Edmonds and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Edmonds and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1389 (5 June 2024)
Division:GENERAL DIVISION
File Number: 2022/5950
Re:Kelly Ruth Edmonds
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:5 June 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made on 11 July 2022 made by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
......................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal - non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test –- whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where criminal offending includes fraudulent conduct to mislead court(s)- where the Applicant’s evidence found to unreliable – where expert witness’ risk assessment affected by Applicant’s unreliable evidence- where factors against revocation outweigh factors in favour of revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett v The Minister for Immigration and Boarder Protection [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
Table of contents
Introduction
Procedural history
Legislative Framework
Primary Consideration 1: Protection of the Australian community
Primary Consideration 2: Family violence
Primary Consideration 3: The strength, nature and duration of ties to Australia
Primary consideration 4: The best interests of minor children in Australia
Primary Consideration 5: Expectations of the Australian community
Other Considerations
Conclusion
Decision
ANNEXURE A
REASONS FOR DECISION
Senior Member Theodore Tavoularis
5 June 2024
INTRODUCTION

Ms Kelly Ruth Edmonds (‘the Applicant’) is a 43-year-old woman, born in New Zealand on 30 June 1980. She first arrived in Australia on 7 October 1996 as a 16-year-old.[1] Since her initial arrival her movement history in and out of Australia looks like this:
[1] R1, p 117.
·departs 21 October 1996, returns 17 March 1999: absent from Australia for 2.5 years;
·departs 31 October 2022, returns 9 November 2002: absent from Australia for one week;
·departs 5 May 2003, returns 26 May 2003: absent from Australia for three weeks;
·departs 17 August 2004, returns 24 August 2004: absent from Australia for one week;
·departs 23 January 2007, returns 5 February 2007: absent from Australia for two weeks;
·departs 14 January 2008 and returns on 22 January 2008: absent from Australia for one week;
·departs 14 April 2010 and returns on 23 April 2010: absent from Australia for one week;
·departs 13 January 2011 and returns on 14 March 2011: absent from Australia for two months; and
·departs 15 December 2015 and returns 31 December 2015: absent from Australia for two weeks.
Therefore, since her initial arrival on 7 October 1996 the Applicant did, between that date of initial arrival and the date of her most recent arrival (31 December 2015) spend just short of three years outside of Australia. So for that approximate 19 year period, she spent about 16 of those years in Australia. From the date of her most recent arrival until now is a period of about seven and a half years. This gives a total of between 23-24 years that this Applicant has spent in Australia. She is currently 43 years of age and has therefore spent about 55 percent of her life in this country.
PROCEDURAL HISTORY
The Applicant’s visa history in this country has transpired thus:
·20 January 2021: she was notified of the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);
·25 January 2021: the Applicant sought revocation of the abovementioned mandatory cancellation decision;
·11 July 2022: a delegate of the Respondent decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·20 July 2022: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;
·28 September 2022: this Tribunal (differently constituted) affirmed the Decision Under Review; and
·26 October 2023: the Federal Court of Australia remitted the Tribunal’s decision of 28 September 2022 for reconsideration according to law.
This proceeding thus comprises the second ventilation of this application before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for present purposes. However, this second ventilation is a hearing de novo or a hearing anew. The Tribunal’s task is, by definition, a stand-alone merits-based review of the totality of the evidence adduced at the first ventilation in this Tribunal and now in this second one.
The instant hearing proceeded before me by video[2] on 13 and 14 March 2024 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[3] which is attached to these Reasons and marked ‘Annexure A’. This Hearing received oral evidence from:
·the Applicant;
·the clinical psychologist, Dr Emily Kwok;
·the Applicant’s community caseworker, Ms Danielle Louise Edwards;
·the mother of the Applicant’s ex-partner, Ms Jennifer Karaitiana;
·the Applicant’s minor son, Child M; and
·the Applicant’s sister, Ms Elaine Peggy Edmonds.
[2] That is to say-all parties appeared before the Tribunal by video including the respective representatives and the witnesses, both lay and expert, who gave evidence on behalf of the Applicant. The Respondent did not adduce any evidence via a witness.
[3] Transcript, p 3, lines 19-35.
Following the conclusion of the hearing on 14 March 2024, the Tribunal commenced and substantially completed its decision with written reasons relating to this application. The Tribunal was ready to publish its decision with written reasons on 10 May 2024. On

9 May 2024, the Federal Court of Australia handed down its decision in Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468 (‘Nguyen’).
The parties wished to make written submissions on the impact (if any) of Nguyen on the present matter. I made certain procedural directions to facilitate receipt of those written submissions. The Respondent’s submissions were received on 22 May 2024 and those of the Applicant were received on 31 May 2024. Out of an abundance of caution, I caused this matter to be listed for a third hearing day (on 3 June 2024) to afford the parties the opportunity to make oral submissions on the Nguyen point.
Nguyen stands for the proposition that offences dealt with under Division 3 of Part 3 of the Sentencing and Procedure Act 1999 (NSW) (often referred to as being dealt with on a ‘Form 1 basis’) engage section 85ZR(2) of the Crimes Act 1914 (Cth) in the same way as contemplated in the matters of Lesiananwai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
As mentioned, this application was listed for a third hearing day on 3 June 2024 for the primary (but not necessarily exclusive) purpose of the parties ventilating any submissions on Nguyen as well as any other remaining closing submissions they wanted to make. With specific reference to Nguyen, I am satisfied that this Tribunal cannot have regard to offences dealt with on a ‘Form 1’ basis. The Applicant does not appear to have had any of her offences dealt with on a ‘Form 1’ basis.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[4] She was sentenced to two terms of imprisonment for four years and six months on 6 November 2020.[5] This cumulative nine year head custodial term comfortably meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of her Visa to be revoked.
[4] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[5] R1, p 37.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[6]
[6] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to 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).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending history-a summary of her (perhaps) less serious offending
The Applicant has a relatively short criminal and traffic history committed in New Zealand during the period September 1998 until December 2015.[7] On 24 September 1998 the Masterton District Court in New Zealand convicted and sentenced the Applicant on one count of drink-driving. Her driving privileges were suspended for three months and she was fined the sum of NZ $200. On 22 December 2015, the same court in New Zealand dealt with the Applicant for the commission of three property-type offences that had been committed almost five years earlier in January-February 2011. Those three offences were:
·shoplifting of goods having a value of over NZ $1,000 for which the Applicant was convicted and discharged;
·one count of burglary of property valued between NZ $500-NZ $5,000 for the which the Applicant was convicted and discharged; and
·one count of burglary of property valued between NZ $500-NZ $5,000 for the which the Applicant was convicted and sentenced to a fine of NZ $500 and ordered to pay reparations in the sum on NZ $750.
[7] R1, p 40.

The Applicant’s offending history in Australia is considerably more extensive.[8] In terms of sentencing hearings, it runs from August 2000 until November 2020, a period of some 20 years. She has convictions for the commission of some 33 offences that were dealt with at 18 separate sentencing episodes[9] by Local Courts and District Courts in Sydney. My preliminary impression of the Applicant’s offending history in Australia is that it is not overly significant in terms of the number of offences committed (33) across the totality of the offending period (circa 20 years). Save and except for three specific instances of offending dealt with at three of the 18 sentencing episodes, the balance of her Australian criminal history verges on the unremarkable. This relatively unremarkable offending can be seen in both the nature of the offences and the sentences imposed as recorded in the criminal history:
[8] R1, pp 36-39.
[9] Note to reader: the 12^th of these sentencing episodes comprised the Applicant’s appeal against respective convictions imposed for two counts of shoplifting of property having a value less than $2,000 and one count of common assault.
·28/08/2000: illicit drug possession: charge dismissed;
·21/11/2001: using offensive language in a public place/school: find $150;
·5/03/2003: unlicensed driving: fined $250 and $500;
·9/07/2003: driving an unregistered/uninsured motor vehicle (x2): fined $200;
·9/07/2003: disqualified driving: fined $500;
·9/07/2003: disqualified from driving for two years;
·9/07/2003: stating false name: fined $100;
·12/12/2006: failure to comply with a court order: fined $2,000;
·23/09/2008: destroy or damage property: fined $300, compensation order: $2,576.21;
·03/10/2008: resist police officer: nine month bond;
·03/10/2008: assault police officer: nine month bond;
·05/11/2008: disqualified driving: 18 months supervised bond;
·05/11/2008: unlicensed driving: fined $500;
·05/11/2008: low range drink driving: fined $600 and disqualified from driving for 12 months;
·20/04/2009: shoplifting of goods (less than $2,000): two months’ imprisonment (reduced from four months on appeal to the Campbelltown District Court);
·20/04/2009: common assault: two months’ imprisonment (reduced from four months on appeal to the Campbelltown District Court);
·20/04/2009: fail to appear;
·15/05/2009: shoplifting of goods (less than $2,000): two months imprisonment (reduced from nine months on appeal to the Campbelltown District Court);
·13/10/2010: shoplifting of goods (less than $2,000): convicted with no other penalty;
·13/10/2010: shoplifting of goods (between $2,000 and $5,000) (x2): convicted with no other penalty;
·13/10/2010: common assault: six months’ bond;
·21/10/2014: shoplifting of goods (less than $2,000): fined $500 and a 12 month bond imposed; and
·13/02/2018: unlicensed driving: fined $300 and disqualified from driving for three months.
However, the Applicant’s criminal history is demonstrative of a propensity towards the commission of offences involving dishonest conduct with a clear intention of obtaining an advantage for herself to which she would not be otherwise lawfully entitled. I consider this dimension of the Applicant’s conduct to be significantly more serious than her other offending in Australia which I have summarised in the immediately preceding paragraph. Her criminal history contains eight convictions for this significantly more serious offending in the realm of dishonesty. It is worth the exercise and effort of reaching a fulsome understanding of the type of conduct giving rise to these eight convictions. This is so for reasons mandated by the Direction.
These applications, at their core, are investigations about, and assessments of, the character of a non-citizen seeking restoration of their visa status to remain in Australia. The nature of that conduct must be filtered through respective analyses contained in the architecture of the Direction. This involves amongst other things, assessing the nature and seriousness of that conduct, reaching a concluded view about the non-citizen’s ‘risk’ of recommitting such conduct and, ultimately, whether the nature and extent of the

non-citizen’s particularly serious conduct invokes the normative expectation contained in the Direction about whether the Australian community expects its Government to not allow a non-citizen who has committed such offences to remain here.
The Applicant’s offending history- a summary of her more serious fraudulent-type offending
This Applicant’s significantly more serious offences of dishonesty were dealt with at four sentencing episodes. The first, of them was on 10 August 2005. On that day, the Campbelltown Local Court convicted the Applicant on two counts of ‘obtain financial advantage’ against a Commonwealth entity in breach of section 135.2(1) of the Criminal Code Act 1995 (Cth). The Applicant was sentenced pursuant to section 20AB of the Crimes Act 1914 (Cth). The sentence involved her placement on respective community-based orders requiring her to perform 200 hours of community service work on each charge. A further component of the Court’s sentence involved imposition of a Reparation Order (pursuant to section 21B of the Crimes Act 1914 (Cth)) compelling the Applicant to repay the sum of $5,058.79.[10]
[10] R1, p 39.
The second of these more serious offences of dishonesty were dealt with by the Paramatta Local Court on 9 April 2019.[11] On that day, the Court convicted the Applicant on two counts of ‘obtain financial advantage’ against the Commonwealth entity responsible for payment of social security-type payments to qualifying members of the Australian community. Again, the Applicant’s conduct was found to be in breach of section 135.2(1) of the Criminal Code Act 1995 (Cth). She was sentenced pursuant to section 21B of the Crimes Act 1914 (Cth). The sentence involved imposition of two community service orders requiring her to perform 200 hours of community work. The sentencing regime also imposed (pursuant to section 21B of the Crimes Act 1914 (Cth)) a Reparation Order in the sum of $36,989.69.
[11] R1, p 37.
The Applicant induced payment of the $36,989.69 by ‘…intentionally misrepresent[ing] her true circumstances and failed to correctly declare the amount of her income from employment to the Department of Human Services.’[12] This conduct spanned the period from 23 July 2013 to 23 December 2015 and culminated in the Commonwealth’s overpayment of Newstart Allowance to the Applicant in the sum of $2,681.89 and overpayment of the Single Parenting Payment in the sum of $34,307.80.[13] The material discloses that ‘The offending was detected by way of internal review on 21 March 2017.’[14] The material also discloses that ‘…the Department [of Human Services] wrote to [the Applicant] on 4 April 2018 inviting her to participate in a formal interview. A formal interview did not take place.’[15]
[12] R1, p 500 [3].
[13] R1, p 500 [1].
[14] R1, p 501 [18].
[15] R1, p 501 [19].
The third instance the Applicant’s commission of fraudulent or misleading conduct intended to advance her own interests came before the Campbelltown District Court on 6 November 2020. On that day the Court convicted the Applicant on two counts of ‘Do act intending to pervert the course of justice’ pursuant to section 319 of the Crimes Act 1900 (NSW). On both of these counts, the Court imposed a head custodial term of four years and six months with a non-parole period of three years and four months. The totality of this conduct appears in the ‘Amended Statement of Agreed Facts’ appearing in the material.[16] In short order, this conduct involved the Applicant manufacturing medical evidence in support of an application for bail for her then domestic partner, Ms HK. It is worth reproducing this Amended Statement of Agreed Facts in full:
[16] R1, pp 683-686.
‘Background
1. The offender in this matter is Kelly EDMONDS aged 39 years. She is the partner of the co-accused [Ms HK].
2. The co-accused has been charged with offences of firing at a dwelling house with disregard for safety of the persons inside and possess shortened firearm (firearms offences).
Letters
3. On 10 October 2017 the legal representatives for [Ms HK] appeared in the New South Wales Supreme Court in a bail application for the firearms offences. The
co-accused appeared by audio-visual link.
4. The defence bundle was tendered and marked 'Exhibit 2'. The bundle included letters from medical practitioners. It was admitted without objection.
5. Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were part of the defence tendered document bundle.
6. The letter dated 15 August 2017 stated that:
"I first reviewed [Ms HK] after receiving a referral from Dr Chowdhury AkramUZ Zaman.
Past History
2008 Cervical Cancer
2015 Lung Cancer (left)
2017 Diabetes
2017 CVA
Subsequent testing after [Ms HK] CVA revealed multiple metastatic lesions on the brain.
[Ms HK] requires specialist treatment and management for this terminal condition in order to sustain her quality of life.
Without such treatment [Ms HK]’s QOL would be very bleak."
7. The letter dated 27 September 2017 stated:
"It would be extremely beneficial for [Ms HK] to commence radiation therapy and chemotherapy at her earliest convenience.
I have been informed of the difficulty this presents to [Ms HK] being currently incarcerated.
It is imperative that this treatment be commenced as soon as practicable and for the patient to be reviewed in 3-6 months to assess her response to treatment in the hopes of her being suitable for surgery."
8. [Ms HK] was granted conditional bail on 10 October 2017. At the time of granting bail Justice Schmidt noted that there was no issue between the parties that cause had been shown, “on evidence tendered this morning, which establishes, by letters provided from various medical practitioners, that the applicant is suffering various cancers, including inoperable brain cancer which is terminal. She has some three to six months to live and requires treatment to alleviate her symptoms which are not available to her in custody.” Justice Schmidt noted "In the circumstances, I, too, am satisfied that cause has been shown".
9. On 25 February 2019 a trial was listed to commence in the relation to the firearms offences for the co-accused [Ms HK].
10. On 26 February 2019 the legal representative for the co-accused, [Ms HK], filed an affidavit raising the issue of fitness in the Campbelltown District Court to vacate the trial. Annexed to the affidavit were records and letters from medical practitioners. The trial was vacated.
11. Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were annexed to the Defence affidavit. The letters were dated 15 August 2017 and 27 September 2017 respectively. These letters were the same letters tendered in [Ms HK]’s Supreme Court bail application on 10 October 2017.
12. On 14 October 2019 the legal representatives for [Ms HK] filed a Notice of Motion and an Affidavit in Support that trial proceedings relating to [Ms HK] be permanently stayed in the Campbelltown District Court.
13. Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were part of the Application for Permanent Stay of Proceedings. The letters, dated 15 August 2017 and 27 September 2017 respectively, had previously been included in the defence bundle tendered in the Supreme Court bail application and were annexed to the affidavit filed on 26 February 2019 in the Campbelltown District Court.
14. It is agreed that the purpose of the creation and forwarding of the documents was to assist the cooffender [Ms HK] in bail proceedings before the Supreme Court on 10 October 2017.
15. The Crown accepts that it cannot prove that the offender contemplated the use of the documents in any trial proceedings. The Offender made admissions contemplating their use in sentence proceedings.
Police Investigation
16. Inquiries by police established that Dr Anna SELLBACH no longer practiced at St Andrews War Memorial Hospital. Police contacted the offices where Dr Anna SELLBACH was now practicing.
17. On 30 October 2019 Dr SELLBACH was provided with the two letters dated 15 August 2017 and 27 September 2017 respectively that purported to have been signed by her.
18. Dr SELLBACH reviewed both letters provided to her by police and indicated the following:
a. The signature at the bottom of both documents was not hers;
b. Her provider number was not included in the letter;
c. The content of the letter was not familiar to her;
d. The letterhead is not from the practice she was working in at the time;
e. The language, style text alignment and formatting of the letters is not in keeping with her correspondence from Neurosciences Qld or any correspondence she may have self-drafted from St Andrews War Memorial Hospital;
f. The conditions for which the patient has been seen are not conditions which Dr SELLBACH typically manage (her practice is subspecialised in movement disorders - She does not accept referrals from GPs for stroke or brain cancer);
g. She has never personally recommended radiation or chemotherapy for any patient she has cared for - were this to be needed for a patient under her care she would expect the radiation therapist or oncologist to make these recommendations.
19. Dr SELLBACH confirmed that the letters were not written by her.
Arrest
20. On 15 November 2019 the offender, Kelly Edmonds, voluntarily attended the Macquarie Fields Police Station where she participated in an electronically recorded interview.
21. During the interview the offender was questioned about the two letters dated 15 August 2017 and 27 September 2017 respectively purported to have been signed by Dr Sellbach, the subject of the charges. The accused stated to police, "Well, I forged them. I did them."
22. The offender made admissions that she had got the name of Dr Sellbach off Google and a letter head off the computer. She had signed the letters down the bottom.
23. Once she had finished the letters the offender admitted that she had faxed the documents to [Ms HK] 's lawyers.
24. When questioned as to the purpose for creating the letters, the offender said that it was to get a lesser sentence for her partner [Ms HK].
25. The offender was arrested and charged.
…..”[17]
[My emphasis]
[17] R1, pp 683-686.
The content of the above-quoted Amended Statement of Agreed Facts could, with respect, now be found to be not entirely accurate. This is because these fraudulently produced letters were not only intended to ‘…get a lesser sentence for … [Ms HK]’. Those two fraudulent letters were used to induce the New South Wales Supreme Court to grant conditional bail to [Ms HK] on 10 October 2017. Those two fraudulent letters were also annexed to an affidavit that 26 February 2019 filed on behalf of Ms HK to induce the New South Wales District Court to successfully vacate her trial. Those two fraudulent letters were also annexed to an affidavit filed in support of a Notice of Motion that on 14 November 2019 sought a permanent stay of Ms HK’s trial in the Campbelltown District Court.
The fourth instance of the Applicant’s more serious offending in the realm of dishonesty culminated in her conviction on two counts of ‘Dishonestly obtain property by deception’ at the Campbelltown Local Court on 19 November 2020. For this offending the Court imposed respective head custodial terms of four months’ imprisonment. The indicia of the offending conduct are summarised by the learned sentencing Magistrate[18] in His Honour’s sentencing remarks:
‘Quite sadly for the two victims of these particular offences, the community generally, and to some extent, noting what Mr Townsend[19] says about her lapse into the use of seriously terrible drugs alongside her partner at the time, Ms Edmonds. The reality is of course that these schemes which are easy to devise and are easy to carry out sadly affect everyone in the community, Gumtree or otherwise. A transaction ought be conducted in a manner which satisfies both parties, not one which is designed to be a rip off which each of these two were, and I will ask this of the sergeant about property to owners, have there been application for any compensation.
On each of these two occasions, there was an advertisement placed in the social media network on Gumtree for property which were designed to be purchased by the defendant upon her contact with the victims, and she essentially, with a ruse, through the use of her mobile phone, ran off with the property. The design was to do that to continue the subterfuge for some time particularly in relation to sequence, and to then convert the property into money for drugs. As I say, it is a sad effect on everybody, community included, that that occurs.’[20]
[18] Mr G Breton SM.
[19] The Applicant’s legal representative at this sentencing hearing.
[20] R1, p 68, lines 37-50; p 69, lines 1-4.
The Applicant’s predisposition towards fraudulent and otherwise misleading and deceptive conduct in Australia seems to have had its progenitor in New Zealand. In January-February 2011, the Applicant and her then-partner, Ms HK, were in New Zealand for the funeral of a family member. While there, they committed two burglaries and one shoplifting offence.[21] Before both women could be charged with these offences in New Zealand, they returned to Australia. The authorities in New Zealand then issued a warrant for the arrest of both women in 2011. It must have been known to the Applicant and Ms HK that this warrant remained current at the time they both returned to New Zealand for a two week holiday in December 2015. This is because following their arrival in New Zealand on 15 December 2015, they both surrendered to police custody three days later on 18 December 2015.[22]
[21] R1, p 40.
[22] R1, p 152.
While in New Zealand at this time, the Applicant and Ms HK pleaded guilty to the three charges. At the sentencing hearing in New Zealand, Ms HK was legally represented by a ‘Ms Barnes’ and the Applicant was legally represented by a ‘Mr Hard’.[23] At the Hearing before me, the Applicant agreed she instructed Mr Hard to make submissions to the Court to the effect that (1) Ms HK needed to return to Australia for radiation therapy; and (2) that she (the Applicant) was the full-time caregiver for Ms HK. The Applicant confirmed that Mr Hard did make those submissions. She also confirmed that at the time of this sentencing hearing, Ms HK did not have cancer. She (the Applicant) agreed that her conduct had caused Mr Hard to inadvertently lie to the Court on her instructions and that the false evidence about Ms HK’s cancer condition and the Applicant’s status as her primary caregiver was taken into account by the Court when sentencing both of them.[24]
[23] R1, p 152.
[24] See generally, Transcript, p 28, lines 7-36.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
Paragraph 8.1.1(1)(a): the chapeau to paragraph 8.1.1(1)(a) contains a list of three offending modalities that are viewed very seriously by the Australian Government and the Australian community. The Applicant readily admits the commission of violent offending.[25] The material contains at least three instances of quite violent conduct by this Applicant. First, on 6 December 2009, the victim and her partner walked into a McDonalds restaurant in suburban Sydney and purchased a meal. The relevant New South Wales Police fact sheet records what then happened:
‘The victim and the witness have then walked out the front and sat on two seats at the front of the store. At this stage the accused Kelly EDMONDS and two other females were standing at the front near the entrance to the store. A few seconds later the victim has got up off her seat and walked into the store. The accused at this stage has closely followed the victim and from behind has punched the victim to the back of the head. This has caused the victim to fall against the wall. The accused has then thrown the victim to the ground where the accused has started to grab the victim[sic] hair.
The witness and several other persons have attempted to intervene but the accused still had hold of the victims hair. While the victim was still on the ground the accused has started to kick the victim in the stomach region around three to four times.
The accused has then walked out of the store and the victim and witness have sat in the dining area where Police and ambulance arrived a short time later.’[26]
[My emphasis]
[25] A2, p 4 [26].
[26] R1, p 564.

Second, on 21 October 2007, the Applicant became involved in a violent altercation with the Police. The relevant New South Wales Police Facts Sheet says that while looking for a male possibly armed with a knife and poles:
‘Police have observed a male fitting the description and noticed he was unarmed. Police also observed numerous females. These included the Accused, Kelly EDMONDS, and the Co-Accused, [name of co-accused redacted]. All parties appeared to be moderately to heavily affected by alcohol.
The group were asked to move back inside due to their excessive noise and offensive language. The main group have gone into the front yard of [street address redacted].
Discussion between [name of police officer 1 redacted], and the group was held and they refused to keep quiet.
The Co-Accused, [name of co-accused redacted], has used offensive language that could be heard by members of the public. She was warned and has lashed out at [name of police officer 1 redacted]. Police have attempted to arrest [name of co-accused redacted] whilst standing on the front porch.
The Accused, Kelly EDMONDS, who is the partner of [name of co-accused redacted] has grabbed at the shirt of [name of police officer 2 redacted] and ripped a button. [Name of police officer 2 redacted] has pulled both [name of co-accused redacted] and EDMONDS outside with assistance from [name of police officer 3 redacted] and [name of police[27] officer 1 redacted]. The females were taken to one side of the yard. Police were surrounded by a group of 15 persons. Both male and female. They were screaming at police to release the arrested persons.
EDMONDS has tried to break free and assault police again. A one second burst of OC Spray was used upon EDMONDS. This has had an immediate effect.
Both persons were conveyed back to Macquarie Fields Police Station and EDMONDS was decontaminated at the station.’
[My emphasis]
[27] R1, p 626. Note to reader: According to the New South Wales Police Facts Sheet, there were three intervening police, hence the redacting nomenclature of ‘Police Officer 1, 2 and 3’ in the quoted narrative.
Third, on Sunday, 17 August 2008 the Applicant and her ex-partner, Ms HK each had black ‘pull along’ trolleys with two wheels that they took to their local Woolworths supermarket. While in the supermarket they each filled their trolleys with an assortment of products. The relevant New South Wales Police Facts Sheet says that one trolley was filled with cosmetic and hair care products while the other one was filled with meats and legs of ham. The Applicant completed her shopping and exited the store without paying for any of the items. When the Applicant and her ex-partner were exiting the store a Woolworth’s worker noticed that both of the pull trolleys were seated inside a larger Woolworths four wheeled trolley. The Woolworths representatives then sought to intervene and the following transpired:
‘Woolworths worker, [Mr JC] attempted to stop the accused [the Applicant] and

co-accused [Ms HK] from leaving the store by asking to see inside the bags. The

co-accused [Ms HK] opened the lid to one of the bags. [Mr JC] saw hair care products sitting in the bag. [Mr JC] asked to see a receipt for the items in the trolley. The accused [the Applicant] and co-accused [Ms HK] left the store without producing a receipt or paying for the items. The accused [the Applicant] placed the two small trolleys into the car and then hopped into the front passenger seat of the vehicle. The co-accused [Ms HK] got into the driver's seat of the vehicle. [Mr JC], along with his manager [Ms MF] and another Woolworths worker, the victim, [ Mr MJ] has followed the accused [the Applicant] to their vehicle in order to obtain a registration of their vehicle. The co-accused [Ms HK] reversed out of the parking spot quickly. An elderly male was crossing the road at the time the co-accused [Ms HK] began to drive forward. As a result of the car driving toward the elderly man, the male has fallen to the ground. The victim, [Mr MJ] put his hand on the bonnet of the vehicle and yelled 'stop, you've hit someone'. The victim [Mr MJ] went to the driver's window and put his arm on the car. The accused [the Applicant] got out of the vehicle and walked around the front of the car to the victim [Mr MJ] and said "get the fuck off the car". The accused [the Applicant] pushed the victim [Mr MJ]. The victim [Mr MJ] whacked the accused [the Applicant]'s hand away. The accused [the Applicant] grabbed hold of the victims [Mr MJ] shirt with one hand and punched the victim [Mr MJ] to the face several times. The victim [Ms MJ] blocked some of the punches. About 3 of the punches landed on the right side of the victim [Mr MJ]'s face. An unknown male grabbed the accused and held her back. The accused [the Applicant] got back into the vehicle and the co-accused [Ms HK] drove away. As a result of this incident, the victim [Mr MJ] sustained a scratch under his right eye with slight bruising. The victim [Mr MJ] also sustained scatches [sic] to his chest. The accused [the Applicant] entered the Macquarie Fields Police Station at 9:20am Monday 8 September 2008. The accused [the Applicant] was subsequently arrested and cautioned. The accused [the Applicant] was introduced to the custody manager where her Part 9 LEPRA rights were read and explained to her. The accused [the Applicant] was interviewed by way of ERISP where she made admissions to filling two small trolleys with cosmetics and meat products full to the top and then leaving the store without making any attempt to pay for the items. The accused [the Applicant] stated that she had money to pay for the items but did not pay as "its an adrenaline rush". The accused [the Applicant] also made admissions to punching the victim to the face.’[28]
[My emphasis]
[28] R1, pp 651-652.
The conduct described in the three abovementioned incidents falls squarely within the auspices of paragraph 8.1.1(1)(a)(i) and (ii) as (1) crimes of violence; and (2) as a crime of a violent nature against a woman. Accordingly, it must be found that the nature of the Applicant’s unlawful conduct in this country has been of a ‘very serious’ nature. But the nature of the Applicant’s earlier-described fraudulent and deceptive conduct means there is even greater scope for a further finding that her unlawful conduct has indeed been very serious.
I have earlier summarised two instances of the Applicant’s conduct leading to respective convictions for ‘obtain a financial advantage’ via which she fraudulently induced the Commonwealth Social Security apparatus to pay $5,058.79 (convicted in 2005) and $36,989.69 (convicted in 2019). The third instance of this type of fraudulent and deceptive conduct to which I have earlier described did not have a monetary objective. Its purpose was to induce a state judicial apparatus to grant bail to a co-offender on the basis of forged medical evidence. I am of the view that this conduct[29] goes to the heart of any assessment of this Applicant’s character and the community’s expectation that such an offender should ever hold a visa to remain in this country.
[29] This is not to forget the fourth instance of this type of offending which involved a fraudulent conduct in placing the Gumtree advertisement which exposed members of the Australian community to material loss and damage.
This is so because this fraudulent and deceptive conduct was directly perpetrated upon the state from which the Applicant now seeks a visa to remain here. The chapeau to paragraph 8.1.1(1)(a) does not limit the range of conduct this Tribunal may find to be very serious. I have no hesitation in finding that her conduct giving rise to respective convictions for Social Security fraud and for perverting the course of justice must surely constitute very serious unlawful conduct.
When I conjoin my findings about the Applicant’s crimes of violence (including a violent crime against a woman) to my findings about her fraudulent and deceptively misleading conduct, I am satisfied that this paragraph 8.1.1(1)(a) of the Direction very strongly militates in favour of a finding that her conduct has been ‘very serious’.
Paragraph 8.1.1(1)(b): the chapeau to paragraph 8.1.1(1)(b) of the Direction lists four offending modalities that are considered ‘serious’ by the Australian Government and the Australian community. Three of those offending modalities do not apply to the instant facts. They are: (1) whether the Applicant has caused a person to enter into a forced marriage or being a party to such a marriage;[30] (2) whether any conduct of the Applicant which in my opinion may ground a finding that she does not pass the character test.[31] I have already found that as a matter of law, the Applicant does not pass the character test. I am therefore not required to form any additional opinion about the Applicant’s conduct vis-à-vis the character test; and (3) the material does not contain any evidence about any crime committed by the Applicant during her time in immigration detention.[32]
[30] Paragraph 8.1.1(1)(b)(i) of the Direction.
[31] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[32] Paragraph 8.1.1(1)(b)(iv) of the Direction.
However, the Applicant does have convictions falling within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction because of her two convictions on 3 October 2008 for (1) ‘Resist officer in execution of duty’; and (2) ‘Assault officer in execution of duty’.[33] I am satisfied that these convictions are captured by the language of paragraph 8.1.1(1)(b)(ii) of the Direction and that this paragraph strongly militates in favour of a finding that the totality of the Applicant’s unlawful conduct has been at least of a ‘serious’, more likely ‘very serious’ nature.
[33] See R1, p 39.
Paragraph 8.1.1(1)(c): in applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending she may have committed against women and children;[34]
(ii)acts of family violence;[35] and
(iii)any sentence(s) she may have received relating to conduct whereby she caused a person to enter into (or became a party to) a forced marriage.[36]
[34] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[35] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[36] Paragraph 8.1.1(1)(b)(i) of the Direction.
The Applicant does not have any convictions for offending in either of the realms contemplated by (ii) and (iii) of the immediately preceding paragraph. She does, however, have a conviction and a sentence for her above-described violent attack on a female victim at a McDonalds restaurant on 6 December 2009.[37] That conduct undoubtedly comprised violent offending against a woman and the sentence imposed on the Applicant for that conduct cannot be taken into account for the purposes of this paragraph 8.1.1(1)(c). The balance of the sentences imposed on her during the almost 20-year duration of her criminal history in Australia can be taken into account.
[37] See R1, pp 563-565.
In terms of sentencing modalities imposed on her, the Courts have imposed a very broad range of sentences in an effort to deal with and curb her offending. These sentencing modalities have comprised:
·fines: imposed on 13 occasions: these fines were in the cumulative amount of $6,100;
·community service orders (in lieu of actual time in custody): have been imposed on four occasions;
·reparation orders: compelling the Applicant to repay debts arising from her fraudulent offending against Government instrumentalities: the cumulative total of these two imposed reparation orders is $42,048.48[38];
·good behaviour bonds[39]:directing the Applicant to be of good behaviour for a specified term have been imposed on four occasions;
·dismissal of a drug possession charge[40]: the charge of ‘Possess prohibited drug’ was dismissed by the Burwood Local Court on 28 August 2000;[41]
·the conviction of the Applicant but with no other penalty imposed[42]: this appears in the Applicant’s history on three occasions when she was dealt with at the Campbelltown Local Court on 13 October 2010;
·disqualification from driving: the criminal history demonstrates that the Applicant has been disqualified from driving on at least five occasions and that the cumulative total of those disqualification periods is six years and nine months;
·compensation order: on one occasion such an order was made in the sum of $2,576.21 consequent upon the Applicant’s conviction for ‘Destroy or damage property’ on 12 December 2006 at the Campbelltown Local Court; and
·imprisonment: sentences of imprisonment have been imposed on seven occasions. The cumulative period of those head custodial terms is 17 years and six months.[43]
[38] That is, the $5,058.79 contained in the reparation order made on 10 August 2005 plus the $36,989.69 contained in the reparation order made on 9 April 2019.
[39] Pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[40] Pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[41] See R1, p 39.
[42] Pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[43] Note to reader: I have not double-counted the sentences for the convictions the Applicant took on appeal to the Campbelltown District Court on 18 June 2009.
There is surely no cavilling with the reality that sentencing courts have sought to curb the Applicant’s unlawful behaviour via the imposition of a broad range of sentencing modalities. This pattern of sentencing culminated in the imposition of custodial terms in a very significant cumulative amount. Terms of imprisonment are the last resort in the sentencing hierarchy and are strongly indicative of the nature and seriousness of the conduct before the sentencing Court. I am satisfied that the sentences imposed on this Applicant are strongly suggestive of a finding that her offending in this country has been ‘very serious’.
Paragraph 8.1.1(1)(d): this paragraph poses two questions. First, has the Applicant’s offending been frequent? Excluding the New Zealand offending, the Applicant’s criminal history in Australia runs for about 20 years. It involves the commission of 33 offences that were dealt with at 18 separate sentencing episodes. This is offending at the rate of between one and two offences for each year of the offending history. I am satisfied that her offending has been frequent.
The second question posed by this paragraph is whether there is a detectable trend of increasing seriousness across the history of the Applicant’s offending? While her non-fraudulent conduct may not be starkly remarkable, it did, nevertheless, involve some instances of wantonly serious violent offending where the Applicant was simply not at all respectful of the victims against whom she offended. There is no other way to interpret her conduct in the violent episodes occurring at the McDonald’s restaurant (December 2009), the Woolworths supermarket (May 2008) and against the Police who had deploy pepper spray against her such was her violence towards them (October 2007).
True it may also be that as far back as August 2005, the Applicant was twice convicted of ‘obtain financial advantage’ in the amount of $5,058.79 and that she was also convicted in November 2020 for her fraudulent conduct in the placement of the two Gumtree advertisements whereby she sought to defraud members of the public. But to my mind, the level of seriousness of her offending must be found to have escalated in seriousness as a result of (1) her two convictions in April 2019 for ‘Obtaining a financial advantage’ in the sum of $36,989.69; and (2) her two further convictions in November 2020 for ‘Do act etc intending to pervert the course of justice.’
This is because, as I have mentioned earlier, her offending against the Commonwealth’s Social Security apparatus and the Commonwealth’s judicial administration apparatus is of a different level of heinousness and seriousness compared to the unlawful conduct that preceded it. I repeat: this type of offending strikes at the very heart of this Applicant’s character and fitness to hold a visa to remain here. Offending by one person against another about (for example) a private dispute between two individuals or even simply an isolated ‘mugging’ type incident or ‘car theft’ incident is one thing. But offending against the very state from whom she now pleads for a visa to remain here is of a different level-indeed a much more serious level-of offending altogether.
I am therefore satisfied that both components of this paragraph 8.1.1(1)(d) are satisfied because of my respective findings that the Applicant’s offending has been both frequent and that it displays a trend of increasing seriousness. Accordingly, this paragraph 8.1.1(1)(d) very strongly militates in favour of a finding that the nature of her offending has been ‘very serious’.
Paragraph 8.1.1(1)(e): this paragraph looks for any cumulative effect(s) resulting from the Applicant’s repeated offending. To my mind, there are at least six cumulative effects to be taken from the Applicant’s repeated offending. First, it seems clear from her pattern of offending that despite the best endeavours of sentencing Courts to curb her propensity to offend, this Applicant has not experienced any deterrent effect from the sentencing regime that has been progressively applied (i.e. in the terms of the severity of the sentences) against her. Second, she has failed to develop any measure of demonstrable respect for lawful authority. She has offended, in direct terms, against Police officers in the course of their duty. She has failed to comply with conditions of a Court Order and has also failed to appear in accordance with an undertaking as to bail.
Third, her offending demonstrates an appalling lack of respect for the personal rights of others. She has had little or no hesitation in imposing herself in very serious and violent terms against victims. There is no other way to comprehend her dreadful conduct in the McDonald’s incident (December 2009), the Woolworths incident (August 2008) or against the Police (October 2007) who had to deploy pepper spray to subdue her. Fourth, she has not demonstrated any respect for the property of others. There is a multiplicity of convictions for shoplifting. There is a conviction for the destruction or damage of the property of a victim. This dimension of her unlawful conduct that culminated in her convictions (in November 2020) for her fraudulent conduct behind the Gumtree advertisements.
Fifth, she appears to have no respect or intention to observe the rules, laws and regulations governing the operation of a motor vehicle on Australian carriageways whether it be driving while disqualified or driving an unregistered vehicle or driving while under the influence of alcohol or driving while her license was suspended. As a result, sentencing Courts have removed her driving privileges for a cumulative period of six years and nine months. Sixth, the Applicant’s conduct in defrauding the Social Security apparatus of the Commonwealth for over $40,000 and deliberately attempting to mislead a Court of law is demonstrative of a person with little or no respect or appreciation for either of those institutions. It is also demonstrative of a person who has no boundaries when it comes to seeking an outcome for herself, be it a financial outcome or by deliberately misleading a decision-maker to achieve a particular outcome suitable to her own interests. She was entitled to neither of those outcomes.
I am comfortably satisfied that the six abovementioned cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(e) to very strongly militate in favour of a finding that this Applicant’s offending in Australia has been ‘very serious’.
Paragraph 8.1.1(1)(f): this particular paragraph looks for evidence about whether a non-citizen has provided false or misleading information to the Respondent’s Department. The material contains six incoming passenger cards completed by the Applicant. Those cards are respectively dated 14 March 2011, 23 April 2010, 22 January 2008, 9 February 2007, 24 August 2004 and 26 May 2003. In each of these cards, the Applicant was asked to respond to the following question: ‘If you are NOT an Australian citizen: ….Do you have any criminal conviction/s?’ The Applicant responded with ‘No’ to this question in each of the six cards. Each of these responses were incorrect because:
·by the date of the earliest card (26 May 2003), she had compiled four convictions in Australia;
·by the date of the next card (24 August 2004), she had compiled 10 convictions in Australia;
·by the date of the next card (9 February 2007), she had compiled 11 convictions in Australia;
·by the date of the next card (22 January 2008), she had compiled 11 convictions in Australia;
·by the date of the next card (23 April 2010), she had compiled 20 convictions in Australia; and
·by the date of the next card (14 March 2011), she had compiled 25 convictions in Australia.[44]
[44] These dot-pointed conviction numbers are for Australia only. They do not include the Applicant’s four convictions in New Zealand, one of which was in September 1998, the second of which was in January 2011 and the third and fourth of which were in February 2011.

[2024] AATA 1389

5 June 2024

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Immigration

Administrative Law

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Statutory Construction

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