Cook and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 21
•15 January 2025
Cook and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 21 (15 January 2025)
Applicant/s: Cassidy Paula Cook
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8607
Tribunal:General Member K. Thornton
Place:Melbourne
Date:15 January 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
........................[SGD]................................................
General Member K. Thornton
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – Substantial Criminal Record – Protection of the Australian Community – Strength Nature and Duration of Ties to Australia – Best Interests of Minor Children – Other considerations – Decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Dharma and Minister for Home Affairs [2018] AATA 2757
FYBR v Minister for Home Affairs [2019] FCAFC 185
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant is 28-year-old citizen of New Zealand.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 18 April 2024 the Applicant’s visa was mandatorily cancelled (‘the cancellation decision’) by a delegate of the Minister under s 501(3A) of the Act because the delegate was satisfied that the Applicant did not pass the character test on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act and she was serving a sentence of imprisonment of over 12 months.[1]
[1] Exhibit R1, 130.
On 23 April 2024 the Applicant sought revocation of the cancellation decision and made representations in support of revocation.[2]
[2] Ibid 199.
On 24 October 2024 a delegate of the Minister decided not to revoke the cancellation decision (‘the non-revocation decision’).[3] The Applicant applied to the Tribunal for review of the non-revocation decision on 28 October 2024.[4]
[3] Ibid 16.
[4] Ibid 4.
TRIBUNAL HEARING
The hearing of the matter proceeded by video at the Melbourne Registry on 7 and 8 January 2025.
The Applicant appeared by video-link from New Zealand, having elected to being removed off-shore once her sentence of imprisonment was complete.
The Applicant was represented at the hearing by Dr Marianne van Galen-Dickie, an advocate from Queensland organisation Sisters Inside Inc.
The Respondent was represented by Ms Hannah Anderson, lawyer, from Clayton Utz. Both representatives also appeared by video.
At the outset of proceedings, the Tribunal received into evidence the following materials:
·Exhibit R1: G-documents comprising 208 pages;
·Exhibit R2: Respondent’s Bundle of Summonsed Documents comprising 40 pages;
·Exhibit R3: Respondent’s Statement of Facts, Issues and Contentions;
·Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions; and
·Exhibit A2: Applicant’s Bundle of Material comprising of a five-page statement from the Applicant dated 19 December 2024, various certificates, and an undated letter from a financial counsellor regarding information sessions attended by the Applicant.
The Applicant gave evidence at the hearing and was cross-examined by the Respondent. The Applicant did not seek to call oral evidence from any other witnesses but sought to rely on written statements already provided in support of the Applicant from the Applicant’s mother, stepfather, and half-brother.[5]
[5] Exhibit A2, 1.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 6(a) (substantial criminal record), on the basis of paragraph 7(a), (b) or (c); or paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is defined in s 501(6) of the Act. Relevantly, s 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has the power under s 501CA(4)(b) of the Act to revoke the cancellation decision if the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
a) would be the reason, or a part of the reason, for making the original decision; and
b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
a) give the person:
i. a written notice that sets out the original decision; and
ii. particulars of the relevant information; and
b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
Section 500(1)(ba) of the Act provides that an application may be made to the Tribunal for review of decisions made under 501CA(4) of the Act not to revoke a decision to cancel a visa.
ISSUE BEFORE THE TRIBUNAL
The Applicant concedes that she does not pass the character test as set out in s 501(6)(a) as she has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined by s 501(7). As a result, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act to have the cancellation decision revoked.
Having failed the character test, the issue before the Tribunal is therefore whether there is ‘another reason’ why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii).
DIRECTION 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) is to be applied.
Paragraph 5.2 of the Direction contains principles that provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA:
(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 non-citizen poses a measureable 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 non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 5.2 also provides that the factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501or 501CA of the Act are identified in Part 2 of the Direction.
Paragraph 6 of Part 2 of the Direction provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provides guidance in taking the relevant considerations into account. It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Primary considerations
Paragraph 8 of the Direction provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:
(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;
(5)expectations of the Australian community.
Other considerations
Paragraph 9(1) of the Direction provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following other considerations must also be taken into account, where relevant, in accordance with those provisions. The other considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ANALYSIS
Primary consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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.
The Tribunal has considered paragraph 8.1(1) of the Direction and has regard to the principle that the safety of the Australian community is highest priority of the Australian Government. The Tribunal has also had particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal has also given consideration to the factors listed at paragraph 8.1(2) of the Direction.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) contains the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.
Paragraph 8.1.1(1)(a) provides that:
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.
On 8 March 2024 the Applicant was convicted and sentenced in the Southport District Court of Queensland of one charge of Grievous bodily harm, and one charge of Unlawfully wound another.[6]
[6] Exhibit R1, 41.
The Applicant was sentenced to five years imprisonment, to be suspended for five years after serving ten months on the Grievous bodily harm charge. She was sentenced to three years imprisonment to be suspended for five years after serving ten months on the Unlawfully wound another charge. The sentencing judge ordered that all terms of imprisonment are to be served concurrently. Forty-six days pre-sentence detention was also taken into account, representing the time the Applicant spent in custody since the date of her arrest (19 March 2022) to her release on bail (3 May 2022).[7]
[7] Ibid.
The Applicant’s offending was described by the sentencing judge in the sentencing remarks as follows:[8]
You and the complainants were unknown to each other. The offending occurred in circumstances where very late in the evening on the 18th of March 2022, you and friends had been consuming alcohol at a hotel, and a large group of other people had also been consuming alcohol. You lost your handbag. There was some argument with another group of people as to whether they had your handbag. In the context of that argument, comments were made by them of a sexual nature to your friend, and so a verbal altercation ensued. That verbal altercation then turned into a physical altercation between the group.
There was an innocent bystander who attempted to calm things down. There had been some punches thrown against people other than the complainant, and that altercation was continuing. At a point during that, you said that you were going to get a knife and walked back to your car. That is where you made your most stupid of decisions to go and get a knife. The verbal altercation continued between others, and when you returned to the group, you had a knife in your right hand. It was a flick-knife that you keep in your car as part of a first aid kit because at the time, you were working as a disability support worker.
With the knife in your hand, you approached the group of rather large males that were all sort of standing together. It seemed to me from the CCTV footage, that as you were approaching the group, the group of males circled around you. Then, at some point during that, the innocent bystander was trying to calm things down and his left arm was inadvertently struck with the knife. That caused a laceration, which is the count 1, wounding.
It did not seem to me to be a deliberate, intentional blow. Rather, it seems that there were arms flying everywhere, effectively; people moving about everywhere, and he has been injured because of your reckless decision to go and grab a knife. His injury was to his upper arm. It was a 12-centimetre laceration extending through the triceps muscle. He had to wear a sling for two weeks and take oral antibiotics. There was no damage to any tendons or nerves. I can see on the footage that there were a number of people fighting during this whole period and a melee of punching and the like. Your co-offender has been sentenced for three counts of assault.
There was a lot going on. Then, at some point, the complainant for the grievous bodily harm who was not really otherwise engaged in any of it, smashed you on the back of the head with a bottle. On the footage, it seems to be quite a large bottle which he brought down with considerable force on the back of your head. At various points the groups move off and everyone seems to be walking together as a group with their positions in the group changing. You are walking, not running, after them with this knife. Then at one point everyone comes back together.
The complainant and you appear to get in a scuffle and you swing the knife, striking his left forearm. He falls backward onto the group. You stab him in the back and shoulder. All of that happens very quickly, and it is difficult on the footage to actually see what is going on because you are being swung about, and as I say, a lot is going on in this scuffle. But in the context of that scuffle, you do inflict wounds on the complainant. He received a deep laceration to the right upper back, penetrating the body wall into the plural [sic] space and puncturing and collapsing his right lung.
The laceration was six centimetres in length and there was active bleeding. There was also a large laceration to his left radial forearm, extending to the bone, with injury to the arteries, nerves and muscles, a laceration to the left shoulder through the fascia overlying the deltoid muscle, a laceration to the left medial calf extending to subcutaneous tissues, and a laceration to the left great toe. He needed surgery. His life was threatened. That is why you have been charged with grievous bodily harm.
[8] Ibid 43-4.
The Applicant had no prior convictions or findings of guilt before this offending conduct, and nothing subsequent.
There is no doubt that the Applicant’s violent offending should be viewed as ‘very serious’ within the meaning of paragraph 8.1.1(1)(a) of the Direction. The Applicant inflicted serious wounds on two victims, one of whom was an innocent bystander. The sentencing judge had regard to the relevant factors in s 9(3) of the Penalties and Sentences Act1992 (Qld), which includes the need to protect members of the community from risk.[9] The sentencing judge noted that the Applicant’s offending was aggravated by the fact that the offending occurred at night, in a public place, and where members of the community should be free to gather securely.[10] The sentencing judge also considered the Applicant’s use of a weapon as a very serious factor of her offending.[11] It was further noted that the Applicant had multiple opportunities to walk away, but did not.[12]
[9] Ibid 44.
[10] Ibid.
[11] Ibid.
[12] Ibid.
In each of the written submissions filed by the parties, there was agreement that the offending conduct was very serious.[13] During closing submissions, the Applicant referred to the offending as ‘serious’ and invited the Tribunal to have regard to the surrounding circumstances and context in which the offending behaviour took place, as identified by the sentencing judge. The Respondent maintained during its closing submission that the offending cannot be viewed as anything other than very serious. The Tribunal agrees with the Respondent’s submission.
[13] Exhibit A1 [11]; Exhibit R3 [21], [32].
The sentencing judge made it plain that the community acting through the court denounces the type of conduct engaged in by the Applicant.[14] The court saw fit to impose a head sentence of five years in order to reflect the seriousness of the offending in terms of the injuries sustained.[15] The sentencing judge said that a head sentence of five years takes into account all of the criminality, including the unintentional reckless wounding of the innocent bystander ‘who was simply seeking to calm things down, as well as the more serious grievous bodily harm.’[16] The Tribunal has taken into account the sentence imposed when considering paragraph 8.1.1(1)(c) of the Direction. That is, the court imposed a head sentence of five years imprisonment for the more serious offence of Grievous bodily harm, which carries a maximum penalty of 14 years imprisonment, and a head sentence of three years for the offence of Unlawfully wound another, which carries a maximum penalty of seven years imprisonment. The head sentences imposed clearly reflect the very serious nature of the offending conduct.
[14] Exhibit R1, 46.
[15] Ibid.
[16] Ibid.
The Tribunal has also had regard to the impact on the victims of the offending (paragraph 8.1.1 (1)(d)). The first victim (the innocent bystander) sustained a 12 cm laceration to his upper left arm which extended through the triceps muscle. The first victim was required to wear a sling for two weeks and take oral antibiotics. The sentencing judge considered ‘[i]t did not seem to me to be a deliberate, intentional blow’ but rather a consequence of ‘arms flying everywhere, effectively; people moving about everywhere’.[17] The victim sustained this injury because of the Applicant’s ‘reckless decision to go and grab a knife.’[18]
[17] Ibid 43.
[18] Ibid.
The second victim sustained much more serious injuries. He received a ‘deep laceration to the right upper back, penetrating the body wall into the plural [sic] space and puncturing and collapsing his right lung’.[19] These injuries were sustained as a result of the Applicant stabbing the second victim in the back and shoulder after he had fallen backward onto the group.[20] This laceration was six cm in length and there was active bleeding.[21] The second victim also sustained a large laceration to his left radial forearm, extending to the bone, with injury to the arteries, nerves and muscles, a laceration to the left medial calf extending to subcutaneous tissues, and a laceration to the left great toe.[22] The second victim required surgery and his life was threatened.[23]
[19] Ibid 44
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
The Tribunal considers that the impact on both victims is serious and substantial and has taken this into account (8.1.1(1)(c)).
The Tribunal notes that the Applicant had no previous offending prior to this incident (8.1.1(1)(e) and (f)). There is also no evidence that the Applicant has provided false or misleading information to the Department (8.1.1.(1)(g)) or has reoffended since being formally warned (8.1.1(1)(h)).
Having considered the above factors where relevant, the Tribunal concludes that the nature and seriousness of the Applicant’s criminal offending weighs significantly against revocation of the cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
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 reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Respondent has submitted that should the Applicant continue to offend in the same manner, any risk that the offending may be repeated is unacceptable.[24] The Applicant has submitted that the court has considered this and ‘provided a sentence reflecting the likelihood of this occurring.’[25]
[24] Exhibit R3, [34].
[25] Exhibit A3, [34].
The Tribunal notes paragraph 8.1.2(1) of the Direction which directs decision-makers to have regard 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. In this case, the Tribunal considers that if the conduct were to be repeated it would undoubtedly have serious consequences. The Tribunal does not consider however that any risk that it may be repeated is unacceptable. The Tribunal has had regard to Tanielu v Minister for Immigration and Border Protection and in particular the authorities referred to at paragraphs 93 to 99 of that decision.[26] In that case, Mortimer J (as Her Honour then was) held that:[27]
‘…where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors...’
[26] [2014] FCA 673
[27] Ibid [103].
In assessing risk, the Tribunal has regard to the factors listed at paragraph 8.1.2(2)(a) and (b) of the Direction.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The nature of the harm to individuals or the Australian community would be serious should the Applicant engage in further criminal or other serious conduct. The Applicant’s conduct to date has caused significant harm to each of the victims and potentially to those who witnessed the event.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In addressing this factor, the decision-maker is to take into account the matters identified in paragraph 8.1.1(2)(b) of the Direction. In its written submissions, the Respondent notes the observation of Senior Member Taylor in Dharma and Minister for Home Affairs and states ‘the degree of risk that may be acceptable is “inversely related” to both the likelihood of reoffending and the apprehended significance of the harm that may be cause by such further offending.’[28] The Respondent also relies upon the principles as set out in the authority of Tanielu referred to above.[29] The Applicant accepts that these are principles which must guide an evaluation of risk.[30]
[28] Exhibit R3, [35], citing Dharma and Minister for Home Affairs [2018] AATA 2757, [26].
[29] Exhibit R3, [35].
[30] Exhibit A3, [31].
The Applicant relies upon the following factors as demonstrative of the Applicant’s low level of risk, indeed ‘at the lowest level possible.’[31] Firstly, the Applicant relies upon the significant time she spent on bail while awaiting sentence for these matters. The Applicant submits that her compliance with strict bail conditions then, and her adherence to parole conditions in New Zealand means that her risk of re-offending if released into the Australian community is low. The Applicant submitted that whilst on bail she did not re-offend, reported regularly to police and underwent counselling.[32] The Applicant further submits that that the court considered the Applicant’s risk when determining that her sentences were to be served concurrently ‘and that she spends minimum time in incarceration.’[33]
[31] Ibid [39].
[32] Exhibit A2, page 5 of the Applicant’s statement dated 19 December 2024 (‘Applicant’s statement’); Exhibit A1 [36].
[33] Exhibit A1, [36].
The Applicant also submits her lack of prior convictions, her placement in a low security prison in Queensland, and her adherence to local laws in New Zealand mean that she is a low risk.[34]
[34] Ibid.
The Applicant relies upon her good behaviour in prison. She gave oral evidence that she was given ‘the most trusted job in prison’ when she was given responsibility for driving a vehicle which transported prison officers to different sections of the low-security prison. Her evidence was that only one person is allocated this job, and that she was allocated it quite early upon her placement at the prison.
The Applicant also relies upon her completion of various courses whilst in prison including:
·‘Turning Point – Preparatory Program’ delivered by Queensland Corrective Services completed on 21 May 2024;[35]
·Statement of Attainment for unit ‘Prepare to work safely in the construction industry’ delivered by ‘Civil Safety’ issued 22 July 2024;[36]
·Certificate of Completion of the ‘Transformations Group’ which is a ‘trauma informed five week domestic and family violence psychoeducational support group for women’ dated 17 September 2024;[37]
·Certificate of Achievement of ‘Path of Freedom course, an Inside Mindfulness program designed to enhance emotional intelligence’ dated 7 November 2024;[38]
·Confirmation of attendance at financial counselling sessions during incarceration as delivered through ‘The MARA Program’.[39]
[35] Exhibit R1, 86.
[36] Ibid 87.
[37] Exhibit A2, page 2 of Certificates.
[38] Exhibit A2, page 1 of Certificates
[39] Exhibit A2, pages 3- 4 of Certificates.
The Applicant further relies upon the offer of full-time employment with her previous employer should she be allowed to return to the Australian community.[40] Her employer provided a letter of reference for the Applicant and described her as ‘a dedicated, capable and compassionate individual who will undoubtedly excel in any role she undertakes.’[41]
[40] Exhibit R1, 100.
[41] Exhibit R1, 99-100.
The Applicant also has the stable accommodation offered to her should she be allowed to return. She gave evidence that she would reside with her mother, stepfather and younger minor half-sibling. Her mother, stepfather, and eldest half-sibling have each provided letters of support.[42] The Applicant has also relied upon a letter of support from her former landlord who remarked that the Applicant was an excellent tenant, and he would have no hesitation in renting any of his properties in the future.[43]
[42] Ibid 101, 103-4, 107.
[43] Ibid 110.
The Applicant further relies upon her proactive nature in seeking counselling and learning strategies to cope with her diagnosed mental health conditions which were discovered post offending.[44] She was open with the Tribunal about the impact her past traumas has had on her current coping abilities, and about how she has learned coping techniques taught to her during her psychological sessions should she ever be placed in a similar situation again. She gave oral evidence that she has now developed awareness of her behaviour and emotions and knows in future to physically remove herself from difficult situations. She also gave evidence that she has learned breathing techniques and meditation to help with her anxiety. When questioned by the Tribunal, the Applicant gave evidence that she no longer associates with her co-offender who was also charged in relation to the incident.
[44] Exhibit A1, [9].
The Respondent accepts that the Applicant was ‘deemed suitable for placement’ and transferred to a low security prison.[45] The Respondent notes the various protective factors relied upon by the Applicant but notes that the Applicant’s former relationship with her boyfriend has broken down, thereby eliminating one of the protective factors.[46]
[45] Exhibit R3, [37].
[46] Ibid [40].
With regard to employment, the Respondent submits that the Applicant was gainfully employed at the time of the offending and that this factor did not inhibit the Applicant from committing violent and serious criminal offences.[47]
[47] Ibid [41].
The Respondent also cross-examined the Applicant on whether she had adhered to any of the ‘Treatment Plan’ goals as set out in the Psychological Report of psychologist Mr Sam Albassit dated 7 March 2024.[48] Mr Albassit’s report was relied upon by the sentencing court as an expert report in its sentencing remarks dated 8 March 2024.[49] The Applicant gave evidence that she hadn’t completed the items listed in the Treatment Plan (such as monthly consultations with the Applicant’s former psychiatrist Dr Walia, or continue to engage in one-on-one psychological therapy) because she had been in custody. She did give evidence of her previous engagement with Dr Walia (which she reported seeing on two to three occasions), and her previous engagement with her regular psychologist Dr Sharon Curtis who also wrote a report to the court dated 17 April 2023.[50] Dr Curtis reported that the Applicant had been a patient of hers since May 2022 and had attended seven counselling sessions as at the date of her report.[51] When questioned by the Tribunal, the Applicant gave evidence that she hadn’t seen a copy of Mr Albassit’s ‘Treatment Plan’ until she had returned to New Zealand (which was in late November 2024). She did give evidence that she had seen a GP since her return to New Zealand but had not engaged in psychological treatment.
[48] Exhibit R2, 24- 36. The Treatment Plan is located at page 35 of that Report.
[49] Exhibit R1, 45.
[50] Exhibit R2, 37- 40.
[51] Ibid 37.
The Respondent states that it accepts ‘that there is no evidence of repeat offending by the Applicant, and she has taken some positive steps (albeit limited) towards rehabilitating herself.’[52]
[52] Exhibit R3, [43].
After a careful assessment of the evidence, the Tribunal is of the view that the Applicant is at low risk of re-offending. The Applicant has taken active steps towards her rehabilitation by engaging in psychological therapy prior to being sentenced. The Applicant has also proactively used her time in custody to complete various courses and certificates and was moved to a low security prison and gainfully employed ‘in a trusted role’ at that prison.
The Applicant’s representative described the events in March 2022 as ‘an aberration’.[53] The Tribunal agrees with this characterisation. The sentencing judge remarked that there is ‘context’ in which the Applicant’s offending occurred. The context in question was informed by the circumstances in which offending occurred, as well as the Applicant’s personal circumstances. The sentencing judge remarked that the character references suggest that ‘this offending is out of character’ and that the Applicant does not appear to be the type of person who would ‘gratuitously inflict violence.’ The sentencing judge also acknowledged that the Applicant had been subject to domestic violence and sexual abuse and that, to a degree, these things reduce her moral culpability.
[53] Exhibit A1, [38].
The sentencing judge noted that since her arrest, the Applicant had continued to ‘be a productive member of society’ who obtained psychological assistance whilst on bail and had obtained another job since losing her ability to continue employment as a disability support worker due to the offending.
The Tribunal is of the view that whilst the nature and seriousness of the Applicant’s offending is very serious, the Tribunal finds that the risk to the Australian community of the Applicant re-offending is low.
The Tribunal has had regard to all the evidence before it and has made an assessment of the Applicant’s demeanour during her evidence and cross-examination. The Applicant was open and frank about her offending behaviour, expressed remorse and a willingness to change. The Applicant described in detail to the Tribunal the strategies she would use in future should she be confronted with a similar situation such that she faced in the early hours of 19 March 2022. The Tribunal gives this significant weight.
The Tribunal has had regard to paragraph 7(2) of the Direction, that is, that this primary consideration is generally to be given greater weight than other primary considerations.
On balance, the Tribunal finds that primary consideration weighs somewhat against the Applicant. The offending was very serious and caused serious injuries to two victims. Although the risk of re-offending is determined to be low, the Tribunal has kept in mind that the principle of entering or remaining in Australia is a privilege and that non-citizens will be law-abiding, respect important institutions, and will not cause or threaten harm to individuals or the Australian community (paragraph 8.1(1) of the Direction). Although this primary consideration weighs somewhat against revocation, in the balancing exercise, the Tribunal has determined that this primary consideration should not be afforded greater weight than other primary considerations for the reasons referred to above, namely the unique circumstances of the offending, the Applicant’s efforts to rehabilitate herself, and the Applicant’s low risk of re-offending. The Tribunal has reached this conclusion after a careful consideration of the relevant materials before it, including the Applicant’s oral testimony to which it has afforded significant weight.[54]
[54] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160 [44].
Primary consideration 2 – Family violence committed by the non-citizen
This primary consideration is relevant in circumstances where a non-citizen has been convicted of an offence, found guilty of an offence, or has been involved in, the perpetration of family violence.
The Applicant’s offending was not committed in the context of family violence.
This primary consideration is not relevant and has been afforded neutral weight.
Primary consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has made frequent trips to Australia from New Zealand since she was an infant. She is currently 28 years old. The following is a table of the Applicant’s travel movements to and from Australia since 25 March 2024:[55]
[55] Exhibit R1, 116-7.
Arrival date Departure date Age Duration of stay 10 August 1997 24 August 1997 10 months 14 days 26 March 2000 23 September 2000 3 years 5 months 2 October 2000 10 January 2001 4 years 3 months 28 June 2007 3 July 2007 10 years 5 days 24 November 2012 19 January 2014 16 – 17 years 13 months 3 February 2014 21 October 2014 17 – 18 years 8 months 28 October 2014 31 January 2015 18 years 3 months 13 February 2015 29 April 2016 18 – 19 years 14 months 25 October 2016 8 December 2017 20 – 21 years 13 months 11 December 2017 14 March 2018 21 years 3 months 28 March 2018 18 December 2018 21 – 22 years 8 months 29 December 2018 (Approximately 27 November 2024)[56] 22 – 28 years 5 years 10 months [56] According to the Applicant’s oral evidence.
What is evident from the Applicant’s travel movements is that she has spent a substantial amount of time in Australia. The Applicant was aged 25 years old at the date of the offending (19 March 2022). She had no prior convictions.
The Applicant and her mother relocated to Sydney in March 2000 when the Applicant was three years old.[57] The Applicant returned to New Zealand where she completed primary school.[58] The Applicant then returned to Australia in November 2012 where she completed her last two years of high school in Queensland.[59] She reports working at McDonald’s during her last two years of high school and graduating ‘in the top 12 of my grade with A’s and B’s.’[60]
[57] Exhibit A2, page 1 of the Applicant’s statement.
[58] Ibid
[59] Ibid.
[60] Ibid, page 2 of the Applicant’s statement.
The Applicant met her first boyfriend during her last year of high school and moved to his parent’s house as she was experiencing difficulties at home due to her mother’s new relationship.[61] The Applicant reports that the relationship with her boyfriend was ‘good until the last six months’ when she began to experience domestic violence perpetrated by him. During her twenties, she reports she ‘worked partied and travelled (sic)’. She reported being sexually assaulted on two separate occasions during this period.
[61] Ibid.
The Applicant worked in various administration roles until she began working with a disability organisation known as ‘Aspire4Life’.[62] She reported working 60 to 80 hours per week, including day and night shifts.[63] Whilst the Applicant was on bail she worked in finance for a few months until she obtained a job as Salon Coordinator managing two salons. She was then offered another job at her most recent employer in another salon managing and coordinating the day-to-day operation of the business.[64]
[62] Ibid.
[63] Ibid.
[64] Ibid, page 4 of the Applicant’s statement.
In addition, the Applicant has the following immediate family members in Australia:
·The Applicant’s mother (Ms Collins);
·The Applicant’s stepfather (Mr Bordiss);
·The Applicant’s minor half-siblings (SG and BB);
·Mr Bordiss’ mother, brother and sister, who both have three minor children each.
Mr Bordiss states that the Applicant is close with members of his family and has formed a bond with his brother’s children and his sister’s children.[65] He reports that his mother has welcome the Applicant into her home and seen her and her siblings as ‘like her own biological grandchildren.’[66]
[65] Exhibit R1, 107.
[66] Ibid.
In accordance with paragraph 8.3(2)(a) of the Direction, the Tribunal has considered the Applicant’s strength, nature and duration of other ties to the Australian community. The Tribunal has afforded more weight to this consideration as the Applicant had spent a number of years positively contributing to the Australian community through her work in disability services where she has maintained steady employment as a support worker.[67] The Applicant is also godmother to her best friend’s minor child and has a close relationship with her friend and her children.[68]
[67] Ibid 81.
[68] Ibid 65-6.
Given the above, the Applicant submits that this primary consideration be granted significant weight in favour of revocation.[69] The Respondent accepts that this primary consideration should be afforded moderate weight in the Applicant’s favour, but that primary consideration one strongly outweighs primary consideration three.[70]
[69] Exhibit A1, [69].
[70] Exhibit R3, [59].
The Tribunal agrees with the Applicant’s submission that this primary consideration be granted significant weight in favour of revocation. The Applicant has immediate family in Australia, including her mother, stepfather and half-siblings, and has other ties to Australia including her record of steady employment, and being a godmother. The Tribunal has afforded this significant weight.
The Applicant has contributed positively to the Australian community in the years prior to the offending incident by working in disability services and was gainfully employed during the period she was on bail. She has an offer of employment with the same salon if she is returned to the Australian community.
The Tribunal does not accept the Respondent’s contention that primary consideration one strongly outweighs primary consideration three. As noted above, the Tribunal has determined to not afford primary consideration one greater weight in the balancing exercise. The Tribunal considers that primary consideration three should be afforded significant weight in favour of revocation given the strength, nature and duration of the Applicant’s ties to Australia.
Primary consideration 4 – Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two minor half-siblings in Australia (SG and BB). The Applicant states that her and her half-siblings are ‘very close’ and ‘have an unbreakable bond’.[71] The Applicant is also godmother to a minor child in Australia, being her best friend’s daughter.[72] In addition, the Applicant also has six minor cousins in Australia, being the children of her stepfather’s siblings.[73]
[71] Exhibit R1, 64.
[72] Ibid, 65.
[73] Ibid, 75, 78-9
The Applicant submits that because she has such a strong emotional and physical relationship with her half-siblings and godchild, that this consideration be awarded significant weight in favour of revocation.[74] The Respondent submits that this consideration should only be afforded moderate weight in favour of revocation.[75] The Respondent submits that whilst revocation of the cancellation decision may be in the best interests of these minor children, it should be noted that the nature of the Applicant’s relationship with these children is non-parental, and that whilst separation may cause emotional hardship and disappointment, regular contact could be achieved through electronic means.[76]
[74] Exhibit A1, [76].
[75] Exhibit R3, [66].
[76] Ibid [65].
In relation to the stepsibling SG, the Applicant was 12 years old when he was born. The Applicant states that they enjoy doing activities together, and that she has watched him grow up.[77] She described SG as her ‘best friend’.[78] The Tribunal accepts that nature and duration of the Applicant’s relation with SG is close but notes that the relationship is non-parental (8.4(4)(a)). SG is currently 15 years old, and the Tribunal also accepts that the Applicant still has an opportunity to play a positive role in his future (8.4(4)(b)). The Applicant states that she ‘would hate to have ruined my chances to see him graduate or even attend his formal.’[79]
[77] Exhibit R1, 64
[78] Ibid.
[79] Ibid.
There is no doubt that that the Applicant’s conduct has had a negative impact on SG, as would any future conduct (8.4(4)(c)). SG is resident in Australia, and according to the Applicant’s evidence, resides with his father. The Applicant gave oral evidence that they are currently in regular contact through electronic means (8.4.(4)(d) and (e)). Although the Tribunal notes that this contact could continue if the non-revocation decision is affirmed, the Tribunal accepts as a general proposition the Applicant’s evidence that electronic communication with SG is not the same as face-to-face contact.
The views of SG are known as he has written a letter of support for the Applicant (8.4(4)(f)).[80] SG reports that the Applicant looked after him when their mother was working full time. He describes their relationship as close. He says that even after she moved out of home, she often picked him up to do things or visit. SG states that the Applicant ‘has been a very important and constant part of my life since I was born.’[81]
[80] Ibid 101.
[81] Ibid.
There is no evidence that SG has been subject to or exposed to family violence by the Applicant nor has suffered any physical or emotional trauma from her conduct (8.4(4)(g) and (h)).
The Tribunal is of the view that it is in the best interests of SG that the cancellation decision be revoked and has given considerable weight to the circumstances above.
In relation to stepsibling BB, the Applicant was 18 years old when she was born. The Applicant has stated that she remembers the day BB was born, and that she has fond memories of her as a toddler.[82] The Applicant describes BB as her ‘little shadow’.[83] She recalls watching cartoons together and going out together. The Applicant describes their relationship as ‘extremely close’ and she takes pride in being a good big sister to BB.[84] The Tribunal accepts that the nature and duration of the Applicant’s relationship with BB is very close, although the relationship is non-parental it is noted that the Applicant proposes to live with her mother, stepfather (BB’s parents) and BB if she were allowed to return to Australia (8.4(4)(a)). BB is currently 10 years old, and the Tribunal also accepts that the Applicant still has an opportunity to play a positive role in her future (8.4(4)(b)).
[82] Ibid 64.
[83] Ibid.
[84] Ibid 65.
The Applicant’s conduct would have had a negative impact on BB, as would any future conduct (8.4(4)(c)) as it would result in further separation. BB is resident in Australia and the Applicant proposes to return to the family home where BB already resides with her mother and father. The Applicant gave oral evidence that they are currently in regular contact through electronic means (8.4.(4)(d) and (e)). The views of BB have been expressed through the letters of support authored by her mother and father and are consistent with the Applicant’s evidence of a close bond.[85]
[85] Ibid 206-7, 107.
There is no evidence that BB has been subject to or exposed to family violence by the Applicant nor has suffered any physical or emotional trauma from her conduct (8.4(4)(g) and (h)).
The Tribunal is of the view that it is in the best interests of BB that the cancellation decision be revoked and gives this considerable weight to the representations made above.
The Applicant is godmother to a minor child in Australia, the child’s mother being her best friend.[86] The Applicant states that she assisted her friend when her child was born and is honoured to be her godmother. She has had visits with the minor god child and her family. She reports calling from gaol ‘almost every night to say good night to them.’[87] The minor godchild is a toddler and resides in Queensland with her parents. The Tribunal has taken note of the nature and duration of the relationship between the godchild and the Applicant and notes that although the relationship is non-parental, the Applicant reports a long-standing friendship with the child’s mother which is indicative of positive future bond between the minor child and the Applicant (8.4(4)(a) and (b)). The Tribunal also acknowledges that there are already persons who fulfill a parental role in relation to the child, being the child’s parents (8.4(4)(e)).
[86] Ibid 65.
[87] Ibid 66.
There can be no doubt that the impact of the Applicant’s conduct, any likely future conduct, and future separation would be negative (8.4(4)(c) and (d)). Given the child’s age, there are no known views of the child (8.4(4)(f), nor is there any evidence the child is affected by the factors listed at 8.4(4)(g) and (h).
The Tribunal is of the view that it is in the best interest of the minor godchild that the cancellation decision is revoked. The Tribunal has afforded this moderate weight.
The Applicant has provided details of minor cousins in her Request for Revocation form provided to the Department of Home Affairs.[88] There are six minor cousins in total. The Applicant has stated she wants to build a life with her cousins in Australia.[89] The Applicant’s stepfather reports that she has formed a bond with her cousins. He states that the children ‘will miss her greatly when she moves back to New Zealand.’[90] The relationship between the Applicant’s cousins and the Applicant has been afforded moderate weight in favour of revocation.
[88] Ibid 78-9
[89] Ibid 75.
[90] Ibid 107.
The Tribunal has considered the relationships the Applicant has with the minor children in her life. The Tribunal concludes that it is in the best interests of these minor children that the cancellation decision is revoked. The Tribunal has afforded considerable weight to the circumstances surrounding the Applicant’s relationship with her minor half-siblings. In conclusion, the Tribunal has afforded primary consideration four significant weight in favour of revocation.
Primary consideration 5 – Expectations of the Australian community
Paragraph 8.5 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant has submitted that this consideration be given limited weight against revocation in light of the unique circumstances surrounding the Applicant’s offending, and in the context of her past trauma.[91]
[91] Exhibit A1, 79-80.
The Respondent contends that the Australian community would expect the Applicant’s visa to remain cancelled, given her serious violent offending.[92] The Respondent contends that this primary consideration ought to weigh heavily against revocation.[93]
[92] Exhibit R3, [71].
[93] Ibid.
The Tribunal is to evaluate the expectations of the Australian community be reference to terms of the Direction, rather than by conducting its own independent assessment.[94] The expectations of the Australian community are as expressed in the Direction, and applied regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (8.5(3)).
[94] See also FYBR v Minister for Home Affairs [2019] FCAFC 185.
In this matter, the Applicant has offended in a serious and violent manner against Australian laws. The Australian community would expect that such a person is not allowed to enter or remain in Australia. Although the Tribunal has made a finding that the Applicant is at low risk of re-offending, it must be accepted her offending on the night in question was of the upmost seriousness.
The Tribunal considers that this primary consideration weighs against revocation of the cancellation decision. The Tribunal has afforded this consideration moderate weight in the balancing exercise.
Other considerations
In making a decision under s 501(1), 501(2) or 501CA(4), the decision-maker is required to take into account ‘other considerations’ where relevant. Those other considerations are listed in paragraph 9(1) of the Direction but are not exhaustive.[95]
[95] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 [86].
Other consideration 1 – Legal consequences of the decision
Paragraph 9.1(1) of the Direction provides that:
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Applicant does not contend that she is owed non-refoulement obligations. The Applicant has already elected to be removed and was removed from Australia on or about 27 November 2024 in accordance with s 198 of the Act, after the conclusion of her term of imprisonment.
If the Tribunal decides to affirm the cancellation decision, the Applicant will be prohibited from returning to Australian in the future. The Respondent contends that this other consideration does weigh in favour of revoking the cancellation decision.[96]
[96] Exhibit R3, [74].
The Tribunal accepts the Respondent’s contention and gives this other consideration some weight in favour of revoking the cancellation decision.
Other consideration 2 – Extent of impediments if removed
Paragraph 9.2 provides that:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Respondent contends that this other consideration weighs slightly in favour of revocation but is outweighed by primary consideration one in particular and also primary consideration five.[97]
[97] Ibid [84].
The Respondent acknowledges that the Applicant has ongoing mental health issues, although notes there is no evidence of any formal diagnosis or recent attendance at appointments.[98] The Tribunal disagrees with the Respondent’s submission in that regard. Mr Sam Albassit, psychologist, noted in his report dated 7 March 2022 under the heading ‘Diagnosis’:
The SCID-V a semi-structured interview guide for making the major DSM-5 diagnosis for Mental Health Disorders was completed with Ms Cook to assess historical and current mental health conditions.
A DASS 21 Questionnaire was administered on Ms Cook. The main purpose of the DASS is to isolate and identify aspects of emotional disturbance; for example, to assess the degree of severity of the core symptoms of depression, anxiety, or stress. The initial aims of the scale's constructions were to define the full range of core symptoms of depression and anxiety. She returned a reading in the 'Severe' range for all three subgroups - Depression, Anxiety and Stress.
In addition, The Post-Traumatic Symptom Scale-Interview Version for DSM-5 (PSS-I-5) was also administered on Ms Cook. The PSS-I-5 is a widely utilized PTSD measure administered by an interviewer. It is a semi-structured interview providing a categorical diagnosis, as well as a measure of the severity of PTSD symptoms as defined by DSM-5. Ms Cook returned a score in the `severe' range.
The Psychological Assessment of Ms Cook determined that the symptomatology presented was consistent with Complex Post-Traumatic Stress Disorder and Major Generalised Anxiety outlined in the Diagnostic and Statistical Manual of Mental Disorders — Fifth Edition (DSM-V Manual).
Ms Cook meets the criteria almost exclusively.
[98] Ibid [76].
Mr Albassit then proceeded to identify each of the diagnostic criteria for PTSD and concluded that ‘Ms Cook has been exhibiting symptomatology of Complex Post-Traumatic Stress Disorder for most of her life. She has also been exhibiting symptomatology of Major Generalised Anxiety for the same.’[99] Mr Albassit then recommended a ‘Treatment Plan’ to assist with treatment of ‘her Complex Post-Traumatic Stress Disorder and Generalised Anxiety Disorder.’[100]
[99] Exhibit R2, 29 [17].
[100] Ibid 35.
Ms Sharon Curtis, psychologist, with whom the Applicant consulted on seven occasions, also provided a report, dated 17 April 2023.[101] The Applicant was referred by her GP to Ms Curtis for the purpose of psychological counselling.[102] Ms Curtis stated the following under a heading ‘Assessment’:
Assessment of Miss Cook is based on psychometric testing and client interviews and in my opinion Miss Cook is experiencing symptoms of depression, anxiety and stress. Miss Cook's difficult and dysfunctional childhood is likely to have predisposed her to experience depression and anxiety. Miss Cook has identified she experiences anger when feeling threatened but denied ever being violent to others.
[101] Ibid 37.
[102] Ibid.
The Tribunal considers that the Applicant has been diagnosed with mental health conditions, and notes the specific Treatment Plan identified by Mr Albassit in which he recommended the Applicant:
·Continue psychiatric treatment with psychiatrist Dr Walia;
·Have fortnightly consultations her GP;
·Connect and received ongoing treatment through The Gold Coast Hospital, noting the availability of a full-time Mental Health Clinical Nurse Consultant at that facility;
·Engage in an Anger Management Program through the Blue Horizon Counselling Service, for which Mr Albassit has recommended the Applicant enrol in three courses. Mr Albassit states in his Treatment Plan that the ‘intake service provides an initial point of contact for all people within the local area.’
Although the Tribunal accepts as a general proposition the Respondent’s contention that the standard of healthcare available in New Zealand is comparable to that of Australia, the Tribunal considers that the Applicant would face some impediments in that the specific, local treatment identified by Mr Albassit would not be available in New Zealand. There may be similar services available to the Applicant, but the Tribunal has considered that the Applicant would face an impediment if her recommended treatment plan were not available to her in that country.
The Tribunal notes that the Applicant, on her evidence, is otherwise in good health, and has immediate family support in New Zealand, including her father, brother and sister. The Respondent acknowledges that the Applicant is estranged from her father, in circumstances where he reportedly perpetrated family violence against her as a child.[103] The Applicant is currently residing in New Zealand with her mother’s former partner who she considers plays a paternal role in her life.
[103] Exhibit R3, [80].
The Tribunal is of the view that this other consideration weighs somewhat in favour of revocation of the cancellation decision.
Other consideration 3 – Impact on Australian business interests.
Paragraph 9.3(1) provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant does not contend that this other consideration applies, and accordingly the Tribunal affords this other consideration neutral weight.
Other considerations
The Applicant seeks to rely on ‘other considerations’ not limited to those mentioned in the Direction.[104] The Applicant has contended that, generally, ‘there is no benefit to Australia in pursuing (the Applicant’s) removal however there is a benefit in revoking the cancellation.’[105] It is submitted that the Applicant is ‘employable and reliable and a productive member of society.’[106] The Applicant asks the Tribunal to award this other consideration significant weight in favour of revocation.[107]
[104] Exhibit A1, [82].
[105] Ibid [85]
[106] Ibid.
[107] Ibid [86].
The Tribunal has considered the Applicant’s contentions in relation to this other consideration and accepts that that the Applicant is ‘employable’ and has the potential to be a productive member of society. The Tribunal notes that should the Applicant be allowed to return to Australia, she would have the prospect of a lengthy suspended sentence hanging over her head, which would no doubt compel her to contribute meaningfully to society and not to re-offend.
The Tribunal gives this other consideration slight weight in favour of revocation of the cancellation decision.
In conclusion, the Tribunal is cognisant of paragraph 7(2) of the Direction which provides that primary considerations should generally be given greater weight than the other considerations. The Tribunal has afforded the primary considerations greater weight in the balancing exercise. To the extent that the other considerations weigh in the Applicant’s favour, they have been attributed less weight than the primary considerations.
CONCLUSION
Having failed the character test, the issue for determination by the Tribunal is whether there is ‘another reason’ why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal has considered the circumstances relating to the Applicant and the various principles outlined in paragraph 5.2 of the Direction. The Tribunal has weighed and balanced the primary considerations and other considerations referred to in the Direction.
The Tribunal has found that primary consideration one and five weigh against revocation of the cancellation decision. However, the Tribunal has considered that primary considerations three and four weigh significantly in favour of revoking the cancellation decision.
Although paragraph 7(2) provides that primary consideration one (protection of the Australian community) is generally to be given greater weight than other primary considerations, the Tribunal has decided not to afford that primary consideration greater weight because of the circumstances in relation to the Applicant’s risk of re-offending and her efforts towards rehabilitation.
The Tribunal has found that the other considerations, where relevant, are balanced in the Applicant’s favour. The Tribunal has afforded the primary considerations as a whole greater weight than the other considerations.
After a careful analysis of the facts and circumstances of this case, it is the finding of the Tribunal that there is ‘another reason’ why the original cancellation decision should be revoked.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision revoking the cancellation decision.
Dates of hearing: 7 and 8 January 2025 Advocate for the Applicant: Dr Marianne van Galen-Dickie Representative for the Applicant: Sisters Inside Inc. Solicitor for the Respondent: Ms Hannah Anderson Solicitors for the Respondent: Clayton Utz
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