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

[2022] AATA 684

DWWV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 684 (7 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/7665

Re:DWWV  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member P. Q. Wood 

Date of decision:               7 January 2022 

Date of written reasons:         7 April 2022

Place:Melbourne

The Tribunal affirms the decision under review.

.................[sdg].......................................................
Senior Member P. Q. Wood

Catchwords

MIGRATION – visa cancellation – non-revocation of mandatory visa cancellation – Class 444 Special Category (Temporary) visa – failure to pass character test – where applicant made representations seeking revocation of visa cancellation – where delegate not satisfied another reason to revoke visa cancellation – where applicant seeks review by Tribunal – Direction 90 – substantial criminal offending – drug related offending – protection of the Australian community – expectations of the Australian community – links to the Australian community – any other relevant claim – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
SCJD and Minister for Home Affairs [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials

Australian Government Department of Health, National Drug Strategy 2016–2026 (2015)
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
Final Report of the National Ice Taskforce (6 October 2015)

REASONS FOR DECISION

Senior Member P. Q. Wood

introDUction

1. The Applicant seeks review of a decision made by a delegate of the Respondent on 15 October 2021, under s 501CA of the Migration Act 1958 (‘the Act’) not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa (‘the Decision under Review’).

2. The hearing in this matter was held on 20 and 21 December 2021 by video link, as permitted by s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and consistent with the Tribunal President’s Special Measures Practice Direction, issued in relation to the current public health emergency.

3. The Applicant was self-represented. The Minister was represented by Mr Jonathon Hutton of the Australian Government Solicitor.

4. The Tribunal heard oral evidence via video link from the Applicant, Mr Gregory Malcolm (the Applicant’s friend) and Mr Sturt Davies (the Applicant’s friend).

5. The Tribunal made a decision in relation to this matter on 7 January 2022. These are the written reasons for the decision.

   Background

   Personal

6. The Applicant is a 48-year-old citizen of New Zealand who came to Australia on 15 November 2006 at the age of 33. She suffers mental health issues, triggered from traumatic life events that occurred when she was a teenager.[1]

   [1] Exhibit R1, 70.

7. The Applicant has a recorded history of addiction to methamphetamine, in excess of a ten-year period.[2]

   [2] Ibid, 38.

8. The Applicant has been receiving mental health treatment since 2019.[3]

   [3] Ibid, 23.

9. The Applicant has three brothers and one sister.[4] She grew up in Thailand before moving to New Zealand at the age of 19 and became a New Zealand citizen in June 2004.[5] She has two children to two different men who are not in Australia.[6]

   [4] Ibid, 70.

   [5] Ibid, 71.

   [6] Ibid, 60 and 71.

10. After her initial arrival in Australia on 15 November 2006, the Applicant was in Australia for the following periods:  

    (a)15 November 2006 to 7 February 2007 (2 months and 23 days)

    (b)4 March 2007 to 9 May 2007 (2 months and 5 days)

    (c)15 June 2007 to 7 September 2007 (2 months and 24 days)

    (d)17 September 2007 to 29 October 2007 (1 month and 12 days)

    (e)9 November 2007 to 14 February 2008 (3 months and 6 days)

    (f)22 February 2008 to 11 May 2008 (2 months and 20 days)

    (g)31 May 2008 to 15 January 2009 (7 months and 16 days)

    (h)11 February 2009 to 1 June 2009 (3 months and 21 days)

    (i)15 June 2009 to 19 October 2009 (4 months and 4 days)

    (j)31 October 2009 to present. [7]

    [7] Ibid,107-8; Respondent’s Statement of Facts, Issues and Contentions “RSFIC” 1, 2.

11. Whilst living in Australia, the Applicant conducted a jewellery business, which she had started when she was living in New Zealand.[8] When she moved to Sydney, the Applicant worked as a cleaner at a school.[9] After two years in this role, the Applicant began selling drugs.[10] Following this, she obtained a job at a bakery, followed by work as a courier.[11]

    [8] Applicant’s Statement received 15 December 2021 (‘Applicant’s Statement’).

    [9] Ibid.

    [10] Ibid.    

    [11] Ibid.

12. While in prison the Applicant undertook a Short Sentence Intervention Program (‘SSIP’). She was employed in prison from September 2020 in general maintenance, and in pack and assembly.[12]

    [12] Exhibit R1, 23.

13. The Applicant has an offer of employment from Mr Davies for weekly cleaning of the office and production studio of his business, “Techs in the City”.[13] The relevant letter provided in submissions also states that the Applicant will be on call to intern at the studio, a position that includes welcoming clients and attending to their needs during their sessions.[14]

    [13] Ibid, 89.

    [14] Ibid.

14. On 31 March 2021 the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act on the basis that she had a ‘substantial criminal record’, on account of her sentence of 4 March 2021.[15]

    [15] Ibid,19.

15. It is appropriate that I set out below the Applicant’s criminal history in Australia, and the sentences imposed upon her.

    Criminal offending

16. The Applicant has a criminal history dating back to 2013 comprising of the following offences and sentences:

    (a)On 5 August 2013, the Applicant was sentenced to a non-conviction s 10 bond for 12 months for the offence of possessing a prohibited drug.[16]

    [16] Ibid, 33 and 37.

    (b)On 3 May 2019, the Applicant was sentenced to an aggregate Intensive Corrections Order of 9 months in relation to the following offences:[17]

    [17] Ibid,19.

    (i)Recklessly deal with proceeds of crime less than $5000; and

    (ii)Supply prohibited drug.

    (c)On 4 March 2021, the Applicant was sentenced to an aggregate term of imprisonment of 15 months for the following offences:[18]

    (i)Owner/occupier knowingly allow use as drug premises;                  

    (ii)Organises/conducts/assists drug premises;

    (iii)Supply prohibited drug > indictable & commercial quantity; and

    (iv)Deal with property proceeds of crime.

    [18] Ibid, 31-32 and 35-40.

    legislative framework

17. The issues before the Tribunal are:

    (a)whether the Applicant passes the character test as defined under s 501(6) (a) in conjunction with s 501 (7) (c) of the Act; and, if she does not,

    (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

    (A) Does the Applicant pass the character test?

18. The character test is defined in s 501(6) of the Act. It refers to a range of matters that the Minister or their delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’.

19. The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more: s 501 (7) (c).

20. The Respondent contended that, having regard to the representations made to the Applicant by the delegate, the Applicant does not appear to dispute that she does not pass the character test as defined by s 501(6) of the Act.[19]

    [19] RSFIC, 5.

21. Having considered the Applicant’s offending, I find that the Applicant does not pass the character test on account of her term of imprisonment.

    (B) Is there another reason why the decision to cancel the applicant’s visa should be revoked?

22. Guidance in this exercise is found in Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).

23. The issue to be determined, therefore, is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Federal Court in Viane:[20]

    There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

    [20] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.

    DIRECTION 90

24. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[21]

    [21] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The Principles in Paragraph 5.2

25. Paragraph 5.2 of the Direction is designed to ‘provide a framework within which decision-makers should approach their task’ under ss 501 and 501CA of the Act.

26. Summarised where appropriate, the principles are:

    (a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

    (c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community);

    (d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age; and

    (e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measurable risk of causing physical harm to the Australian community.

    Primary and Other Considerations

27. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ which the Tribunal must be guided by in making a decision.

28. The Primary Considerations the Tribunal must take into account are:

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

    (b)whether the conduct engaged in constituted family violence; [22]

    (c)the best interests of minor children in Australia; and[23]

    (d)expectations of the Australian community.[24]

    [22] This consideration is not relevant to this application.

    [23] This consideration is not relevant to this application.

    [24] Direction [8].

29. The Other Considerations which, where relevant, the Tribunal must take into account include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.[25]

    [25] Direction [9(1)].

30. Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:

    (a)information from independent and authoritative sources should be given appropriate weight;

    (b)Primary Considerations should ‘generally’ be given greater weight than Other Considerations; and

    (c)One or more Primary Considerations may outweigh other Primary Considerations.

31. The guidance in paragraph 7 of the Direction quoted above does not materially differ from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:

    …Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[26]

    [26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 [23].

32. I now turn to addressing the abovementioned Primary and Other considerations.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

33. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle 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. 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.

34. In determining the weight allocable 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.

    Application of Factors in Paragraph 8.1.1(1) of the Direction

    (a) The nature and seriousness of the non-citizen’s conduct to date

35. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)  without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)  without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)   with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)  the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)  the cumulative effect of repeated offending;

    (f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)  whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

36. I refer to my remarks above concerning the Applicant’s offending.

37. The Applicant’s offences are unlike the particularised crimes and conduct described in the Direction as being “very serious” (para 8.1.1(1)(a)) or “serious” (para 8.1.1(1)(b)). The offences and conduct provided in those sub-paragraphs are not, however, exhaustive, and this Tribunal, differently constituted, has on occasion deemed other offending as “very serious” or “serious”. For instance, in SCJD and Minister for Home Affairs [2018] AATA 4020 (‘SCJD’) (at [81]–[83]), the learned Senior Member set out the effects of drugs on the broader community.

1. Having considered the Applicant’s offending, I find that the Applicant’s conduct has been of a very serious nature.

2. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen.

3. I have referred to the relevant sentences above. I observe that the most recent sentence of some duration was the sentence of 15 months’ imprisonment which is, on any assessment, very serious.

4. I find that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.

5. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

6. As I have mentioned above, the Applicant’s offending commenced in 2013, comprises of seven offences, initially involving a non-conviction bond and most recently resulting in an aggregate sentence of 15 months imprisonment being imposed upon her.

7. I find that the Applicant’s offending has been frequent and involves a clear trend of increasing seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction.

8. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of the repeated offending of the non-citizen.

9. I consider that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources that are required to hold her responsible. This includes the costs borne by the broader community to provide the necessary police resources, and the further expense of the Courts, Corrections and wider justice system.

10. I am of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.

11. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

12. The application of this sub-paragraph is not relevant to the Applicant in this case.

13. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been formally warned, or since otherwise being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).

14. The application of this sub-paragraph is not relevant to the Applicant in this case.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

15. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.

16. Paragraph 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

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

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)    information and evidence on the risk of the non-citizen re-offending; and

    (ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    (a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

17. Paragraph 8.1.2(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community, were the Applicant to re-offend.

18. The Applicant contends that she is remorseful, will abstain from using drugs and not engage in further criminal or other serious conduct therefore causing no harm to individuals or the Australian community.[27]

    [27] Applicant’s Statement.

19. The Respondent contends that, if the Applicant were to reoffend or engage in other serious conduct, the nature of the relevant harm would be very serious.[28] 

    [28] RSFIC, 9.

20. The Applicant’s offending consists of various drug offences, including possessing methylamphetamine, and other offences that were related to her drug use. The ‘Final Report of the National Ice Taskforce’, outlines the impact of methylamphetamine on the community:

    Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.[29]

    [29] Final Report of the National Ice Taskforce (6 October 2015).

21. The ‘National Drug Strategy (2016–2026)’ itemises the impact of the unlawful trade in illicit drugs across various sectors of the community’s resources ranging from health, to social and economic harms:

    ‘Impacts can include:

    ·         Health Harms such as:

    ·injury;

    ·chronic conditions and preventable diseases (including lung and other cancers; cardiovascular disease; liver cirrhosis);

    ·mental health problems; and

    ·road trauma.

    ·         Social Harms including:

    ·violence and other crime;

    ·engagement with the criminal justice system more broadly;

    ·unhealthy childhood development and trauma;

    ·intergenerational trauma;

    ·contribution to domestic and family violence;

    ·child protection issues; and

    ·child/family wellbeing.

    ·Economic Harms associated with:

    ·healthcare and law enforcement costs;

    ·decreased productivity;

    ·associated criminal activity; and

    ·reinforcement of marginalisation and disadvantage.’[30]

    [Emphasis in original.]

    [30] Australian Government Department of Health, National Drug Strategy 2016–2026 (2015).

22. In SCJD, to which I have referred above, the learned Senior Member outlined the corrupting effect of drug trafficking on the community at [81]–[83]:

    [81] The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.

    [82] In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.

    [83] There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.

23. I consider that there is little to be said against the contention that the nature of harm, in the event of the Applicant re-committing similar or identical unlawful conduct to that as discussed above, would result in physical and/or psychological harm, with a more than realistic possibility of such harm having devastating consequences.

24. I observe that the terms of the Direction have direct application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s repeated offending over many years, were that offending to be repeated its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable.

25. I am of the view that the Australian community would regard the Applicant’s offending, as set out above, as so serious that they would refuse to accept any risk of recurrence.

    (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct

26. As I have referred above, the Applicant contends that she is remorseful, wishes to obtain a stable job, wants her children to be proud of her and will abstain from using drugs and not engage in further criminal or other serious conduct.[31] The Applicant told the Tribunal that she believed that if she were able to obtain a stable job, she wouldn’t have time to think about her past, which impacts her mental health.[32] She asked for “one more chance”.[33]

    [31] Applicant’s Statement.

    [32] Transcript at P-73.

    [33] Ibid.

27. The Respondent submits that there remains an unacceptable risk that the Applicant will reoffend.[34]

    [34] RSFIC, 7-8.

28. I am particularly concerned that the Applicant appears to have been addicted to methamphetamine for at least a decade and has not undergone any comprehensive addiction or rehabilitation programs. I also observe that an Intensive Corrections Order of 9 months, imposed on her in 2019, proved ineffective and the Applicant reoffended more seriously after this, ultimately being sentenced – as set out above – to 15 months imprisonment.[35] I have also considered the Applicant’s mental health treatment, however the state of the evidence is such that I cannot make a finding that this has any significant positive impact upon her risk of recidivism.

    [35] Exhibit R1, 31-32.

29. I have had regard to the evidence of Mr Malcolm and Mr Davies, and I have read their written statements.[36] I have also considered a written statement provided by Mr Robert Riwai,[37] who is another associate of the Applicant.

    [36] Ibid 89 and 93-95.

    [37] Ibid, 88.

30. I accept that Mr Malcolm is genuinely willing to open his home again to the Applicant, but given the length of the Applicant’s history of drug use, I observe that the Applicant appears to have previously been involved in criminal offending when she has resided with Mr Malcolm in the past.

31. Mr Davies told the Tribunal that he met the Applicant through a friend in an arcade.[38] He said that he had been fixing her computers for some time. He told the Tribunal that the Applicant has previously helped out in his business in exchange for him helping her if she had problems with her computer. Mr Davies told the Tribunal that he would provide 9 hours per week employment to the Applicant in his business, comprising cleaning, general maintenance, tidying up and looking after a small number of clients.[39] Mr Davies said that he proposed to pay the Applicant $25 an hour, meaning that her income would be $225 per week.[40]

    [38] Transcript at P-69.

    [39] Ibid.

    [40] Ibid, at P-79.

32. Having listened to the evidence of Mr Davies, I am not satisfied that he really does have genuine employment for the Applicant. I form the view that, whatever his motivations, Mr Davies appeared to be inventing a role for the Applicant in his small business and I question how long he would be able to do that for.

33. While the Applicant has a work history, I do not regard employment as a sufficient protective factor in this case, and certainly not this employment. I observe that the Tribunal was told that her previous cleaning job at the Paddington state school, which paid $300 per week, was found by the Applicant to be insufficient.[41] I understand the Applicant left this job in order to sell drugs.

    [41] Ibid, at P-76.

34. I observe that the Applicant completed a “working safely” course on 15 October 2020.[42]

    [42] Exhibit R1, 105.

35. Having listened to the Applicant’s oral testimony, I have real concerns as to the Applicant’s truthfulness and genuine insight as it relates to her offending. I am concerned that in her evidence she attempted to lay the blame for her offending on her former partner, rather than accepting it herself. Indeed, I observe that, even in closing, the Applicant vacillated between saying that she pled guilty “so that my partner could go home”[43] and expressing feelings of guilt and accepting responsibility.

    [43] Transcript at P-81.

36. I observe that the relevant sentencing Magistrate was guarded in relation to the Applicant’s prospects of rehabilitation.[44]

    [44] Exhibit R1, 39.

37. Having considered all the material before me, given the Applicant’s long history of drug addiction, I consider that if the Applicant were released into the community, with wider access to drugs and increased stressors, were she to relapse into abusing drugs, she would in all likelihood engage in similar offending as above.

38. In all the circumstances I consider that, whatever rehabilitative benefit the Applicant may have received to date, given the longstanding nature of her drug addiction, it falls well short of the level necessary for the Tribunal to conclude that she would be unlikely to relapse and engage in further criminal or other serious conduct.

    Conclusion: Primary Consideration 1

39. I find that:

    (a)The nature of the Applicant’s offending is very serious;

    (b)Were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm to the Australian community, quite conceivably, to a devastating level; and

    (c)In terms of risk of recidivism, there is a reasonable likelihood that she will engage in further serious offending or other serious conduct if returned to the Australian community.

40. In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration 1 weighs very strongly in favour of non-revocation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

41. Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen. This consideration is not relevant to the Applicant in this matter.

    PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN

42. Paragraph 8.3(4) of the Direction outlines the factors that a

    
    

    decision-maker must consider when determining the best interests of a child affected by the decision. This consideration is not relevant to the Applicant in this matter.

    PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

43. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[45] The Direction further states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[46]

    [45] Direction, [8.4(3)].

    [46] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

44. In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that “the Australian community expects non-citizens to obey Australian laws while in Australia”. The second proposition is that “where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”.

45. In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a:

    visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

46. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)   acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage; or

    (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; or

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

47. I note, based on the principles in paragraph 5.2 of the Direction, that:

    (a)  The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[47]

    (b)  Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[48] and

    (c)   The nature of a 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 a visa outcome adverse to the non-citizen.[49]

    Analysis – Allocation of Weight to this Primary Consideration 4

    [47] Direction [5.2(4)].

    [48] Ibid.

    [49] Ibid, [5.2(5)].

48. The Respondent contends that the Australian community would expect that the Applicant should not hold a visa on account of her past offending, in addition to the risk of further offending and infliction of harm.[50]

    [50] RSFIC, 7-9.

1. I refer to my other observations above, namely that the Applicant has committed seven offences, reoffending over the course of just shy of a decade (and for which she has been sentenced to, and served, periods of imprisonment). I consider that this amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, I consider that by virtue of paragraph 8.4(1) of the Direction, the Australian community as a ‘norm’ would expect the Government to remove the Applicant.

2. The next question I must consider is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.

3. Other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.

4. Overall, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction:

   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 measurable risk of causing physical harm to the Australian community.

   Conclusion: Primary Consideration 4

   90.In consideration of all the evidence and each of the relevant factors contained in the Direction, I find that this Primary Consideration weighs very strongly in favour of non-revocation.

   OTHER CONSIDERATIONS OF THE DIRECTION

5. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

   (a) International Non-Refoulement Obligations

6. Paragraph 9.1 (2) of the Direction sets out that a decision-maker should weigh any non-refoulement obligations that Australia owes in respect of the Applicant against the Applicant’s criminal offending.

7. This consideration is not relevant to the Applicant in this matter.

   (b) Extent of Impediments if Removed

8. Paragraph 9.2 of the Direction directs a decision-maker to take into account

   The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)       the non-citizen’s age and health;

   (b)       whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

9. I will address each of the three main components of this Other Consideration in turn.

10. First, it is necessary to consider the Applicant’s age and state of health.[51]

    [51] Direction, [9.2(1)(a)].

11. As referred to above, the Applicant is 48 years of age and has a history of substance abuse.

12. Additionally, I acknowledge that the Applicant has long-standing mental health issues. The Applicant is currently medicated with Zoloft for anxiety, depression and panic attacks.[52]

    [52] Exhibit R1, 67.

13. I observe that, in closing her case, the Applicant said that she was suffering from anxiety during the course of the hearing.[53] Whilst I accept this may have been the case, I observed her closely and at all times considered her competent to participate and give evidence.

    [53] Transcript at P-80.

14. Notwithstanding her history of substance abuse and mental health issues, I consider that the Applicant’s physical abilities should allow her to obtain employment in similar endeavours as she has previously. Indeed, given the Applicant’s work history described above, I consider that the Applicant has demonstrated her capacity to change the field and nature of her employment as necessary.

15. Second, it is necessary to consider whether there are any ‘substantial language or cultural barriers’’[54] to the Applicant returning to New Zealand.

    [54] Direction [9.2(1)(b)].

16. I do not consider that there are any such language or cultural barriers. As found by this Tribunal (differently constituted) in a previous case:

    New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. […].[55]

    [55] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].

17. Further, I observe that the Applicant has previously lived and worked in New Zealand for about 15 years.

18. In a self-harm assessment interview conducted in June 2021, the Applicant is recorded to have said that she was looking forward to returning to New Zealand.[56] Whilst the Applicant told the Tribunal that she didn’t mean to say this, [57] I accept that she did make these remarks.

    [56] Exhibit R3, 3.

    [57]  Ibid,

19. I am satisfied that the Applicant has some awareness of the Thai community in New Zealand also.

20. Third, it is necessary to consider any social, medical and/or economic support available to the Applicant in New Zealand.

21. Here, I refer again to this Tribunal’s findings in Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 wherein it was noted:

    New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[58]

    [58] Tera Euna [101].

22. As a citizen of New Zealand, I consider that the Applicant would be able to obtain social, medical and/or economic support treatment in the same way as any other citizen of New Zealand.

23. I consider that any difficulties the Applicant would face in re-establishing herself in New Zealand would be temporary.

24. In all the circumstances, I consider that this factor weighs only slightly in favour of revocation.

    (c) Impact on Victims

25. Paragraph 9.3(1) of the Direction states that:

    Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

26. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims.

27. I therefore do not attach any weight to this Other Consideration (c).

    (d) Links to the Australian community

28. Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors:

    (1)The strength, nature and duration of ties to Australia;[59] and

    (2)The impact on Australian business interests.[60]

    [59] Direction [9.4.1].

    [60] Direction [9.4.2].

    9.4.1. Strength, Nature and Duration of Ties

29. With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family’ where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia.

30. I accept that the Applicant first arrived in Australia in November 2006. I have set out her periods of residence and previous employment above. I observe that sometime after August 2009 she began using drugs.

31. The Applicant understands that a non-revocation decision would result in her permanent exclusion from Australia. This is not lost on me as the decision-maker as I understand the Applicant to have established her life here in Australia. Saying that, the Applicant does not have any immediate family in Australia, and appears to have only a small number of social connections.

32. The Respondent contended that Mr Davies is a purely employment tie. Having listened to the oral testimony, I consider that the Applicant and Mr Davies must have some form of social friendship, so much so that he seems to have invented a role in his business for her.

33. As I indicated above, I have taken into account the evidence of the Applicant’s friends and I note their willingness to assist her where they can.[61]

    [61] I have read and had regard to the letter from Josip Majdandzic and the letter from Ross Matthews found, respectively, at Exhibit R1, 91-92.

34. I accept that the Applicant was previously in a defacto relationship with a Mr Matthew Franklin,[62] her co-offender at times.

    [62] Exhibit R1, 59.

35. I have observed above that the Applicant has also been employed in Australia. I consider that the Applicant would have also made the usual social links that one obtains through the course of employment.

36. Overall, I find that the Applicant’s ties to Australia weigh slightly in favour of revocation.

    9.4.2 Impact on Australian Business Interests

37. I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact her removal may have on ‘Australian business interests’. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can generally only be allocated in this instance where a non-revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’. This part of Other Consideration 4 is not relevant to the determination of this application.

    Weight allocable to Other Consideration 4: links to the Australian community

38. With reference to these Other Considerations, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of non-revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:

    (a)International non-refoulement obligations: not relevant;

    (b)Extent of impediments if removed: slight weight in favour of revocation;

    (c)Impact on victims: neutral; and

    (d)Links to the Australian community: slight weight in favour of revocation.

    CONCLUSION

39. I find as follows:

    (a)  Primary Consideration 1: weighs very strongly in favour of non-revocation;

    (b)  Primary Consideration 2: not relevant;

    (c)   Primary Consideration 3: not relevant;

    (d)  Primary Consideration 4: weighs strongly in favour of non-revocation;

    (e)  The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the weight that it has attributed to the Primary Considerations as stated above.

40. Consequently, I do not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

41. The decision under review is affirmed.

128.    I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

........................[sdg]................................................

Associate

Dated: 7 April 2022

Date of hearing:	20 and 21 December 2021
Applicant:	Self-Represented
Advocate/Counsel for the Respondent:	Mr Jonathon Hutton
Solicitors for the Respondent:	Australian Government Solicitor

EXHIBIT REGISTER

File No      2021/7665
Between     DWWV (Applicant)

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)

Heard on    20 and 21 December 2021

Before       Senior Member P. Q. Wood

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF LODGEMENT
R1	Section 501G ‘G’ Documents	Respondent	29 October 2021
R2	Tender Bundle	Respondent	9 December 2021
R3	Supplementary Tender Bundle	Respondent	17 December 2021