CVDQ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 240
•10 March 2025
CVDQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 240 (10 March 2025)
Applicant/s: CVDQ
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10693
Tribunal:General Member S Evans
Place:Sydney
Date:10 March 2025
Date of written reasons: 19 March 2025
Decision:The Tribunal affirms the decision under review.
...........................[SGD].............................................
General Member S Evans
Catchwords
MIGRATION - Mandatory cancellation of Applicant’s visa – substantial criminal record – victim of abuse - Direction 110 - whether there is ‘another reason’ to revoke mandatory cancellation – citizen of New Zealand – best interests of minor children - medium risk of reoffending - decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 197C(1), 198, 499, 500(1)(ba), 501(6), 501(6)(a), 501(7)(c), 501CA, 501CA(3A), 501CA(4), 501CA(4)(b)
Cases
Love v Commonwealth (2020) 270 CLR 152
Mabo v Queensland (No 2)(1992) 175 CLR 1
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
INTRODUCTION
CVDQ (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to exercise the discretion to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category visa (the visa), pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (Act).[1]
[1] Migration Act 1958 (Cth) s 501CA(4), (‘Migration Act’).
The Applicant is a 38-year-old citizen of New Zealand who has resided in Australia since March. The Applicant’s visa was mandatorily cancelled on 25 February 2022 under subsection 501(3A) of the Act on the basis that the Applicant did not pass the character test as she had a substantial criminal record.[2] The Applicant sought review of the cancellation decision.
[2] Ibid s 501(3A).
On 18 October 2024 a delegate of the Respondent decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa (the reviewable decision).[3] On 20 December 2024, the Applicant sought review of the delegate’s decision at the Tribunal.
[3] Ibid s 501CA(4).
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA[4] of the Act applies where the Minister makes a decision under subsection 501(3A)[5] to cancel a visa that has been granted to a person.
[4] Ibid s 501CA.
[5] Ibid s 501(3A).
Subsection 501(3A)[6] of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a)[7] and 501(7)(c)[8] of the Act.
[6] Ibid s 501(3A).
[7] Ibid s 501(6)(a).
[8] Ibid s 501(7)(c).
Subsection 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record.’[9] Subsection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[10]
[9] Ibid s 501(6)(a).
[10] Ibid s 501(7)(c).
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act.[11] Subsection 500(1)(ba)[12] of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4)[13] not to revoke a decision to cancel a visa.
[11] Ibid s 501CA(4).
[12] Ibid s 500(1)(ba).
[13] Ibid s 501CA(4).
The Minister has made written directions under section 499 of the Act,[14] which apply to decision-makers in the exercise of power under subsection 501CA(4).[15] The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).[16]
[14] Ibid s 499.
[15] Ibid s 501CA(4).
[16] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024), (‘Direction’).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application.[17] It relevantly provides:[18]
(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 noncitizens 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 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[17] Ibid paragraph 5.2.
[18] Ibid.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[19]
[19] Ibid part 2.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the 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. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction 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.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.[20]
[20] Migration Act (n 1) s 501CA(4).
Subsection 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:[21]
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
[21] Ibid s 501CA(4)(b).
On 8 September 2021, the Applicant was convicted in the District Court of New South Wales of two counts of dishonestly obtaining property by deception-T1, six counts of dishonestly obtaining financial advantage etc by deception-T1 (Attempt) and one count of deal with property proceeds of crime<$100000-T2, for which she was sentenced to an aggregate term of imprisonment of six years.
It is common ground that the Applicant fails the character test as defined in subsection 501(6) of the Act,[22] on the basis of subsection 501(7)(c) by reason of having been sentenced to terms of imprisonment totalling 12 months or more.[23]
[22] Ibid s 501(6).
[23] Ibid s 501(7)(c).
As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
BACKGROUND AND EVIDENCE
The Applicant’s background is set out in the pre-release report prepared by NSW Corrective Services dated 3 May 2024 (the pre-release report).
Prior to her arrest in April 2020, the Applicant was residing in remote New South Wales with her partner of 22 years, AN, and five of their seven children. The Applicant was a regular user of methylamphetamine (ice). On occasion, AN made her leave the family home to avoid their children being exposed to her drug-affected and aggressive behaviour.
According to the pre-release report, the Applicant engaged in prostitution and became involved with affiliates of an outlaw motorcycle gang to obtain drugs and money. She reported being caught in the drug world, being constantly under the heavy influence of drugs and in a drug psychosis. During much of the four-month period she committed her most recent offences, she stayed with other drug users who were also offenders.
A Correctional Centre mental health report dated 15 July 2020 states the Applicant had a history of extensive trauma in childhood and adulthood and that her relationship with AN had been marked by severe intimate partner violence with physical, psychological, and sexual assaults.[24] She had been treated for psychosis while in custody but has not accessed psychiatric treatment in the community as her partner would not allow her to attend appointments.[25] The report’s author had interviewed the Applicant on several occasions, and notes that each time she presented with psychotic symptoms, including paranoid and persecutory delusions. She also had symptoms consistent with post-traumatic stress disorder (PTSD) including flashbacks, nightmares, hyperarousal, and marked negative cognitions. She was treated with antidepressants, antianxiety medication, and antipsychotic medication.
[24] STB/59.
[25] STB 59-60.
A psychological report dated 21 July 2020 was prepared by forensic psychologist Emma Hubner (psychological report) prior to the Applicant’s court appearance. Ms Hubner’s findings were considered by the NSW District Court in sentencing on 8 September 2021 and summarised by the NSW Court of Criminal Appeal on 15 February 2023 when the Applicant’s appeal against her sentence was dismissed.[26] The Court recorded in part:
The applicant was born in April 1986 in New Zealand to a Maori New Zealand mother and a father of Scottish heritage. The applicant's father regularly, in the applicant's presence, violently assaulted her mother, sufficiently to result in physical disfigurement. When the applicant's brothers attempted to intervene they, too, were assaulted.
Both parents drank heavily, and at different times the applicant was sent to live with relatives. An uncle, with whom she lived for a time from the age of 8, sexually abused her in a way she described as "violent and degrading". On hearing of the abuse the applicant's aunt "beat her mercilessly", forced her to bathe in scalding water and scrub her body, including her genitals, with a scourer. The applicant thought her parents would come and save her, but they did not. At age 11 the applicant absconded and returned to live with her parents. She began to use alcohol and cannabis and to commit petty theft. The following year she was sent to live with a paternal aunt (with whom she had lived from about 6 months to 2 years). The aunt was emotionally and physically abusive. The applicant was later placed in foster care.
By 14 years of age the applicant was using illicit drugs and was rebellious. At age 16 she became involved with her first and only partner, with whom she remained for 18 years and had 7 children. The partner was violent from the start and throughout the relationship.
At age 28 the applicant, with her abusive husband and children, moved to Australia, where her husband's parents (also abusive) lived. At age 31 the applicant was left by her husband, by way of payment for debts, at an apartment where she was drugged and gang raped by members of an Outlaw Motor Cycle Club and forced into prostitution. She remained there for what she believed was 6 months, before her husband returned to take her home.
It is unsurprising, in these circumstances, that the applicant reported to Ms Hubner that, in 2018, she had been diagnosed with post traumatic stress disorder (PTSD) and Battered Woman Syndrome; nor that she made four attempts at suicide between 2019 and early 2020 (encompassing the period of offending). The applicant reported to Ms Hubner that she was, at the time of the consultation (June and August 2021), suffering symptoms of PTSD. The applicant also reported ongoing visual and auditory hallucinations, and delusional beliefs.
Ms Hubner reviewed an array of psychological assessments, reports and records, which confirmed much of what the applicant had told her, including the diagnosis of PTSD.[27]
[26] G5/56-69.
[27] G15/134-174.
The Applicant was released from prison on 29 July 2024 and returned to the community on parole.[28] On 16 December 2024, she was detained by Australian Border Force (ABF) and held in immigration detention.
[28] ATB 39.
Indigenous descent
While seeking to have the visa cancellation revoked, the Applicant informed the Respondent that her great-great-grandmother was both an Aboriginal and Maori woman who moved to New Zealand as a young child. The Applicant stated that she is of Aboriginal descent, identifies as Aboriginal belongs to the Noonga People.[29]
[29] G40/1120-1121.
The Applicant has provided a translated copy of her great-great-grandmother’s will in which she identifies as being an ‘Aboriginal Native Woman’, and bequeaths property that appears to be exclusively in New Zealand.[30]
[30] G43/1124-1125.
The Applicant has been recognised as an Aboriginal woman by Aboriginal Elder Donna Bartlett of the Umina Lands Council. In evidence is a letter from Bharkangi Elder Christopher Johnston confirming the Applicant is recognised as an Aboriginal woman. The Department has also received a letter from John O’Brien, who says he is of the Dunghutti tribe and recognises the Applicant is an Aboriginal woman. The Applicant has provided a letter in support from Annajanette Ellis, who is a member of the Bowraville Aboriginal Lands Council and has known the Applicant since 2023 and recognises her as an Aboriginal woman.[31]
[31] G41/1122.
The Applicant now acknowledges that she does not satisfy the first limb of the tripartite test set out by Brennan J in Mabo v Queensland (No 2)(1992) 175 CLR 1 at 70:[32]
Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
[32] Mabo v Queensland (No 2)(1992) 175 CLR 1, 70.
As such, the Applicant accepts that she is not an Indigenous Australian for the purposes of the principles from Love v Commonwealth (2020) 270 CLR 152 (Love), where Bell J stated on behalf of the majority that ‘…Aboriginal Australians (understood according to the tripartite test in Mabo (No 2) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.’[33]
[33] Love v Commonwealth (2020) 270 CLR 152.
That said, the Applicant self-identifies as a member of the indigenous community and her lived experience is as an Aboriginal woman and maintains she is recognised as such by elders or other persons enjoying traditional authority among these people. She submits that her legal status does not diminish her connection to the indigenous community, and she enjoys the protection, support, and rehabilitation these communities afford her. The Applicant wishes to remain in Australia and resolve the question of her Aboriginal identity.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:[34]
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.
[34] Direction (n 16) paragraph 8.1.1.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’[35]
[35] Ibid paragraph 8.1.1.
Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of Direction 110 provides that ‘in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, 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));
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;
The Applicant’s offending history
Before migrating to Australia, the Applicant’s criminal history spanned the period from 2009 to 2013. The offences committed in New Zealand primarily involved property crimes (shoplifting, take/obtain/use credit/bank cards or documents for pecuniary advantage, etc) and breaches of various court release conditions.
The Applicant’s criminal offending continued in Australia, and she has numerous convictions for criminal offending between 2017 and 2021. These include convictions for assault, driving offences, and further dishonesty-related offences. She was sentenced to fines, community-based orders, and prison terms of up to 4 months. A summary of the offences compiled by the Respondent is reproduced at Annexure A to these reasons.
On 8 September 2021, the Applicant was convicted in the District Court of New South Wales of two counts of dishonestly obtaining property by deception-T1, six counts of dishonestly obtaining financial advantage etc by deception-T1 (Attempt) and one count of deal with property proceeds of crime<$100000-T2, and sentenced to an aggregate term of imprisonment of six years (the 2020 offending).
The circumstances of the offending are provided in the agreed facts.[36] The Applicant assumed her victims’ identities, created fake email addresses, and made multiple credit card and personal loan applications. Though the credit card and loan applications were refused by various financial institutions, the Applicant successfully purchased smart phones and earphones using one of the victims’ phone accounts.
[36] G15/154 -184.
In sentencing the Applicant, Judge Grant said the offences involved planning and coordination. His Honour observed there was a high degree of persistence on the Applicant’s part with the financial institutions to turn the attempts into a completed crime.[37]
[37] G5/65.
Judge Grant also noted that the Applicant ‘understood the nature of what she was doing,’ and ‘is a fraudster’ with ‘a long history, both in this country and in New Zealand, as a fraudster.’ He said the Applicant, who was then aged 35, ‘has a history of committing criminal offences, in particular, matters of dishonesty in Victoria and New Zealand.’ He noted the Applicant was on a six-month community correction order for dishonesty matters imposed on 27 November 2019 when she committed these offences.’
The Applicant appealed the sentence to the NSW Court of Criminal Appeal, and the appeal was dismissed on 15 February 2023. The majority of the Court held that:
‘The applicant’s crimes were, for the most part, unsuccessful, but that did not diminish the fact that she took multiple and sometimes complex steps to carry them out, and the attempts were, in each case, very serious. Her attempts also had a direct impact upon those persons whose identities the applicant fraudulently used in an endeavour to obtain, overall, a very substantial amount of money.
Before this Court the applicant appeared to suggest that the crimes involving an attempt were almost victimless, but that is to ignore the significant impact of the applicant’s crimes upon the six individuals whose financial accounts were seriously interfered with, and whose credit ratings, a valuable commodity in the modern world, were put in grave jeopardy. Two individuals saw attempts made to steal their no doubt hard earned superannuation savings.
That the majority of the offences were unsuccessful was not for any want of earnest, involved, and persistent efforts on the applicant’s part. This was not a feature that greatly diminished the seriousness of the crimes.’
The Applicant acknowledges that her criminal record in Australia demonstrates a clear escalation in the severity of her offending over time. I find her criminal conduct between 2017 and 2021 reflects a persistent and progressively more serious pattern of unlawful behaviour.
While in custody, the Applicant received institutional misconduct charges for assault, disobey direction, damage destroy property and enter other cells for which she was reprimanded and cautioned. The pre-release report concluded that the Applicant had demonstrated poor behaviour in custody.
It is of some concern that the Applicant did not declare her past convictions on her passenger entry card to Australia from a 2017 trip to New Zealand. The Applicant initially stated in response to this that she was ‘illiterate,’ but now acknowledges she provided ‘misleading information.’[38]
[38] G34/1136 – 1137.
When considering the Applicant’s conduct to date, I have taken into account that she began offending soon after her arrival in Australia. Her criminal conduct has been persistent, and the offending has increased in severity over time. The 2020 offences were towards the lower end of gravity as she had obtained only very limited goods and cash through the frauds, which were clumsy and unsophisticated. However, the imposition of a six-year term of imprisonment upon the Applicant reflects the objective seriousness of the offending. Having regard to the direction, the Applicant’s offending to date must be considered very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[39]
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.
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 re offending; 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).
[39] Direction (n 16) paragraph 8.1.2.
Further acts of criminal conduct by the Applicant could result in significant physical, financial, and psychological harm to members of the Australian community. It is not disputed that should the Applicant reoffend in a similar manner in the future, the harm to the Australian community would be serious.
The Applicant submits that the likelihood of her engaging in further criminal conduct is low and does not represent an unacceptable risk to the Australian community. The pre-release report prepared by Corrective Services in May 2024 assessed the Applicant as having a medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) scale.
The Applicant spent approximately five months between July and December 2024 in the community after being released from prison. Whilst in the community, the Applicant did not use drugs and was taken off parole because she met all the conditions. She gave evidence that she was working part-time for the local council as a cleaner and actively participated in her children’s sports. Should she return to the community, the Applicant said she could return to her job at the council.
In a statement dated 29 February 2025, Senior Corrective Services Officer Jan Kocaj confirms that the Applicant had reported to Community Corrections as required and engaged in all reporting and interventions as directed. She also demonstrated a stable environment in the community, obtained part-time employment, and engaged in services to address her personal and criminal issues to assist in developing a prosocial lifestyle. The officer assessed the Applicant as being a medium/low risk of reoffending, and her supervision was suspended in November 2024.
In her written submission, the Applicant sets out the drug and alcohol treatment she has undertaken to overcome her drug addiction. The Applicant completed the RUSH program in January 2022, EQUIPS Foundation in February 2022 and EQUIPS Addiction in March 2022. She also lists having obtained the High Intensity Program Unit certificate of completion in March 2022, Health Survival Tips and part of the NEXUS program.
The Applicant reports having been treated regularly by a psychologist in 2021, 2022 and 2023. Her most recent session was on 9 June 2023. When it was put to her that Corrective Services records indicate she failed to attend the appointment scheduled that day, the Applicant accepted that not all scheduled appointments had occurred.[40] The Applicant also obtained vocational qualifications. While incarcerated, she maintained employment across cleaning and food services and was employed for short periods in inmate induction and maintenance.
[40] ST p8.
The Applicant has expressed genuine remorse for her offending. The pre-release report states that she described feeling ashamed and embarrassed about her offending and understood what she did was wrong at the time. She considers she was not a good mother, partner, or person and that she had made poor choices. She said that she had been selfish and did not consider how her offending and her actions and choices would negatively affect people in her life and the broader community. The Applicant identified her drug use as being the major driver of her offending. She believes she has changed, and her time in prison was ‘healthy’ and she had ‘woken up.’
The Applicant’s use of illicit drugs began early in her life. She gave evidence of having been drug-free for a year after completing residential rehabilitation in New Zealand, before relapsing. The Applicant said had not used illicit drugs since her imprisonment on 30 April 2020. She has participated in drug and alcohol counselling while in custody and had attended Alcoholics Anonymous meetings. An inmate profile parole document records that on 15 January 2024 the Applicant failed a drug test.[41] The prerelease report says that the Applicant has been subject to targeted urinalysis on five separate occasions and four for of these occasions have been negative in the detection of drugs. The Applicant said she failed the January 2024 drug test as she did not provide a sample. She notes she maintained her sobriety in the community and in immigration detention, despite the availability of illicit drugs.
[41] ST p3.
The Applicant has been in a relationship with AN for 22 years and they have seven children together. NSW Justice Health file notes from May 2020 record the Applicant having resolved to leave AN.[42] A previous attempt to leave AN and return to New Zealand was unsuccessful because AN was waiting for the Applicant when she was released from prison. The file notes record in part:[43]
[42] G16/339.
[43] Ibid.
[the Applicant] Having panic attacks, though not as many as she usually does at home. Describes near constant anxiety at home, anticipatory anxiety about when partner might come home.
Has flashbacks about previous trauma, mostly related to her partner. States that he physical assaults her regularly, also states that he has had dealings with bikies and that at one point she was abducted because he owed them money.
Also describes her partner's sister and mother tying her down and scratching her. "I try to just do what he says so I don't get hurt."
States that she uses CMA [methylamphetamine] to cope with distress at home. States that she has now resolved to leave him.
Reports that last time in·custody she felt the same way though, that SAPOs had assisted her in getting a new passport (he cut hers' up so she couldn't leave). However, when she left prison, someone had obviously told him she was being released because he was waiting for her.
States that if she called her mother, she would come to Aus and retrieve her kids, and take them back to NZ.
She states that she now realises she should tell her parents about the extent of the DV in her relationship, and go to NZ where they will be able to protect her.
Discussed that her main concern is the abusive relationship and that medication is unlikely to help unless she makes changes.
However, also discussed that starting an antidepressant might be helpful to assist with anxiety and mood problems associated with PTSO,
States that her partner coerced her to break the law with the threat of violence.
States that he laughed at her when she asked why.
Is wondering whether to tell her lawyer about this.
In cross-examination on sentence in September 2021, the Applicant told the District Court that staying away from AN was one factor that would prevent her from reoffending. Upon her release into the community in 2024, the Applicant returned to live with AN and their Australian-based children. While acknowledging their relationship has been dysfunctional and violent at times, the Applicant maintains AN was not violent towards her after she was released from prison in 2024. She gave evidence that despite her well documented fears of AN, she returned to living with him because she wanted to be near her children. The Applicant gave evidence that AN had changed while she was in prison. He had been to anger management and reduced his alcohol consumption, which she claims is closely linked to his abusive behaviour.
At the hearing the Applicant confirmed that AN had a history of being physically violent towards her, was involved in her offending and had on occasion forced her to use ice. However, she said they were no longer in an intimate relationship, and that both she and AN had entered new relationships while she was imprisoned. Should she remain in Australia, the Applicant gave evidence that she plans to live separately from AN. She anticipates she would be able to find her own accommodation with the support of Ms Bartlett and her friend Shasta Dale. Ms Bartlett and Ms Dale have committed to supporting the Applicant should she return to the community.
AN was not made available to give evidence at the hearing. By way of explanation, the Applicant said that she did not want to be indebted to him should the cancellation of her visa be revoked. On balance, I find the evidence supports a finding that the Applicant will continue to have a close association with AN should she return to the community. I consider ongoing close association with AN adds significantly to the risk she may reoffend.
Conclusion as to the protection of the Australian community
The Applicant has been assessed as a medium risk of reoffending. Her past offending has been closely linked to her drug dependence and I accept that she has not used illicit drugs since being imprisoned. She has undertaken some drug and alcohol rehabilitation, and counselling; these will support her efforts to remain drug free. Her resolve to do so has been tested in the community, albeit for a short period, which weighs in her favour.
The Applicant’s association with AN is of concern and in my view adds significantly to the risk of reoffending. The documented history suggests he was a significant factor contributing to her offending, through his abuse of the Applicant, drug use and withholding appropriate treatment. The Applicant has an extensive history of criminal offending, and custodial sentences in the past have proven insufficient to deter her from reoffending.
Based on the evidence, I consider there is a medium risk that the Applicant may reoffend. Overall, this primary consideration weighs very heavily in favour of not revoking the cancellation decision.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.[44]
[44] Direction (n 16) paragraph 4(1).
The Applicant has not committed family violence, and this consideration weighs neutrally.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having 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 resided in Australia for approximately 11 years, having arrived when she was 28 years old. Taking into account the time she has spent on remand, in prison, or immigration detention, the Applicant has been in the community for approximately 7 years.
Five of the Applicant’s children reside in Australia. The two eldest – L and N - are adults. L is 20 years old and the Applicant reported he is often angry and she believes he is dyslexic. N is 18 years old and unable to read, having left school when she was age 11. Both L and N would be assisted by the Applicant’s support and her removal would not be in their interests. The Applicant submits her presence in Australia will assist her children to resolve issues relating to their indigenous identities.
In addition to her work at the Lands Council, Ms Bartlett works for the and an Aboriginal organisation focusing on mentoring Aboriginal women. Ms Bartlett gave evidence that the Applicant had strong community support and is accepted as part of the indigenous community, which would help her rebuild her life. Although there is limited evidence of broader involvement in the Aboriginal community, I accept Ms Bartlett is genuine is her desire to assist the Applicant should her visa be reinstated.
Shasta Dale has known the Applicant for seven years and they are close friends. She is prepared to provide financial, practical, and emotional support to the Applicant should she return to the community.
The Applicant speaks to her sister in Queensland every day, but she has not seen her in person since 2016. Although she reports having been an active participant in her children’s sporting communities, the Applicant has made a very limited positive contribution through her short periods of employment.
Overall, I find that the Applicant’s strength, nature and duration of ties to Australia favours revocation of the mandatory cancellation decision and is afforded medium weight.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[45] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[46]
(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.
[45] Ibid paragraph 8.4.
[46] Ibid.
The Applicant is mother to 7 children. Her 19-year-old daughter and eight-year-old son reside in New Zealand. Her five children in Australia currently reside with their father, AN. Three of the children in Australia are minors; Child S is twelve years old, Child Y is nine and Child A is seven. The Applicant gave evidence that she is rebuilding the relationship she has with her younger children, having been absent for much of their lives.
While the children currently reside with their father, his suitability as a caretaker is questionable given the extensive evidence of family violence by AN towards the Applicant. In sentencing the Applicant, Judge Grant described her relationship with AN as one of ‘domination and subjugation, both mentally and physically.’
It is recorded that child wellbeing concerns had been reported to FACS, but there is no evidence regarding the nature of the concerns or indicating the children were taken into care.[47] At the hearing, the Applicant said that AN is a great father who loved their children. She gave evidence the children had not been directly exposed to AN’s violence toward her, but they were aware it was happening.
[47] STB p 59.
The Applicant maintains that AN does not intend to raise the children long-term or care for them by himself. Should she return to New Zealand, she has previously indicated her children will go with her. However, she has also stated she did not believe AN would allow her to resume custody of the children and take them to New Zealand. In any event, AN has provided parental care to the children since 2020, and I expect he would continue to do so should they remain in his care.
The Applicant writes that her children’s mental health has been affected by her absence and all her children have told her how difficult it was not to be able to see her while she was in prison. She fears that moving to New Zealand would be destabilising for the children. They would be separated from the environment in which they have grown up and established connections. Such disruption would be detrimental to their emotional and psychological stability.
The Applicant had previously stated that she plans to live with her parents should she return to New Zealand and expected to be well-supported. However, she no longer believes this to be the case. In New Zealand, the Applicant expects that the children would be placed in an environment where they are subject to mental and physical abuse, and would be deprived of opportunities they would have in Australia.[48] She said two of her children had been sexually abused in New Zealand and feared the prospect of returning.
[48] G7/76.
Should she return to New Zealand, N would be unable to go to school as she helps care for her siblings. N is no longer a minor, but has provided a statement confirming she was assaulted by a cousin in New Zealand and fears returning. She also states that all the Applicant’s children in Australia, including her minor siblings, would miss the Applicant and would be unable to visit her in New Zealand. She confirms her mother’s absence has been emotionally difficult for both her and her siblings.
Child S provided a statement on 10 February 2025 in which she says she was devastated when her mother was detained by ABF. She misses her mother and when she feels sad, she is comforted by the Applicant’s physical presence. Her mother’s absence growing up has been difficult for her as a child and she is unable to cope without her.
Based on the evidence, it appears that the Applicant has not conclusively thought through or agreed with AN where her minor children would reside should her visa remain cancelled. I accept that a decision not to revoke the cancellation of the Applicant’s visa would be distressing to the children and generate considerable uncertainty, irrespective of whether the children remain in Australia or go to New Zealand with the Applicant. There is also a strong possibility that the Applicant’s children would be separated from each other should the adult children choose to remain in Australia.
I accept that the Applicant has maintained a connection with her children while in custody. It is unclear if the Applicant’s minor children would remain in Australia or accompany the Applicant to New Zealand should she return. Either way they would be deprived of the physical care and support of one of their parents and exposed to the disruption and stress the Applicant’s removal would generate.
The Applicant’s evidence was that she was establishing or rebuilding her relationship with each of her children. This process could continue remotely but would be considerably more challenging. Despite the evidence that the children have been exposed or at least aware of the violence directed toward the Applicant and her drug use, it is not in dispute that she cares for her children and intends to play an active and positive role in their upbringing.
This primary consideration weighs very heavily in favour of revocation.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[49]
(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.
[49] Direction (n 16) paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[50]
[50] Ibid paragraph 8.5(3).
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
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 in the Direction, without independently assessing the community's expectations in the particular case.
Through her repeated offending, the Applicant has harmed members of the Australian community, and her interactions with the criminal justice system have been at the expense of the Australian community. I accept the Respondent’s contention that the Australian community would expect that a person with her criminal history presents serious character concerns and should not continue to hold a visa. While the Principles at 5.2(6) of the Direction provide that Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age, neither consideration applies to the Applicant who arrived in Australia in 2015 when she was 28 years old.
Having regard to the Direction and the Applicant’s offending, this consideration weighs very heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are,[51] in accordance with section 198,[52] liable to removal from Australia as soon as reasonably practicable.
[51] Ibid paragraph 9.1.
[52] Migration Act (n 1) s 198.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[53] Paragraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection visa application.[54] However, I am required to ‘read, identify, understand and evaluate’ the representations.[55]
[53] Direction (n 16) paragraph 9.1(2).
[54] Ibid paragraph 9.1.2(2).
[55] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25].
The Applicant has expressed concerns about the risk of violence and threats from ‘Black Power’ gang members in New Zealand, citing incidents following the public disclosure of information related to a previous court hearing. Because of the publication, her nephew was attacked in front of his daughter.
The very limited evidence provided by the Applicant is insufficient to assess whether the Applicant is owed non-refoulement obligations. It is open to the Applicant to apply for a protections visa, during which the Applicant’s claims to engage Australia’s non-refoulement obligations can be assessed more fully.
This consideration is afforded neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:[56]
(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.
[56] Direction (n 16) paragraph 9.2.
At 38 years old, the Applicant is in relatively good physical health, but has been diagnosed with mental health conditions including depression, anxiety, complex PTSD, and Battered Woman Syndrome. She has previously been treated for psychosis and expressed thoughts of self-harm. She is concerned that the potential separation from her children may exacerbate her mental health conditions, which have been treated by psychologists and with medication.
As a citizen of New Zealand, the Applicant will have the same access to social, medical, and economic support as other citizens. It is expected that she would be able to access comparable treatment for her mental health conditions in New Zealand as she can in Australia. Apart from her limited work history, there is no apparent impediment to the Applicant finding adequate employment in New Zealand. She would not be expected to face any language or cultural barriers, having lived in New Zealand most of her life.
The Applicant has fears of repercussions from criminal associates and family members in New Zealand, which she submits may place her at risk of harm or exploitation. While she may be able to seek the protection of police or courts, doing so may require further relocation within New Zealand, which would distance her from any available family support. There is limited evidence to support the Applicant’s concerns regarding risk of harm from criminal associates, but I acknowledge the potential to complicate her resettlement in New Zealand should they arise.
The Applicant’s parents, minor son, and adult daughter live in New Zealand. A Corrective Services case note made 1 November 2021 records the Applicant stated she expected to be deported at the completion of her sentence, and that she was ‘happy with this’ as she has good family support in New Zealand and would be living with her parents. At the hearing, the Applicant confirmed that she would expect support from her mother, but it would be practical support, rather than the emotional support she needed.
I accept that the Applicant will face difficulties re-establishing herself in New Zealand and will be emotionally affected by being separated from her children and other social supports in Australia.
For these reasons, this consideration weighs in favour of revocation.
CONCLUSION
The Applicant has shown some insight into her offending and served a considerable term of imprisonment during which she remained drug-free. She has an extensive history of offending. By her own admission, previous drug use and criminal activity have been associated with the abusive relationship she has had with her partner. On balance, the evidence supports there will be a continued association with her partner should she remain in Australia and there is a real risk she will reoffend. The protection of the Australian community weighs very heavily in favour of not revoking the cancellation decision.
The Australian community 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. This concession does not apply to the Applicant who has spent limited time in the Australian community after arriving 28 years old. The expectations of the Australian community weigh very heavily against revocation.
Regardless of whether the Applicant’s minor children in Australia stay or relocate to New Zealand, their best interests are served by revoking the cancellation decision, and this consideration is afforded very heavy weight in favour of revocation.
The Applicant’s ties to the Australian community notably include her two adult children and their father. The evidence supports the Applicant having some, but limited ties to the Aboriginal community. The primary consideration of the strength, nature and duration of the Applicant’s ties to Australia are afforded considerable weight in favour of revocation.
The Applicant is expected to face impediments re-establishing herself in New Zealand and would be expected to suffer some emotional hardship; she will do so with the support of her parents. Nonetheless, this consideration weighs strongly in favour of revocation.
On balance, there is not another reason to revoke the cancellation decision and the reviewable decision will be affirmed.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.
Date(s) of hearing: 3-4 March 2025 Counsel for the Applicant: Mr P Berg, Counsel Solicitors for the Applicant: Ms M Mamarot, Solicitor, SouthWest Migration & Legal Services Counsel for the Respondent: Mr S Murray, Counsel Solicitors for the Respondent: Ms C Saunders, Senior Lawyer, Australian Government Solicitor Annexure A
STATE COURT DATE OFFENCE CASE DETAILS NSW
GRIFFITH LOCAL COURT
14 April 2021
Shoplifting value <=$2000-T2
H 38457393:
IMPRISONMENT: 4 MONTHS COMMENCING 30/04/2020
CONCLUDING 29/08/2020
NSW
GRIFFITH LOCAL COURT
14 April 2021
Drive vehicle, illicit drug present in blood etc - 1st off
H 75948787: FINE: $200 DISQUALIFICATION -
DRIVER : 4 MONTHS
COMMENCING 14/04/2021 VIC
Pending charge
15 January 2020
OBTAIN PROPERTY BY
DECEPTION (6 Charges) COMMIT INDICTABLE OFFENCE WHILST ON BAIL (2
Charges) THEFT THEFT
At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the
individual named above.
VIC
Pending charge
11 December
2019
THEFT
At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt
against the individual named above.
VIC
HAMILTON MAGISTRATES COURT
27 November
2019
HANDLE/RECEIVE/RETENTION STOLEN GOODS STATE FALSE NAME WHEN REQUESTED
Convicted and a Community Correction Order for 6 MONTHS. Unpaid Community Work
Perform 50 hours of community work.
VIC
HAMILTON MAGISTRATES COURT
23 October 2019
UNLAWFUL ASSAULT
This condition starts on 27/11/2019 and goes for 6 months. With
conviction, fined $300.00.
VIC
WARRNAMBOOL MAGISTRATES COURT
27 August 2018
RETENTION OF STOLEN GOODS OBTAIN PROPERTY BY DECEPTION (3 Charges) ATTEMPT TO COMMIT INDICTABLE OFFENCE (2 Charges) COMMIT INDICTABLE OFFENCE WHILST ON BAIL
Aggregate 120 DAYS imprisonment.
Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
27 August 2018
CONTRAVENE COMMUNITY CORRECTION ORDER
Proven
VIC
WARRNAMBOOL MAGISTRATES COURT
27 August 2018
Breach Re 22/02/2018 OBTAIN PROPERTY BY DECEPTION (7
Charges) ATTEMPT TO COMMIT INDICTABLE OFFENCE THEFT
Aggregate 1 MONTH imprisonment.
Concurrent.VIC
WARRNAMBOOL MAGISTRATES COURT
22 February
2018
OBTAIN PROPERTY BY
DECEPTION (7 Charges) ATTEMPT TO COMMIT INDICTABLE OFFENCE THEFT
Convicted and a Community Correction Order for 12 MONTHS. Unpaid Community Work Perform 100 hours of community work. This condition starts on
22/02/2018 and goes for 12 months.
VIC
WARRNAMBOOL MAGISTRATES
COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION
Aggregate 1 MONTH imprisonment.
Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION
Pay compensation
$2013.95 Aggregate 1 MONTH imprisonment. Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION
Pay compensation
$610.00 Aggregate 1
MONTH imprisonment. Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION COMMIT INDICTABLE OFFENCE WHILST ON BAIL (6 Charges)
Pay compensation
$2981.90 Aggregate 1 MONTH imprisonment. Concurrent.
VIC
WARRNAMBOOL
MAGISTRATES COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION
Aggregate 1 MONTH imprisonment.
Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
OBTAIN PROPERTY BY DECEPTION
Pay compensation
$600.00 Aggregate 1 MONTH imprisonment. Concurrent.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
FAIL ORAL FLUID TEST W/IN 3HR OF DRIVING
Pay compensation
$1774.95 With conviction, fined an aggregate of $800.00
Licence cancelled and disqualified for 3 months.
VIC
WARRNAMBOOL MAGISTRATES COURT
29 May 2017
UNLAWFUL ASSAULT
With conviction, fined an aggregate of $800.00.
VIC
ARARAT MAGISTRATES
COURT
16 December
2016
UNLAWFUL ASSAULT FAIL TO ANSWER BAIL
Without conviction, Adjourned to 16/06/2017.
0
4
0