Edwards and Minister for Home Affairs (Migration)

Edwards and Minister for Home Affairs (Migration) [2019] AATA 4084 (4 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4301
Re:Celeste Kaye Edwards
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member

Date:4 October 2019
Place:Perth

The reviewable decision, being the decision of the Respondent’s delegate dated 10 July 2019, is affirmed.
..........[sgd]..............................................................
Brigadier A G Warner, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Applicant’s visa – Applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – minor children not resident in Australia – strength, nature and duration of ties – extent of impediments if removed – relevance of cancellation of the revocation of the visa of the Applicant’s brother – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(b)(ii)
CASES
CZCV and Minister for Home Affairs [2019] AATA 91
MBJY and Minister for Home Affairs (Migration) [2019] AATA 5044
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1(3), 6.2, 6.3, 7(1), 8, 13(2), 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.2, 14.5(1)
REASONS FOR DECISION
Brigadier A G Warner, Member
4 October 2019
INTRODUCTION

By application lodged on 18 July 2019, Ms Edwards seeks review of a decision of a delegate of the Respondent made on 10 July 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The delegate refused to revoke the mandatory cancellation of Ms Edwards’ Class TY Subclass 444 Special Category (Temporary) visa (the visa).
Ms Edwards’ visa had previously been cancelled pursuant to s 501(3A) of the Act because she does not pass the character test by reason of her substantial criminal record and because she was serving a term of imprisonment for an offence against a law of the Commonwealth, a State or a Territory.
The hearing of this matter commenced on 16 September 2019. Ms Edwards attended whilst a sentenced prisoner. The Tribunal adjourned the matter, with the agreement and cooperation of the Respondent, because it was not satisfied that
Ms Edwards had been given sufficient time to familiarise herself with the Supplementary Relevant Documents.
Ms Edwards completed her prison sentence on 18 September 2019 and was transferred to immigration detention that day. The hearing resumed on 19 September 2019 and
Ms Edwards attended, was self-represented and gave evidence on affirmation.
Ms A Ladhams, Australian Government Solicitor lawyer, represented the Respondent.
BACKGROUND
Ms Edwards is a 37 year old citizen of New Zealand who has resided in Australia since February 2012 (G31/134-135).
On 18 October 2013, in the Kalgoorlie Magistrates Court, Ms Edwards received a $400 fine for stealing and a spent conviction was recorded (G22/117).
In 2018 Ms Edwards was convicted of offences which attracted custodial sentences (G6/30-31):
·On 21 June 2018, Ms Edwards was convicted in the District Court of Attempt to Pervert Justice contrary to s 143 of the Criminal Code (WA). She was sentenced to imprisonment of 20 months (concurrent) from 19 July 2017.
·Also on 21 June 2018, Ms Edwards was convicted in the District Court of Conspiracy to Sell/Supply a Prohibited Drug contrary to s 33(2)(a) of the Misuse of Drugs Act 1981 (WA). She was sentenced to imprisonment of four months (cumulative) from 19 July 2017.
·
On 16 July 2018, Ms Edwards was convicted in the Kalgoorlie Magistrates Court of False Statement to Obtain Bail contrary to s 62(a) of the Bail Act 1982 (WA).

She was sentenced to one month imprisonment (cumulative) to be served from 16 July 2018.
·Also on 16 July 2018, Ms Edwards was convicted in the Kalgoorlie Magistrates Court of Person having been served with a data access order and without reasonable excuse, failed to obey that data access order, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). She was sentenced to one month imprisonment (cumulative) to be served from 16 July 2018.
Ms Edwards also has a number of convictions which did not result in a custodial sentence. These offences occurred in the period 3 August 2016 to 8 June 2017 and were: breach of bail (fail to appear soon after); two counts of possession of stolen or unlawfully obtained property; accused disobeys a summons which had been served on him/her in accordance with s 32(2) of the Criminal Procedure Act 2004 (WA); two counts of breach of bail undertaking; possess a prohibited drug (methylamphetamine); two counts of possessed a prohibited drug; three counts of possessed a prohibited weapon; three counts of possessed drug paraphernalia in or on which there was a prohibited drug or plant; and stealing (G22/115-117).
On 10 July 2018, the Department of Home Affairs wrote to Ms Edwards notifying her that her visa had been mandatorily cancelled under s 501(3A) of the Act (G10) because
Ms Edwards did not pass the character test as she had been sentenced to a term of imprisonment of 12 months or more, and because Ms Edwards was at the time of the decision serving a sentence of imprisonment on a full time basis, in a custodial institution for an offence against a law of the Commonwealth or a State or Territory (G10/64-67).
Ms Edwards was also advised by the notification of cancellation that she could make representations about the revocation of the visa within 28 days of the date on which she was deemed to have received the cancellation notification. Ms Edwards subsequently made representations in relation to the revocation of her visa and these were received by the Department within the prescribed 28 day time frame together with various supporting documents (G12–G24).
On 10 July 2019, a delegate of the Respondent decided not to revoke the mandatory cancellation of Ms Edwards’ visa (G3/10-20) and Ms Edwards was notified of the decision by hand on 15 July 2019 (G2/7-8; G35/178).
On 18 July 2019, Ms Edwards lodged an application for review by the Tribunal (G1/1-6).
ISSUE
The Tribunal must decide whether the discretion in s 501CA(4) of the Act should be exercised in Ms Edwards’ favour having regard to the mandatory considerations identified in “Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction No. 79).
In addressing the above, the Tribunal must determine:
(a)whether Ms Edwards passes the character test (as defined in s 501(6) of the Act); and
(b)if she does not, whether there is another reason why the cancellation decision should be revoked.
LEGISLATION AND MINISTERIAL DIRECTION NO. 79
Section 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or...
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or …
(Original emphasis.)
Section 501CA of the Act provides that:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
(Original emphasis.)
There is clear evidence, and it is not in dispute, that Ms Edwards does not pass the character test. This is because she has a substantial criminal record (G22/115-117) on the basis that she has been sentenced to a term of imprisonment of 12 months or more (see
s 501(6)(a) and s 501(7)(c) of the Act). Thus, in the present proceedings,
the Tribunal must focus on whether there is another reason why the mandatory cancellation of Ms Edwards’ visa should be revoked.
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
The Tribunal must comply these directions (see s 499(2A) of the Act).
On 20 December 2018, the Minister made a direction under s 499 of the Act; Direction No. 79, which commenced on 28 February 2019, and is binding on all decision-makers from that date and provides guidance to decision-makers on the application of the exercise of the discretion.
Paragraph 6.1(3) of Direction No. 79 states:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a)(on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No. 79 provides that:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 79 sets out a number of principles to be applied, including the following:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No. 79 provides guidance as to how this discretion is to be exercised, and states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of Direction No. 79 states:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case…
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of,

or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 79 sets out the considerations that are relevant in exercising the discretion in s 501CA(4) of the Act.
Primary considerations
Pursuant to paragraph 13(2) of Direction No. 79, the following are primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of Ms Edwards’ visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 79 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) set out above, and paragraph 13.1(2) identifies the following two factors to which consideration should also be given:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 79 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person’s criminal conduct. Relevantly, they include:
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
Paragraph 13.1.2(1) of Direction No. 79 sets out principles and factors to which decision-makers must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Best interests of minor children in Australia

The second primary consideration listed in Direction No. 79 is the best interests of any minor children in Australia affected by the decision, and paragraph 13.2(1) requires decision-makers to make a determination about whether revocation of the cancellation is, or is not, in the best interests of the child.
Paragraph 13.2 of Direction No. 79 states:
13.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Expectations of the Australian Community
The third primary consideration listed in Direction No. 79 is the expectations of the Australian community and paragraph 13.3(1) provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Other considerations
Paragraph 14(1) of Direction No. 79 provides that in deciding whether to revoke the mandatory cancellation of a person’s visa, other considerations must be taken into account where relevant, including, but not limited to:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims; and
(e) Extent of impediments if removed.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘G Documents’ (G1-G35, pp 1-178);
·The ‘Supplementary G Documents’ (SG1-SG2, pp 179-452);
·Certificate of Graduation: Wandoo Rehabilitation Therapeutic Community Rehabilitation Program dated 9 August 2019 (Exhibit A1);
·Cyrenian House report dated 11 September 2019 (Exhibit A2);
·Applicant’s submission dated 15 July 2019 (Exhibit A3);
·Cyrenian House Program (Exhibit A4);
·Letter from Dwayne Pickering dated 17 July 2019 (Exhibit A5);
·Letter from Susan Pickering (undated) (Exhibit A6);
·Letter from Paul Gorman, Cyrenian House (unsigned, undated) (Exhibit A7);
·
Statements of Attainment: Prepare and Serve Espresso Coffee dated

27 August 2019 and Certificate II in Retail Cosmetics – Skill Set dated 14 August 2019 for Celeste Edwards (Exhibit A8);
·Statement of Facts, Issues and Contentions of the Respondent dated 16 August 2019 (Exhibit R1);
·Incoming passenger cards dated 23 September 2009, 5 August 2010, 7 February 2012, 2 February 2014, 10 August 2014 and 21 February 2016 (Exhibit R2);
·People at Risk Solutions printout (Exhibit R3); and
·The oral evidence of the Applicant.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
There being no dispute that Ms Edwards does not pass the character test, the Tribunal now considers whether it should exercise its discretion under s 501CA(4)(b)(ii) of the Act to revoke the cancellation of her visa.
The Respondent contends:
that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 79 and the evidence and material presently before the Tribunal, the correct and preferable decision is that the delegate’s decision to refuse to revoke the cancellation of the applicant’s visa should be affirmed (Exhibit R1, para 11).
Before the Tribunal, Ms Edwards submitted:
I am really guilty of making some really poor decisions whilst using and I am really remorseful of these crimes. If returned to New Zealand I would not have a strong support network. I acknowledge that the Australian Government has to protect the community but I feel I am extremely low risk to the community. Going to New Zealand will be a financial strain to sustain myself without my husband’s support.

I have the drive to change to better myself and lessen the risk to the community.

I have demonstrated change and growth and I feel I deserve a second chance (Transcript p25).
Primary considerations
First primary consideration: Protection of the Australian community
Nature and seriousness of the conduct
When imposing sentences of 20 months and four months’ imprisonment respectively for the offences of attempting to pervert justice and conspiracy to sell drugs, the sentencing judge made clear his view that Ms Edwards’ offending conduct was serious by stating:
Firstly, count 1 is that between 26 July 2016 and 6 September 2016 at Kalgoorlie, you attempted to pervert the course of justice in relation to the prosecution of your brother on a charge of possession of a prohibited drug with intent to sell or supply.
That was done by procuring a child … to make false and misleading statements in relation to that prosecution.
The second count is that on 31 July 2016 at Kalgoorlie, you and others conspired together to sell a prohibited drug, namely methylamphetamine to another.
In relation to count 1 on the indictment, the attempt to pervert the course of justice, the background is that on 26 July 2016 police executed a search warrant at an address in Kalgoorlie associated with your brother.
During the search police found money and drugs approximately 7.7 grams of 80 per cent purity and some money. He was arrested and then taken into custody.
Between 26 July 2016 and 5 September 2016 you then procured a juvenile to take the blame for the drugs. In essence you coerced him to make two statements claiming ownership of the drugs.
Those statements were ultimately tendered in court during a bail application made by your brother. Those statements were subsequently found to be false.
Much of the evidence relating to that count is contained in the telephone conversations between you and your brother and also a telephone conversation involving your brother and the child wherein you were also present with the child at the time.
The conspiracy to sell the methylamphetamine relates to a series of phone calls involving you and a prisoner at Eastern Goldfields Regional Prison and a female called [S] …
You agreed to sell [S] $200 worth of a prohibited drug which was methylamphetamine which equates to about .2 of a gram. You were arrested and made admissions to both of these offences.
Now these are quite obviously both very serious offences…
(Para [7] above refers, G8/49-50).
Before the Tribunal, Ms Edwards said that she was unaware of the age of the victim involved in the attempt to pervert justice offence when she committed the offence. Even if that is so, the Tribunal considers the offence as serious, and particularly so when the victim of the perverting justice offence was a child who Ms Edwards coerced into making a false statement to accept responsibility for an offence that the child did not commit.
Ms Edwards has accrued a number of other convictions for drug and property offences, breaching bail and possessing prohibited weapons (Para [8] above refers). Although these offences did not result in custodial sentences, they are relevant to the consideration of
Ms Edwards’ conduct required in these proceedings. It is instructive and relevant to look further at one of those offences.
In December 2016, Ms Edwards was charged with Possessed a prohibited weapon, an extendable metal baton, and told the Tribunal that at the time she did not know that possession of such an item was unlawful. However, despite that charge and Ms Edwards’ explanation, Ms Edwards was charged with two further counts of the same offence in June 2017 in relation to an extendable metal baton and a brass knuckle duster.
It is also instructive to look at the 16 July 2018 conviction for False statement to obtain bail (paragraph [7] above refers). Ms Edwards’ testimony before the Tribunal was that she was desperate to get out of gaol and arranged for a friend outside to prepare and sign a letter, purporting to be from her father in New Zealand, to the effect that he was no longer able to care for her children and they would be returning from New Zealand. In other evidence, Ms Edwards said that she had a good relationship with her father.
Ms Edwards was convicted at the Whangarei District Court on 20 August 2007 of “Take/Obtain/Use Doc For Pecuniary Adv and received the penalty Convicted and Sentenced: To Come Up For Sentence If Called Upon – 20/08/2007 – 1 Year” (G9/63).
Ms Edwards provided false information to the Department by failing to declare this
New Zealand conviction on her incoming passenger card to Australia. Her explanation for this failure is that:
I have got a prior conviction in New Zealand for Take/Obtain/Use Doc for Pecuniary Advantage. I did not list this on my Passenger Card in 2009 as I did not think this was criminal related as I was not fined or jailed for this offence. I felt I had been given a warning only. (G29/131)
Ms Edwards was convicted of stealing on 18 October 2013 (G22/117, para [6] above refers), and failed to declare this conviction on incoming passenger cards when returning to Australia on 2 February 2014, 10 August 2014 and 21 February 2016 (Exhibit R2).

Ms Edwards told the Tribunal that “I thought when you go to gaol, that’s when you declare stuff, or I thought I’d get stopped in my tracks if I – if I was doing something wrong by Customs” (Transcript p13).
Ms Edwards accrued a significant criminal record prior to her incarceration (G22/115-117). The cumulative effect of Ms Edward’ offences, many of which appear to have been committed whilst she was on bail and include repeat offending and disregard for court orders, adds to the seriousness of her conduct, as does Ms Edwards’ failure to declare her convictions to the Department when entering Australia.
Having regard to all the evidence including the circumstances of Ms Edwards’ behaviour and offending, the Tribunal finds that the nature of Ms Edwards’ conduct is serious and weighs heavily against exercising the discretion to revoke the cancellation of her visa.
The risk to the Australian community should further offences be committed
In considering the risk to the Australian community, Senior Member Dr M Evans stated in CZCV and Minister for Home Affairs [2019] AATA 91:
56. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice … (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
57. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
Should Ms Edwards engage in similar offending, there would be resultant harm to persons and property. Coercing a child to make a false statement in a criminal proceeding can impact adversely on both the individual child and the community more generally. The child might suffer psychological harm and the possibility of the child having a criminal record for an offence that he or she did not commit. The impact on the community is the potential undermining of the criminal justice system. Any repeat of conduct like providing a false statement to obtain bail would result in a similar impact.
The Respondent submits, and the Tribunal agrees, that:
The impact of drug offences on the community is well-documented, and can include physical and psychological harm to persons who buy and use drugs, as well as people they come into contact with. Drug use and addiction can also be associated with other anti-social behaviour, including violence and property offences (Exhibit R1, para 31).
A Parole Review Report dated 18 July 2018 which recommended that Ms Edwards be denied parole included in its reasons: “3. Unmet treatment needs, pertaining to an entrenched history of substance mis-use, which appears to contribute to offending behaviour and represents an unacceptable risk to the safety of the community and of
re-offending, without appropriate treatment intervention” (SG2/325). A Parole Review Report dated 8 August 2019 records that on 3 November 2018, Ms Edwards received loss of privileges for 14 days after being “heard on the prison telephone system, conspiring with her partner (who was a prisoner at Eastern Goldfields Regional Prison) to justify trafficking of contraband at visits” (SG2/275).
Ms Edwards has made representations that there is no likelihood that she will reoffend.
In her Personal Circumstances form dated 10 July 2018, she stated that: “As I spent 1 year in jail reflecting on my offending behaviour and the effect its had on myself and my family, I won’t ever let my children down again” (G13/82). The Tribunal notes that the telephone conversation mentioned in the preceding paragraph occurred less than four months after this statement. Further, in an undated letter to the Department, Ms Edwards stated:
Since coming to jail I have had time to reflect on my offending behaviour and the impact it has had on the community and my family both here and back home in NZ, especially my 2 young daughters who I have not seen for over 12 months (G14/88).
The evidence is that Ms Edwards has engaged in accredited education and vocational programs while in prison (SG2/323), and since the 18 July 2018 parole
non-recommendation (paragraph [53] above refers) to her credit has completed the intensive Wandoo Therapeutic Community Program conducted by Cyrenian House,
with treatment gains. The program completion report dated 11 September 2019 concludes:
Ms. Edwards engaged appropriately in all aspects of the program and behavioural changes were evidenced during her engagement in the program. Post release support is advised to assist in maintaining pro social behaviour changes and further trauma counselling would assist in continued personal growth (Exhibit A2, p5).
In his sentencing remarks on 21 June 2018, His Honour said:
Clearly it seems to me you still have unmet treatment needs in relation to drugs, and perhaps other issues which you appear reluctant to deal with.

The psychological report suggests you would benefit from an in-house rehabilitation program.
Your choice of associates, including your brother, appear to have had a negative influence upon your life. It’s also suggested that you need psychological counselling. But your current reluctance to engage means that you’d be unlikely to respond to such intervention (G8/57).
The Tribunal’s consideration of risk should further offences be committed requires discussion of Ms Edwards’ brother, Jackie Paul Edwards, as a risk factor. Further to the Judge’s reference in the preceding paragraph, the sentencing remarks contain the following relevant comments:
Although you married in 2014, that year also saw your life take a negative turn when your brother, Jackie arrived in Kalgoorlie (G8/52).
Although you’ve had a disruptive relationship with your brother, you’ve always looked up to him. Unfortunately, he reintroduced you to methylamphetamine (G8/52).
I’ve also noted the connection between your brother’s move to Kalgoorlie and your recommencement of usage of methylamphetamine (G8/53).
The information contained in the psychological report tends to suggest that both you and your brother have a mutual dependence upon one another, which in turn led to you feeling a sense of obligation to him with respect to these offences (G8/57).
Ms Edwards told the Tribunal that her brother had completed parole and residential rehabilitation and was working fulltime. Ms Edwards assured the Tribunal that she had spoken recently with her brother and “set healthy boundaries and made sure that both of us will never ever go down that path again” (Transcript p23). However, these boundaries have not been tested in the community.
Relevant to the present consideration of risk, the Respondent submits:
… [i]
n a letter provided to the Department on 3 May 2019 (G29, p130-132),

the applicant has made statements which appear to be inaccurate and/or reflect a lack of insight to her offending. Statements such as ‘The charges I am currently imprisoned for are the only offences I have commit [sic] while in residence in Australia’ and ‘I have no previous convictions in Australia’ are clearly inaccurate in the light of the applicant’s criminal record set out at G6, p30-31 and G22, p115-117 and seek to overlook or minimalise not only all of the offences committed in 2016 and 2017 but also an earlier 2013 conviction for stealing. Although the applicant acknowledges that her offending ‘could have impacted’ the Australian community, her statement that ‘there was never any victims to my offences’ shows a lack of insight in relation to the impact of her offending to date.
This suggests that the applicant’s rehabilitation may not yet be sufficient for a conclusion to be reached that she has a risk of re-offending that is sufficiently low that the Australian community should be expected to tolerate that risk (Exhibit R1, paras 37-38).

Ms Edwards has undertaken courses and intervention in prison to address her offending behaviour and to assist her to lead a prosocial life. These activities are commendable but any consequent benefits have not been tested outside the custodial environment. Further, there is no probative evidence before the Tribunal to assist in determining a reduced risk of recidivism. The Tribunal accepts that Ms Edwards is remorseful for her offending, but the Tribunal has regard to significant risk factors such as the nature of her numerous offences, a repeat offence of possessing a prohibited weapon, previous drug use and addiction, apparent lack of insight regarding the impact of her offending, disregard and lack of respect for court orders and the untested future relationship with her brother.
Based on the evidence before it, the Tribunal finds that there is a low to moderate risk that Ms Edwards will reoffend and that the Australian community should not be expected to tolerate such a risk. As detailed in paragraph 6.3(4) of Direction No. 79, the Australian community’s tolerance for risk becomes lower as the potential for harm increases, and the harm that would be caused by some conduct is so serious that any possibility of it being repeated may be unacceptable. Paragraph 6.3(3) provides that a non-citizen who has committed a serious crime against children should generally expect to forfeit the privilege of staying in Australia. The Tribunal is of the opinion that these guidelines are applicable to Ms Edwards’ conviction for attempt to pervert justice. Consequently, even if the Tribunal were to conclude that the risk of Ms Edwards reoffending in a similar manner was low, that risk would still be unacceptable.
It follows from the above discussion that the second element of the first primary consideration weighs against the revocation of the cancellation of Ms Edwards’ visa.
Having carefully weighed the evidence relevant to both elements of the first primary consideration prescribed under Direction No. 79, Protection of the Australian community, the Tribunal finds that the consideration weighs heavily against the revocation of the cancellation of Ms Edwards’ visa.
Second primary consideration: Best interests of minor children in Australia
Ms Edwards has two children who are not presently resident in Australia. The elder child was born in 2010 in New Zealand and the younger child was born in Australia in 2013. The children currently live in New Zealand with their father, the Applicant’s husband.
Ms Edwards has not made representations that there are any minor children in Australia who would be adversely affected by any decision not to revoke the mandatory cancellation of her visa. The Tribunal notes that “best interests of minor children in Australia” was not a consideration in the reviewable decision (G3), but the delegate took into account Ms Edwards’ “fears of being separated from her husband and children if they return to Australia, were she to be removed from Australia” (G3/19, para 61). The children are clearly an important consideration, and their interests and the impact of Ms Edwards’ offending and non-revocation are discussed elsewhere in these reasons.
Third primary consideration: Expectations of the Australian community
In the matter MBJY and Minister for Home Affairs (Migration) [2019] AATA 5044, at [146] to [164] Member Burford reviewed authorities relevant to this consideration and concluded at [164] that:
In deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa” having particular regard to the direction and to determine, in all circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Tribunal agrees with this approach.
Ms Edwards has committed numerous offences in Australia, with the first, a stealing offence, committed in April 2013, just a little over a year after Ms Edwards moved to Australia (SG1/181). As already shown, these offences include drug-related offences, stealing, weapons offences, breaching bail offences, making a false statement, disobeying a summons and a data access order, and the serious offence of attempt to pervert justice. These offences indicate a disregard for the law and a breach of trust with the Australian community.
The Tribunal considers that the extent of Ms Edwards’ offending would be inconsistent with the behaviour the Australian community expected of a non-citizen, and that the attempt to have a minor accept punishment for a crime he did not commit would be viewed as particularly abhorrent.
The Australian community would expect non-citizens to obey Australian laws while in Australia. Given the extent and nature of Ms Edwards’ offending, and having regard to the principles reflected in paragraph 6.3 of Direction No. 79, the Tribunal finds that the Australian community would expect that Ms Edwards should not hold a visa. It follows that this primary consideration weighs against revocation of the cancellation of
Ms Edwards’ visa.
Other considerations
The Respondent submits that considerations which appear to arise on the material before the Tribunal are the strength, nature and duration of Ms Edwards’ ties to Australia and the extent of any impediments if removed. In comprehensive oral submissions at the hearing, the Respondent submitted that it would be appropriate for the Tribunal to consider the best interests of Ms Edwards’ children as an “other consideration” rather than as a “primary consideration”. The Tribunal agrees and the relevant discussion is included in the Tribunal’s “other consideration” which follows below.
Minor children resident in New Zealand
At the time of the decision under review, Ms Edwards’ husband and children were residing in New Zealand and continued to reside there on the date of the hearing in these proceedings. A letter from Ms Edwards’ husband raises the possibility that the children may have moved to Australia prior to the publication of the Tribunal’s decision in this matter (Exhibit A5, paragraph [89] below refers).
Ms Edwards told the Tribunal that her husband’s plan was that he and the children would still move to Australia in the event that the cancellation of her visa was not revoked.

Ms Edwards stated:
They haven’t booked any flights but it’s around – during the school holidays,

the New Zealand school holidays, which is at the end of the month. My husband’s mum has flown over to New Zealand, she’s there at the moment, she’s over there to help them pack up and organise stuff to help him bring the girls over with her (Transcript p18).
Ms Edwards also told the Tribunal that should she be removed from Australia and her husband were to return to Kalgoorlie for employment, he would not leave the children in her care in New Zealand: “Because I’ve been incarcerated and I need to build back that trust there’s no way he’s going to leave them with me in my care I know” (Transcript p21, 30).
Although here considering the impact on the children as an “other consideration”,
the Tribunal is of the view that in the prevailing uncertainty as to the location of the children, it would be prudent to have careful regard to the provisions of paragraph 13.2 of Direction No. 79 in doing so. Relevantly, the Respondent submitted:
So to sum up on the best interests of the children, the Minister’s submission is that on the current evidence it is more appropriately treated as an other factor. However, it would be prudent for the Tribunal to make findings as if it were a primary factor (Transcript p35).
In determining the weight to be given to this consideration, the Tribunal has regard to the relevant remarks of Colvin J in the matter Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, at [23]:
… However, Direction 65 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.
(Direction No. 79 replaced Direction 65 on 28 February 2019.)
Ms Edwards’ two children are under 18 years old (see paragraph [64] above). Paragraph 13.2(3) of Direction No. 79 requires that the children be given individual consideration to the extent that their interests may differ. The elder child was born in New Zealand and the younger in Australia. There is no evidence before the Tribunal that differentiates between the personal circumstances of the children.
The relationship central to this consideration is that of mother and child and there is no reason for the Tribunal to assume that it would not be in the children’s best interests to live with their mother and that Ms Edwards’ role as a parent would continue.

The evidence is that the children are residing currently with their father and should he return to Australia with the children, he would continue to fulfil his parenting role.
The Tribunal considers it likely that there was some detriment to the children as a consequence of Ms Edwards’ offending, noting her testimony that her offending was related to substance abuse. However, there is no relevant evidence of such detriment. Similarly, there is no material before the Tribunal relevant to factors 13.2(4) (f), (g) and (h) of Direction No. 79. The Tribunal is not aware of any court orders relevant to this consideration.
Both Ms Edwards and her husband have submitted that Ms Edwards’ removal from Australia would impact adversely on the children and on them as a family. Ms Edwards told the Tribunal that while incarcerated she maintained daily telephone contact with the children and that they had weekly Skype conversations. The Tribunal considers that similar, if not greater contact would be possible should Ms Edwards be in New Zealand and the children in Australia.
The Respondent accepts “that if the applicant’s family chose to return to Australia without her, this may have a detrimental impact on both the applicant and her children. However, this would be a matter of choice for the family, both in relation to whether the applicant’s husband relocates and, if so, where the children would reside” (Exhibit R1, para 61). Parents have a responsibility and role in caring for their children and in deciding what is in the children’s best interests. Ms Edwards’ testimony in the present matter, and the Tribunal has no basis for not accepting that testimony, is that the children’s parents, or parent, have decided that it would be appropriate for the children to return to reside in Australia even if Ms Edwards loses the right to remain here.
The Tribunal accepts that Ms Edwards would face challenges in maintaining a parental relationship in person with her children if she were returned to New Zealand and the children’s father chose to reside with the children in Australia. However, the Tribunal also accepts that such an arrangement is neither unacceptable nor unique in circumstances where options for children’s places of residence arise.
Taking into account the above discussion and notwithstanding the uncertainty regarding the movement of the children, the best interests of the children are likely to be served by the revocation of the cancellation of Ms Edwards’ visa. However, the Tribunal agrees with the Respondent’s submission that:
The mere possibility that the applicant and her family may make future choices that may have a detrimental impact on the applicant and her children does not outweigh the primary considerations in this matter (Exhibit R1, para 62).
The Tribunal finds that it would afford the same weighing, as expressed in the preceding paragraph, to this consideration regardless of whether it was a primary or other consideration.
International non-refoulement obligations
This consideration does not arise in this matter.
Strength, nature and duration of ties
In assessing the strength, nature and duration of ties to Australia, paragraph 14.2(1) of Direction No. 79 requires the Tribunal to have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Ms Edwards has resided in Australia for over seven and a half years, having moved here at the age of 30. Twenty-six months of that period were spent in prison following her incarceration in July 2017.
Ms Edwards has extended family residing in Australia, including her husband’s parents and her brother, Jackie Edwards. Prior to her incarceration, Ms Edwards’ husband, Dwayne Pickering, and two daughters resided in Kalgoorlie but are currently residing in New Zealand.
Mr Pickering did not attend the hearing and did not provide evidence other than an unsworn letter dated 17 July 2019. That letter states in part:
My plans are to return to Australia because of the opportunities that I have secured to seek a better life for me and my family including Celeste. If she is deported from the country it will cause hardship and heartbreak as I have committed to return to Australia in September. If Celeste is returned to New Zealand she will not have the support of me and my family and she will be separated from our 2 young daughters. I believe this will have a detrimental effect on our family unit (Exhibit A5).
In an undated and unsworn letter, Ms Edwards’ mother-in-law confirms her support for
Ms Edwards and the reinstatement of her visa (Exhibit A6).
Ms Edwards’ brother resides in Australia. Ms Edwards submits that removal from Australia would preclude her rebuilding a prosocial relationship with her brother.
The Tribunal discusses Mr Edwards at paragraphs 47 and 48 above. Relevantly, the Tribunal notes and agrees with the delegate’s comment in the decision under review that:
… her brother was her co-offender in Ms EDWARDS’ recent offending and according to the sentencing Judge, the driving force in exerting pressure on her to co-operate with him to commit the offence of Attempt to Pervert Justice. Given his at times, negative influence on Ms EDWARDS, it is questionable whether it would be a serious impediment to Ms EDWARDS’ continuing rehabilitation, were she to be separated from him (G3/18, para 53).
(Original emphasis.)
The Respondent accepts that Ms Edwards “may not have the same opportunities to spend time with her extended family if the mandatory cancellation of her visa is not revoked” (Exhibit R1, para 52). Apart from the information provided by Ms Edwards’ husband (see para [89] above), there is no material before the Tribunal to suggest the extent of any impact on Ms Edwards’ extended family in Australia should she no longer have the right to remain in Australia.
Ms Edwards has described her positive contributions to the community as including participating in a cultural dance at a cultural day in Kalgoorlie, fundraising for the Salvation Army and volunteering at the Salvation Army clothes store, and volunteering at her daughter’s school (G3/18 para 47, G13/83). The Tribunal accepts this evidence. Before the Tribunal, Ms Edwards outlined her involvement with the school as assistance with activities and camps, reading to the children and conducting “jump jam” dance classes before the start of school (Transcript p22).
Seven reference/support letters pertaining to Ms Edwards and her circumstances are included in the ‘G documents’ (G19/97-103). Four of the letters were written by family members resident in New Zealand (G19/97, G19/99, G19/102, G19/103) and three by members of the Kalgoorlie community (G19/98, G19/100, G19/101). All letters appear to have been written in the period July 2017 to February 2018 (although some are undated) and although not directly relevant to the decision under review in the present proceedings, the three community letters provide some evidence of Ms Edwards’ ties to the community in which she lived.
The Respondent:
acknowledges that the applicant has ties to Australia and has made some positive contribution to the Australian community. Nevertheless, the applicant has committed serious offences while resident in Australia. To the extent (if any) that the strength, nature and duration of her ties to Australia weigh in her favour, they do not outweigh the primary considerations of the protection and expectations of the Australian community (Exhibit R1, para 53).
Having regard to the evidence and having conducted its own de novo assessment, the Tribunal finds that the consideration of the strength, nature and duration of Ms Edwards’ ties weighs in favour of the revocation of the visa cancellation, but not such that it outweighs the primary considerations above.
Impact on business
In this matter there is no evidence of business considerations of the kind contemplated by paragraph 14(3) of Direction No. 79.
Impact on victims
At paragraph [51] above in its discussion of risk, the Tribunal refers in general terms to victims of drug-related and property crime, and to the potential harm to victims such as the minor involved in Ms Edwards’ attempt to pervert justice offence. However, there is no relevant evidence and no submissions before the Tribunal, so the Tribunal takes this consideration no further.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides guidance on the assessment of the extent of impediments that a 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 substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
If removed from Australia, Ms Edwards will be returned to New Zealand. At the time of this consideration, Ms Edwards’ immediate family, including her husband, two children and parents all reside in New Zealand and her parents have both indicated that she will have a support network in New Zealand (G19/97, 99). Ms Edwards also has two stepsisters and one half-sister in New Zealand and told the Tribunal that through the Wandoo program in prison, she had rebuilt her relationships with her sisters, her stepmother and her father (Transcript p20).

In her testimony, Ms Edwards confirmed her awareness of support that could be available to her in New Zealand, including the “People at Risk Solutions” organisation (see Exhibit R3).
In the Personal Circumstances Form submitted to the Department on 10 July 2018,

Ms Edwards stated:
If granted parole I would like to return to NZ straight away. My husband,

2 daughters, Mum, Dad & sisters are all living in NZ and I am eager to get back to my role as a mother as soon as possible.
I have a great support network in NZ and plan to attend counselling to keep me in the positive mind set I am in at the moment.
…
I have been drug free for over a year now and know that I can return to NZ and become a functioning member of society (G14/88).
However, before the Tribunal, Ms Edwards resiled from that position and said that:
There’s been a big turnaround. My support network would have been strong with my husband and my daughters there with me. And I just can’t imagine how life will be without them (Transcript p24).
In the following statement (Exhibit R1, para 57) the Respondent accepts that Ms Edwards may experience some hardship if she lives near to her mother:
The applicant has also indicated that if returned to New Zealand, she would have to ‘deal with [her] controlling mother’ (G13, p85). This comment receives some support from the sentencing remarks where the sentencing judge accepted for the purposes of sentencing that the applicant had suffered at least significant emotional abuse from her mother (G8, p51).
Ms Edwards resided in New Zealand until she moved to Australia in February 2012 when 30 years old. The Respondent submits and the Tribunal agrees that Australia and New Zealand are broadly analogous in terms of language, heritage, culture and the provision of social, health and other public services (Exhibit R1, para 56). Ms Edwards would have access to these services. There is insufficient evidence to support a conclusion that the extent of impediments should Ms Edwards be removed from Australia weighs in favour of revocation of the cancellation decision.
Other consideration
Ms Edwards told the Tribunal that she had expected that the cancellation of her visa would be revoked, particularly as the cancellation of her brother’s visa had been revoked. In support of her expectation, Ms Edwards cited the following remarks of the sentencing judge:
Looking at the offences, particularly with respect to the parity principle, I’ve come to the conclusion that although you were a willing and active participant in the offence, nonetheless your role should be characterised as being slightly lower than your brother.
At the very least I’m satisfied that he exerted significant pressure upon you.

The offence of attempt to pervert the course of justice was carried out for his benefit. And consequently, in my view there are some differences between the two of you that would warrant you receiving a lesser term of imprisonment than your brother (Exhibit A3, p3).
In the present proceedings, the Tribunal must concern itself with the evidence and circumstances relevant to Ms Edwards and the cancellation of her visa. Consequently, the Tribunal takes this other consideration no further.
CONCLUSION
The Tribunal finds that the other conditions of strength, nature and duration of ties, and minor children resident in New Zealand are favourable to Ms Edwards and weigh in favour of revoking the mandatory cancellation of her visa. However, the need to protect the Australian community and the expectations of the Australian community both weigh heavily in favour of refusing to revoke the cancellation and outweigh the favourable other considerations.
In summary, having careful regard to the primary considerations, and relevant other considerations as contained in Direction No. 79, the Tribunal concludes that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of Ms Edwards’ visa. The correct and preferable decision is to affirm the decision under review.
DECISION
It follows from the above that the reviewable decision, being the decision of the Respondent’s delegate dated 10 July 2019 not to revoke the mandatory cancellation of Ms Edwards’ visa, is affirmed.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

......[sgd].................................................................
Associate
Dated: 4 October 2019

Dates of hearing: 16 and 19 September 2019

Applicant: In person

Counsel for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitor

[2019] AATA 4084

4 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Standing

Natural Justice

Dates of hearing:	16 and 19 September 2019
Applicant:	In person
Counsel for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor