FFXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3655
•14 October 2021
FFXL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3655 (14 October 2021)
Division:GENERAL DIVISION
File Number:2021/5017
Re:FFXL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Brisbane
Date:14 October 2021
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 22 July 2021, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.................[SGD]................................
Senior Member B. Pola
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – sentence of imprisonment exceeding twelve months – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – domestic violence and property-related convictions – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 (20 March 2020)Secondary Materials
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
14 October 2021
INTRODUCTION AND BACKGROUND
The Applicant in this matter was granted a confidentiality order over her identity by the Tribunal and is referred to in these reasons by the pseudonym ‘FFXL’. FFXL is a 22-year-old female citizen of New Zealand who migrated to Australia as an infant with her family in 2000 and was granted a Class TY 444 Special Category (Temporary) visa[1].
[1] Exhibit R1, G10, page 75.
The Applicant has a criminal history that spans four years, from February 2017 to December 2020[2], with her first offences recorded when she was a juvenile. The Applicant’s convictions consist of numerous domestic violence related offences, including contraventions of apprehended violence orders (herein referred to as ‘AVO’), destroy or damage property and stalk/intimidate intend fear physical etc harm. There are further convictions for property related offences including robbery in company and shoplifting, as well as additional convictions of assault law officer (not police officer).
[2] Exhibit R1, G3, pages 34 to 37.
On 13 July 2020, before the District Court in New South Wales, the Applicant was convicted of robbery in company and was sentenced to an actual term of imprisonment of eighteen months, with a non-parole period of nine months[3].
[3] Ibid, page 35.
Whilst the Applicant was serving her term of imprisonment for the above offence, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), decided to mandatorily cancel the Applicant’s visa (herein referred to as the ‘visa cancellation decision’) on 6 August 2020, pursuant to section 501(3A) of the Migration Act 1958 (Cth) (herein referred to as the ‘Migration Act’)[4]. This was done on the basis that the Applicant did not pass the character test, pursuant to section 501(6)(a) and (e) of the Migration Act.
[4] Exhibit R1, G23, pages 243 to 249.
Following the visa cancellation decision, the Applicant made representations to the Respondent to revoke the mandatory cancellation[5].
[5] Exhibit R1, G12, pages 80 to 94; G15, pages 150 to 160; G16, pages 161 to 167.
On 22 July 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to section 501CA(4) of the Migration Act[6].
[6] Exhibit R1, G2, pages 7 to 33.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 24 July 2021 seeking a review of the abovementioned decision not to revoke the cancellation of her visa, within the required time frame[7].
[7] Ibid, pages 3 to 8. For the Tribunal to have jurisdiction to review the decision, the Applicant
must have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision. See section 500(6B) of the Migration Act.
The application was heard in Brisbane from 28 to 30 September 2021, with the Applicant represented by Mr Sam Issa of Firmstone & Associates. The Respondent was represented by Ms Kate Gawdiziel from the Australian Government Solicitor. All parties appeared via video link, with the Tribunal hearing oral submissions from the Applicant and the representatives of the Applicant and Respondent, respectively. The Tribunal also considered the submitted evidence, outlined in the Exhibit Register in Annexure 1 of these reasons.
The Tribunal also heard evidence from a witness, the Applicant’s mother, who gave evidence via telephone on the second and third days of the hearing. The Tribunal observes that she provided written statements of support for the Applicant[8].
[8] Exhibit R1, G15, pages 150 to 152; G21, pages 231 to 232.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in section 501CA(4) of the Migration Act, which provides:
(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.
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[9]:
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[10]
[Tribunal underline for emphasis]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
The Tribunal must assess and evaluate the factors for and against revoking the visa cancellation decision[11]. If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa be revoked[12].
[11] Ibid.
[12] Ibid.
Does the Applicant pass the character test?
As previously noted, the character test is defined in section 501(6) of the Migration Act. A person will not pass the character test if they have a, “substantial criminal record”, pursuant to section 501(6)(a) of the Migration Act. Relevantly, section 501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view the Applicant does not pass the character test as she was convicted of robbery in company before the District Court in New South Wales in December 2020 and received a sentence of imprisonment of eighteen months[13].
[13] Exhibit R1, G3, page 35.
The Tribunal is of the view that the Applicant is therefore unable to rely on section 501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of her visa to be revoked.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in accordance with section 501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by section 499(2A) of the Migration Act to comply with directions made by the Minister under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the ’Direction’) must be applied[14]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with section 501CA of the Migration Act. Paragraph 6 of the Direction provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.
[Tribunal underline for emphasis]
[14] On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case and that when applying the Primary and Other Considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Sub-paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”. Additionally, sub-paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The relevant Primary Considerations in the context of a revocation decision appear in Paragraph 8 of the Direction:
(1)Protection of the Australian community from criminal or other serious conduct (herein referred to as ‘Primary Consideration 1’);
(2)Whether the conduct engaged in constituted family violence (herein referred to as ‘Primary Consideration 2’);
(3)The best interests of minor children in Australia (herein referred to as ‘Primary Consideration 3’); and
(4)Expectations of the Australian community (herein referred to as ‘Primary Consideration 4’).
The Other Considerations which must be taken into account are listed in paragraph 9(1) of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
A number of principles are set out in paragraph 5.2 of the Direction which decision makers must consider in the exercise of their discretion. The Tribunal has transposed these principles here:
(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) Non-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.
(3) The 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.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Prior to addressing the four Primary Considerations, the Tribunal will provide an overview of the Applicant’s criminal history and evidence from the witnesses called by the Applicant.
Overview of the Applicant’s criminal and other offending history
The Applicant’s criminal offending history can be gleaned from the section 501 G‑Documents[15], in addition to documents produced under summons[16] comprising:
[15] Exhibit R1.
[16] Exhibit R3.
(i)The Applicant’s criminal history in Australia which appears in a document entitled, ‘Nationally Coordinated History Check Results’, dated 18 January 2021[17];
[17] Exhibit R1, G3, pages 34 to 37.
(ii)Sentencing remarks in the District Court of New South Wales, dated 13 July 2020[18];
[18] Exhibit R1, G4, pages 42 to 56.
(iii)Sentencing remarks in the Local Court of New South Wales, dated 26 August 2020[19];
[19] Exhibit R1, G5, pages 57 to 59.
(iv)New South Wales Department of Corrective Services, ‘Convictions, Sentences and Appeals’ record, dated 29 July 2020[20];
[20] Exhibit R1, G9, pages 71 to 74.
(v)International movement records of the Applicant from the Department of Home Affairs[21];
(vi)NSW Department of Justice sentencing assessment report, dated 5 June 2020[22];
(vii)Psychological assessment for criminal proceedings, dated 22 May 2020[23];
(viii)Bail acknowledgement, statutory parole order, community correction order, parole reporting arrangements of various dates[24];
(ix)Department of Home Affairs file note relating to incidents in immigration detention, dated 3 March 2021[25];
(x)Material produced under summons from New South Wales Local Court, dated 20 July 2020[26];
(xi)Material produced under summons from New South Wales Police Force including bail reports, list of events and criminal history of various dates[27];
(xii)Material produced under summons from New South Wales Corrective Services of various dates[28];
(xiii)Incident detail reports from SERCO of various dates[29]; and
(xiv)Clinical records of the Applicant produced under summons from International Health and Medical Services (IHMS) of various dates[30].
[21] Exhibit R1, G10, page 75.
[22] Exhibit R1, G13, pages 102 to 106.
[23] Ibid, pages 107 to 113.
[24] Ibid, pages 114 to 125.
[25] Exhibit R1, G18, page 202.
[26] Exhibit R3, No. 1, page 1.
[27] Exhibit R3, No. 2, pages 2 to 106.
[28] Exhibit R3, No. 3, pages 107 to 227.
[29] Exhibit R3, No. 4, pages 228 to 518.
[30] Exhibit R3, No. 5, pages 519 to 600.
During the course of the hearing, the Applicant was taken to her criminal offending history, with respect to reported incidents involving the Applicant which did not lead to convictions and with respect to incidents where she was charged and convicted. Additionally, the Applicant was taken to various reports regarding her conduct in criminal custody and immigration detention.
It became apparent during the course of cross-examination when reported facts of convictions were put to the Applicant that she either: (1) could not recall or denied incidents took place; (2) provided an alternate version of events; or (3) plainly disputed the reported facts.
With respect to whether the Tribunal is permitted to bring into question the underlying facts of prior convictions of the Applicant, the Tribunal observes that this issue has been previously considered in the Full Federal Court.
The Tribunal refers to the decision of HZCP v Minister for Immigration and Border Protection[31] (herein referred to as ‘HZCP’), where His Honour McKerracher J stated[32]:
As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
[31] [2019] FCAFC 202. Note that a hearing to determine whether to grant leave to appeal the decision of the Full Federal Court to the High Court of Australia will take place on 15 October 2021. See HZCP v Minister for Immigration and Border Protection & Anor (M15/2021).
[32] Ibid at [77].
The Tribunal further refers to the reasons of their Honour Colvin J in HZCP with respect to administrative tribunal’s views on facts underlying criminal convictions[33]:
… The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...
[33] Ibid at [189].
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against her. The Tribunal gives significant weight to the Court’s consideration of the facts of the offences and to the seriousness with which their Honours have regarded the offending of the Applicant. The Tribunal addresses the issues arising in this regard with respect to various criminal offending episodes of the Applicant in the following reasons of this decision.
Reported incidents involving the Applicant which did not lead to criminal convictions
During the course of the hearing the Applicant was taken to some of the many reported incidents detailing her past conduct in the summons material produced by New South Wales (herein referred to as ‘NSW’) police. The Tribunal acknowledges that these incidents did not lead to convictions, and observes the Applicant was considered a juvenile in some of the reported incidents summarised below:
(a)An incident recorded on 22 February 2015 in which NSW police reported that in the early evening an incident occurred between the Applicant and her younger brother, who suffers a medical condition. The record states that the Applicant had allegedly told her brother, “I am going to smash you”, and slapped him on the right side of his face with an open hand. It states the Applicant grabbed a t-shirt from her sister and slapped it at the face of her brother, with her brother not really caring and laughing it off. It states the Applicant said, “someone is going to take you out you cripple.” The report goes on to state that police were of the view that additional domestic violence services may assist the Applicant’s mother in dealing with the rebellious nature of the Applicant[34]. When this incident was put to the Applicant, she stated that she could not recall the incident, that she has not hit her brother, or sister and did not refer to her brother as a “cripple”, whilst also stating the report from NSW police report was incorrect[35].
[34] Exhibit R3, No. 2, page 84.
[35] Transcript (28 September 2021), page 24, lines 31 to 47; page 25, line 1.
(b)An incident recorded on 4 September 2015 by NSW police states that they had received anonymous reports of a brawl occurring. Upon attending the location, the police did not encounter a brawl but instead a group of about 150 people, whom the police attempted to calm. However, given the large number of people and the tension in the group, their presence had little impact. After several small fights had broken out, police dispersed OC spray to diffuse the situation[36]. When the Applicant was questioned as to this incident, she stated that she was not drinking and was sober, as she did not want to breach the terms of a good behaviour bond which she was subject to[37].
(c)An incident reported in NSW police records on 11 October 2015 states that the Applicant was involved in a domestic dispute with her mother at her mother’s home and police were called to investigate the argument. After police left the premises, the Applicant’s mother also left for a period of approximately twenty minutes. When the Applicant’s mother returned, she got into a further verbal argument with the Applicant, after the Applicant’s mother had reportedly asked the Applicant to clean a mess she had made. The Applicant reportedly walked out the back door of the premises yelling and swearing, then picked up a block of wood from the ground and threw it at her bedroom window, causing it to smash. Police were contacted again, took statements, and recorded the Applicant as admitting to breaking the window. Police served an AVO on the Applicant, which stated that she must not damage or destroy property belonging to her mother[38]. When this incident was put to the Applicant during the hearing, she accepted the incident occurred as reported[39].
(d)NSW police records on 6 December 2015 describe an incident which occurred at the home of the Applicant’s mother. The report states the Applicant’s mother asked the Applicant to return to the mother’s property to clear her belongings, in order to vacate the premise by mid-January 2016. An argument followed and escalated with police records stating the Applicant threw her clothing items around the car port, with the Applicant’s mother observing that the words, “f*** you” had been scratched in a bed head in the backyard. The Applicant’s mother returned into the home with the Applicant following and called police[40]. When the reported incident was put to the Applicant during the hearing, she stated that she did not recall it[41].
(e)An incident in NSW police records on 26 February 2016 records three females sitting outside a BWS shop. At around 08:00PM, one of the females entered the shop with a hood covering her face and took a one litre bottle of Smirnoff vodka and ran out of the shop. As she was leaving the shop, a second female ran in and stole two one litre bottles of Jim Beam and ran out after the Applicant. Police obtained CCTV footage and a witness gave a statement[42]. When this incident was put to the Applicant she initially stated that she had stolen alcohol from the BWS, but later denied stealing from BWS as she had mistaken this incident for a later incident where she was convicted of stealing alcohol from a Liquorland[43].
(f)An incident recorded in NSW police records on 1 March 2016 describes a verbal argument having taken place between the Applicant and two of her sisters over a handbag. The Applicant’s mother called police after she was contacted by two of her children over the incident. The police report refers to sticks and bricks being thrown into and out of the house by the Applicant and her siblings, with reported damage to the house. Police were not able to determine who was responsible for the damage given the conflicting versions of events and there were no independent witnesses[44]. When the Applicant was questioned as to her recollection of this incident, she stated that she did recall it, but was unable to remember what they had been arguing about[45].
(g)NSW Police records detail an incident which occurred on 23 March 2016. They describe an argument which had occurred between the Applicant and her mother in the evening of 23 March 2016 regarding the Applicant taking an iPad to school. The Applicant’s mother reported the Applicant as behaving irrationally and agitated, throwing her clothes and other items on the front lawn whilst yelling and screaming. The Applicant’s mother stated there was a loud bang at the front screen door before the Applicant left the location, with the front screen door sustaining damage (missing a handle and damage on both sides)[46]. The Applicant was questioned as to her recollection of this incident and stated that she had remembered doing all of the reported actions and that she took her anger out on the property as she, “… didn’t want to hurt anyone else, so I either hurt myself or things that were around me to get rid of the anger”[47].
(h)A NSW police record from 17 May 2016 describes the Applicant posting details for a birthday party for herself on Facebook via a private invite. The report described the Applicant posting on this event and stating, “If you need someone to get drinks, my mum and others will be around to go up the shops and get them if you want… I’ve got dealers all around if you need to get on. If you need caps let me know before hand”[48]. The Applicant was questioned as to this event and stated that she couldn’t remember posting the description with respect to the procuring of prohibited drugs (with reference to “caps”), and that she had only arranged alcohol for her party. The Applicant did admit to consuming prohibited drugs at the birthday party[49].
(i)A NSW police report describes a further incident involving the Applicant and her sisters which occurred in early January 2017. The police report states that the Applicant had grabbed a knife and had chased an unnamed person out of the house. A victim in this incident had locked themselves inside the house, and the Applicant had begun to kick on the front door to try and gain access. It is reported that the Applicant was yelling at the victim saying things such as, “open the door or I'll put a f***** knife in ya neck”. The report states that whilst the Applicant was standing at the front door, the victim had seen a fire near the front door and witnessed the Applicant pick up her clothes from the front door and hang them above the fire so they would burn[50]. The Applicant stated that the incident involved herself and three of her sisters and denied lighting the fire. The Applicant conceded that she had made threats such as, “open the door or I'll put a f***** knife in ya neck”, however the Applicant stated that she would never go through with such a threat. The Applicant stated that she thought the police report was incorrect with respect to her chasing the unnamed person out of a house with a knife as she, “only ever did that once”[51]. The Tribunal observes that this offence was put to the Applicant at the hearing with respect to cross-examination of convicted offences. Upon further examination of the Applicant’s criminal record, the Tribunal notes that it does not appear she was convicted of this incident[52].
Offences for which the Applicant has received criminal convictions
August 2016
[36] Exhibit R3, No. 2, page 82.
[37] Transcript (28 September 2021), page 25, lines 15 to 36.
[38] Exhibit R3, No. 2, page 80.
[39] Transcript (28 September 2021), page 25, lines 41 to 46; page 26, lines 1 to 23.
[40] Exhibit R3, pages 78 and 79.
[41] Transcript (28 September 2021), page 26, lines 25 to 45; page 27, lines 1 to 5.
[42] Exhibit R3, No. 2, page 75.
[43] Transcript (28 September 2021), page 29, lines 24 to 31; page 42, lines 10 to 19.
[44] Exhibit R3, No. 2, page 77.
[45] Transcript (28 September 2021), page 30, lines 8 to 13.
[46] Exhibit R3, No. 2, pages 73 to 74.
[47] Transcript (28 September 2021), page 31, lines 15 to 46; page 32, lines 1 to 2.
[48] Exhibit R3, No. 2, page 73.
[49] Transcript (28 September 2021), page 32, lines 4 to 37.
[50] Exhibit R3, No. 2, pages 55 to 56.
[51] Transcript (28 September 2021), page 43, lines 19 to 46; page 44, lines 1 to 9.
[52] Exhibit R3, No. 2, pages 2 to 16.
NSW police records describe an incident involving the Applicant and her mother in early August 2016[53]. The report states the Applicant had punched and kicked a vehicle and damaged it after attending the premises of a friend she had a falling out with. Around a month later, detectives visited the property of the Applicant’s mother and attempted to speak with them both. The report states the Applicant had refused to obey police instructions and became aggressive with the police, yelling, “Where’s your warrant. Get the f*** out of my house”, and further antagonising the situation by laughing and yelling, “you pack of c****” and, “f*** off dogs”. The report goes on to state that the Applicant had spat at police several times whilst resisting arrest and being transported to the police station. The police called for back-up and deployed OC spray to subdue the Applicant. The report states that when the Applicant was taken back to custody dock at the police station, that she damaged the walls by using a zipper on her jacket and scribbling on the dock wall, as well as hitting the roof and kicking the door.
[53] Ibid, pages 5 to 6; pages 66 to 68.
When the Applicant was questioned as to this incident, she said she had a falling out with a friend at the time and that she should have handled it better. She further stated that the damage she had caused to the car was not justified and that it was inappropriate behaviour spitting on police. The Applicant stated her actions at the time were a, “cry for help” and at the time she didn’t know how to get her point across[54].
[54] Transcript (28 September 2021), page 35, lines 25 to 46; page 36, lines 1 to 6.
The Tribunal observes the Applicant was under the age of eighteen years at the time of this offence and was convicted before a Childrens Court in August 2017. She was sentenced to nine months’ probation for each of the following offences[55]:
(i)Destroy or damage property >$ 2000 & <=$ 5000-T2; and
(ii)Enter building/land w/i commit indictable offence-T1.
September 2016
[55] Exhibit R1, G3, page 36; Exhibit R3, No. 2, pages 5 to 6; pages 66 to 68.
NSW police records detail an offending episode involving the Applicant and her younger sister[56]. It states that the Applicant got into an argument with her sister whilst they were driving in a car and her sister asked the Applicant to get out of her car. The report states the Applicant kicked her sister’s car causing a small dent, and that her sister had driven away and parked her car outside their house.
[56] Exhibit R3, No. 2, pages 63 to 64.
The report states the Applicant had made her way to the house and is reported to have picked up a timber bed slate above her head as if she were to throw it at her sister, the victim. The Applicant’s sister picked up a broom handle to defend herself whilst a witness intervened to try and stop the Applicant, however the Applicant threw the timber bed slate at her sister and missed her. The Applicant’s sister went into the house. Not long after the Applicant’s sister returned, she found severe damage to her car, with the report stating there were, “dent marks to the driver's side rear quarter panel, driver's side rear door and two smashed windows on the passenger side doors. There appeared to be a further dent in the passenger side front panel also…”. The report states the witness moved the Applicant away from the car whilst she was holding a brick above her head, with the Applicant’s sister dialling emergency services.
The Applicant left the scene but was picked up by nearby police and was arrested and cautioned. Whilst the Applicant was in custody, the police report states that the Applicant was extremely aggressive and violent, the Tribunal refers to the below extract:
… Offence 4: Malicious Damage Whilst in custody, inside of the dock door, the accused young person became extremely aggressive and began bashing and kicking the doors and walls violently. The accused young person began spitting constantly onto the perspex screen and doors, after numerous warnings from the custody manager. This was all noted within the Custody Manager's Records. Offence 5: Intimidate Police As other Police entered the charge room, the accused young person began verbally abusing and threatening them. The accused young person said to officer, Senior Constable [name redacted], "I'm gonna get your kids f***ing raped and then kill them as well", "Ill slice you up", "I'll kill you", "Crazy c*** like me,I'm gonna shoot all you cops in the head", "I'll find out where you live and I'm gonna catch up with you, fucking chop you up". During intervals of the accused young person's explosive rage, she stated she did not wish to be interviewed in relation to the matters…
When the Applicant was questioned as to the content of the police report during the hearing, she stated that she did not believe she had stated the recorded obscenities in the above transposed section of the police report. The Applicant did however recall getting into an argument with her sister and stated that her sister had in fact tried to intimidate her by driving in her direction. She stated that this is why she had picked up a piece of wood – to scare her to stop. The Applicant was of the view the police report was incorrect[57].
[57] Transcript (28 September 2021), page 37, lines 7 to 39.
The Applicant was under the age of eighteen years at the time of this offence and was convicted before the Childrens Court in August 2017. She was sentenced to twelve months’ probation for each of the following offences[58]:
(i)Destroy or damage property <=$2000 (DV)-T2; and
(ii)Destroy or damage property <=$2000 (DV)-T2.
October 2016
[58] Exhibit R1, G3, page 37.
NSW police records outline a further offending episode involving the Applicant, after police were called to a loud party[59]. The police spoke to the resident of the party who had stated the party had been crashed and they required assistance to remove people from the house and yard. The report states that the Applicant had approached police and attempted to interfere when they had tried to escort the Applicant’s younger sister to a police vehicle. Police issued the Applicant with a move on direction, after which the report records the Applicant as saying, “F*** you I don’t have to go” and after police took hold of her arm she reacted violently, yelling at police, “Don’t’ fucking touch me c***”.
[59] Exhibit R3, No. 2, page 8; pages 62 to 63.
Further police assisted with restraining the Applicant, who continued to struggle and thrash about. The report further states that the Applicant had tried to kick open the door to the caged police truck when police were closing it, flinging it back wildly at police standing outside the vehicle. Police had to use force to close the door to the caged vehicle, with the report stating the Applicant continued to kick and push at the door to prevent it from being closed. It further states that when the Applicant was taken to the police station that, “Given her extreme hostility and threats to kill police no attempts to interview her were made”.
When this offending episode was put to the Applicant during the course of the hearing, she denied the events took place and did not believe she had done what was reported in the police report. The Applicant also stated that she was frustrated because she was sober and wanted to be tested by police to prove she was not intoxicated[60].
[60] Transcript (28 September 2021), page 39, lines 2 to 35.
The Applicant was under the age of eighteen years at the time of this offence and was convicted before the Childrens Court on 21 August 2017. She was sentenced to nine months’ probation for each of the following offences[61]:
(i)Wilfully obstruct officer in execution of duty-T2; and
(ii)Resist officer in execution of duty-T2.
October 2016
[61] Exhibit R1, G3, page 37.
A NSW police report outlines details of a further incident involving the Applicant and her mother[62]. The report states that on this occasion, the Applicant requested that her mother driver her to a doctor for her foot pain. The Applicant’s mother had refused to do so and it was reported that this was because the Applicant’s mother was of the belief that it was her own fault that she had hurt her foot and that she could take care of herself.
[62] Exhibit R3, No. 2, page 9; pages 60 to 61.
The report states the Applicant stated to her mother that she would smash up her house, and the Applicant proceeded with this threat. The Applicant used a shoe to smash a window in the hallway leading to upstairs. The report further states that the Applicant threw a tin of paint at family photos, smashed photo frames and stained the wall and carpet in the lounge room with the paint. It also states the Applicant pushed a 52-inch television screen off cabinetry, causing the screen to smash and a large portion of the side of the television to break. The report further states the Applicant went into to the kitchen of the home, threw a bag of potatoes through the dining room window causing it to smash, and threw a wooden cutting board through a kitchen window causing it to smash also.
The report states the Applicant’s mother asked her to cease destroying the home, the Applicant responded by re-entering the lounge room and using a high heel shoe to smash the front lounge room window. The Applicant’s mother and sister attempted to restrain the Applicant to stop her from destroying the home further. It is reported that whilst restrained, the Applicant made threats that she would stab her mother with a knife if she was able to break free.
The Applicant’s mother provided a statement and police observed the damage to the property. It is reported the Applicant caused a great deal of fear, stress, and emotional anguish to her mother and younger brother, who also resides at the residence, as her actions could have harmed him given a medical condition he suffers.
When the Applicant was questioned as to the reported incident, she stated that her actions were a, “cry for help”, as she wanted help from her mother. The Applicant accepted that the threats to stab her mother with a kitchen knife were serious threats. Further, the Applicant confirmed to the Tribunal that she was under the influence of prohibited drugs (methamphetamines) at the time[63].
[63] Transcript (28 September 2021), page 40, lines 25 to 45; page 41, lines 1 to 21.
The Applicant was under the age of eighteen years at the time of this offence and was convicted before the Childrens Court on 2 February 2017. She was sentenced to twelve months’ probation for each of the following offences[64]:
(i)Destroy or damage property;
(ii)Stalk/intimidate intend fear physical etc harm (domestic)-T2; and
(iii)Contravene prohibition/restriction in AVO (Domestic).
November 2016
[64] Exhibit R1, G3, page 37.
A NSW police report describes an incident where a Liquorland was robbed by a group of young people including the Applicant, who entered the store and took items and then ran away without paying. The report states that after trying to escape via a train platform, trains were stopped and the group of young persons were apprehended by police[65].
[65] Exhibit R3, No. 2, page 10; No. 3, pages 57 to 58.
During cross-examination, the Applicant confirmed that she had committed the offence and clarified that she had only done this once, stating that she did not participate in the earlier reported incident involving the theft of alcohol from a BWS. The Applicant stated she ran from police because that is what everyone else in the group had done[66].
[66] Transcript (28 September 2021), page 42, lines 7 to 23.
The Applicant was under the age of eighteen years at the time of this offence and was convicted before the Childrens Court on 21 August 2017. She was sentenced to six months’ probation for the offence of, shoplifting value <=$2000-T2[67].
September 2017
[67] Exhibit R1, G3, page 37.
A NSW police report describes an incident involving the Applicant sending threatening text messages to her mother, stating that, “I was born to dig my mother’s hole”. Shortly after, the report states the Applicant had called her mother and said, “Don't come home or I am going to stab you, don't come back to this house or I will stab you”, after which her mother had hung up. The Applicant then called again to say the same thing. Following this, a further text message was sent by the Applicant to her mother which said, “Call my dad and start talking shit best ur daugt [name redacted] will be 10 feet under buried alive”.
The report states that when the Applicant’s mother had arrived to her home, two of her friends had informed her that the Applicant was at the house and had smashed an ornament into the wall and that her son had self-harmed. The Applicant’s mother then asked her friends to leave and reversed out of the street and called an ambulance. The Applicant’s mother told police she was scared to go into the house in case the Applicant had a knife and would harm her, or her daughter.
The report states that when police arrived, they went to the front of the house, with the Applicant telling police that her brother had left the house with friends. The Applicant’s mother did not believe her and asked police to check upstairs. The police went upstairs to attend to the Applicant’s brother, and whilst this happened the Applicant is reported as stating to her mother, “I’m going to get you you b**** you caused all of this". The report states the Applicant had gone to get into friends’ car and the Applicant’s mother asked her to come and speak with police. Following this, it is reported that the Applicant started to chase her mother around the car about ten times. It is then reported that the Applicant stated to her mother, “I'm coming back tonight to get you you b****”. After this, it is reported the Applicant walked away from the location, with the Applicant’s mother also leaving.
The report goes on to state the Applicant’s mother returned home later and sighted the Applicant putting bags in her vehicle. Upon seeing this, the Applicant’s mother reversed her car and drove out of the street and called police. It is reported the Applicant left the location.
Later that evening it is reported that police arrived to obtain a video statement from the Applicant’s mother. During the interview, the Applicant’s mother stated that the Applicant had, on the previous evening, had a verbal argument with her and went into the kitchen and grabbed a knife and held it to a, “Young Person throat”, per the police report. The Applicant’s mother stated that she wrestled the Applicant off the young person, and the Applicant had sworn and walked outside.
The police report states the Applicant was interviewed and admitted to sending the text messages to her mother, but that it was done as a joke in the company of her brother. The Applicant further admitted to calling her mother twice and threatening to kill her, as well as throwing the ornament and causing damage. Further, the report states the Applicant admitted that, “she did grab a knife and hold it near her sister, but not near her head and she was holding it by the handle”[68].
[68] Exhibit R3, No. 2, page 50.
The Applicant recalled the incident and her sibling’s attempted self-harm when she was questioned during the course of cross-examination. The Applicant stated that she had called her mother for help as her brother had attempted self-harm. The Applicant denied holding a knife up to one of her family members and stated that she never fought the associated charges in Court. When questioned, the Applicant could not recall sending the text messages but agreed that she had sent messages of that nature in the past. The Applicant denied throwing an ornament into the wall and causing damage and stated that it was in fact her mother who had chased her around the car[69].
[69] Transcript (28 September 2021), page 47, lines 12 to 47; and page 48, lines 1 to 26.
The Applicant was eighteen years of age at the time of this offending and was convicted before a Local Court in October 2017 for destroy or damage property (DV) and was sentenced to a term of imprisonment of one month[70].
November 2018
[70] Exhibit R1, G3, page 36.
A NSW police report describes an incident between the Applicant and her mother which occurred in November 2018[71]. At the time the Applicant was the named person in a Domestic Violence Order (expiring in October 2019) which prevented her from assaulting or threatening harm, stalking, harassing, or intimidating, or intentionally or recklessly destroying or damaging the property of her mother. Further, the DVO also prevented the Applicant from having contact with her mother, except through a lawyer and prevented the Applicant from being within 100 meters of her mother.
[71] Exhibit R3, No. 2, pages 43 to 44.
The NSW police report states that the Applicant visited her mother’s home in November 2018 and was welcomed in without incident. The report states that the Applicant had consumed some alcohol and sometime later a dispute occurred between the Applicant and her mother. Due to the reported aggression and intoxication of the Applicant, her mother called police. Police arrived shortly after and sighted the Applicant who was aggressive in the driveway. When they attempted to speak to the Applicant, the Applicant shouted, “I'm not f***ing talking to you, I don’t know who you are”, which was captured on police body-worn video camera. Whilst police were speaking with the Applicant’s mother (who was reported to be reluctant to tell police what had transpired), the Applicant left the property. The report states the Applicant’s mother was not aware that a DVO was in place protecting her from the Applicant.
A short while later, the NSW police report states the Applicant returned and began shouting at the front door for her sister (who was also present in the home) to come down and, “fight” her. The Applicant’s mother told the Applicant to leave and she again called for the police. The report states that the Applicant walked around the back of the premises, still shouting, and proceeded to smash a toilet window, which was completely destroyed. The report states the Applicant apologised to her mother for smashing the window and then ran from the scene.
When the Applicant was questioned as to this reported incident, she stated that she recalled it and that she was in a bad state at the time as she had recently broken up with her partner. The Applicant stated she fled the scene as she did not want to be returned to criminal custody. When the Applicant was questioned as to why she had sought to fight her sister at the time, she stated that she felt that she was always trying to make her family happy and that her family never really understood her. She mentioned that she had been in and out of juvenile detention for situations she felt could have been handled better as a family and she felt that her sisters did not support her enough. The Applicant agreed with the Tribunal’s suggestion that the reported incidents being discussed, and the associated violence exhibited by the Applicant, were potential factors that marred the relationship she had with her sisters[72].
[72] Transcript (28 September 2021), page 49, lines 27 to 47; page 50, lines 1 to 25.
The Applicant was sentenced before a NSW Local Court in November 2018 and received an eighteen month community correction order for the following convictions[73]:
(i)Destroy or damage property (DV);
(ii)Contravene prohibition/restriction in AVO (Domestic); and
(iii)Contravene prohibition/restriction in AVO (Domestic).
March 2019
[73] Exhibit R1, G3, page 36; and Exhibit R3, pages 12 to 13; pages 43 to 44.
A NSW police report describes an incident involving the Applicant and her mother where the Applicant had returned to her mother’s home (observing that there was a DVO in place at the time)[74]. The report states the Applicant had been checking the content of boxes before placing them in the car and had noticed some items were missing at the time. Soon after, the Applicant began arguing with her mother.
[74] Exhibit R3, No. 2, pages 32 to 34.
The report states the Applicant’s mother had closed her front door and the Applicant approached. The report states the Applicant picked up a nearby ordainment from the front porch and began hitting the door and window, causing the flyscreen to break. The Applicant’s mother was afraid the Applicant would smash the window and moved the Applicant’s brother to a rear bedroom. The report states the Applicant’s mother then watched her go and pick up a pole left in the garden and strike the front bonnet and rear passenger side door of her mother’s work ute, causing damage. The report states the Applicant left in the other vehicle.
When the Applicant was questioned as to this offending episode, she stated that she had been living in a refuge at the time as she had recently broken up with her partner. She further stated she had allegedly received a large sum of compensation from a case she had won against police, the proceeds of which she used to buy a business that used to be owned by her father (the Tribunal observes that no corroborative evidence was submitted by the Applicant with respect to this compensation claim). The Applicant stated that she had left her property at her mother’s home given the conflict she had with her partner at the time and that upon seeking to get it back, her mother wouldn’t give it to her. The Applicant stated that her mother had done something like this to her previously and she felt that there was no way for her to retrieve her property. This situation had agitated her and caused her to react the way it did[75].
[75] Transcript (28 September 2021), page 51, lines 17 to 39.
The Applicant was sentenced before a NSW Local Court in August 2019 and received a term of imprisonment of seven months for each of the following offences[76]:
(i)Destroy or damage property (DV); and
(ii)Contravene prohibition/restriction in AVO (Domestic).
[76] Exhibit R1, G3, page 36; Exhibit R3, No. 2, pages 15 to 16; 33 to 34.
The Tribunal observes the sentencing remarks of their Honour before the NSW Local Court, who stated the following with respect to the Applicant’s offending[77]:
… I saw your juvenile record. You seem to be getting bonds which you just breached all the time. But no action was ever taken. There is old saying for Local Court, “You’re now playing first grade”, okay. When you are a juvenile the Court gives greater effect to the idea of rehabilitation because people are children and it is very important that resources are set to rehabilitate them before they turn into an adult criminal and much like yourself can spend some time behind bars. It would appear it did not deter you enough because you kept offending and even as an adult now you have spent over five months in custody.
One can understand why you were bail refused because you were a menace to your family quite frankly and you did not obey court orders…
… For the more recent breaches of AVO and damaging the property I take into account the pleas of guilty and you receive a discount for those. I am satisfied, particularly bearing in mind the repeated breaches of the AVOs that you showed a history of non-compliance and clearly any other penalties fail to deter you. So the level of leniency there is certainly limited. Also the damage that you again inflicted on this occasion to the motor vehicle and the screen door. Clearly you need to control your emotions far better than you have in the past…
[77] Exhibit R1, G5, page 58.
The Tribunal observes that at this sentencing episode, the Applicant’s offending in November 2018 was ‘called up’ as she had breached the terms of the previously-imposed community correction order The Applicant was again issued with an eighteen month community corrections order, commencing August 2019[78].
January 2019
[78] Exhibit R1, G3, page 35.
The offending of the Applicant which attracted the most serious sentence from judicial officers is that of robbery in company, which she was convicted of in July 2020 and received a term of imprisonment of eighteen months, with a non-parole period of nine months[79]. The Tribunal refers to the following extract from the sentencing remarks of their Honour in the District Court of NSW describing the offending involving the Applicant[80]:
… the victim in this matter was rostered to work from 3pm till midday that same day. One of the people that the victim works with is a co-offender and he knew the victim for about six months because they were friends outside of work. The co-offender asked the victim if he would like to hang out after work and asked if he would like to meet some girls. The offender [the Applicant], who lived at that time at [location redacted], met up with the victim at about 1.30am on that night. The offender sent a number of text message to the co-offender and the text messages disclosed that the offender intended to "run up on him", that is, the victim. The victim and the co-offender arrived at a location approximately at 2.34am. The victim parked his vehicle across the road from these premises.
At about that time, the offender in this matter sent a text message to the co-offender saying, amongst other things, that the co-offenders were coming, and they were waiting to steal items from the victim. The text messages disclose that the offender in this case was aware that the victim's wallet and likely his car, were going to be stolen from him. After about 30 minutes of talking between the victim, the co-offender and the offender, this offender left the house and told the victim that she was going for a walk. The victim stayed on the lounge with some other girls. CCTV footage showed this offender and other co-offenders walking past the shops nearby.
In due course, the co-offenders came into the house where the victim was and they forced him to take off his trousers, they punched him in the head, and they stole his mobile telephone and took the keys to his car, which was a Lexus. They also forced him to provide his internet banking so that he could enter his pin to his Westpac account. The offender walked back into the house, went up to the victim and slapped him across the head and said, "Give us all your stuff". The offender then talked to the victim as the three co-offenders left the house with the victim's mobile phone and car keys. A short time later those co-offenders came back to the house to ask the victim how to open the car and work his car alarm system, and the victim showed them how to do that.
Thereafter, the offender told the victim that it was not all over yet and that he was not allowed to leave, and that he would be further assaulted if he tried to leave the premises where he was being held. She told him that if he went to the cops that they would come and get him. The victim asked the offender where his car was and she told him that the co-offenders had gone for a joyride, and when they were done he could have his car back. Ultimately, the victim had to travel to [location redacted] train station with the offender to go and get his car back, after which the victim dropped off the offender to an address in [location redacted]. He then reported the matter to the police…
[Tribunal redactions and insertions]
[79] Ibid.
[80] Exhibit R1, G4, pages 42 to 56.
During the course of the hearing the Applicant was taken to the Draft Agreed Facts for this offence, which detailed the offending which the Applicant was convicted of[81]. The Tribunal observes that the Applicant sought to deny aspects of her offending in this incident, particularly with respect to slapping the victim across their head[82]. The Applicant stated that although she was legally represented in the proceedings, she believed the final version of the Draft Agreed Facts before the Tribunal was incorrect and insisted that she had signed an earlier version with a correction removing the fact that she had slapped the victim. The Applicant confirmed that she did not provide evidence of this correction to the Tribunal[83].
[81] Exhibit R3, No. 3, pages 215 to 224.
[82] Transcript (28 September 2021), page 56, lines 40 to 47.
[83] Ibid, page 57, lines 5 to 32.
The Applicant also denied telling the victim he was not allowed to leave, that he would be further assaulted if he tried to leave and that if he sought the assistance of the police, the other co-offenders would come after him. The Applicant stated that she had simply told the victim she did not know where his car was[84]. Although, in later cross-examination, she confirmed that she was concerned the victim would go to police and essentially, “dob her in”[85]. Further, the Applicant stated that when she had called one of the co-offenders, she was trying to return the victim’s belongings to them[86].
[84] Ibid, page 58, lines 1 to 13.
[85] Ibid, page 59, lines 46 to 47.
[86] Ibid, page 59, lines 16 to 17.
During cross-examination, the Applicant also sought to contextualise her actions in this episode of her offending by explaining to the Tribunal that she had witnessed her friend being sexually abused by the victim. Despite her intoxicated state at the time, the Applicant says she witnessed the victim of the offending do the following to her friend whilst they were in the car, “… rubbing her leg and that and trying to pull her in to give her a kiss and that but she was just, like, leaning at the door drunk and that, music, was laughing, and I just, I didn’t know what to do…”[87].
Signed Statutory Declaration of the Applicant (12 May 2021)
[87] Ibid, page 54, lines 12 to 14.
With the above in mind, the Tribunal does observe that should the Applicant be deported to New Zealand, she would have similar access to health care and rehabilitation services comparable to those available in Australia. The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[232], where Senior Member Kelly stated that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.
[232] [2016] AATA 301 at [101].
The Tribunal observes that the Applicant would not face any substantial language or cultural barriers should she be returned to New Zealand and would expect to receive social and economic support of a comparable standard to that of Australia.
The Tribunal accepts the Applicant’s concerns regarding her possible deportation to New Zealand, and the fears she holds from the past abuse she has suffered from her father and his criminal gang associations (again noting he was deported from Australia to New Zealand some time ago). With respect to these concerns the Tribunal observes the reasons of Deputy President Sosso, in VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[233]:
New Zealand is a prosperous modern democracy with a high standard of living and an ordered and civil society. It has an advanced social security regime which offers those in need support and guidance. It has a judicial system and law enforcement agencies of the same calibre and type as Australia. In short, the Applicant would have the same level of material and legal support in New Zealand as he would have in Australia. Indeed, as a citizen of New Zealand, he may receive even more support than he would receive in Australia as a non-citizen.
[233] [2020] AATA 649 (20 March 2020) at [352].
In view of the above reasons, the Tribunal finds this Other Consideration in paragraph 9.2 of the Direction is of a moderate weight in favour of the Applicant. However, the Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to this Other Consideration does not in any way outweigh the very heavy weight the Tribunal has attributed to Primary Considerations 1, 2 and 4.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to section 501CA of the Migration Act on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the impact of non-revocation on the victims of the Applicants offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is afforded neutral weight.
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which considers the strength, nature and duration of ties of the Applicant to Australia and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Tribunal observes that of the Applicant’s nine siblings, one of which has sadly passed on, whilst one of her siblings resides in New Zealand, leaving seven siblings who reside in Australia. The Tribunal notes the submissions of the Applicant and her mother with respect to managing a hereditary medical condition which some of her siblings suffer and the intellectual issues one of her siblings also suffers. The Tribunal accepts evidence from one of the Applicant’s siblings with respect to her having supported them in the past with medical treatment they have required[234].
[234] Exhibit R1, G15, page 156.
The Tribunal, in earlier reasons, has noted that the Applicant has resided in Australia for the predominant part of her life, with most of the Applicant’s immediate family (aside from a sibling and her father) all residing in Australia. Further, the Tribunal notes that some of her siblings have taken steps to become Australian citizens[235]. The Tribunal has also considered the oral and written submissions of the Applicant’s mother[236], in addition to the written letters of support from her siblings[237].
[235] Ibid, page 160.
[236] Ibid, pages 150 to 152; G21, page 231.
[237] Ibid, pages 153 to 156.
The Tribunal accepts that should the Applicant be deported, her immediate family who reside in Australia would face emotional hardship. The Tribunal notes the submissions of the Applicant’s mother who fears for her daughter should she be returned to New Zealand (the same country her father has been deported to), given the history of abuse which the Applicant and her family were subject to when he resided in Australia.
The Tribunal has made earlier findings with respect to the Applicant’s nieces and nephews and accepts that they too would suffer emotional hardship should the Applicant be deported to New Zealand.
The Tribunal has had regard to the impact of the decision regarding deportation of the Applicant with respect to her immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction is of a strong weight in favour of the Applicant remaining in Australia.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing 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.
The Tribunal, in earlier reasons, has observed the Applicant arrived in Australia as an infant and has spent the predominant part of her life residing here, having undertaken all her schooling in Australia and consequently forming strong ties.
The Tribunal accepts the Applicant’s criminal history did not commence until she was in her late teens and that this is a lengthy period of time after having arrived in Australia as an infant. Therefore, the Tribunal has not limited the weight afforded to the Applicant with respect to the application of sub-paragraph 9.4.1(2)(a)(i) of the Direction.
The Tribunal has, in earlier reasons, reflected on the Applicant’s positive contribution to the Australian community through her schooling and sporting endeavours and associated activities, in addition to her employment[238].
[238] Exhibit R1, G16, page 157; pages 161 to 167.
The Tribunal is of the view that overall, a moderate measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a) of the Direction. This is on the basis of the Applicant’s strong ties to Australia having arrived in Australia as an infant (affording the Applicant a higher tolerance with respect to her offending history) and is supported to an extent by her contributions to the community through her school, sporting endeavours and employment.
Sub-paragraph 9.4.1(2)(b) of the Direction states that decision makers must have regard to the strength, duration and nature of any family or social links the non-citizen may have with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia.
With respect to the application of sub-paragraph 9.4.1(2)(b), the Tribunal accepts that the Applicant has formed close relationships through her associations from schooling and sporting endeavours, church groups and that her friendships and associations have been formed in Australia. The Tribunal accepts the Applicant has an offer for employment should she be allowed to remain in Australia[239].
[239] Ibid, page 157.
Additionally, the Tribunal accepts that the majority of the Applicant’s family now reside in Australia, with the Applicant indicating she has “10+” uncles and aunts, “4+” nieces and nephews, “20+” cousins and one grandparent who all reside in Australia[240].
[240] Exhibit R1, G12, page 89.
The Tribunal accepts that the Applicant’s immediate and extended family and friends would suffer emotional hardship should the Applicant be deported.
In applying sub-paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and social links and is of the view that this attracts a strong measure of weight in favour of the Applicant being allowed to remain in Australia.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs strongly in favour of revocation, such that the Applicant be allowed to remain in Australia. However, the Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to this Other Consideration does not in any way outweigh the very heavy weight the Tribunal has attributed to Primary Considerations 1, 2 and 4.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project, or delivery of an important service in Australia.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations: not engaged in relation to the Applicant;
(b)Extent of impediments if removed: a moderate measure of weight is attributable to in favour of revocation;
(c)Impact on victims: is of neutral weight; and
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia: a strong measure of weight in favour of revocation; and
(ii)Impact on Australian business interests: is of no weight, as this is not relevant to the factual circumstances of the Applicant.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory visa cancellation decision, they are outweighed by the very heavy and determinative weight the Tribunal has afforded Primary Considerations 1, 2 and 4.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to section 501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Migration Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and made the following findings:
(i)Primary Consideration 1 weighs very heavily in favour of non-revocation;
(ii)Primary Consideration 2 very heavily in favour of non-revocation;
(iii)Primary Consideration 3 weighs moderately in favour of revocation; and
(iv)Primary Consideration 4 weighs very heavily in favour of non-revocation.
The Tribunal is of the view that, to the extent that any of the Other Considerations (pursuant to paragraphs 9 to 9.4.2 of the Direction) weigh in favour of revocation of the mandatory visa cancellation decision, even when combined with each other and Primary Consideration 3, they do not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Considerations 1, 2, and 4.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion under section 501CA(4) of the Migration Act to revoke the cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 22 July 2021, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 284 (two-hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
..........[SGD]...................................
Associate
Dated: 14 October 2021
Dates of hearing:
28th, 29th and 30th September, 2021
Applicant:
Solicitor for the Applicant:
FFXL
Mr Sam Issa
Firmstone & Associates
Solicitor for the Respondent:
Ms Kate Gawdiziel
Australian Government Solicitor
Exhibit Number
Description of Exhibit
Party
Date of Document
Date of Receipt
R1
Section 501 G Documents (pages 1 to 272)
R
–
06 August 2021
R2
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 20); Annexure A (pages 1 to 3)
R
15 September 2021
15 September 2021
R3
Respondent Tender Bundle – Summonsed Material (pages 1 to 600)
R
15 September 2021
15 September 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 7)
A
02 September 2021
02 September 2021
A2
Psychiatrist Report (pages 1 to 6 – CV) (pages 1 to 11 – Report)
A
30 August 2021
02 September 2021
T1
Tribunal Direction
–
04 August 2021
–
T2
Tribunal Direction
–
06 September 2021
–
T3
Tribunal Order – Confidentiality Section 35(2)
–
20 September 2021
–
ANNEXURE 1 – EXHIBIT REGISTER
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12
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