
Dr Hatzipetrou thought the Applicant had been actively involved in the workforce and that she has provided support to her adult children. He thought the Applicant possessed a capacity for empathy and that she understood the seriousness of her conduct. He noted the Applicant’s extensive social support network and her willingness to continue engaging in professional supports. Ultimately, he opined that “On the balance of probabilities, [the Applicant’s] risk of recidivism is likely to be low.”[39]
[39] A1, report of Dr Hatzipetrou, p 19, lines 757-758.
An alternate explanation for the Applicant’s conduct
A careful review of the clinical evidence has led me to effectively discount the two propounded predispositive elements behind the Applicant’s offending. They being: (1) the claimed childhood trauma which is uncorroborated and goes no higher than a provisional diagnosis of PTSD[40] or otherwise not even reaching the threshold for PTSD;[41] and (2) the claimed workplace bullying which is also predominantly self-reported and not corroborated in any substantive or convincing way.
[40] Dr Freeman.
[41] Dr Hatzipetrou
As noted by Dr Freeman, the Applicant is not a person who consumes alcohol and otherwise does not have any history of illicit substance abuse. She is not disposed to elevating her mood or otherwise seeking pleasure by such artificial means. But might it be the case that she is addicted to risky behaviour? Gambling is, in and of itself, a risky undertaking. The so-called thrill of gambling derives from the dual risks of (1) not knowing the outcome of a given wager and of (2) losing the amount one has wagered. Likewise, the mechanical and systematic sophistication behind the scheme deployed to defraud her employer also involved risk, both in terms of (1) the capacity of the scheme to resist detection and (2) the sheer risk of being found out. It must have surely been within the Applicant’s sphere of knowledge that an employer of the size and scope of Max Solutions which facilitated payment of millions of dollars of taxpayers’ money to external service providers, would have eventually detected this fraud. Or that it was more likely than not that detection would have occurred. Yet the Applicant was prepared to live with, and perpetuate, this risk.
I will likewise reject any suggestion that the Applicant somehow became a victim of her gambling addiction and that she somehow inextricably fell into some kind of whirlpool of consistently maintained deception. I think she knew exactly what she was doing at every stage of the illegality for which she was convicted. In her mid to late 40’s she developed a taste for risk (comprising gambling) which she enjoyed. She grew to excessively, and even obsessively, enjoy it. It derived from a quite innocent introduction to poker machines at her local sporting club and escalated from there. She is a not any “victim gambler” but someone who (as she told Dr Freeman) found gambling “…..fun. ….Wins felt really nice and I guess I got hooked.”[42]
[42] R1, p 111, [3.3].
The extent of her enjoyment of the risk surrounding gambling can be seen in two additional things: (1) she knew the benefits that successful gambling would afford her. It became a means of funding her lifestyle, allowing her to take days off work to gamble. It also presented her with opportunities to attend other clubs and casinos and to partake in free travel and hospitality offered by those entities as a means of luring gamblers to their premises; and (2) she had no compunction about lying to her husband about what she was doing. As she told Dr Freeman: “I would tell him I was working late. We had a little savings account and I burnt through that. My husband didn’t look.”[43]
[43] R1, p 111, [3.3].
In terms of a concluded clinical finding, I am not satisfied the Applicant can be safely found to have PTSD, at least not to any extent that has in the past, or would now, speak to her recidivist risk. The only safe finding is that she does, as opined by both Drs Freeman and Hatzipetrou, have a Gambling Disorder. Specifically, my finding is that she has a gambling disorder simpliciter which is not the result of any claimed past trauma or claimed workplace bullying and is more likely the result of a person who grew to excessively, and even obsessively, enjoy partaking in the risky conduct compelled by gambling.
Remorse
The learned sentencing Judge said: “I accept that you are fully remorseful, which is indicated, not only by your early plea of guilty, but your early admissions to the police and all of the steps that you have taken in rehabilitation.”[44]I will, with respect, slightly diverge from His Honour’s observation of “fully remorseful”. This is a case where an offender can irrefutably demonstrate full remorse. It is different from a case involving, for example, a violent rape upon an overpowered victim who had no means of resisting the physical attack from which the rape derived. There, the perpetrator can say they remorseful and that they wish they had never committed the crime. But the awful emotional and physical impact on the victim can never be erased. Words can only go so far in mitigation and can only ever amount to partial remorse.
[44] R1, p 47, lines 9-11.
But here, we are talking about a money crime. It involved the unlawful taking of money by one party from another resulting in a monetary deficit to the victim which, in the circumstances of this case, is ultimately the Australian taxpayer. Monetary deficits can be repaid such that the victim is no longer out of pocket or in deficit. This type of squaring of the ledger cannot occur in the circumstances of the above example about violent rape offending. The impact of this Applicant’s offending can – to a very significant extent - be squared away by repayment of the sum unlawfully taken. It will not absolve her from a finding that she very seriously broke the law but it would allow a decision-maker to now find she was “truly remorseful” for what she had done.
This conundrum came into my mind during closing submissions in the instant matter. I asked the Applicant whether, as part of her early plea of guilty and full co-operation with investigating police, there had ever been any offer of restitution to the prosecuting authorities involving repayment of the amount taken. After reminding her she remained on oath, the Applicant was quite clear in her response: she said that prior to her sentencing, her legal representatives had not once, but three times, communicated in writing with the prosecution with an offer to repay the amount taken but that those communications either fell on deaf ears or were otherwise not responded to. The file of those legal representatives was not in evidence before the Tribunal and the author(s) of those three letters offering restitution was not called did not give evidence at the instant hearing.[45] I took the question a step further and asked the Applicant whether she would now – when she has served almost 16 of her 18 months in actual custody - be aggregable to selling her home to fund a restitution of the amount she took or of otherwise coming to repayment terms with the prosecuting authorities which may not involve a sale. After obtaining an approving nod from her husband at the back of the hearing room, the Applicant replied in the affirmative.
[45] In making this observation, I make no adverse finding on, or comment about, the conduct of the Applicant’s case before me. The conduct of Applicant’s case is entirely a matter for the learned practitioner representing her. Further, the expedited nature of this case together with the two-say rule stipulated in ss 500(6H) and (6J) of the Act, made it very difficult to adjourn the instant Hearing so that this evidence could be obtained.
On the one hand, perhaps none of this goes anywhere because (1) the learned sentencing Judge made no reference to any offer of restitution in his sentencing remarks and (2) maybe an entity of the size of Max Solutions carried insurance (or was compelled to carry insurance) for such a loss. But on the other hand, the fact remains this Applicant (1) did instruct her lawyers to make offers of restitution before she was sentenced; and (2) is still prepared to make restitution in circumstances where doing so would not impact the nature of her sentence and where (at least presently) restitution is not sought by the prosecuting authorities.
This position of the Applicant, when conjoined with the learned sentencing Judge’s findings about remorse, leads me to now conclude (and find) that she is fully remorseful for her unlawful conduct.
Assessment of recidivist risk
71.I will cautiously follow the findings about recidivist risk respectively adopted by each of (1) the learned sentencing Judge (“a very low risk”); Dr Freeman (“low category of recidivist risk”); and (3) Dr Hatzipetrou (“On the balance of probabilities [the Applicant’s] risk of recidivism is likely to be low”). I will find the Applicant represents a low recidivist risk. This finding is principally based on: (1) the findings of the learned sentencing Judge; (2) the clinical opinion before the Tribunal; (3) the likelihood of the Applicant never again being employed in any role involving a position of trust around money; (4) her genuine remorse; and (5) the close and supportive structure of the immediate family around her.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that that any recommission of her past very serious fraudulent conduct – assuming she was ever again in a position to commit it – would occasion significant financial harm to any person or entity victimised by it. Given the ultimate victim of her past offending has been the Australian taxpayer, I will also find that the harm resulting from such a re-commission is so serious that any risk of its recommission would be unacceptable;[46] and
[46] Pursuant to Paragraph 8.1.2 of the Direction.
(c)the totality of the evidence points to a finding that this Applicant’s level of recidivist risk can now be found to be ‘low’.
In relation to sub-paragraph (e) of the abovementioned paragraph [118], one may think the Applicant’s single offence has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I think such an impression would be harsh. I have found that the Applicant poses a low recidivist risk for again committing this type of offence. There are these strong countervailing considerations: 1) apart from this singular offending episode, the Applicant has otherwise lead a blameless life in this country as a homemaker and parent, as a community volunteer and as an employee; 2) she has a very close relationship with her immediate and extended family in Australia who, on any reasonable view, have been and will be very reliant upon her if she returns to the Australian community; 3) she will immediately return to her loving family in the Australian community; and 4), apart from the single offending for which she is presently incarcerated, she has not committed any other offences in Australia for the duration of her time here. These four elements are, to my mind, strong countervailing considerations in favour of a positive visa outcome for this Applicant.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy, but not determinative, level of weight in favour of this Tribunal affirming the decision under review.Other Considerations
Other Consideration (a): Legal consequences of the decision and (c): impact on Australian business interests
Earlier in these Reasons,[89] I formed the view, consistent with the respective positions of the parties, that these two Other Considerations are not relevant to the instant determination. I will therefore put them to one side and allocate neutral weight to them.
Other Consideration (b): Extent of impediments if removed
[89] See [13] of these Reasons.
Factors to be taken into account
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.Paragraph 9.2(1)(a): the Applicant is aged 55 years. Dr Freeman has given an indicative provisional diagnosis of PTSD. He has also offered an alternative diagnosis of ‘Persistent Depressive Disorder.’ Dr Freeman also opined that the Applicant had a ‘gambling disorder’ that was in remission. Dr Hatzipetrou opined that the Applicant’s symptoms of distress from claimed past trauma were mild in severity and did not appear to reach the clinical threshold for PTSD. In the Applicant’s PCF,[90] the Applicant makes no reference to any physical ailment and only refers to ‘PTSD.[91]’ I will not find that the Applicant’s mental health symptoms represent any impediment to her return and resettlement in New Zealand. The Applicant’s age and state of physical and mental health are not impediments to her returning to New Zealand.
[90] Personal Circumstances Form.
[91] R1, p 73.
Paragraph 9.2(1)(b): the Applicant has spent about one third of her life in New Zealand and has made return trips to that country since initially arriving here as a 27 year old in 1996. The evidence does not point to her having any lack of cultural or linguistic familiarity with that country. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’[92] I respectfully concur with that observation. I will find there are no substantial language or cultural barriers impeding the Applicant returning to New Zealand.
[92] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. First, with reference to economic support, the Applicant held a responsible position in the finance team at Max Solutions. If she had not committed the very serious offence in her workplace, there would be little to cavil with the proposition that she would be able to find a similar position in New Zealand. However, there is the very real likelihood that any reasonably-minded employer in New Zealand will conduct background checks on the Applicant’s work history in Australia and discover the nature and extent of her offending here. This is not to suggest the Applicant should now be found to be unemployable in New Zealand but it does limit the range of jobs she could do. Given this predicament into which she has placed herself, I will find that she will face a relative lack of economic support in New Zealand and that this represents a moderately significant impediment to her return and resettlement there. I have allocated weight to this specific element of economic support in New Zealand with reference to the Applicant alone. Of course, it should be borne in mind that her husband, Todd Coker, told the instant hearing that if the Applicant fails in the instant hearing, he will return to New Zealand with her.
Second, with reference to medical support in New Zealand, I again have regard to the Applicant’s state of mental health. Drs Freeman and Hatzipetrou have given their opinions about her psychopathological symptoms. To whatever extent her mental health symptoms may require clinical attention in New Zealand, the Applicant will have available to her such medical support as is available to other citizens of that country. Treatment of the mental health symptoms described by Drs Freeman and Hatzipetrou is not beyond the scope of publicly available medical care in New Zealand. The question of medical support in New Zealand is not an impediment to the Applicant returning to that country.
Third, with reference to social support available to her in New Zealand, I think the Applicant’s evidence should be approached with some caution. She has spent about two thirds of her life in that country. The flavour of her oral and written evidence is that she is either estranged from or has become unfamiliar with most, if not all, of her family and social contacts in New Zealand or that those people are unsavoury characters in her life that were a part of the early life trauma she claims to have suffered. But it stretches the bounds of credibility to suggest that a person who has lived two thirds of her live in a country is totally devoid of a single person she can contact and from whom she can seek at least some measure of short to medium term support while she re-established herself in that country. I will find that the question of a lack of social support is a moderate, but not insurmountable, impediment to this Applicant being returned to New Zealand.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical and mental health are not impediments to her being removed to New Zealand;
·there are no substantial language or cultural barriers impeding the Applicant being removed to New Zealand;
·any lack of economic support is a moderately significant impediment to the Applicant being removed to New Zealand;
·any lack of medical support is not an impediment to the Applicant being removed New Zealand; and
·the lack of social support in New Zealand is a moderate, but not insurmountable, impediment to the Applicant being removed to New Zealand.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that that, respectively, the lack of economic and social support in New Zealand cause this Other Consideration (b) to militate for a moderate level of weight in favour of this Tribunal setting aside the decision under review.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.[93]
[93] See [8] of these Reasons.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a heavy, but not determinative level of weight in favour of affirming the decision under review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a very heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 5: is of a heavy, but not determinative level of weight in favour of affirming the decision under review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 1 and 5 are outweighed by the combined respective weights I have allocated to Primary Consideration 3 and 4 and Other Consideration (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal decides, pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), to set aside the decision under review made by a delegate of the Respondent on 18 March 2025 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
140.
141. I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis
..............[SGD]..............
Associate
Dated: 13 June 2025.
Date of Hearing: 2 and 3 June 2025 Representative for the Applicant: Dr M van Galen-Dickie (Migration Agent)
Sisters Inside IncSolicitor for the Respondent: Mr Jarvis Kirstenfeldt (Associate)
Sparke Helmore LawyersANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
G-Documents
Various
3/4/2025
R2
Respondent’s Tender Bundle
Various
16/5/2025
R3
Respondent’s SFIC
16/5/2025
16/5/2025
APPLICANT SUBMISSIONS
A1
Applicant’s SFIC
30/4/2025
30/4/2025
A2
Applicant’s Response to Respondent’s SFIC
26/5/2025
26/5/2025
A3
Angelique Beaufort Support Letter
20/5/2025
20/5/2025
ANNEXURE B
ADMINISTRATIVE REVIEW TRIBUNAL ) ) No: 2025/2490 ) Re: Coker
Applicant
And: Minister for Immigration and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member T Tavoularis DATE: 12 June 2025 PLACE: Brisbane DECISION: Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision under review made by a delegate of the Respondent on 18 March 2025 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
The Tribunal will give written reasons for this decision within a reasonable time.
…………..[SGD]…..…………… Senior Member T Tavoularis
0