Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 66 (25 January 2024)
Division:GENERAL DIVISION
File Number:2023/8358
Re:Toni-Michelle DAVIES
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:25 January 2024
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.
..............................[sgnd]..........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Absorbed Person visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – strong links to the Australian community decisive - decision under review is set aside.
LEGISLATION
Migration Act 1958 (Cth)
Commonwealth Electoral Act 1918 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
25 January 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 6 November 2023, not to revoke the mandatory cancellation of her Absorbed Persons visa (“the Visa”). Her visa was cancelled on 24 August 2023 under s 501(3A) on the basis that she did not pass the character test.[1]
[1] Exhibit 3, G3 Letter from Department to applicant – Notification of decision not to revoke visa cancellation decision, 11-28.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to imprisonment for 3 years, 4 months and 25 days on 17 March 2022.[2]
[2] Ibid, G4 Attachment A: National Criminal History Check (dated 29.08.23), 30.
The Applicant concedes that she does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 18 January 2024. The Applicant was self-represented, and the Respondent was represented by Mr Alex Chan of Sparke Helmore.
The Applicant gave evidence in person. Her evidence was generally given in a straightforward manner. There were however some inconsistencies and some points at which she disputed findings of the sentencing Judge. Her explanation for the possession of thousands of dollars in cash at the time of her apprehension for instance, is difficult to accept. She quibbled about conceding the obvious fact that she had been a long-term methamphetamine addict. She stated many times that she had remorse for what she had done, becoming very emotional each time. However, that was because she had “missed out on so much” whilst imprisoned, in particular, missing out on time with her grandsons and attending her mother’s funeral. It was clear that her remorse was focused on the consequences of her conviction and imprisonment, not on the damage to the community caused by the commission of her crimes. It is evident at the time that her offending was detected, she had been entrenched in a subculture of drug abusers and small-time drug dealers in Murray Bridge, for some years. The offending for which she was charged and convicted, represents only a snapshot of similar offending that reached back for years. On the other hand, she made some concessions against her interests. For example, she admitted stealing a watch from a security check point during a court attendance. That defendant in a serious criminal case should opportunistically steal a watch in the precincts of a court, during an attendance on a criminal charge, is very alarming.
This is not, however, a case in which the Applicant’s credibility is generally determinative. Most of the relevant facts are not in dispute. Where there is a contest between the Applicant’s account and another independent record, I have sufficient concerns about her credibility, to prefer the independent record.
The Applicant did not call any witnesses.
Background Facts
The Applicant was born in the United Kingdom (UK) on 4 November 1967. She is now 56 years of age. She arrived in Australia with her family on 12 September 1971, when she was a two and a half-year-old child.[3] They initially lived in Western Australia.[4]
[3] Ibid G5: Attachment B: Sentencing remarks of the District Court of South Australia at Adelaide (dated 17.03.23), 32; G10 Attachment D: Personal Circumstances Form (dated 01.09.23), 51.
[4] Ibid G11: Attachment E: Letter from Ms Toni-Michelle Davies (dated 20.09.23), 63; G15 Attachment I: Incoming Passenger Card (dated 12.09.71), 73.
When she was 12 years old, her parents divorced. Her father returned to the UK. She says in a statement dated 20 September 2023 that she has had no contact with him for over 20 years. She is unsure if he is still alive.[5] This is inconsistent with the information that she provided to Dr Lim on 23 November 2021:
“Around 1978 or 1979, Ms Davies reported that her parents made the decision to separate in the context of her mother’s suspected affair with another man. Her father subsequently returned to the UK permanently while Ms Davies and her younger brothers remained in their mother’s care. She stated that her father has remarried and that she was in constant touch with him via the telephone up until about 5 to 6 years ago, when they both changed their phone numbers around the same time and consequently lost contact with each other. Ms. Davies reported that she has recently learnt from an aunt back in the UK that her father is still alive and is wanting to re-establish contact with her, which she is also keen to do but she intends to wait until after her legal matters are resolved and her emotional state is "less stressed" before she does so...” [6]
[5] Ibid G11, 63.
[6] Exhibit 4, Applicant’s Tender Bundle, Forensic Psychological Report, 28.
The Applicant was unable to explain how this discrepancy arose. In her evidence, she stuck to the version in her statement of 20 September 2023. It is inconceivable that Dr Lim simply fabricated the Applicant’s history of contact with her father. This reflects poorly on her reliability as a witness.
When she was 15 ½ she moved to Adelaide with her mother and 2 younger brothers. Halfway through year 10 she left school and worked in a snack bar. At about the age of 16, she became a cannabis user. She has been a regular user ever since.
Her mother remarried when she was about 17. She has had a poor relationship with her stepfather and has had issues with her stepsiblings. At about 18 years of age, she moved out of home and lived with friends. She returned home periodically. She had a good relationship with her mother.[7] Her mother passed away on 3 October 2023.[8]
[7] Ibid.
[8] Exhibit 3, G7 Attachment B.2: Adelaide Women's Prison report from Department of Correctional Services (dated 09.10.23), 39.
In October 1987 (when she was 19 years old), the Applicant’s oldest daughter (A.D) was born.[9] A. D’s biological father did not remain on the scene. She is now 36 years old with 2 sons, Child A (aged 17) and Child B (aged 9).
[9] Ibid G3, 23.
In March 1991, the Applicant’s second daughter C.M. was born.[10] She and her younger brother are the children of a different man. She is now 32 years old.
[10] Ibid.
On 1 September 1994, the Applicant obtained the visa by operation of law.[11]
[11] Ibid G16: Attachment J: Notice of Visa Cancellation (dated 24.08.23), 74.
In February 1995, the Applicant’s youngest son Ch.M. was born.[12] He is now aged 28.
[12] Ibid G3, 23.
On 5 September 2016, the Applicant was convicted of various offences relating to the cultivation and possession of cannabis. She was placed on a 12-month good behaviour bond.[13]
[13] Ibid G4, 30.
On 21 January 2019, the Applicant was convicted of driving offences relating to use of a vehicle whilst under the influence of methamphetamine. She was fined $900 and disqualified from holding a driver’s license for 6 months.[14]
[14] Ibid.
On 22 November 2020, police conducted a search at the Applicant’s house and found bags containing methamphetamine, amongst other things. The Applicant was arrested and taken into custody. At the time, she was caring for the daughter of her brother’s ex-girlfriend (Child C). Child C was about 13 years of age at the time. She lived with the Applicant for about 5 years in all. Child C is now 16 years of age.
On 23 December 2020, the Applicant produced a positive urine sample for methamphetamine.[15]
[15] Exhibit 6, Respondent’s Tender Bundle, 65.
On 28 July 2021, the Applicant was convicted of failure to comply with a bail agreement. These breaches involved positive tests on drug screening.[16] She was convicted and placed on a good behaviour bond for 6 months.[17]
[16] Exhibit 3, G5: Attachment B: Sentencing remarks of the District Court of South Australia at Adelaide (dated 17.03.23), 34.
[17] Ibid G4, 30.
On 13 December 2021, the Applicant attended at the Supreme Court of South Australia. She stole a wristwatch which had been left in a plastic container by the X-ray scanner, at the security check in area. She was not charged with this offence even though it was detected. She was on bail at the time. She admitted to this conduct in cross-examination.
On 21 December 2021, forensic psychologist Dr Lorraine Lim provided a report on the Applicant. This report relevantly states:
“At the time of this assessment, Ms Davies reported that she is living in shared accommodation at [address 1] with a platonic male friend ("xx"). She has only been living there for several weeks. She reported that prior to her move into this rental house, she was struggling with homelessness and was leading a 'couch-surfing' lifestyle in this context for several months, ever since she was evicted from her stable accommodation at [address 2], which was managed by Junction Housing, a non-for-profit community housing service. She had been living there for about 2 to 3 years when the property was raided by the police in late 2020 and she was subsequently charged with the current drug trafficking offence. She was evicted from that property in mid-2021 by Junction Housing. The official reason that she was given for the eviction, was that the property was meant as a transitional form of accommodation for individuals who are at risk of homelessness and consequently, Ms Davies had over-stayed her lease as she had already been living in that house for a few years.
Prior to moving into that Junction Housing unit, Ms Davies was reportedly living in a house that she had owned in Murray Bridge for more than 10 years. She explained that she had purchased it a few years after she moved to that town for only a small sum of money, via a flexible loan arrangement with Homestart. She did not encounter any difficulties with meeting her monthly mortgage repayments at first, because she was employed full-time in the fruit and vegetable processing industry. However, she started falling behind with her repayments once she became unemployed, while simultaneously, her drug use escalated due to her emotional issues. Furthermore, her financial commitments also increased in the context of her decision to become a full-time caregiver to a step-niece. It was against this background that she agreed to sell the house in 2017 to the ALDI group, who wanted to build a supermarket on the site. She told me that her intentions at the time were to "become debt free" after she paid off her outstanding home loan arrears and her outstanding bills. Unfortunately, that did not occur. She claimed that the partner of her eldest daughter ("D.M") had borrowed $8000 from her and subsequently gambled that entire sum of money away. She also claimed that A.D. and Mr. D.M. had “defrauded” her of approximately $17,000 around 2018/19, which was money that she had kept in her bank account and was planning to put towards a down deposit on a new home. She stated that she had reported the stolen money to the police and to the fraud department of her bank but was told that there was insufficient evidence to charge her daughter and her partner with theft. The fraud department was also unable to refund her the money. Ms Davies said that she has been struggling financially and emotionally ever since this incident occurred.
…
Education and Employment History
Ms Davies described a limited employment history. She explained that she gave birth to her first child at the age of 19, and subsequently, she was a full-time homemaker and primary caregiver to her three children up until her late 30s when she relocated from Adelaide to Murray Bridge with her then partner. Her first paid employment was packing snow peas in a vegetable processing factory in Murray Bridge, which lasted only a few months because it was seasonal work. Thereafter, she found work as an orange picker and packer in Myponga for about 8 to 9 months, before she left to start working in the production line at [employer]. She worked at [employer] for several years before her role was made redundant. She has been unemployed for the past 10 years preceding the current assessment.
Ms Davies stated that she is currently in receipt of the Newstart Allowance from Centrelink. However, she was receiving the Family Tax Benefit/Single Parent Payment up until about 10 months ago as she had full-time care of her adolescent step-niece, (Child C) The latter is the former stepdaughter of one of Ms Davies' younger brothers (Child C) was in Ms Davies’ care for nearly 5 years when she was between the age of 8 to 13 years old, because her biological mother was apparently a neglectful and irresponsible parent. Ms Davies stated that in contrast, she had provided (Child C) with a stable home environment and education until early 2021, when (Child C) voluntarily decided to move home to live with her mother.
Relationship History
Ms Davies reported that she has three children (two daughters and one son) to two different men. She stated that she was not officially in a relationship with the father of her oldest daughter (“A.D.”) who was born in 1987. He also abandoned them after she informed him that she was pregnant and has never been involved in A.D.'s life. It was her mother and stepfather who had supported her during her pregnancy. Ms Davies reported that she and her daughter had lived with them for about 9 months after the birth, before she moved out of their home to live independently with her daughter, albeit with ongoing support from her parents.
In 1988/99, she commenced a relationship with A.M., who subsequently adopted A.D and raised her as his own child until he died of cancer in mid-2020. Ms Davies reported that she and Mr A.M were in a relationship for about 11 years. He is the father of her two youngest children, C.M (born in 1991) and Ch.M (born in 1995). He was a mechanic and she described him as a responsible father and a good provider for their family. She denied that he was an abusive partner. Ms Davies stated that it was she who had ended their relationship in 1999, when their youngest son was about 4 years old, because she "wasn't in love with him anymore". It was apparently a civil breakup and she was voluntarily awarded full custody of the children while he paid child support and remained actively involved in their lives. A.M. eventually re-partnered and Ms Davies reported that she and the children used to get on well with his new partner. Notably, her second daughter C.M is currently living with the latter in Adelaide while working as a website designer. Ms Davies stated that her relationship with C.M has been somewhat distant ever since the latter decided to go and live with her father and stepmother when she was in her teens. She commented in that regard that this daughter is "very quiet and keeps everything to herself.
About 18 months after her separation from A.M., Ms Davies reported that she became involved with A.B., and subsequently relocated to Murray Bridge with him in the mid-2000s in search of more affordable housing. This relationship lasted approximately 6 to 7 years in total before he ended it. She reported that he was a heavy drinker and a methamphetamine addict, although she stated that she only discovered the extent of his substance abuse after they moved to Murray Bridge. She also stated that he was a physically abusive and emotionally manipulative partner and had cheated on her repeatedly with other women while they were involved. She did not believe that she was significantly impacted by this breakup, although she acknowledged that it had caused her own drug use (cannabis and methamphetamine) to escalate for a short time as an emotional coping strategy.
Ms Davies stated that she has remained in contact with all three of her children although she is closest to her son Ch.M. She told me that he is also the most stable and functional of all her children, as he is employed as the assistant manager of a retail store in the city, has been with the same partner for the past 8 years, and they have recently purchased a home in Morphett Vale together. She reported that she has encountered the most problems with her eldest daughter "A.D" in the past, as the latter has struggled with long-standing drug issues and has apparently been involved in an intermittently domestically violent relationship with her partner, D.M., for the past 10 years. Ms Davies also alleged that she has been the victim of countless threats and harassment by Mr D.M. over the years typically when he and A.D. were separated. She described her daughter's relationship with Mr D.M. as dysfunctional and toxic, and she claimed that he has damaged her property on multiple occasions "in order to get to A.D.".
Ms Davies reported that she was looking after her 7-year-old grandson (Child B) from A.D.'s previous relationship when her daughter and Mr D.M. were remanded in custody between mid-to late 2021 in relation to separate drug charges. She also claimed that “Child B” suffers from an Autism Spectrum Disorder and required a greater level of supervision and support than what A.D. and Mr D.M. were able to offer. Of note however, when pressed for more information about Child B's autism diagnosis, Ms Davies admitted that he has not been formally diagnosed. She became more tearful and emotional in the context of this conversation, and she repeatedly stated that Child B was deceitfully removed from her care by his parents who had picked him up from school one day without her permission and brought him home to live with them. She also indicated that she was the only person who was qualified to deal with "Child B's disabilities". Of note however, when challenged about her claims, Ms Davies eventually acknowledged that there was no formal custody or intervention order that was prohibiting Child B from living with A.D or Mr D.M.
Ms Davies reported that she and A.D. are not speaking at the time of this assessment, but she is allowed occasional telephone contact with her grandson.
Substance Use History
Cannabis
Ms Davies reported that she commenced cannabis use at the age of 16 years old due to "peer pressure". … Ms Davies reported that her most recent use of cannabis was approximately in November 2021 to help with her sleep.
Methamphetamine
Ms Davies reported that she started smoking methamphetamine approximately 15 to 16 years ago, after she settled in Murray Bridge. She stated that she was influenced into using this drug (“Everyone else was doing it. I did it so I wasn't the odd man out at first"). She became progressively dependent on this drug and as her tolerance for it grew, so did her level of methamphetamine use. ... However, she stated that over the past 5 to 6 years, she has been largely relying on methamphetamine for that purpose, due to her de facto son-in law's ongoing physical violence and harassment. She stated that she was using the methamphetamine to "stay alert and awake so that I could keep an eye on him. He's kicked my back door in, driven past my house at all hours of the night, and I've seen him bashing into A.D. I felt I needed to keep an eye on him as I still had (Child C) staying with me at the time". She reported that her most recent use of methamphetamine at the time of this assessment was "a few weeks ago, when I was stressing out. A friend had some and asked me if I wanted some and I said yea".
Current Offending
Ms Davies reported that she was smoking between "half a g to one g per day" of methamphetamine over a 1 to 2 year period leading up to her current drug trafficking offence. She stated that she was buying this drug in bulk because it was cheaper and would sell some of it to her acquaintances and friends for a small profit in order to fund her ongoing methamphetamine use. Occasionally, she said that she and a few of her friends would also pool their money together to purchase a large amount of that drug to be shared amongst themselves. Ms Davies stated that she regretted her offending behaviours 'big time" and "would never do it again".
History of Psychological Functioning
Ms Davies did not believe that she has been formally diagnosed with a mental health issue. However, she reported that she has been experiencing unresolved grief and loss issues since the death of her best friend ("Aa") from a brain tumor approximately 13 years ago. She said that she had been prescribed Cymbalta (an antidepressant) since her friend passed away and is still on this medication at present. She reported that she has engaged in several episodes of counselling in the past, but her grief remains unresolved.
Offending History
Ms Davies' criminal antecedent record documented only a limited history of offending. Her current drug trafficking charge appears to be the most serious thus far. There were pending charges of several counts of breach of bail, which apparently related to her positive drug screens for illicit drugs, and two counts of possession of a prohibited weapon, which were reportedly related to a taser and a set of knuckle dusters that were found following a police search of her property in November 2020. She explained that she had purchased the taser a few years ago with the intention to use it "for protection" against Mr D. M., although she also stated that she "never got to use it". The knuckle dusters apparently belonged to one of her brothers who had left it at her house years ago.
Ms Davies' history also documented convictions for two counts of cannabis related offending in 2015/16. She explained that she was growing the cannabis for her personal use at the time. The remaining convictions in her record were related to drug (methamphetamine) driving charges which had occurred in July 2018. She explained that she was driving to the chemist at the time to purchase eczema cream for her step-niece (Child C). She stated that that car has been sold and she is currently relying on public transport and friends to drive her to her appointments.
OPINION AND RECOMMENDATIONS
Based on the information available, I believe that Ms Davies would meet the Diagnostic and Statistical Manual for Mental Disorders, 5^th Edition (DSM-5) diagnostic criteria for the following psychological conditions at the time of her offending behaviours:
•Stimulant -Amphetamine - Use Disorder (severe)
•Cannabis Use Disorder
In my opinion, Ms Davies has also displayed several prominent features of a Borderline Personality Disorder (BPD), including poor emotional regulation, a pattern of unstable relationships characterized by unhealthy attachments and over-compensation (e.g. in relation to her grandson (Child B)), and poor impulse control which has manifested in her substance abuse. However, I do not believe that she meets enough of the criteria for a full diagnosis to be made at present. I also believe that there is a direct nexus between Ms Davies' BPD features and her abuse of illicit drugs, and in tum. her decision to engage in the current methamphetamine charges.
Individuals with BPD traits may also display dramatic, occasionally erratic, and attention-seeking related behaviours and emotional states, especially when they are experiencing situational and psychosocial crises. They also have a tendency to externalise blame for their actions in an attempt to justify and rationalise their dysfunctional pattern of conduct in an attempt to avoid taking ownership of their problems. This may be why despite having reportedly undergone multiple grief and loss counselling sessions in relation to the death of her best friend 13 years ago, Ms Davies continues to report acute distress in that regard and to attribute many of her ongoing psychological issues to that event. She has also been prescribed antidepressant medication for the past 13 years, with seemingly no improvement to her emotional functioning. Furthermore, Ms Davies has attributed her more recent illicit methamphetamine abuse, which also underpins her eventual decision to engage in the current drug trafficking to keep funding her drug dependency, to the harassment and physical violence that she was subjected to by her de facto son-in-law, Mr D.M. That is not to say that Ms Davies' claims against Mr D.M. were false or that she has not been genuinely distressed and traumatised by him. However, she could have engaged in more constructive solutions such as by seeking the assistance of authorities and professional intervention to address her psychological issues, instead of turning to illicit drugs to cope with her emotions.
… I believe that her prognosis must remain guarded for the time being since she is reportedly still abusing methamphetamines and cannabis intermittently, and in light of her previous unsuccessful attempts at counselling and pharmacotherapy. Consequently, I believe that she remains of between "Moderate to High'. range of recidivism, on account of her ongoing drug use and history of unsuccessful attempts at rehabilitation.
… She would therefore benefit from an extended period of assertive case management through the Department for Correctional Services if a community-based penalty is appropriate. This would help to militate against any inherent propensity on her part to avoid potentially challenging/emotionally confronting situations, until she has made sufficient therapeutic progress to be able to regulate her emotions independently. She is unlikely to receive the specialised, one-on-one intervention she requires to address her complex psychological issues within a custodial setting.
The following rehabilitation supervision and treatment options are recommended:
•To be subjected to regular drug screens as an incentive to support her to maintain her abstinence from drug use over the foreseeable future;
•To continue to engage with a GP for prescription of pharmacotherapy, referral to a psychiatrist to review her current antidepressant regime, to monitor her mental health and to facilitate referrals to specialists and allied health professionals on an as-needs basis;
• To be referred to a psychologist, via a GP Mental Health Treatment Plan, to engage in either Dialectical Behaviour Therapy (DBD or Schema Therapy to address the key features of her Borderline Personality Disorder, as well as intervention to address her unresolved grief and loss;
• Referral to a DBT Skills Training Group for women which is offered by Community Mental Health Services, in order to augment the progress that she makes in her individual psychological sessions;
•Engagement with a specialise drug rehabilitation service to assist her to maintain her abstinence from substances, such as the MATRIX stimulant use program;
•To continue with her current supportive counselling sessions in relation to her drug and mental health symptoms at Uniting Communities and the Murray Mallee GP Network.”[18]
[18] Exhibit 4, Applicant’s Tender Bundle, Forensic Psychological Report, 25-36.

On 22 December 2021, the Applicant produced a positive urine sample for methamphetamine.[19]
[19] Exhibit 6, Respondent’s Tender Bundle, 65.
On 4 January 2022, the Applicant produced a positive urine sample for methamphetamine.[20]
[20] Ibid.
The Applicant claims that she last used methamphetamine on about 12 January 2022. She said that she had some lying around and thought that she would be going to prison, so she might as well use it up. She denied having used since, despite it being available in prison.
On 14 January 2022, the Applicant was convicted of possession of a prohibited weapon. She was found with a taser and a set of knuckle dusters. She said that she had purchased the taser some time ago to protect herself against her daughter A.D.’s abusive partner D.M. She had never used it. The knuckle dusters had been left with her by one of her brothers some years ago.[21] She was fined $100.[22]
[21] Exhibit 4, Applicant’s Tender Bundle, 34.
[22] Exhibit 3, G-Documents: G4, 30.
On 2 March 2022, the Applicant’s bail was revoked, and she was incarcerated in the Adelaide Women’s prison.
On 17 March 2022, Judge Davison of the SA District Criminal Court sentenced the Applicant to a term of imprisonment of 3 years, 4 months and 25 days. Her Honour’s sentencing remarks include the following:
“You have been committed for sentence on one count of trafficking in a controlled drug. The maximum penalty for this offence is a $50,000 fine or imprisonment for 10 years or both. You are entitled to a reduction of up to 15% in respect of any penalty that I may impose.
The circumstances of your offending are that at about 2 a.m. on 22 November 2020 the police attended at your home address. They had information that drugs were being sold from that address. You were at home at that time with two children. In the main bedroom, police located three bags containing methylamphetamine weighing 1.66 g, 2.3 g and 2.18 g respectively. Two of the bags containing methylamphetamine were stored inside a locked grey box that also contained $6,900 in cash and a knuckleduster. The third bag, you handed to the police after taking it out of your dresser. Also, within the house, the police located ice pipes, bongs, a taser, several bags containing what appeared to be small quantities of cannabis, scales, and small plastic bags. The police also located what appeared to be tick lists. It was submitted by your counsel that these were lists of people to whom you had sold drugs or assisted. You had these lists so that you may be able to go to them in the future if you, yourself, needed drugs without payment or at a more affordable rate.
A further $190 was located in a handbag and $200 within a pencil case which was also in the main bedroom.
You were interviewed at the house by the police on the same day. You told them that you intended to sell some of the methylamphetamine to your friends and to use some yourself. You said that you purchased the drug as a half ball for about $600. You told them that you sell methylamphetamine for $50 for a point or half gram amounts. You told the police that you had been selling drugs for a few years.
In relation to the cash, you told the police that it was not the proceeds of sale but was money you had saved from additional Coronavirus payments. In support of this, your counsel provided your bank records from the year 2020 which showed you regularly withdrawing COVID support payments in cash. You kept the money for safekeeping because of an earlier fraudulent transaction on your bank account by your daughter. The prosecution do not dispute this submission.
You had thousands of dollars but submitted that you sold drugs to ensure that you could buy them for your own use. Whilst I accept that you were not generating a significant amount of money from drug sales, I do not accept that you were only selling in order to finance your own habit. I find, in this case, that you were quarantining money that you had from other sources and that this is not a case where you were merely buying to sell and selling drugs in order to finance your own habit. It is a case where you chose to do that.
I now turn to your personal circumstances. You have a relatively limited antecedent history. In 2016, you were convicted of the offence of cultivating in a controlled plant and possessing cannabis. You were placed on a bond to be of good behaviour for a period of 12 months. In 2019, you were convicted of driving a motor vehicle with methylamphetamine in your fluid or blood. You were fined $900, and your driver’s licence was disqualified for a period of six months. You also contravened a condition of provisional licence for which you were discharged without penalty. In 2021, you were convicted of one count of failing to comply with bail agreement. That relates to failing to report for supervision under the bail agreement before this court.
I received a psychological report that was prepared by Dr Lim and Ms Johanson made submissions on your behalf. You are now aged 54 years old. You have three adult children and two grandchildren. You were born in the United Kingdom and migrated to Australia with your family when you were aged about three. Your parents separated when you were about 10. Your father returned to the United Kingdom to live permanently. You maintained contact with him until about five or six years ago. Your mother remarried. You told Dr Lim that you did not have a good relationship with your stepfather as he was emotionally abusive and strict. You had a good relationship, however, with your mother.
You completed school until Year 10 when you moved to South Australia and a decision was made that you should not continue with your schooling. At the time of your offending, you were residing in transitional accommodation managed by Junction Housing. You had lived there for about two to three years. You were subsequently evicted from this housing in mid 2021 as you overstayed the lease. You then moved into share housing.
You previously lived in a house that you owned in Murray Bridge for about 10 years. You sold that house in 2017 due to financial issues as a result of becoming unemployed, your escalating drug use and becoming a full-time carer for your step niece. You cared for her between the ages of 8-13 until early 2021 when she decided to move to live with her mother.
You planned to use the proceeds of the sale of your house to become debt free. However, you were defrauded out of a large sum of money, you say, that you had received from the sale of your house, by your daughter and her partner. You struggled emotionally and financially after that.
I am satisfied that you do have a limited education. You have limited employment history. You gave birth to your first child at the age of 19, and after, that you became a full-time home maker and a caregiver to your three children. In your late 30s you obtained employment in the fruit and vegetable industry, however, you have been unemployed for the last 10 years and are currently in receipt of NewStart allowance.
As I said, you have three children. The father of your youngest children was a person with whom you were in a relationship for about 11 years. When that relationship ended, you remained civil and he was involved in the upbringing of your children. In late 2020, he passed away from cancer. You have a grandson for whom you were caring due to his parents being in custody until late 2021 when your daughter and her partner took him back into their care. You have had two significant other relationships. You told Dr Lim that one partner was physically and emotionally abusive. He was a heavy drinker and a drug addict. That relationship lasted for about six to seven years.
You told Dr Lim that it was at the end of this relationship that your use of methylamphetamine increased. You had commenced using cannabis at the age of 16 years and have been a regular user of it since that time. You commenced smoking methylamphetamine approximately 15 or 16 years ago when you moved to Murray Bridge. You became progressively dependent on the drug, and over the past five to six years you have relied upon it as an emotional coping strategy it was said.
In relation to the offending before this court, you told Dr Lim that you were smoking between half to one gram per day of methylamphetamine in the one to two year period before your arrest. You said you were buying in bulk as it was cheaper and you would sell some to your acquaintances and friends for a small profit to fund your ongoing use. You told Dr Lim that you regretted your offending and would not do it again.
As I have said, I do not accept as a fact that this is the reason you were selling and how you were selling. I am satisfied that you had other means available for you to purchase the drugs for your own use, as is self-evident from the amount of cash you had on hand when the police searched the premises.
In Dr Lim's opinion you suffer from a severe amphetamine use disorder, a cannabis use disorder and you display several prominent features of a borderline personality disorder. Dr Lim is of the opinion that you remain of between a high to moderate range of reoffending on account of your ongoing drug use and a history of unsuccessful attempts at rehabilitation.
Your compliance whilst you have been on bail for this offending can be described as poor. For some time, you were lost to supervision by Community Corrections. You reported for supervision four times between November 2020 and January 2021. On one of those occasions, you returned a positive urine test for amphetamine and methylamphetamine. Phone supervision was conducted on two of the four occasions as you reported as being unwell.
After submissions in relation to this matter in December 2021, I ordered that you report for further supervision. You were then drug tested twice, in December 2021 and January 2020. On both occasions, you returned a positive urine test with amphetamine and methylamphetamine. On a further occasion, you phoned Corrections to tell them that you could not report due to experiencing COVID symptoms. You were directed to get tested and advise of the result, however, you did not do so.
You advised Corrections of your desire to participate in the drug counselling program, however, you were unable to do so as you were not vaccinated against COVID. You claim to have an appointment booked to discuss the vaccine with your GP, citing your fear of needles as the reason you had not previously done so. You also wanted to discuss the methadone program it was said.
Ms Johanson, on your behalf, accepted that you have a way to go in terms of rehabilitation. She has admitted that you are undergoing one-on-one drug counselling and that you are willing to address the mental health issues affecting your decision to continue using drugs. She submitted that you should be sentenced on the basis that you were selling drugs to friends in order to support your own habit.
I now turn to sentence.
Trafficking in drugs is a serious offence. Methylamphetamine has had and continues to have a significant impact on our community. The Court of Appeal has indicated that traffickers of your type, being a street level dealer, can expect to receive a term of imprisonment. There is a strong need for personal and general deterrence.
In sentencing you, I take into account the factors in s.44 of the Controlled Substances Act, as well as your personal circumstances and the circumstances of your offending. If you continue to engage in drug use, you will remain at a moderate to high risk of reoffending.
You spent one day in custody after your arrest on 22 November 2020. You were also subject to a supervised bail agreement until 2 March 2022 when your bail was revoked.
The only appropriate penalty in the circumstances is a term of imprisonment. Taking into account the circumstances of your offending and your personal circumstances, I have determined that, but for your plea of guilty, a term of imprisonment of four years would have been appropriate. I reduce this on account of your plea to three years, four months and 25 days. In setting that sentence, I have taken into account the one day that you have spent in custody in November 2020.
In setting your non-parole period, I have taken into account your personal circumstances, the fact that you have limited antecedents and your attempts at rehabilitation. I set a non-parole period of one year and eight months.
I have considered the question of suspension. I do not consider that there is good reason to suspend this term of imprisonment. You are still at substantial risk of committing offences as you have continued to use substances in breach of your bail. Deterrence has a significant role to play in relation to offending such as this. Nor do I consider that it is appropriate that this term of imprisonment be served on home detention. Deterrence is, as I have said, a significant factor in relation to sentencing. I could not have any confidence that you would be able to resist taking drugs whilst you were on home detention in the community. To date you have been unable to do so. The term of imprisonment must therefore be served in custody. It will be backdated to commence on 2 March 2022.”[23]
[23] Ibid G5, 31-35.
On 24 August 2023, the Applicant’s visa was mandatorily cancelled under s 501(3A).[24]
[24] Ibid G3, 16.
On 11 September 2023, the Applicant made a request for revocation of the visa cancellation.[25]
[25] Ibid G9: Attachment C: Revocation request (dated 01.09.23), 43-47.
The Applicant was not released on parole when she became eligible on 1 November 2023. She said this was because no suitable accommodation could be found. She remains in prison.[26]
[26] Ibid G8: Attachment B.3: Parole Board of South Australia decision (dated 31.08.23), 41-42.
If the Applicant were to be released on parole without a visa, she would probably be immediately detained in immigration detention.
The Applicant’s sentence does not expire until July 2025. If her visa is returned, she will remain in prison, or under parole supervision in the community, until then.
On 6 November 2023, a delegate of the Minister decided not to revoke the visa cancellation under s 501CA(4).[27]
[27] Ibid G3,11.
The Applicant’s general history is set out in some detail in Dr Lim’s report above.[28]
[28] Exhibit 4, Applicant Tender Bundle, 25-36.
The Applicant claims to have no ties to the UK although she does make mention of an aunt in the UK in her history given to Dr Lim.[29] There is no close connection to and family in the UK.
[29] Ibid 28.
If the Applicant were to be released into the community, she says that she is rehabilitated and has seen the error of her ways. She says that she wants to be with her family, especially her grandsons. She says she has no intention of using drugs again.
Unfortunately, she has no concrete or satisfactory plans about where she will live. If she had, parole may already have been granted. She says that she will do rehab programmes, but no concrete plans have been set in place. She would like to return to live in Murray Bridge, but that is where all her former drug subculture associates live. It is not a big town and contact would be inevitable. Her past record for bail breaches is also concerning.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant was sentenced by the District Court of South Australia to a term of imprisonment of 3 years 4 months 25 days.^[30]
[30] Exhibit 3, G4: Attachment A, 29-30.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[31]
[31] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 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 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[32]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[33]
[32] [2018] FCA 594.
[33] Ibid, [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s serious offending began later in her life. Her first conviction occurred when she was 48 years old. She has been convicted on only one occasion of a very serious offence. That was the subject of the custodial sentence imposed on 17 March 2022.[34] She was however, deeply entrenched in a drug using subculture in Murray Bridge, for many years. Her associates and even her oldest daughter A.D. were drug users and/or street level dealers. She was a street level dealer for some time before she was apprehended. Despite her protestations, it is questionable whether she was dealing only to fund her own addiction.
[34] Exhibit 3, G4, 29-30.
Primary Consideration 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant’s conviction on 17 March 2022 is in respect of a very serious offence, as noted by the sentencing Judge.[35] She was characterised as a “street level dealer”. I accept that in the hierarchy of drug supply, the Applicant occupied a relatively minor position.
[35] Ibid G5, 31-35.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant’s offending of such gravity is clear that she does not pass the character test in s 501(6)(c).
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The gravity of the Applicant’s offending is demonstrated by the sentence of imprisonment imposed by the sentencing Judge. She came before the Court virtually as a first offender, but was sentenced to almost 3 ½ years’ imprisonment.[36]
[36] Ibid G5, 31-5.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s recent drug conviction was by far her most serious offending. In this respect there is a trend of increasing seriousness. It is also the case that this offending was not an isolated event. She had been a low-level drug dealer for some time.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The effect of drug trafficking on the community is devastating. Methamphetamine is a particularly insidious and dangerous drug. The Applicant has admitted to having been a drug dealer, albeit on a relatively small scale, for some time to feed her own addiction. She has contributed to spreading misery through drug abuse, in our community.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no relevant evidence of this.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no relevant evidence of this.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no relevant evidence of this.
I do not consider factors (f), (g) and (h) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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 posted 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;
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; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of her offending to date, including any escalation in her offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The harm that could result to the community if the Applicant were to reoffend is very serious. The scourge of methamphetamine addiction and abuse has a devastating impact on families and communities. The tolerance of such conduct being repeated is very low.
Likelihood of engaging in further criminal or other serious conduct
The Applicant says that since being imprisoned she has been drug-free. She says that she will not reoffend and that she will undertake appropriate rehabilitation programmes.
On the other hand, she has a long entrenched multi-drug abuse history. The only professional evidence before the Tribunal, gives serious cause for concern. Dr Lim assessed her as being “between a moderate to high range of recidivism, on account of her ongoing drug use and history of unsuccessful attempts at rehabilitation.”[37]
[37] Exhibit 4, Applicant’s Tender Bundle, 35.
Her lack of preparedness for life in the community has been recognised by the parole authorities. She has no developed plans to have secure accommodation. She has no developed plans to undertake rehabilitation courses. She is taking anti-depressant medication, but has never sought advice about, or treatment for, her possible borderline personality disorder. Her record in the past, gives little cause for optimism that she will not at least resume drug use.
Her family supports have certainly not prevented her drug abuse in the past. She has even used drugs when children have been in her care. She has shared drugs with her adult daughter, A.D.
Until July 2025, she will be supervised, if in the community, by correctional services. This is the only factor that may tend to mitigate what is otherwise at least a moderate, if not high risk of reoffending.
Conclusion: Primary Consideration 1
Primary consideration number one weighs heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
This primary consideration is not relevant.
Conclusion: Primary Consideration 2
This consideration is neutral.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant has been resident in Australia since she was an infant. Virtually all her formative years have been spent here. She considers Australia to be her home.[38] She has been eligible to have enrolled to vote in elections as if she was an Australian citizen, though she has not done so.[39] She undoubtedly has a deep connection to Australia. For all practical purposes she is a product of this country.
[38] Exhibit 3, G11, 63.
[39] Commonwealth Electoral Act 1918 (Cth) s 93(1)(b)(ii).
The Applicant has immediate family ties in Australia. These include 2 brothers, a stepbrother, a stepsister, a stepfather, 2 adult daughters and an adult son.[40] She also has 2 grandsons, Child A aged 17 and Child B aged 9. As set out above, she is close to Child C. She is very close to her grandsons, especially Child B. She claims that Child B has an autism spectrum disorder. There is no objective evidence of this other than her heresy report of an opinion expressed by an unnamed childcare worker. Before she was incarcerated, she had daily contact with the boys. She has fears for their mental health if she is removed from Australia.[41]
[40] Exhibit 3, G10, 57.
[41] Ibid G11, 64; Exhibit 4, Applicant’s Tender Bundle, 6-7.
The Applicant is a major support for her oldest daughter A.D and her boys. A.D is a sole parent who has been a victim of domestic violence.[42] That said, it is evident from Dr Lim’s report that this relationship is very complex. A.D has exposed the Applicant to her violent partner and stolen her modest life savings, only to squander them on on-line gambling. In fact, virtually all the Applicant’s connections to friends and family seem to be complex. Her connections to the drug subculture in Murray Bridge are detrimental not only to her and her family, but to the entire community.
[42] Exhibit 4, Applicant’s Tender Bundle 3-4, 6-7, 11-12.
If she were removed from Australia, her friends and extended family would suffer varying degrees of hardship and emotional distress.[43] Her daughters and her son have written letters of support.[44] Various friends have written letters of support also.[45]
[43] Ibid 10.
[44] Ibid 6-12.
[45] Ibid 13-24.
She has had many mainly short-term, unskilled jobs, mostly working as a cleaner, but also packing fruit and vegetables and bar work.[46]
[46] Exhibit 3, G11: Attachment E: Letter from Ms Toni-Michelle Davies (dated 20.09.2023) 63-4.
Conclusion: Primary Consideration 3
Despite the complexity and ambiguity of most of the Applicant’s relationships, the most compelling fact is her virtually life-long residence in Australia. Primarily for this reason, this consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
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 identified 3 minor children in Australia who would be affected by her removal. These are:
(a)Child A (aged 17) her grandson
(b)Child B (aged 9) her grandson
(c)Child C the daughter of her son’s former de-facto – (age 16)
Child A is almost an adult. He has had a close relationship with the Applicant. He presently lives with his biological father. He would be distressed if the Applicant were not able to remain in Australia. If, however she resumed using drugs, she would be a terrible role model for Child A.
Child B has a close relationship with the Applicant. He has only very recently returned to his mother, A.D. That relationship is being supervised by child protection authorities. A.D is prohibited from associating with her abusive former partner. If she does, she risks again losing custody of Child B. There is a claim that Child B has autism, but there is no compelling evidence to support this. It is certainly the case that given his age, Child B would benefit from having an ongoing close relationship with his grandmother. If, however she resumed using drugs, she would be a terrible role model for Child B.
Child C is not biologically related to the Applicant, she has however lived in her care for several years. Child C is almost an adult. She is close to the Applicant. Child C would benefit from having an ongoing close relationship with the Applicant. However, if the Applicant resumed using drugs, she would be a terrible role model for Child C.
Conclusion: Primary Consideration 4
Assuming in the Applicant’s favour that she did not return to her previous life as a drug user, she would be a potentially positive factor in the lives of the children, especially Child B.
Each of these children have had complex lives already. Some stability and continuity in their relationship with the Applicant would be beneficial. Having regard to all the above, Primary Consideration 4 weighs in favour of revocation of the Applicant’s visa cancellation
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[47]
[47] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.The Applicant’s criminal record as set out in Annexure B.
b.The other matters set out above, in particular, the Applicant’s drug trafficking conviction.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision:
This Other Consideration is not relevant.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant came to Australia as an infant. She understandably considers herself to be an Australian. All of her extended family, with whom she has had any degree of contact, and all of her broader circle of friends and community supports, are here. Despite her unreliable evidence about contact with her father, there is no evidence of links to anybody in the UK.
She is a middle-aged woman who has long term substance abuse issues as set out in Dr Lim’s report.[48] Her mental health would probably suffer if she were to be returned to the UK. She takes medication for depression. She may have a borderline personality disorder, though that has not been formally diagnosed.
[48] Exhibit 4, Applicant’s Tender Bundle, 25-36.
There would be no language barrier to returning to the UK, but the dislocation associated with being removed from all that is familiar, and all social supports would be very distressing. She would need to find work, economic support and accommodation. She would be socially isolated. The lifestyle and social conventions would require a period of adjustment.
She would be entitled to the same social, medical and/or economic supports as those available to any other UK citizen. The standard of such services would be broadly comparable with those available to her in Australia.
This consideration is weighs in favour of revocation.
(c) Impact on victims
This Other Consideration is not relevant.
(d) Impact on Australian business interests
This Other Consideration is not relevant.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s 501 or s 501CA: neutral
(b)extent of impediments if removed: weighs in favour of revocation.
(c)impact on victims: neutral
(d)the impact on Australian business interests: neutral
CONCLUSION
It is necessary to weigh up the primary and other considerations.
In this instance the fundamental balance to be struck, is between Primary Considerations 1 and 3.
The Applicant has been convicted of a very serious offence. She has been a long-term, street level dealer, peddling a most insidious and destructive drug. Her conviction captures but a snapshot of an entrenched pattern of behaviour. The prospect of her reoffending is at least moderate, if not high. I have little faith in her assurances. Her family offer little protective support, as her history shows. The only positive factor is that she will be subject to supervision by correctional officers until July 2025. This Primary Consideration weighs very heavily against her.
On the other hand, she has been a resident of this country since her infancy. Whatever the status of her nationality, she considers herself to be an Australian and is, almost entirely a product of Australia. Her connection with her country of nationality is virtually non-existent. This is a highly compelling factor in her favour.
I have discussed the remaining Primary and Other Considerations in detail above. They must also be thrown into the balance. Her impediments if removed, for example would be substantial. Taken together however, they are not decisive, one way or the other.
But for the Applicant’s residence in Australia since infancy, the balance would favour affirming the delegate’s decision.
Despite the potential risk of her reoffending and the serious nature of her crime, in this instance, in my view the balance falls, albeit marginally, in her favour. Her residency here since infancy tips the balance. She will be supervised by correctional services at least until July 2025. This gives at least some modest reason for hope about her future conduct.
It is important for the Applicant to understand that if she were to reoffend, she could easily wind up in a worse position than she is in now. Any future reoffending would demonstrate a failure by her, to recognise how close she has just come, to being returned to the UK. It would weigh heavily against her. She should have no expectation that if she were to reoffend, a future Tribunal considering a visa revocation decision, would come to a favourable decision.
In my view, for the reasons set out above, the proper application of the Direction marginally favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s visa. I find that there is “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

..............................[sgnd]...................................
Associate

Dated:   25 January 2024

Date of hearing: 18 January 2024

Advocate for the Applicant:

Self-represented

Advocate for the Respondent: Alex Chan
(Sparke Helmore)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions

2

Respondent

Statement of Facts, Issues and Contentions

3

Respondent

G-Documents

4

Applicant

Applicant’s Tender Bundle

5

Applicant

1.         Ms Davies’ handwritten letter

2.         IDP Notification letter (signed by R Porcelli)

6

Respondent

Respondent’s Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

District Court of SA

17/03/2022

Presumptive disqual offence – cspp traffic (type unknown) in a controlled drug - basic

Sentenced 3 years 4 months 25 days imprisonment non-parole period 1 year 8 months

Adelaide MC

14/01/2022

Use or have possession of a prohibited weapon (2)

Convicted Fined $100

Murray Bridge MC

28/07/2021

Fail to comply with bail agreement

Convicted Good behaviour bond $200, 6 months.

Murray Bridge MC

21/01/2019

Contravene condition of provisional licence - prescribed drug

Convicted Discharged without penalty

Murray Bridge MC

21/01/2019

Drive motor vehicle with meth amphetamine in fluid or blood

Convicted Fined $900
Driver's licence disqualification 6 months

Murray Bridge MC

05/09/2016

Possess cannabis, cannabis resin or cannabis oil
Commit an offence against 33b(3) (summary offence) cultivate a controlled plant - basic offence

Convicted Good behaviour bond $200, 12 months

[2024] AATA 66

25 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Date of hearing:	18 January 2024
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Alex Chan (Sparke Helmore)

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions
2	Respondent	Statement of Facts, Issues and Contentions
3	Respondent	G-Documents
4	Applicant	Applicant’s Tender Bundle
5	Applicant	1. Ms Davies’ handwritten letter 2. IDP Notification letter (signed by R Porcelli)
6	Respondent	Respondent’s Tender Bundle

Court	Court Date	Offence	Court Result
District Court of SA	17/03/2022	Presumptive disqual offence – cspp traffic (type unknown) in a controlled drug - basic	Sentenced 3 years 4 months 25 days imprisonment non-parole period 1 year 8 months
Adelaide MC	14/01/2022	Use or have possession of a prohibited weapon (2)	Convicted Fined $100
Murray Bridge MC	28/07/2021	Fail to comply with bail agreement	Convicted Good behaviour bond $200, 6 months.
Murray Bridge MC	21/01/2019	Contravene condition of provisional licence - prescribed drug	Convicted Discharged without penalty
Murray Bridge MC	21/01/2019	Drive motor vehicle with meth amphetamine in fluid or blood	Convicted Fined $900 Driver's licence disqualification 6 months
Murray Bridge MC	05/09/2016	Possess cannabis, cannabis resin or cannabis oil Commit an offence against 33b(3) (summary offence) cultivate a controlled plant - basic offence	Convicted Good behaviour bond $200, 12 months