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

[2023] AATA 267

Dezfuli and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 267 (31 January 2023)

Division:GENERAL DIVISION

File Number:          2022/9217

Re:Zahra Dezfuli  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member G Lazanas

Date:31 January 2023

Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the decision to cancel the Applicant's visa under subsection 501CA(4) of the Migration Act 1958 (Cth).

.............................[SGD]................................

Senior Member G Lazanas

Catchwords

MIGRATION – mandatory visa cancellation – Applicant does not pass the character test – whether there is another reason why the visa cancellation should be revoked –  consideration of Ministerial Direction No. 90 – nature and serious of offending conduct – recklessly deal with proceeds of crime, money greater than $1 million – protection of the Australian community – expectations of the Australian community – the best interests of minor children – strength, nature and duration of ties to Australia – impediments to removal – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 39

Migration Act 1958 (Cth) ss 500, 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

SECONDARY MATERIAL

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

Senior Member G Lazanas

31 January 2023

INTRODUCTION AND PROCEDURAL BACKGROUND

1. The Applicant was born in Iraq in 1984 and is 38 years of age. She has lived in Iran for most of her life. She first arrived in Australia in February 2003.

2. On 26 July 2017 the Applicant was granted a Class BB Subclass 155 Five Year Resident Return Visa, being the visa in issue in this proceeding.

3. Between February and July 2017, the Applicant engaged in fraud-related offending against the Australian Government through her involvement in a fake childcare scheme that laundered over $9 million of Commonwealth funds. The Applicant’s role was limited in that she was a “front person”, as explained below, in relation to certain banking transactions to the value of over $1 million. The offending in respect of which she was sentenced related to dealing with some of the proceeds of that scheme between 19 and 21 July 2017.

4. On 2 November 2020, the Applicant was convicted in the District Court of New South Wales of “Reckless deal w/ proceeds of crime, money/property=>$1Million” for which she was sentenced to 4 years imprisonment commencing on 19 September 2020 and expiring on 18 September 2024, with a non-parole period of 2 years imprisonment expiring on 18 September 2022. She also received a fine of $10,000.[1] On 10 December 2021, the NSW Court of Criminal Appeal dismissed the Applicant’s appeal in relation to the severity of the sentence imposed.[2]

   [1] G6/29-30.

   [2] TB2/53-65.

5. On 3 December 2020, the Applicant was notified that her visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act).[3] However, notification of the decision did not properly comply with the requirements of the Act and, consequently, the Applicant was properly notified on 24 January 2022 of the decision to cancel her visa by way of email to her authorised representative (the cancellation decision).[4]

   [3] G10.

   [4] G11.

6. The Applicant’s visa was cancelled on the basis that the Applicant had a ‘substantial criminal record’, as defined in s 501(7) of the Act, and by reason of her sentence being for 12 months or more.

7. On 14 February 2022, the Applicant made written representations to the Respondent requesting revocation of the cancellation decision.[5] The request was made within the statutory timeframe.

   [5] G14 and G17.

8. On 8 November 2022, a delegate of the Minister (the delegate) decided not to revoke the mandatory cancellation of the visa pursuant to s 501CA(4) of the Act (the reviewable decision).[6]

[6] G3.

1. On 9 November 2022, the Applicant lodged an application for review with the Tribunal of the reviewable decision.[7] The Tribunal has jurisdiction to review the reviewable decision pursuant to s 500(1)(ba) of the Act.

   [7] G1.

2. The hearing was initially scheduled to be heard by the Tribunal on 18 and 19 January 2023, however, it was necessary to adjourn on 19 January 2023 and resume on 27 January 2023 on account of several procedural matters.

3. First, the Applicant’s legal representatives proposed that numerous witnesses give oral evidence, but written statements had not been filed with the Tribunal and served on the Respondent. Subsection 500(6H) of the Act relevantly provides as follows:

   … the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing … in relation to the decision under review.

4. Secondly, it transpired that certain documents that were produced to the Tribunal pursuant to numerous summonses were only received by the Tribunal and made available to the parties on the afternoon of 17 January 2023, namely, the day before the scheduled start of the hearing. This was despite the fact the summonses were returnable on 3 January 2023. The Applicant’s legal representatives stated they had not had an opportunity to inspect any of the summonsed documents nor the Tender Bundle prepared by the Respondent filed and served on 17 January 2023 at about 6pm. This was problematic as

   
   

   s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly states:

   … the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision … and to make submissions in relation to those documents.

5. As it happens, one of the documents included in the Tender Bundle filed and served by the Respondent was a form referred to as ‘Personal Particulars for Character Assessment’ in relation to an application for a visa completed by or on behalf of the Applicant dated 6 May 2003 in which the Applicant claimed she was “stateless”.[8] Neither of the parties had addressed this issue in their respective Statement of Facts Issues and Contentions nor in their evidence. Consequently, this assertion presented another potential problem. Accordingly, on account of the requirement to allow the parties a reasonable opportunity to inspect the summonsed documents, I also allowed the parties further time to file further evidence and make further submissions including in relation to this aspect consistent with the terms of s 500(6H) of the Act.

   [8] TB1/19-20.

6. The documents ultimately before the Tribunal filed and served by the Applicant were as follows:

   (a)The Applicant’s Statement of Facts Issues and Contentions dated 11 December 2022 (Exhibit A1);

   (b)The Applicant’s Reply to the Respondent’s Submissions filed on 12 January 2023 (Exhibit A2);

   (c)The Applicant’s Amended Statement of Facts Issues and Contentions dated 23 January 2023 (Exhibit A3);

   (d)Statements by each of the Applicant’s three children as well as a statement by one of her nieces filed on 23 January 2023 (Exhibits A4 - A7).

7. The documents filed and served by the Respondent were as follows:

   (a)the G-Documents;

   (b)the Respondent’s Statement of Facts Issues and Contentions dated 21 December 2022 (Exhibit R1);

   (c)the Tender Bundle filed on 17 January 2023 (Exhibit R2);

   (d)the Respondent’s Submissions in relation to Further Material provided by the Applicant dated 25 January 2023 (Exhibit R3); and 

   (e)Further Tender Bundle filed on 25 January 2023 (Exhibit R4).

8. The Applicant attended in person on 18, 19 and 27 January 2023, gave oral evidence and was cross-examined at length. She was legally represented and had a Farsi interpreter. The Applicant’s three children and niece did not give oral evidence.

9. For the reasons which follow, the reviewable decision will be set aside and, in substitution, the cancellation decision will be revoked.

   THE ISSUE

10. It is not in dispute that the Applicant has a ‘substantial criminal record’ and, therefore, does not pass the character test set out in the Act. Consequently, the sole issue to be determined is whether there is another reason why the cancellation decision should be revoked.

    THE EVIDENCE

11. The evidence set out below is based on information contained in the G-Documents and the Respondent’s Tender Bundles as well as the written and oral evidence given by the Applicant and the other witnesses.

    The Applicant’s personal and family history

12. The Applicant is 38 years of age. She was born in Iraq but has lived in Iran for most of her life. She married ‘Mr A’, who was 22 years older than her, in 2001, when she was 16. In or about February 2003, she came to Australia with Mr A when she was 19 years of age. As detailed below, she subsequently went to Iran on numerous occasions for lengthy stays and returned to Australia on the last occasion in October 2016. As stated above, it is the visa granted to her in July 2017 that is the subject of the reviewable decision.

13. The Applicant’s movements to and from Australia, since she first arrived, are as follows[9]:

    (a)17 February 2003 Arrive Australia - 14 June 2004 Depart for Iran;

    (b)5 October 2004 Arrive Australia - 15 October 2005 Depart for Iran;

    (c)7 February 2007 Arrive Australia – 17 July 2008 Depart for Iran;

    (d)29 May 2010 Arrive Australia – 29 October 2011 Depart for Iran;

    (e)6 May 2012 Arrive Australia – 27 July 2012 Depart for Iran;

    (f)5 July 2014 Arrive Australia – 22 September 2014 Depart for Iran; and

    (g)11 October 2016 Arrive Australia.

    [9] G/128-129.

14. In summary, since her first arrival in Australia, the Applicant has spent approximately seven and a half years (cumulative) in Iran. The Applicant informed a forensic psychologist – Ms Clair Baker - who assessed her and prepared a report dated 24 August 2020 for the purpose of her sentence hearing that she had a difficult time in the early years in Australia (the Psychologist’s Report).[10] The Applicant stated she was in a new country, did not understand the language and had two small children and no friends or support.[11] Due to her difficulties, the Applicant stated she “returned to Iran because it was too hard for me in Australia without my family, without my parents. I went back and forth many times… my husband also went with us many times.”[12] At the Tribunal hearing, the Applicant also stated that Mr A had insisted that she travel with him to Iran when the children were older even though she considered the futures of her children were better in Australia and she did not want to disrupt their schooling.

    [10] TB5128-154.

    [11] TB5 /132.

    [12] TB5/132.

15. The Applicant is now divorced having separated in or about 2015 or 2016. She described her relationship with Mr A as initially good, but it deteriorated in later years and he remarried and established another family in Iraq. The Applicant has three children from her marriage to Mr A. Her children, referred to as “B”, “C” and “D”, are 21, 19 and 15 years of age. B and D are daughters and the middle child, C, is a son.

16. The Applicant explained that when she was married to Mr A she was not allowed to pursue any studies and was a housewife. She stated that her ex-husband treated her “like a prisoner” and she was not allowed to go out. She was always at home looking after the children and had few opportunities to learn English. The Applicant stated Mr A had come to Australia when he learned of her criminal charge to assist her find a lawyer and to look after their children. The Applicant had been told by her children that Mr A had recently returned to live in Iraq with his new family.

17. The Applicant has not had any employment in Australia and up until her imprisonment had been in receipt of Newstart Allowance since October 2016.

18. The Applicant speaks Farsi very well. She also speaks Arabic but not as proficiently. The Applicant stated that she does not speak English daily and only learned to speak English when she was in prison. Although the Applicant had attended some English classes as a condition of her receiving the Newstart Allowance, her attendance was ad hoc because she was stressed about her situation at the time, namely, being a single mother with 3 children and unable to find suitable housing. At one stage, in or about 2016, she was living in a room in a shared house with a different family in each room and everyone sharing the bathroom and the kitchen.[13] In or about 2017, she moved in with her sister and her family.

    [13] TB5/133.

19. She stated that her role as a mother before she went to prison involved her preparing her children for school, helping them with their studies, shopping for groceries, cooking and generally looking after them. She stated her relationship with her children was more akin to one of friendship, although she also felt like she was “both mother and father” to them. According to the Applicant, the children were closer to her than their father, in part, because he was in Iraq and Iran a lot of the time.

20. The Applicant’s mother and two brothers continue to reside in Iran. Her father passed away while she was in prison. The Applicant learned about his passing in mid-2020 and received counselling for her loss and grief while in prison.[14] The Applicant stated that she is very close with her mother but not as close with her two brothers because her criminal offence is considered “sinful”. The Applicant’s sister resides in Australia, is married and has three daughters. The Applicant is close with her sister and her nieces, and they also supported the Applicant and her children, including while the Applicant was in prison.

    [14] TB3/99-100,102.

    The Applicant’s offending

21. The Applicant has no criminal history other than the one offence to which she pleaded guilty – see [4] above. Broadly, the Applicant was used as a “front person” in a scheme which intended to defraud significant Commonwealth funds. However, she was not complicit in the scheme as “she did not have knowledge of the particular conspiracy or the details of the scheme”, as per the Statement of Agreed Facts that was filed in the District Court of New South Wales by the Commonwealth Director of Public Prosecutions dated 23 July 2020 (the Agreed Facts).[15] The following summary of the scheme is based on the Agreed Facts.[16]

    [15] TB2/66.

    [16] TB2/66-77 (redacted copy).

22. In early 2007 a criminal enterprise was orchestrated by 3 persons referred to as “the conspirators”, one of them being a woman referred to as “XY” in the Agreed Facts. Between January and July 2017, the conspirators implemented a scheme to purchase two pre-existing childcare services called IWonder and IGrow as front companies and falsely claimed childcare benefits on their behalf for 398,936 family day care sessions relating to 2,132 children, which were never provided. Those claims were accepted as genuine and, as a result, the Commonwealth Government Department of Education and Training paid childcare payments totalling $9,274,016 into the two respective entity’s bank accounts in the period from February to July 2017.[17]

    [17] TB2/66.

23. The Agreed Facts relevantly state, as follows:

    The [Applicant] did not have knowledge of the particular conspiracy or the details of the scheme. … The [Applicant] was the ‘front person’ for IGrow and her offence relates only to the proceeds of crime obtained from the IGrow fraud. … The money laundering offence committed by the [Applicant] is founded on her participation as IGrow’s front person and her involvement in conducting bank transactions with [XY] on 19 and 20 July 2017. … Over those two days, 19 and 20 July 2017, the [Applicant] and [XY] attended upon a couple of branches of the Commonwealth Bank of Australia (CBA) and drew down the funds, mostly via the purchase of bank cheques and a bank transfer.[18]

    The [Applicant] signed the IGrow purchase documents, ostensibly making her the controller of IGrow. She also signed the bank documents giving her control of the company’s bank accounts.[19]

    [18] TB2/66-67.

    [19] TB2/69.

24. The Agreed Facts also reference the following extracts from a voluntary taped record of interview of the Applicant by the Australian Federal Police following her arrest where the Applicant stated, through a Farsi interpreter:

    I have been here about eight, nine months and I’m separated from my husband and I have three kids and Centrelink money is not enough for me and my expenses. I was looking for a job and friend of mine, [XY], told me that she can help me in childcare. …she asked me to open a bank account, I said that I don’t know how… there were three people…they took me to the bank… I went with them as I didn’t know anything… they just asked me to sign some papers… I thought that she’s helping me.[20]

    [20] TB2/69-70.

25. The Agreed Facts also contain images of the Applicant and XY taken from CCTV footage at the CBA Guildford branch on 19 July 2017. The images show XY interacting and communicating with the bank teller with the Applicant being handed documents to sign by XY, and that XY received all the bank cheques.[21] The Applicant’s face is clearly visible in the images, however, the face of XY is covered by a black niqab. There are similar images in the Agreed Facts in relation to the Applicant’s attendance at the CBA Guildford branch on 20 July 2017 when further banking transactions were undertaken involving the issue of additional bank cheques. On 20 July 2017, the sum of $10,000 cash was also withdrawn from one of the entity’s bank accounts and XY placed this cash into the Applicant’s handbag. The Applicant was told by XY that the cash was her pay.

    [21] TB2/72.

26. The proceeds dealt with by the Applicant (in excess of $4 million) on 19 and 20 July 2017 were retrieved by the Australian Government, except for $219,606 which was withdrawn from another bank account into which some of the bank cheques were deposited and, additionally, the $10,000 in cash which was handed to the Applicant. The cash amount was later repaid by the Applicant to the Commonwealth Government – see [40] below.

27. By way of further background as to how the Applicant came to be involved, the sentencing comments of Acting Judge Armitage of the District Court of New South Wales dated 2 November 2020 in relation to both the Applicant and XY, reveal the following. The Applicant had told one of the conspirators that she needed $80,000 to purchase her ex-husband’s share of their house in Iran and that she was happy “to do whatever to get $80,000”.[22] XY asked the Applicant if she wanted to be involved, that they would appoint her as a director and warned her that it was “risky”, and that “the police may get involved”. The Applicant was desperate for money and agreed.[23]

    [22] G9/38.

    [23] G9/38.

28. The Applicant explained at the Tribunal hearing that when she had said to XY that she was willing “to do whatever to get $80,000”, she did not mean she was prepared to do something that was wrong or illegal. Rather, the Applicant stated that she meant she was prepared to do any kind of work. The Applicant conceded at the Tribunal hearing that she did not have any experience in childcare and, further explained that when she had asked XY what kind of work she would be doing in childcare, she was told she would “take children and take them back”. Apparently, the Applicant had told XY that she didn’t have a driver’s licence but there was no further discussion as to how she could perform any childcare work given that limitation.

1. The Applicant repeatedly stated at the Tribunal hearing that she thought XY was helping her to get a job. The Applicant disputed that she had been given any warning by XY about it being “risky” and that “police may be involved”, contrary to the facts referred to by his Honour in the sentencing remarks. The Applicant said that she had only agreed to the Agreed Facts because her legal aid representative advised her that XY would testify against her if the matter proceeded to hearing. Also, if she pleaded guilty, she wouldn’t face other criminal charges and would not go to prison. She pointed out that she had attended the CBA bank branches without any face covering, unlike XY who wore a black niqab, because she did not have anything to hide.

2. The Applicant was also cross-examined by the Respondent’s legal representative at the hearing as to whether she knew whether the $10,000 cash payment she received had been obtained through non-genuine means. The Applicant repeatedly stated that she thought that they (the conspirators) were helping her. She said at the hearing “they were my family friends and I trusted them”, “they took advantage of me” and that she had made “a big mistake”. The Applicant’s statements in interviews at the prison in December 2020, were to similar effect, as follows. “[The Applicant] … stated she acted unknowing manner during her offences …she signed paperwork without the knowledge of what it contained and received money into her account without her knowledge. [The Applicant] reported that the big bosses [the conspirators] had set her up as a patsy… she had no English language, writing or skills it was easy to fool her into signing documents.”[24] Also, the Applicant stated to prison officers that “she does not understand why she is currently incarcerated …she believes that she was the patsy.”[25]

   [24] TB3/86.

   [25] TB3/88.

3. I was not persuaded that the Applicant’s contrary version of events as presented to the Tribunal on several aspects is the true position. Specifically, the Applicant disputed the factual findings underpinning her sentence that she had been warned by XY about it being risky and the possibility of police involvement. Furthermore, the Applicant disputed that she knew the cash placed into her handbag by XY was from non-genuine means. However, the conviction and sentence carry great weight, including in proving the necessary factual foundation for those matters, and should generally not be departed from by the Tribunal unless there is a compelling explanation as to why a particular factual foundation should not be accepted: see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 per Colvin J at [189]-[191]. I acknowledge that the Applicant’s case in the District Court of NSW proceeded by her pleading guilty and her plea may have been induced by other considerations, but the material before me does not provide a strong basis for me to reach a different conclusion as to the facts as found on sentencing which were stipulated to be with the agreement of the parties.

   The Applicant’s remorse

4. As stated above, the Applicant accepted that she had “made a big mistake” although she continued to also minimise her own involvement on the basis that she had no knowledge of the conspiracy or the scheme. She stated that she didn’t understand English and clearly didn’t appreciate that her offence of dealing in the proceeds of crime was itself a criminal offence. She had also paid to the Australian Government a $10,000 pecuniary penalty - equivalent to the value of the benefits she had received from the commission of the offence - with the $10,000 cash that had been paid to her by XY.

5. In the sentencing remarks of Acting Judge Armitage, his Honour noted that the Applicant had disclosed “the legal problem she had been facing” to her mother but she had not been able to bring herself to tell her father.[26] His Honour found that the Applicant “was remorseful to a limited degree even though she had not given evidence, principally because of actions she had taken”. His Honour referred, in particular, to the fact that she pleaded guilty and had repaid the $10,000. As to her rehabilitation, his Honour stated, after referring to the Psychologist’s Report:[27]

   She was found to have a low risk of re-offending. After considerable thought and with some caution, I accept that this is the case. She has after all had no previous offences and she has experienced considerable distress as a result of being charged … and I think that will deter her from offending in the future provided she receives support by way of rehabilitation on parole.

   [26] G9/43.

   [27] G9/45.

6. His Honour further referred to numerous references regarding the Applicant’s character and stated[28]:

   There is no doubt that the [Applicant] is well regarded by a number of people and that demonstrates that she has considerable community support and also that she has been a person of good character before the commission of the offences…  

   [28] G9/46.

7. The Psychologist’s Report dated 24 August 2020 records the Applicant’s remorseful attitude in the Applicant’s own words:

   I am very sorry that it happened, and very sorry about the money that was taken. I was a respectful person, I have always lived a clean life. I have lost my honour, this scar will be always on me. Forever.

   … because of what happened I am not myself anymore. I always had my honour, I did good things for people, I was an artist …

8. The Psychologist’s Report separately records the psychologist’s assessment of the Applicant as follows:[29]

   [The Applicant] was found to be amiable and polite… At the start of the interview she was advised of the purpose of the assessment and that any information would not remain confidential. She nevertheless presented as sincere and straightforward with no apparent attempt to engage in what could be described as self-serving behaviours.

   [29] TB5/138.

9. The Applicant also impressed me as genuinely remorseful. I am also of the view that as the as the Applicant indicated she would live with her children if allowed to stay in Australia, she will be supported by them as they are both working and therefore, not experience the same financial stress as at the time of her offending. I note that the Psychologist’s Report also considered:[30]

   … if she is able to address her mental health through her continued attendance of regular therapy sessions with her current psychologist she would be considered highly unlikely to reoffend in a similar manner again in the future.

   [30] TB5/13.

10. While the Applicant has been in prison, she has contributed positively in the correctional centre. The centre’s case note reports describe the Applicant as “calm”, “respectful”,[31] and “compliant with Centre routines”.[32] The case note reports also refer her to being hard working, getting along well with other inmates, and her work being of a consistently high quality.[33] While in prison and in detention she has painted and also taught art classes for the inmates. She stated at the Tribunal hearing that she had painted over 40 works. There were photos of four of her works in evidence which demonstrated her creative talent.[34] She has also attended classes and obtained Certificates in Skills for Vocational Pathways at the BSI Learning Institute. Given the skills she has acquired while in prison and in detention, including better English, she aspires to teach art once she is released from detention. I find that the Applicant is making positive steps to improve her life and to allow her to re-integrate back into the Australian community.

    LEGISLATIVE FRAMEWORK AND PRINCIPLES

    [31] TB3/86.

    [32] TB3/87.

    [33] TB3/96-97.

    [34] Exhibit A5, paragraph 16 and Annexures.

    The character test

11. Pursuant to ss 501(3A)(a)(i) and (b) of the Act, the Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test because they have a “substantial criminal record”, as defined under

    
    

    s 501(7)(c), and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

    Power to revoke visa cancellation decision

12. When a visa is mandatorily cancelled pursuant to s 501(3A), the Minister must give the person concerned a written notice which sets out the original decision (that is, the mandatory cancellation) and particulars of the relevant information and must invite the person to make representations to the Minister about revocation of the original decision: s 501CA(3)(a) and (b).

13. Pursuant to s 501CA(4), the Minister may revoke the original decision if:

    (a)the person has made representations in accordance with the invitation:

    s 501CA(4)(a); and

    (b)the Minister is satisfied that:

    (i)the person passes the character test: s 501CA(4)(b)(i); or

    (ii)there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii).

14. The Tribunal has jurisdiction to review the decision to refuse to revoke the cancellation of the Applicant’s visa pursuant to s 500(1)(ba) of the Act.

    Direction No. 90

15. A determination under s 501CA(4) must be carried out in accordance with any written directions given under s 499(1) of the Act: s 499(2A). The Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation decision. The relevant direction is ‘Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 90), which commenced on 15 April 2021.

16. Paragraph 5.2 of Direction 90 provides that the principles set out therein (Principles) provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act.

17. Informed by the Principles, the decision-maker must take into account the primary considerations in Part 2 of Direction 90 in deciding whether to revoke a mandatory cancellation of a non-citizen’s visa. The relevant primary considerations are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

18. The decision-maker must also take into account other considerations insofar as they are relevant. The considerations that are relevant to this matter are as follows:

    (a)extent of impediments if removed; and

    (b)links to the Australian community, including strength, nature and duration of ties to Australia.

19. Section 7 states that primary considerations should generally be given greater weight than other considerations.

    is there another reason why the cancellation decision should be revoked?

20. I turn now to a consideration of the primary considerations followed by the other considerations relevant to the Applicant’s circumstances.

    Primary Consideration 1: Protection of the Australian community

21. 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.

22. 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.

    PC1.1 Nature and Seriousness of the Applicant’s Conduct

23. Paragraph 8.1.1 of Direction 90 prescribes factors to which decision-makers must have regard in considering the nature and seriousness of a non-citizen’s criminal offending or other conduct. This includes a range of conduct that is viewed very seriously by the Australian Government and, relevantly, the frequency of the non-citizen’s offending and cumulative effect of repeated offending. I have set out above at [29] – [39] the Applicant’s criminal offending and extracts from the sentencing remarks.

24. Having regard to the relevant factors in paragraph 8.1.1, I make the following findings about the nature and seriousness of the Applicant’s conduct:

    ·The Applicant has committed one offence of dealing in proceeds of crime greater than $1million, which is regarded as very serious and to which I afford significant weight.

    ·The sentencing remarks made by Acting Judge Armitage of the District Court of NSW on 2 November 2020 state “the offending is of the money laundering type.”[35]

    ·The Agreed Facts, as stated above, reveal the scale of the criminal operation in which the Applicant was involved, albeit she was not a party to the scheme. The Applicant was the “front person” for a company, IGrow, that fraudulently accepted Commonwealth childcare payments totalling over $9 million in the period from February to July 2017.

    ·His Honour described the Applicant as having “a minor role as a front person”[36] and being “low in the hierarchy” of the scheme conduct.[37]

    ·His Honour found that, notwithstanding her minor role, the Applicant had engaged in “very serious offending”[38] that involved a “very large loss to the Commonwealth”.[39]

    ·The Applicant has been sentenced to a term of imprisonment of 4 years which of itself demonstrates the objective seriousness of the offences involved. His Honour held that “fulltime custody is the only appropriate penalty in this case”.[40] It is acknowledged that sentences involving imprisonment are the last resort in the sentencing hierarchy.

    ·The sentencing remarks reveal that the Applicant was told by the conspirators that the scheme was “risky” and that the “police may get involved”.[41]  The Applicant signed documents in the full knowledge of these warnings when she agreed to be the director of I Grow, and she undertook the banking transactions involving draw-downs of over $4 million from two CBA branches via a combination of bank cheques and telegraphic transfers, as well as a withdrawal of $10,000 in cash.[42]

    ·His Honour accepted that the Applicant believed that the amount was approximately $1.2 million which, in any event, is covered by the same offence.

    ·The Applicant’s crime has impacted Australian taxpayers and broader members of the community who had no connection to the Applicant.

    PC 1.2 Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

    [35] G9/52.

    [36] G9/58.

    [37] G9/64.

    [38] G9/45.

    [39] G9/52.

    [40] G9/55.

    [41] G9/38.

    [42] G9/39.

25. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, with weight to be given to time spent in the community since their most recent offending.

26. The harm that could be visited on members of the Australian community should the Applicant engage in further fraudulent offending is very serious. It is likely to include very significant further pecuniary harm to the Commonwealth, and consequential harm and cost borne by the Australian community due to the diversion of important government resources away from subsidised childcare. The nature of the potential harm that may be caused if the Applicant were to re-offend by committing offences of dealing in proceeds of crime is such that the Australian community would have little tolerance for any likelihood of re-offending and future harm.

27. I find that there is very low likelihood that the Applicant will engage in further criminal or other serious conduct. As stated above, the Applicant pleaded guilty to the offence and accepts that she made a big mistake. The Applicant impressed me as sincere and genuine when stating she was ashamed of her conduct. I also gleaned that she accepted responsibility for her actions even though the contextual background was that she was manipulated by others, desperate and gullible. Acting Judge Armitage also assessed the Applicant to have “a low risk of reoffending”. I also rely on the opinion of the psychologist in the Psychologist’s Report as to the Applicant’s low risk of reoffending, as stated above.

28. The delegate noted that the Applicant has provided no evidence of meaningful rehabilitation or steps to address the claimed reasons for her offending especially as the sentencing judge qualified his risk assessment on the basis that “she receives adequate support by way of rehabilitation on parole”.[43] While it is true that the Applicant has not undertaken any formal programs to directly address her risk of reoffending and has also not had continued mental health services in prison and in detention, it is apparent from the case note reports that, in relation to her time in prison, the Applicant was hampered in participating in courses due to her lack of English skills as well as constraints caused by the COVID-19 pandemic.

    [43] G9/45.

29. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should she commit further offences or engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs against revocation of the cancellation decision.

    Primary Consideration 2: Family Violence engaged in by the Applicant

    There is no evidence of any family violence committed by the Applicant and therefore this consideration is not relevant.

    Primary Consideration 3: Best interests of minor children in Australia

30. Paragraph 8.3(1) of Direction 90 provides that a decision-maker must make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision (who is, or would be, under 18 years old at the time when the decision is expected to be made).

31. The Applicant has listed a number of minor children in Australia for the purposes of this primary consideration being, as follows:[44]

    (a)Her daughter born in November 2007, aged 15 years of age; and

    (b)Three nieces aged approximately 14, 11 and 5 years of age.

    [44] G15/107–109.

32. The Respondent accepts that it would be in the best interests of the minor child for the Applicant to remain in Australia, especially to have an ongoing relationship. However, the Respondent suggested that I lend little weight to this primary consideration on account of the fact the Applicant has played a limited parental role since about September while the Applicant was in prison followed by detention. The Respondent pointed to the fact other persons fulfil a parental role for the youngest daughter including her father who resided in Australia for some of the period when the Applicant was incarcerated. The youngest daughter has also been financially and emotionally supported by her older siblings, as evident from the respective statements of each of the Applicant’s children.

1. The Respondent further pointed out that the Applicant’s youngest daughter has just three years before she turns 18 years of age and there is no reason why she would be unable to maintain ongoing contact via electronic means and potentially visit her mother overseas. Further, when she reaches the age of 18 years, she can choose to relocate to where her mother resides.

2. While the youngest daughter has been looked after by her siblings and, to some extent, by her father, the evidence of the Applicant’s youngest daughter is that she misses her mother who did everything for her, and with whom she has a very close relationship.[45] The evidence of each of the Applicant’s children, which was not challenged by the Respondent, is that B and C, the adult children, have been working casually and studying full-time at tertiary institutions. They have had to share housework chores and other responsibilities including looking after their younger sister to meet their schedules and commitments.[46] The absence of the Applicant has been very difficult for all the Applicant’s children, especially the youngest daughter aged 15 who is a young teenager.[47]

   [45] Exhibit A6.

   [46] Exhibits A4 and A5.

   [47] Exhibit A6.

3. With respect to the Applicant’s nieces, the Applicant submits that she is “very close” with her nieces and speaks with them “every week”. One of the nieces provided a statement confirming she was close to the Applicant and her cousins, and she sees and speaks to her aunt very often.[48]

   [48] Exhibit A7.

4. The Respondent contended that to the extent that this consideration weighs in favour of revocation, it does not outweigh the other primary considerations weighing heavily against revocation. I find that it would be in the best interests of the minor children, especially the Applicant’s youngest daughter for the cancellation decision to be revoked. I give significant weight to this factor which weighs in favour of revocation of the cancellation decision.

   Primary Consideration 4: Expectations of the Australian community

5. Paragraph 8.4(1) of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.

6. Paragraph 8.4(2) further provides that it may be appropriate not to revoke the mandatory visa cancellation of such a person simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through their conduct.

7. In having regard to this consideration, paragraph 8.4(4) provides that the decision-maker should proceed on the basis of the Government’s views about the community’s expectations articulated above and must not independently assess the community’s expectations as they may pertain in a particular case: see FYBR v Minister for Home Affairs [2019] FCAFC 185. Therefore, 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.

8. The Minister’s legal representative submitted that in observing the norm stipulated in paragraph 8.4(1) and in accordance with principles 5.2(2)-(5) of Direction 90, the Australian community would expect that the Applicant should not hold a visa on account of the very serious nature of her fraudulent offending, her lack of any real remorse and in the absence of any meaningful rehabilitation. The Minister further submitted that the Australian community would not afford a higher level of tolerance to the Applicant as she has neither lived in the Australian community for most of her life nor from a young age (paragraph 5.2(4)). The Minister’s legal representative pointed out that the Applicant has spent more time in Iran.

9. I am satisfied that the Australian community would have a very low tolerance of the Applicant’s offending and would expect that the Applicant should not be allowed to remain in Australia. Accordingly, I find this consideration weighs heavily against revocation.

   OTHER CONSIDERATIONS

10. I turn now to the other relevant considerations that I must also take into account in deciding whether to revoke the mandatory cancellation of the Applicant’s visa.

11. For completeness, I note there is no evidence before the Tribunal that the following other considerations are relevant:

    (a)  International non-refoulement obligations;

    (b)  the impact on victims; and

    (c)   the impact on Australian business interests.

    Other Consideration 1: Extent of impediments if Applicant is removed from Australia

12. Paragraph 9.2 of Direction 90 requires consideration of 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: the person’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.

13. The Applicant is 38 years of age and suffers from anxiety and depression from time to time. She is a citizen of Iraq and is permitted to return and live in Iraq. The Applicant’s connections to Iraq are, however, not strong. She has only a maternal and a paternal aunt living there, and she is not close to either of them to rely on them for financial support. Nor is she proficient in Arabic or familiar with Iraq as she has only travelled there on 2 or 3 occasions and stayed there for a few months, despite having been born there. The Applicant stated that as a single mother she would struggle to live and support herself in Iraq. The Respondent accepts that there may be some cultural and linguistic barriers if she were returned there.

14. The Applicant has grown up in Iran, completed some schooling in Iran and speaks Farsi. Moreover, she has strong familial connections to Iran including her mother and two brothers. Iran is the place to which the Applicant has repeatedly returned to live including for long periods when she became a young mother and needed assistance in bringing up her young children. She had also wanted to buy her ex-husband’s interest in a home that they owned in Iran. Under cross-examination, she stated that she didn’t want to live there permanently and that her intention in buying the house was for her and her children to be able to stay there when they visited Iran. The Applicant asserted that her ex-husband had imposed as a condition of their divorce that she would bring the children to Iran for him to see them there.

15. Significantly, the Respondent accepted that the Applicant does not have a right to reside in Iran in circumstances where her Iranian white card was cancelled. According to the Applicant, a white card is granted to non-citizens and allows them to live there permanently but, after the Applicant was granted Australian permanent residency, her white card was cancelled, and she is not eligible for another one.[49] The Respondent further acknowledged at the hearing that, although the Applicant had resided in Iran since the cancellation of her white card, including for periods exceeding 12 months, whether she would be afforded those same rights again in the future was a matter of speculation.

    [49] Exhibit A3.

16. The Applicant submitted that her family ties to Australia, including to her own children as well as her sister and her family, will be broken if she is removed. The Respondent suggested that it is readily apparent that she has already split most of her life between Iran and Australia, which mitigates against her submission that removal to Iran would have an insurmountable impact on her family. The flaw in the Respondent’s argument, however, is that the Applicant has travelled with her children whenever going to Iran and has rarely been separated from them except following imprisonment and detention. The removal of the Applicant would involve separating her from her children who are studying and working in Australia and who consider Australia to be their home.

17. I find that the Applicant’s mental health would likely deteriorate if she were not allowed to stay in Australia with her children. I also consider the fact that it is uncertain as to whether the Applicant would be allowed to reside in Iran to be a very significant impediment, as, although she may have limited financial and social support from her mother and her two brothers in Iran, she may not be allowed to reside there. The country in which she is allowed to reside – Iraq – is unfamiliar to her and she has no-one there except for two aunts with whom she is not close and who are unlikely to be able to support her. Therefore, it is unlikely that the Applicant would be able to establish herself in Iraq and maintain basic living standards.

18. To the extent that this consideration weighs at all in favour of revocation, the Respondent submits that it should be given little weight. I disagree. I am satisfied that the extent of impediments if the Applicant is removed from Australia weighs in favour of revocation of the cancellation decision and should be afforded moderate weight in all the circumstances.

    Other Consideration 2: The strength, nature, and duration of ties to Australia

19. Paragraph 9.4.1 of Direction 90 requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.

20. Since her arrival in Australia in February 2003, the Applicant has spent approximately 7.5 years overseas. That is, in the period between her initial arrival in Australia and her imprisonment, she has chosen to spend less than half her time in the Australian community. Further, the sentencing remarks revealed that she only decided to return to Australia in October 2016, having spent approximately two years overseas, “because she had permanent residency which required her to come back every five years.”[50] The Respondent also pointed out that, as a result of her becoming involved with the conspirators in or about January 2017 (approximately 4 months after her return to Australia in October 2016), the longest period of time that the Applicant has ever spent in Australia has been on account of her arrest in early August 2017 through to her incarceration and subsequent, current detention.

    [50] G9/43.

21. The Applicant concedes she has not been gainfully employed at any time while she has been in Australia. She was a recipient of the Newstart Allowance. The only ‘positive contributions’ to the Australian community that the Applicant has made are with respect to her talent in art, including exhibiting her paintings in local events as well as painting prolifically in prison and in detention. She also taught other inmates how to paint and coordinated other activities.

22. It is acknowledged that the Applicant’s main links to the Australian community are through the family members who reside here, including her three children, her sister and her sister’s family. Although she also had “considerable community support” before her sentencing, in the form of references from members of various community groups to which she belonged,[51] the Applicant stated that she had not associated with friends following her criminal charges. She stated she had “lost motivation to see them” and it was difficult for her, especially as her photo had been in the papers and in the media.[52]

    [51] G9/46.

    [52] TB5/134.

23. Clearly, there are strong emotional ties between the Applicant and her children and, additionally, her sister and her nieces. The evidence of the Applicant’s children was that they missed their mother and they depended on her for her love and support, even though two of them were adults. This is because the Applicant and her children rely on each other as a family unit.

24. Contrary to what the Respondent submitted, I afford significant weight in favour of the Applicant’s ties to Australia especially her family members. On balance, I am satisfied that the strength and nature of the Applicant’s ties with Australia weigh in favour of revocation of the visa cancellation decision.

    CONCLUSION

25. The Applicant is guilty of a very serious offence which demonstrates her lack of judgment and lack of life experience. The Applicant’s behaviour which led to her imprisonment was inexcusable even if she was vulnerable and desperate as a single mother of three children. She was clearly reckless in involving herself with persons who promised her financial support in risky circumstances. Crimes of a financial nature have a far-reaching effect on members of the Australian community and are not victimless crimes.

26. It is a privilege for non-citizens to be able to live in Australia. The Australian community has an expectation that this privilege will not be abused. The primary considerations of the protection of the Australian community and the expectations of the Australian community clearly weigh in favour of not revoking the cancellation decision. However, notwithstanding the big mistake that the Applicant made, she impressed me as a genuine person. The Applicant’s remorse is also genuine, and her risk of reoffending is low. The Applicant is also a good mother to her three children, two of them being young adults who have had to care for their sister aged 15 while at the same time balancing their studies and work commitments.

27. It is in the best interests of the youngest daughter, who is at a very important development stage, for the Applicant to remain in Australia. The evidence as to the importance of the Applicant in the life of her youngest daughter (as well as her adult children) is clear, strong and incontrovertible. The Applicant is a loving and caring mother who has always prioritised the welfare and future of her children in Australia. Their father has established another family in Iraq and returned to live there.

28. I am satisfied that there is ‘another reason’ to revoke the cancellation decision. The primary consideration of the best interests of the Applicant’s minor child aged 15 years old outweighs, on balance, the competing considerations. In all the circumstances, this primary consideration, coupled with the other considerations of the extent of the impediments if the Applicant is removed from Australia and the strength and nature of the Applicant’s ties to Australia, outweighs the primary considerations against revocation of the cancellation decision.

    DECISION

29. The reviewable decision is set aside and substituted with a decision to revoke the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident return Visa.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

..............................[SGD]...................................

Dated: 31 January 2023

Dates of hearing:	18, 19 and 27 January 2023
Solicitor for the Applicant:	Ms A Ehsani, Barriston Lawyers
Solicitor for the Respondent:	Mr C Burke, Sparke Helmore