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

DCBX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 848 (30 March 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0100
Re:DCBX
APPLICANT

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

REASONS FOR DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of decision: 30 March 2022
Date of written reasons: 14 April 2022
Place:Melbourne

The decision under review is affirmed.
.........................[SDG].....................................
The Hon. Matthew Groom, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – very serious violent offending – mental health and substance abuse - whether discretion to revoke mandatory cancellation should be exercised – risk of re-offending – best-interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – primary considerations outweigh other considerations – decision affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185.
PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050
SECONDARY MATERIALS
Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION

This matter involves an expedited review of a decision of a delegate of the respondent dated 17 December 2021 not to revoke under section 501CA(4) of the Migration Act 1958 (Cth) (Act) the mandatory cancellation of the applicant’s Special Category (subclass 444) visa under section 501(3A) of the Act.
The Tribunal heard the matter on 10 March 2022. Ms S Liddy appeared on behalf the respondent. The applicant was self-represented.
On 30 March 2022, the Tribunal affirmed the decision under review. Set out below the written reasons for the Tribunal’s decision.
BACKGROUND
The applicant is a 22-year-old citizen of New Zealand who first arrived in Australia as a seven-year-old on 5 February 2007 together with her parents and two siblings.
On 6 February 2020, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Act on the basis the applicant had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or territory for a period of more than 12 months.
On 27 February 2020, the applicant applied to have the mandatory cancellation decision revoked.
On 17 December 2021 the decision under review was made.
On 6 January 2022 the applicant applied to have the 17 December 2021 decision reviewed which is the matter before this Tribunal.
ISSUES TO BE DETERMINED
The Act sets out the legislative provisions relevant to the issues to be determined by the Tribunal in relation to this matter.
The issues for determination are:
(a)Whether the applicant passes the character test for the purpose of section 501CA(4)(b)(i) of the Act as defined in section 501(6) of the Act; and
(b)if the applicant does not pass the character test, then whether there is another reason why the cancellation should be revoked under section 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that the applicant does not pass the character test pursuant to section 501(6)(a) and section 501(7)(c) of the Act as a consequence of having been sentenced to a term of imprisonment for in excess of 12 months. The residual question therefore is whether the Tribunal is satisfied that there is “another reason” why the mandatory cancellation should be revoked.
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such direction.[1]
[1] See section 499(2A) of the Act.
On 8 March 2021, the Minister issued Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 15 April 2021.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 5.2 of the Direction sets out guiding principles for decision-makers the exercise of the discretion as follows:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 7 of the Direction sets out guidance in relation to the manner in which relevant considerations are to be taken into account as follows:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2Primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration where the Tribunal considers it appropriate to do so.[2]
CONSIDERATION
[2] Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68, 75–76 [42]; [2011] FCA 1303.
Primary considerations
Paragraph 8 of the Direction lists the primary considerations as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Protection of the Australian community
Paragraph 8.1 of the Direction provides that:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
2Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal is satisfied that the National Criminal History Check Report dated 5 March 2020 included in the Tribunal materials is an accurate statement of the applicant’s offending history in Australia.
The report records the applicant as having committed a number of offences dating back to 2013. The applicant was found to have committed number of offences as a minor where no convictions were recorded including theft of a motor vehicle, theft from a shop and unlawful assault. Some of the applicant’s other offences are extremely serious.
The first of the applicant’s more serious offences for intentionally causing serious injury in a situation of gross violence occurred in June 2015 and resulted in a conviction in February 2016. The applicant was sentenced to detention in a Youth Justice Centre for 22 months for that offence. The applicant was a minor when she committed the offence. In sentencing comments for the applicant’s more recent offending, the 2015 offence was described as follows:
[The applicant was] walking with two classmates, one of whom was a girl, when suddenly [the applicant] turned and stabbed this young woman in the neck. She fell to the ground, [the applicant] stabbed her again repeatedly in the throat and neck and then absconded.
[The applicant’s] victim was airlifted to hospital with life-threatening injuries.
The Tribunal is satisfied that this description is consistent with the applicant’s evidence with respect to this offending.
On 10 November 2016, the applicant was found guilty of unlawful assault without conviction and released on a good behaviour bond. That offence involved an attack on another inmate in the Youth Justice Centre during the period of the applicant’s detention.
On 3 March 2017, the applicant was found guilty of theft of a motor vehicle without conviction and again released on a good behaviour bond.
On 14 June 2019 the applicant was convicted of intentionally causing serious injury with gross violence, armed robbery, assault with a weapon, theft, and a further charge of intentionally causing serious injury the applicant was sentenced by the County Court of Victoria to a total of seven years imprisonment for these offences with a minimum of four years without parole. The offending involving multiple incidents in two separate indictments. The first indictment related to a number of offences that occurred in December 2016 when the applicant was 17 years of age. The second indictment related to a number of offences that took place in May 2017 shortly after the applicant had turned 18. The most serious examples of the applicant’s offending were described by Her Honour Judge Gaynor in sentencing comments in the following terms:
The December 2016 offending
At about 1:40 am on 21 December 2016 [the victim] had finished her work and was riding her bike home to her address in North Melbourne. She was wearing a backpack on her back which contained her wallet, personal cards and about $200 in it.
At about 2:23 am she was riding her bike along Haines Street, North Melbourne and turned into Molesworth Street. As she was riding on the footpath she saw you and two other men walking on the road. She said you looked older than both men. She said that as she rode her bike past the three of you she heard one of the men calling out to her saying, ‘Excuse me’, twice. She ignored him and kept riding. Then she heard you call out. You called out, ‘Excuse me’, twice. [The victim] thought that the three-view were lost and stopped her bike to see if she could help you.
You approached [the victim’s] left side, walked in front of her and then grabbed her in a headlock with your left arm and began stabbing her in the face with a serrated fishing knife. It stabbed her multiple times to the face, neck and chest area.
… One of the men then asked [the victim], ‘Where is the money?’ The second male said, ‘Just take the bag’. [The victim] let her bike fall to the ground as she was being stabbed. One of the men grabbed her backpack from her back, at which time [the victim] felt blood flowing from the lacerations to her face. She saw blood on her clothes and on the ground. She felt that her face and mouth were badly cut. She then fell to the ground and [the applicant and two men] then left the area.
During the incident she lost her iPhone and $200 in notes and coins that she had in a money bag for her boss…. Amazingly [the victim] was able to ride her bicycle home to get help. She could not wake anyone, she eventually had to wave down a passing car. Police arrived. She was taken to hospital by ambulance -please saw a large pool of blood in the area where she had been stabbed.
The injury sustained by [the victim] include a full-thickness, deep-penetrating open wound extending down the jawbone in the front from her lower lip to her neck. She had a 4 cm open wound below her right ear, reaching into the back of her neck. She had an open wound in the front of her right ear. She had multiple wounds behind her right ear. She had a deep laceration, that is deep cut, to the back of her right forearm, a slash to her right wrist, three open wounds to her right-upper arm close to the shoulder, a 4 centimetre deep wound to the front of the upper-right chest near the collarbone.
She had an open wound in her right shoulder and shoulder blade area; bleeding and blood collection in soft tissue around her right eye; a laceration to the right eye, that is a corneal laceration; a globe rupture of the right eye; fluid accumulation to the right cornea; and nerve injury complete severing of the nerve providing sensory innervation for the skin around the outer ear and bruising to the brain, really terrible, serious injuries.
She required emergency specialist eye surgery under general anaesthetic to repair her eye globe and cornea; emergency plastic surgery with open wounds, exploration, wash-out and repair by stitching; nerve repair and reconnection by stitching; and medications involving what I call potent-that is very heavy-painkillers, antibiotics, eyedrops, anaesthetics, drugs against nausea, vomiting and blood clot, and a tetanus injection. She has ongoing medical issues pertaining to the damage to her right eye and physical scarring that I will refer to in the victim impact shortly.
… [The victim] filed a most distressing victim impact statement. She said that she continues to worry about her right eye. She has a risk of blindness. She wanted chiefly to return back home to China. She said she was an international student in Australia. She had to pay for tuition, rent and living expenses, but she could no longer work in her part-time job. She said obviously these problems caused her great upset and depression.
She had to attend hospital every day after she was released. She said she has had problems with balance as a result of the injuries. Her chin needed plastic surgery and insurance did not pay for this, she had to pay $800 for this. She had to undergo psychotherapy, but it took six months for her to be able to undertake that. Unsurprisingly as a result of this attack she became afraid to live in Melbourne. She decided to buy a ticket and returned to her country.
.. Again this was a terribly savage attack. You inflicted appalling injuries upon [the victim] and no doubt they affect her to this day.
The May 2017 offending
At about 6:30 on 4 May, [the co-accused] sent [the victim] a text arranging to meet him at her address…. [The victim] drove there in his aunt’s blue VW Golf, arriving at about 8:10 pm. [The co-accused] greeted him at that address and showed him through the backyard and, whilst at Highett Street, introduced him to another co-offender…
[The co-accused] asked [the victim] to drive her to St Kilda, but he refused, then she walked over to you and the two of you whispered together. You then asked [the co-accused] where the car was and she pointed to it. [The co-accused] asked if [the other co-accused] could be driven by [the victim] to Sunshine and [the victim] said he would take you to the Sunshine railway station. He then got into the car, [the co-accused] got in the front passenger seat, [the other co-accused] sat in the back seat behind the front passenger and you sat in the back seat directly behind [the victim].
On arrival at the Sunshine railway station you told [the victim] that your aunt lived in Sunshine and began directing him away from the station. At this point [the other co-accused] started pretending to be ill and [the victim] pulled over and switched off the engine. [The co-accused] unlocked her seatbelt and turned around and suddenly [the victim] was stabbed to the right side of his neck from behind by you. You stabbed him again to his forehead. [The co-accused] and [the other co-accused] apparently each pulled out knives and started to stab [the victim] in the arm while he attempted to protect himself.
[The victim] unlocked his seatbelt but heard you say he should not be allowed to leave the car. He was able to get out of the car and ran away, leaving his mobile phone. He returned shortly after to try and get his car keys and as he reached in one of the girls from the back seat slashed his right arm. He hurt you telling others not to let him take the keys and could see [the co-accused] getting out of the car. He then ran away, knocking on people’s doors, asking for help but without success, then collapsed but was attended by ambulance officers and police.
This was at about 10 o’clock at night. On arrival police saw that [the victim] was covered in blood, extremely distressed and appeared to be in severe pain.
… Initially [the victim] was found to have suffered a wound in the sternum, that is on the breastbone; a deep, ragged wound on his right elbow; several wounds on the left forearm; and a deep wound to the base of his right-middle finger; multiple stab wounds, two to the left of his forehead, which was stitched, and a third under his hair; and a long wound to the neck extending right from the back; and cutting into superficial facia and muscle and a possible piece of knife blade embedded in the skull.
The diagnosis was one of multiple lacerations to the head, the back of the neck, upper limbs and a possible metallic foreign body lodged in the skull. [The victim] was treated for his wounds, which included suturing and ultimately a skin graft to one of the wounds. It was clearly an incredibly savage attack.
[The victim] made a victim impact statement which I will now refer.
In that statement he said he had nerve damage to the forearm of the left hand, visible scarring on his face and was required to have medical check-ups to monitor the metal piece in his scar. The required physiotherapy to assist with the nerve damage done to his left hand. The long-term impact has been that he is unable to effectively use his hand for physical activity at the gym and any heavy lifting.
Under the heading ‘How the injury has affected my life’, he said he was unable to fully undertake physical activities, that he had had pride in keeping physically fit but could no longer to go undertake the regular gym routine that he had. He spent all of his savings to pay for medical treatment. He suffered, as I have said, continued physical incapacitation due to the injuries to his arm. He was not able to undertake the warehousing job he had before this incident. He had to forego a second cleaning job that he had.
He has also had to undergo psychological treatment for ongoing stress and anxiety. He was unable to continue with his studies at that time. Due to the incident there was inaccurate social media reporting in his own country and he suffered a lot of humiliation and was unable to attend social events within his…community ever since. He said due to the scars on his face and around the neck and on his head and his forearm, he lost confidence in himself and his appearance.
... He has lost confidence in his life; he is more fearful. He said that before the incident he was very sociable and outgoing and keen to learn about people from different cultures. He said since the incident he has become socially withdrawn and unable to trust people. It goes on; he has suffered emotional and physical damage, his life has been deeply affected and completely adverse way. Unsurprisingly as a result of this terrible physical attack his life has simply been upended and he struggles with the effects of your attack upon him to this day.

In her direct evidence to the Tribunal the applicant did not seek to dispute the description of her offending included in the sentencing remarks. The Tribunal is satisfied that the sentencing remarks accurately describe the applicant’s offending.
There is no question that the applicant’s offending is extremely serious and has involved extreme, unprovoked violence inflicted upon completely innocent members of the Australian community. One of the applicant’s more serious offences was against a young woman who was unaccompanied late at night and who was particularly vulnerable to being overpowered by her attackers. As an international student she was also in a city that was less familiar to her. It is difficult to comprehend just how terrifying that moment must have been for her. Given the extreme nature of the assaults the same could be said for each of the applicant’s assault victims. The fact that the applicant’s offending history includes multiple, extremely serious violent assaults is especially concerning. In the Tribunal’s view, the extreme seriousness of the applicant’s offending conduct is appropriately reflected in the seven-year term of imprisonment imposed on her by the sentencing Judge who in sentencing remarks described the nature of the applicant’s assault offences as both “savage” and “terrible”.
Risk to the Australian community
There is no question in the mind of the Tribunal that if the applicant were to reoffend again in a similar manner it has the potential to inflict extremely serious harm on innocent members of the Australian community both physical and psychological.
There are a number of aspects of the applicant’s background and circumstances relevant to her offending that the Tribunal has carefully considered in making an assessment of the likelihood of her engaging in similar or other serious conduct in the future.
The Tribunal accepts that the applicant experienced a particularly difficult childhood which included significant trauma as a result of sexual assault over an extended period. The applicant gave evidence that her parents had struggled to properly care for her as a young child due to personal issues in their own lives and that she experienced ongoing child sexual abuse by three of her uncles from around the age of five. The family moved to Australia when the applicant was about seven years of age and the applicant’s parents had continued to struggle following their arrival in Australia due to ongoing financial and personal challenges. The applicant told the Tribunal that one of her uncles had also relocated to Australia and had continued to abuse her. At around 12 years of age the applicant commenced an abusive relationship with a substantially older man and at around that time the applicant commenced using alcohol and then, at around 14 years of age, also methamphetamine. The applicant described dropping out of school and engaging in reckless drug use and experiencing a decline in her mental health also during this period. The applicant’s evidence was that she first experienced hallucinations, hearing voices and feeling impulses to engage in violence at this time. It was at this time that the applicant committed the first of her serious assaults and was sentenced to detention at the Youth Justice Centre.
The applicant’s difficult personal circumstances were acknowledged by Her Honour Judge Gaynor in sentencing comments as follows:
…I have described your offending as savage and terrible, but I also recognise that your life from a very early age, from the time you were a very little girl, has been one involving terrible abuse. That is by no means an excuse for what you have done, but it is an explanation and it is something that I must take into account in sentencing you.
The applicant’s evidence was that she experienced some improvement following her release from detention in the Youth Justice Centre, but that when her parole support ceased, in the absence of any strong family support at that time, she suffered another significant decline in her mental health and recommenced using methamphetamine. It was at this time that the applicant committed her most recent serious offences.
The applicant has been diagnosed with a number of mental health conditions including:
(a)Complex Post-Traumatic Stress Disorder (PTSD);
(b)Borderline Personality Disorder with depressive episodes;
(c)Substance abuse disorder; and
(d)Drug induced psychosis.
The Tribunal accepts that the applicant’s mental health conditions are very serious, have been due in significant part to the applicant’s traumatic early life, and have been relevant contributing factors in her offending. Again, this was acknowledged in Judge Gaynor’s sentencing remarks where Her Honour noted:
An important part of the findings of [psychological reports relating to the Applicant] was that your behaviour was overwhelmingly unplanned and impulsive and lay in both your substance abuse addictions and your accompanying mental health problems.
...It is quite clear from the material in front of me that firstly when you use methamphetamines you experience auditory hallucinations and paranoia but that you also appear to suffer, as sometimes person do who have Borderline Personality Disorder, auditory hallucinations, voices telling you to harm someone.
The Tribunal is also satisfied that the applicant’s troubled upbringing and her associated mental health conditions and substance abuse has been very significant contributing factors in her offending. In a psychiatric pre-sentence report prepared by Dr Jacqueline Rakov and Dr Anthony Cidoni dated 19 March 2019, the applicant’s violent ideation was described as follows:
[The applicant’s] thought pattern was easy to follow. She answered all my questions spontaneously and didn’t convey any illogical ideas or overt paranoia. She was able to articulate her violent ideation as a kind of payback for abuse she’d endured, as well as a pressure release. She would at times turn this and get internally, and harm herself.
[The applicant] described intrusive thoughts since the age of 12. She denied any experience of these recently. I saw no evidence of a psychotic process such as hallucinations, overt paranoia or delusional ideas. She did describe frequent nightmares, flashbacks and more historical avoidance, “I would freak out if men touched me.”
The report of Dr Rakov and Dr Anthony Cidoni recommends that the applicant have long term treatment for borderline personality disorder, including, dialectical behaviour therapy, other forms of ‘talking therapy’ and the use of antipsychotic medication. The authors stress the importance of treatment as a long-term measure.
Similarly, a report of Dr Marie Henshaw and Dr Innes Seric dated 26 February 2020, recommends continued engagement in group therapy, and, after self-directed development, ongoing psychological therapy to address “underlying maladaptive beliefs and relational patterns” from her history of childhood trauma in addition to “offence-specific treatment”.
With regard to factors that might destabilize the applicant on return to the community, the report of Dr Rakov and Dr Cidoni pointed to peer pressure, noting that “her life-long pattern suggests that she is highly impressionable, vulnerable to peer pressure…and has a tendency for engaging in relationships which are abusive in her disfavour”. The report also listed substance abuse, housing stress and “continuing to entertain an idle mind” as factors that will place her at further risk of offending.
During the period of the most recent incarceration the applicant has engaged in a number of psychological counselling sessions and treatments for her conditions. There were certificates before the Tribunal confirming the completion of a number of therapeutic and behavioural intervention programs relating to mental health, her offending behaviour, and her substance abuse. The programs have included a six month “Frame of Mind” program particularly focused on PTSD and borderline personality disorder. The “Living Free from Violence Program” focussed on recognising the participant’s use of violence and how trauma and family violence can contribute to violent behaviour. She also attended the “Out of the Dark” family violence program, “Managing Worry Program”, “Managing Emotions Program”, “Managing Loss Program”, “Managing Sleep Program”, “Mapping A Way Forward Program”, “Tuning into Respectful Relationships Program”, Centre Against Sexual Assault support group, “Parenting from a Distance” and “Being a Mum” programs and the “6-Hour Ice Effects Program”. The applicant also gave evidence that she had undertaken both one on one and group counselling in respect of her substance abuse issues. The applicant described these interventions as having been very helpful in understanding what was driving her behaviours.
The applicant stated that it was only as a consequence of her more recent psychological counselling and treatment that she has properly understood her mental health conditions and confronted the truth of the trauma that she experienced growing up. She told the Tribunal that she had learnt better coping mechanisms both in the management of her mental health conditions and also in relation to her substance abuse. The applicant told the Tribunal that while she had some psychological counselling while in detention at the Youth Justice Centre and for a period following her release, it had not been as effective as her more recent treatment.
The applicant told the Tribunal that she was committed to continuing with her psychological counselling and other support counselling on her release to ensure the proper management of her conditions and that she was also committed to avoiding any further substance abuse. In a statement to the Department the applicant stated:
I want to continue to work on myself in the community. I will seek out groups and programs to continue my self-development. I want to connect with mental health services in the community to continue therapy in the community. I also want to engage with a drug and alcohol service to support me to stay on track if I am in the community and to seek out therapeutic groups in the community so I can achieve my goals.
The applicant told the Tribunal that she had not engaged in substance abuse while in prison and that she was determined not to relapse back into substance abuse when released back into the community. She told the Tribunal that while she has come off medication while in prison, she recognises that there might be a need to recommence taking medication when released but that she would liaise closely with her psychiatrist in determining what is appropriate having regard to her healthcare plan.
The applicant told the Tribunal that she accepted responsibility for her offending and expressed strong remorse for her offending and pain it has inflicted on her victims. The applicant told the Tribunal that she believed that she was no longer at risk of reoffending. She told the Tribunal that her circumstances are different now to when she was last released from detention as a consequence of her better understanding of her conditions and coping mechanisms, her increased maturity but also as due to her expectation of receiving a substantially higher level of family support on her release.
The applicant told the Tribunal that she was determined to be a more positive role model for her younger siblings and that she has very positive plans for her future, including the hope that she will be able to secure employment on her release.
The applicant gave evidence that she believes she is in a better place now to confront the personal challenges that she has then when she was last released from detention. The applicant also told the Tribunal that she believes that she had matured significantly and is now better placed to make better choices than she was when she engaged in her offending. She gave evidence that she believed that on her previous release she was too reliant on having an intense level of support and that when support structures were removed following her release from parole she could not cope. Her evidence was that she believes through the course of her most recent period in prison she has developed skills to support herself and not be as reliant on external support structures. Her evidence was that on her release back into the community now she will be more self-reliant and not as vulnerable to being destabilised if support structures were to be disrupted or come to an end.
The Tribunal also heard from the applicant’s auntie, MH, who gave evidence that she was willing to take the applicant in on her release and to provide support for her in her transition back into the community. MH told the Tribunal that she was aware of the applicant’s offending and committed to doing what she could to help the applicant rehabilitate and transition back into the community. MH told the Tribunal that she has not put a time duration on the arrangement, and she would be happy for it to continue indefinitely. MH told the Tribunal that her half-brother was the applicant’s father. She said she had known the applicant since resuming contact with her half-brother in around 2005, but that she not physically seen the applicant for many years. She said that more recently she has maintained regular contact with the applicant by phone. MH told the Tribunal that she had been a police officer for approximately 13 years but was now retired, and that she was in a good position to offer suitable accommodation and provide support for the applicant financially. MH told the Tribunal that she had seen young offenders rehabilitate and turn over a new leaf and that she had done training in youth justice. MH told the Tribunal that her only expectation regarding board would be limited to a token amount, but that she does want to see the applicant secure employment and would prefer her to secure a traineeship or something that could provide a career pathway. MH told the Tribunal that she was aware of the applicant’s mental health conditions and was also willing to help get her to appointments and provide financial support for her counselling. She told the Tribunal she had discussed rules with the applicant and that she would not tolerate drug use nor the applicant associating with offenders or breaching the conditions of her parole. MH told the Tribunal that if the applicant got into trouble again, she would be the first one to put the applicant on a plane and send her back to New Zealand.
The applicant also gave evidence in relation to the arrangement with her auntie. The applicant told the Tribunal that she believed the offer by her auntie would be extremely helpful in her transition back into the community. She told the Tribunal that her auntie has not set a timeline but that she wants to help her in her transition and also to help support her broader family. She told the Tribunal that they have discussed house rules and her auntie has made it clear that there are to be no drugs or alcohol and no friends who have offended, and also that MH expects to “let her know my movements including when I am out and when I’m likely to be back for dinner”. The applicant told the Tribunal that she has agreed with her auntie that when she secures employment, she will make a small contribution for board. The applicant told the Tribunal that she has not met physically with her auntie since she was very young but that they reconnected a couple of years ago and remain in regular contact by telephone and writing. She told the Tribunal that they speak by phone around once a week.
The Tribunal accepts that the applicant’s stated acceptance of responsibility and remorse for her offending is genuine.
In her direct evidence the applicant told the Tribunal:
“I have gone over the summaries of my offending and acknowledge they are very serious” … “the impact on them is a lot more than just financial impacts and the physical pain and emotionally and mentally - and there’s nothing I can do to make it up to them - or to take back what I have done, but I’m deeply remorseful and I’m sorry for what I have done to them. And I can’t imagine what they are going through, because I understand that’s a lifelong impact for them.”
She told the Tribunal that she has learnt from her mistakes and is determined not to repeat them.
The Tribunal is also satisfied that the applicant has a reasonable degree of insight into her offending and the impact her mental health conditions and substance abuse have played in that offending. The applicant told the Tribunal “At the time I was heavily on substances but that shouldn’t give any excuse, I mean for what I’ve done. Mentally I just wasn’t well at that time”.
The Tribunal also accepts that the applicant’s positive engagement with various support programs and treatment on offer to her in prison are a demonstration of her commitment to rehabilitate. The Tribunal accepts that the applicant’s engagement with these programs has been genuine and that as a consequence of her engagement she has taken positive steps in better understanding her conditions and underlying issues and has also developed new skill sets and coping strategies for their better management. There is no doubt the applicant has made some real progress in this respect.
The Tribunal accepts that the applicant is genuine in her stated commitment to maintaining psychological counselling and avoiding any recurrence of substance abuse on her release and recognises the importance of doing so in reducing her risk of reoffending.
The Tribunal accepts that the applicant has taken significant time during her current imprisonment to reflect on where she is in her life and to develop positive plans for her future. In a statement to the Department the applicant stated:
I want to find work to be able to save money and support my family, I want to support my parents to get their own home. I want to be able to provide for my own self and be independent.
The applicant has also undertaken a significant number of vocational programs to assist in her work opportunities on her release. Those programs have included:
(a)Cert II in TFC Production Support
(b)Cert I in General Education for Adults
(c)Cert III in Cleaning Operations
(d)Cert II in Kitchen Operations
(e)Cert III in Retail
(f)Cert II in Retail Services
(g)Cert II in Construction Pathways
(h)Cert I in Construction
(i)Cert II in Warehousing Operations
(j)Cert I in Textiles, Clothing and Footwear
(k)Cert III in Information, Digital Media and Technology
(l)Cert II in Business
(m)Cert III in Micro Business Operations
(n)Cert II in Skills for Work and Vocational Pathways
(o)Exploring being my own Boss
(p)Somebody’s Daughter Theatre Program
The applicant appeared to the Tribunal to be genuinely committed to pursuing further education and paid work opportunities. The applicant presented as being relatively intelligent and quite articulate. In the Tribunal’s view, despite having very limited previous experience of paid work, if the applicant is able to maintain a stable existence free from substance abuse and effectively managing her mental health conditions, she would appear to have a potential to achieve her stated objective in securing paid work at some point in the future.
In the Tribunal’s view, the assessment of the risk of the applicant reoffending is inextricably linked to its assessment of the likelihood of the applicant engaging in further substance abuse and her mental health condition going back into decline. There is no question that if the applicant relapses back into drug use, then her mental health conditions will be seriously exacerbated and the risk of her reoffending again, including in a similar manner, is extremely high. The Tribunal is also satisfied that if the applicant’s mental health conditions are not effectively managed then this in turn will increase the risk of her again resorting to drug and alcohol use as a coping mechanism which will in turn further impact her mental health.

There is no doubt that despite the progress the applicant has made, the challenges in managing her mental health conditions are long-term and will be ongoing post-release. This was acknowledged by Dr Rakov in her 19 March 2019 report which states that:
One evidence-based treatment for the remedying of borderline personality disorder is a dialectical behavioural therapy; which applies skills-based learning to teach those affected to manage their emotions and improve distress tolerance. Other forms of talking therapy may also be useful, and it is imperative [the applicant] continues to engage with psychological work both in and out of custody as these are long-term interventions.
In the presentation at assessment, it was obvious [the applicant] was beginning to understand some of her emotional dysregulation through her work with a psychologist. Both behavioural therapies and trauma-focused counselling should persist beyond custody if they are to have any enduring effect.
To the extent that the proper management of the applicant’s mental health conditions relies on her ongoing participation in further counselling and treatment following her release, there remains some question in the mind of the Tribunal regarding the applicant’s capacity to do so outside of the prison environment.
The Tribunal has a very similar concern with respect the applicant’s stated commitment to avoid a relapse back into substance abuse. While the applicant has avoided substance abuse while in prison, it is a very different proposition to do so outside of such a structured environment. This is especially so given that the applicant’s underlying issues of childhood trauma are still present, and she is also likely to face significant pressures in transitioning back into the community.
When the applicant was previously released from detention after a brief period of some relative stability the applicant did relapse back into substance abuse, her mental health conditions declined, and ultimately, she engaged in further serious offending. That is of real concern to the Tribunal.
The Tribunal recognises that there are some significant differences in the applicant’s present circumstances when compared to the last time she was released from detention.
The Tribunal acknowledges that the applicant now has an increased understanding of her mental health conditions, her underlying trauma and the impact of her substance abuse issues, as well as the critical importance of her remaining engaged with her psychological counselling and staying off alcohol and drugs in her effort to avoid reoffending. The Tribunal acknowledges the statement of support from a number of community-based support groups who have offered to provide ongoing support to the applicant on her release.
The applicant has developed a greater awareness of what went wrong when she was last released and the importance of taking personal responsibility and not placing too great a reliance on external supports.
Notwithstanding her increased awareness of the importance of self-reliance the applicant now also has a significantly improved family support structure through the very generous commitment of her auntie. The support being offered includes a quality accommodation option geographically removed from her previous existence and with the love and support of a well-functioning family unit. In the Tribunal’s view this new family support structure does increase the prospect of the applicant being able to better manage her mental health conditions, avoid relapse back into substance abuse, avoid a re-engagement with previous friends and associates who may have the potential to adversely influence the applicant and also to increase the prospect of the applicant maintaining a relatively stable existence with the potential to pursue further education and ultimately paid work.
MH is a former police officer and demonstrated a very clear understanding of the challenges the applicant is facing and a genuine commitment to working with her to maximise the applicant’s prospects of remaining on track in her recovery. In the Tribunal’s view, MH’s offer of accommodation and personal support for the applicant is a significant factor in reducing the applicant’s overall risk of reoffending. However, the support offered by MH does have some limitations. MH made clear that she expects the applicant to remove herself from previous associates or others who may break the law and to remain free from substance abuse. MH was clear in her evidence that if the applicant relapses and recommences her drug use then she would “drive her to the airport herself”.
The Tribunal also accepts that the applicant has broader family in Australia who want to be able to support the applicant in her recovery and in her determination to avoid reoffending. That broader family includes, in particular, her parents and siblings but also additional aunties and uncles, cousins and a grandfather. The Tribunal accepts that the applicant’s relationship with her family has improved to some degree since she was last released from detention. Nonetheless, based on the evidence before it, the Tribunal is satisfied that the level of practical support from the broader family is very likely to be far more limited than that on offer from applicant’s auntie. In the past, the applicant’s broader family did not have the capacity to provide the applicant with the structure that she needed, and the Tribunal has a genuine concern that that continues to be the case.
There was also evidence of support for the applicant from a community family violence organisation and a community-based Theatre group including offers of post-release support. The Tribunal acknowledges these offers of support.
It was significant in the Tribunal’s mind that the applicant had developed a set of clear, positive plans for her future including a commitment to pursuing further education with a view to obtaining future paid employment. It was also clear to the Tribunal that the applicant was motivated to remain free from substance abuse and effectively manage her mental health in order to ensure she is able to put her life back on track and present as a positive role model for her siblings.
In assessing her risk of reoffending, the Tribunal has taken account of the applicant’s young age when she committed her offences and the fact that she has matured to some degree since the time of her offending. However, the Tribunal does not accept that the applicant’s immaturity was a particularly significant factor in her offending. In the Tribunal’s view, the applicant’s mental health conditions and substance abuse issues are far more significant. It does concern the Tribunal to some degree that the applicant appeared in the Tribunal’s view to place an overstated emphasis on the significance of her young age as a contributing factor in her offending. Notwithstanding this concern, the Tribunal does accept that the applicant’s increased maturity is likely to have reduced to some degree her susceptibility to peer pressure and to her impressionability. The Tribunal also recognises that in her evidence the applicant at times used the concept of maturing interchangeably with the concept of gaining insight inter her offending and developing better tools and techniques for effectively managing her mental health conditions and substance abuse issues. The Tribunal of course accepts that the applicant has made significant progress in this later sense during her time in prison.
The applicant’s written submission prepared on her behalf by Refugee Legal made reference to research undertaken by the Australian Institute of Criminology which noted that a substantial proportion of crime is committed by juveniles and that most juveniles will grow out of offending and become law abiding citizens. While that is certainly true, in the Tribunal’s view, the applicant’s offending was not an example of a young person playing up as part of a developmental process that they are likely to grow out of. Nor can the applicant’s offending be fairly explained as being due to the underdevelopment of the part of the brain associated with response inhibition, the calibration of risks and rewards and the regulation of emotions. The applicant’s offending was extraordinarily violent and far more significantly connected to her mental health conditions and substance abuse. Those issues are deep-seated and are certainly not the type of issues that a person is likely to just grow out of as part of their adolescent development.
Having carefully considered all of the evidence before it, on balance the Tribunal is satisfied that despite the progress the applicant has made, as well as the improved support she is likely to have the benefit of now compared to when she was last released from detention, there nonetheless remains a very real risk of the applicant relapsing back into substance abuse and suffering a further decline in her mental health. In such circumstances the risk of the applicant reoffending again in a similar manner is very high. Given the extraordinary damage, both physical and psychological, her previous offending has caused, in the Tribunal’s view, a very real risk of such offending being repeated is an unacceptable risk.
Accordingly, the Tribunal is satisfied that this consideration weighs very significantly against a decision to revoke the cancellation of the applicant’s visa.
Conduct involving family violence
The applicant’s offending conduct does not fall within the concept of family violence as referred to in the Direction. Accordingly, this consideration weighs neither for nor against a decision.
Best interests of minor children in Australian
In assessing this consideration, the Tribunal has had careful regard to the factors set out in paragraph 8.3(4) of the Direction.
According to the applicant’s direct evidence she has two younger siblings who are minors and who have the potential to be impacted by the Tribunal’s decision, CA aged 17 and PE aged 12. The respondent’s materials also made reference to a third sibling TR, however, based on the applicant’s evidence, the Tribunal accepts that TR must now have reached the age of majority.
In her evidence the applicant told the Tribunal that she is committed to being a positive role model in her sibling’s lives and to have the opportunity to teach them the importance of making good choices and not going down a similar path. The applicant noted especially in the case of her sister, PE, her strong desire to be there to protect her so that she doesn’t have to go through the same traumatic experiences. The applicant told the Tribunal that she maintains contact regular with her siblings by phone, typically about three times a week. She described having spoken with PE on the weekend before the hearing to check in and see how she was doing. The applicant described being really proud of CA. She described him as doing very well at school and having an interest in pursuing law. She told the Tribunal that she believes in him and has told him that with determination he can achieve anything he wants. The applicant told the Tribunal that she believed that a requirement for her to return to New Zealand would have a life-long impact on her relationship with her siblings as there is no plan for her family to move back to New Zealand and therefore, she would continue to be separated from her family.
The Tribunal materials also included statements from the applicant’s parents that described the applicant as having a strong connection to her younger siblings and of the considerable impact her ongoing separation would have for them.
The Tribunal accepts that the applicant has a genuine connection to her younger siblings, although that connection has clearly been very significantly interrupted during the periods she has been in custody. The Tribunal also accepts that the applicant is committed to playing a positive role in her siblings lives and, provided she effectively manages her mental health and remains free from substance abuse, the Tribunal accepts that she has the capacity to do so. The Tribunal also acknowledges the particular concern the applicant has for her younger sister given the sexual trauma she has experienced in the past and her strong desire to ensure her sister avoids similar experiences.
The Tribunal also accepts that if the applicant is required to relocate back to New Zealand any potential for her to play such a role in the lives of her siblings is likely to be very significantly impeded. In reaching this conclusion the Tribunal accepts that the applicant would still have the capacity to maintain some connection with her siblings via electronic means.
On the basis of the evidence before it the Tribunal is satisfied that a decision not to revoke the cancellation of the applicant’s visa is not in their best interests.
However, the Tribunal accepts the respondent’s contention that the weight to be given to this consideration in respect of each of the children is significantly reduced as a consequence of:
The applicant having no current parental type role in the care of the children nor any independent evidence of the prospect she would do so in the future;
(a)The applicant’s relationship with her siblings having previously been impeded by the decision previously made by DHHS to restrict the applicant from residing with the children due to concerns regarding a potential risk to their safety;
(b)The relatively limited number of years the applicant would be in a position to engage positively in their lives before they turn 18, especially in the case of CA;
(c)There remains a genuine risk of the applicant reoffending and in such circumstances the capacity for the applicant to play a positive role in her siblings’ lives is very significantly reduced;
For these reasons, the Tribunal is satisfied that this consideration weighs moderately in favour of a decision to revoke the cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 8.4 of the Direction provides as follows:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen as 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 allows such a non-citizen to enter or remain in Australia.
2In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Direction’s wording in paragraph 8.4(4) above would appear to be an adoption of a line of Federal Court authority that considered the meaning to be given to the “expectations of the Australian community” in the context of the former Direction 79 including, in particular, the Federal Court’s decision in FYBR v Minister for Home Affairs.[3] Paragraph 8.4(4) of the Direction makes clear that the Tribunal is required to give consideration to the Government’s views of the expectations of the Australian community as a whole, as articulated in the Direction itself, and does not involve the Tribunal independently assessing the community’s expectations in a particular case.[4]
[3] [2019] FCAFC 185.
[4] See also PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050 at [82].
In addressing this consideration, the Tribunal has had regard to the Government’s stated view of the expectations of the Australian community. The applicant’s offending has involved very serious crimes of extreme violence including against a young woman who was in an extremely vulnerable situation. The damage, both physical and emotional, inflicted by the applicant on her victims as a consequence of her offending was extreme. In the circumstances of this case the Tribunal accepts that the nature of the applicant’s offending is such that the Australian community would expect that the applicant not continue to hold her visa. This is especially so given the Tribunal’s assessment that the risk of the applicant reoffending again in a similar manner is a genuine risk.
The Tribunal has also had regard to the applicant’s broader circumstances including, in particular, her difficult upbringing and her mental health conditions. However, in the Tribunal’s view, given the extremely violent nature of the applicant’s offending and the unacceptable risk of further harm to innocent members of the Australian community, the Tribunal is satisfied that this consideration weighs very significantly against the revocation of the cancellation of the applicant’s visa.
Other considerations
Paragraph 9 of the Direction sets out a non-exhaustive list of other considerations to be taken into account including:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
International non-refoulement obligations
International non-refoulement obligations is not a relevant consideration in this matter. Accordingly, this consideration weighs neither for nor against a decision.
Extent of impediments if removed
The applicant is 22 years of age.
The applicant is a New Zealand citizen and was raised in New Zealand until she was approximately 7 years of age.
The Tribunal is satisfied that if required to relocate back to New Zealand the applicant will not face any significant cultural or language barriers on her return although there is likely to be a period of adjustment. The Tribunal accepts that if required to relocate to New Zealand the applicant is likely to suffer emotional hardship as a consequence of her ongoing separation from her family in Australia.
The applicant has significant ongoing mental health concerns as described earlier in these reasons. The Tribunal accepts that if the applicant is forced to return to New Zealand there is a real risk that her mental health conditions could deteriorate, and also that she could be at higher risk of relapsing back into drug abuse and offending. The Tribunal accepts that the applicant has no family or friendship supports in New Zealand and that this puts her recovery at greater risk. The Tribunal accepts that her ongoing separation from her family and the added stress associated with her relocation have a real potential to further exacerbate these risks. In addition, the Tribunal accepts that the applicant experienced sexual abuse while living in New Zealand and that the applicant associated New Zealand with that trauma. The Tribunal also accepts that the applicant’s former boyfriend has relocated to New Zealand and the applicant has a fear in connection with the presence of her former boyfriend in New Zealand. The Tribunal accepts that there is a real risk that returning to New Zealand could act a trigger in relation to the applicant’s trauma and fears and that this could further exacerbate the applicant’s mental health conditions. This risk was also acknowledged by Dr Rakov in her psychiatric report.

In her statement to the Department, the applicant described having a very significant fear that she will suffer anxiety and her progress in addressing her mental health conditions will take a backward step if she is to return to New Zealand. The applicant also expressed concern about the absence of established social support and therapeutic connections relevant to the management of her mental health. The Tribunal also accepts that those stated fears and concerns are very genuine.
The Tribunal is mindful of the applicant’s stated commitment to taking the steps necessary to ensure she does not relapse into substance abuse and effectively manages her mental health conditions. The applicant has also demonstrated an improved understanding of her conditions and the importance of remaining free from drugs and staying engaged in ongoing psychological counselling if she is to avoid a relapse. These considerations are no less relevant to the applicant avoiding relapse in New Zealand than they are in Australia although the Tribunal accepts that in Australia the applicant has the benefit of on-the-ground family support and also the stated commitment of a number of community-based support groups she has previously engaged with.
The applicant will not be completely without support if she returns to New Zealand, however. The applicant’s auntie, MH, made clear in her evidence that she would be willing to provide some level of financial support if the applicant were to relocate to New Zealand. In addition, MH lived in New Zealand until she was 21 years of age and is a former police officer of 13 years’ experience who is retired and with some reasonable level of financial capacity. Given the commitment that MH has displayed to supporting the applicant, as well as other members of the applicant’s family, the Tribunal is satisfied that MH is likely to be of some practical assistance to the applicant is she is required to relocate to New Zealand. The Tribunal of course recognises that this support is not a substitute for the in-person support MH could provide the applicant if she was to remain in Australia.
The Tribunal is also satisfied that as a citizen of New Zealand the applicant will have access to the same level of health care, including mental health care, as any other citizen in New Zealand.
The Tribunal accepts that the applicant is likely to have very limited financial resources on a return to New Zealand and also has no identified place to live. Given the applicant’s very limited work experience the Tribunal accepts that in the short term at least the applicant is also unlikely to be in a position to secure paid work. However, for the reasons stated earlier, if the applicant is able to avoid a relapse into substance abuse and maintain effective management of her mental health conditions, the Tribunal is satisfied that in the medium term the applicant has an improved prospect of securing at least some form of employment. However, as a consequence of the applicant’s criminal offending history she may continue to find some forms of employment more difficult to secure even over the longer term. The Tribunal is also satisfied that as a New Zealand citizen the applicant will have access to the same level of social security support as any other citizen of New Zealand. In this context, the Tribunal is satisfied that any difficulty the applicant may have in securing accommodation or otherwise meeting her basic needs is likely to be short term and over the medium to longer term the applicant will be able to secure social security supports to meet those needs in the same way as other citizens of New Zealand.
For these reasons, the Tribunal is satisfied that the applicant is likely to face some significant impediments on a return to New Zealand. Accordingly, this consideration weighs significantly in favour of a revocation of the applicant’s visa.
Impact on victims
There was no direct evidence from the applicant’s victims in respect of the matter before the Tribunal. Accordingly, this consideration weighs neither for nor against a decision.
Links to the Australian community
Strength, nature and duration of ties to Australia
The applicant first arrived in Australia in 2007, and with the exception of a couple of brief trips, has otherwise resided in Australia ever since. The applicant substantially raised in Australia and clearly considers Australia to be her home.
The applicant did not commit her first offence until approximately 7 years after her arrival. In the Tribunals view, that is not a short time after arriving and therefore there is no basis for giving the duration of the applicant’s ties to Australia less weight as a consequence of the proximity of her first offending to her arrival in the country.
There is very little evidence of the applicant having made a positive contribution to the community although she did work for a very brief period while on parole previously, she has volunteered for a number of community-based organisations and has also maintained some employment while in prison. The Tribunal is satisfied that the weight to be given to any contribution the applicant has made should be reduced to some degree as a consequence of the extended period the applicant has now spent in custody during her time here.
The applicant has significant family ties to Australia including her parents and siblings, her auntie MH, her other aunties and uncles, cousins, and a grandparent. The evidence strongly suggests that the applicant has had limited contact with many in her extended family in Australia, but she clearly has a genuine connection to her parents and siblings as well as her auntie MH. The applicant has expressed a desire to be able to remain in Australia and secure paid employment in order to be able to contribute to the family financially. The applicant’s mother expressed her love for her daughter in her written statement and the applicant’s father stated that the applicant’s removal would be devastating for the family. The Tribunal accepts that if the applicant were to be required to return to Australia that will have an adverse impact in her relationship with her broader family, and in particular her parents, siblings and MH, given the geographic dislocation it would result in. The Tribunal is satisfied that this is especially so in respect of her immediate family given the evidence that her relationship with them had improved to some degree in recent years. This improved relationship is reflected in the statements of support her parents have provided in support of her case and which are included in the Tribunal materials. In reaching this conclusion, the Tribunal accepts that the applicant would continue to have the capacity to maintain some level of contact with her family in Australia by electronic means. The Tribunal also accepts that if the applicant is required to relocate back to New Zealand her family will lose the possibility of the applicant successfully securing work and making a financial contribution to them.
For these reasons, the Tribunal is satisfied that this consideration weighs in favour of the revocation of the cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence of any impact on Australian business interests. Accordingly, this consideration weighs neither for nor against a decision.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in section 501(6) of the Act. Therefore, the Tribunal is required to consider whether or not to exercise the residual discretion in section 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that the applicant’s offending includes assaults of an extremely violent nature against completely innocent members of the Australian community. One of the applicant’s assaults was against a young vulnerable woman who was riding her bike alone late at night. The assault was completely unprovoked, in fact the young woman was seeking to help the applicant because she thought the applicant needed help. The injuries inflicted on her, as well as the applicant’s other assault victims were horrific, and the impacts have been long lasting. The Tribunal is satisfied that the applicant’s offending was extremely serious.
The applicant’s offending occurred against a backdrop of a very troubled childhood where the applicant herself was a victim of sexual assault at the hands of family members and suffered significant trauma. The impact of that childhood continues to this day. In part as a consequence of the applicant’s trauma she also suffers from a number of serious mental health conditions and has also battled with substance abuse from a very young age. There is no question in the mind of the Tribunal that the applicant is genuinely remorseful and accepts responsibility for her offending. She has also taken significant strides in better understanding her offending behaviour and the contribution her mental health conditions and substance abuse have played in that offending. The applicant has developed new skills in the better management of her mental health conditions and substance abuse and remains committed to continuing with counselling and treatment. There are some significant differences between the applicant’s circumstances now when compared to the last time she was released from custody. However, for the reasons set out, the Tribunal is satisfied that there remains a very real risk of the applicant relapsing and reoffending. The Tribunal has concluded that the protection of the Australian community consideration weighs very significantly against a revocation of the cancellation of the applicant’s visa.
For the reasons set out the Tribunal is also satisfied that the expectations of the Australian community consideration weighs very significantly against a revocation of the cancellation of the applicant’s visa.
The applicant has younger siblings and also broader family members including her parents who will be adversely impacted by a decision requiring the applicant to return to New Zealand. The applicant has also lived in Australia for a considerable portion of her life and considers Australia her home. In addition, in the absence of on-the-ground family support, and also the anxiety the applicant may suffer on a forced return to New Zealand, the applicant is likely to find a relocation to New Zealand confronting and challenging and it has the potential to exacerbate her mental health conditions and associated issues. For the reasons set out, these considerations weigh in favour if a revocation of the cancellation of the applicant’s visa.
On balance the Tribunal is satisfied that, in all of the circumstances of this case and notwithstanding significant counter-considerations, in light of the extremely serious nature of the applicant’s offending and given the unacceptable risk of harm to innocent members of the Australian community, the protection of the Australian community consideration is determinative.
Accordingly, the Tribunal is satisfied that there is not another reason why the mandatory cancellation of the applicant’s visa should be revoked.
DECISION
The decision under review is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

................................[SDG]................................
Associate
Dated: 14 April 2022

Date(s) of hearing: 10 March 2022

Applicant: By videoconference

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Liddy

Sparke Helmore

[2022] AATA 848

30 March 2022

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