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

[2022] AATA 1502

FMBT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1502 (7 June 2022)

Division:GENERAL DIVISION

File Number(s):       2022/1731

Re:FMBT  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:   7 June 2022

Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 18 MAY 2022 NAMELY:

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision made by the delegate of the Respondent dated 22 February 2022 not to revoke the mandatory cancellation of the Applicant’s visa, and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.

..............[Sgnd]...................................
Senior Member B J Illingworth

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – serious criminal record - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – Decision under review is set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member B J Illingworth

7 June 2022

INTRODUCTION

1. On 3 March 2022, the Applicant filed an application to review the decision of the delegate of the Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (the Respondent) dated 22 February 2022 to not revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (the visa) pursuant to subsection 500CA (4) of the Migration Act 1958 (Cth) (the Act).

2. In the Statement of Reasons for Decision under s 501CA of the Act dated 22 February 2022,[1] the delegate referred to the offending that enlivened the visa cancellation under s 501(3A) of the Act as, “The National Criminal History Check report dated 10 August 2021 indicates that on 19 May 2021, [the Applicant] was convicted in the District Court of Queensland of wound with intent to cause grievous bodily harm – the domestic violence offence, for which she was sentenced to 4 years imprisonment.”

   [1] Exhibit A, attachment G5, pages 19-36, page 19.

3. At the hearing, the Applicant was represented by Ms Marta Mamarot of Southwest Migration & Legal Services and the Respondent was represented by Ms Abby Tinlin of Minter Ellison. The Applicant gave evidence by video from Villawood detention centre. The Applicant’s mother and two sisters provided unsigned statutory declarations and gave evidence by telephone. They affirmed the contents of their respective statutory declarations to be true. Clinical and Forensic Psychologist Dr Kwok provided a report dated 25 April 2022 and gave evidence by telephone.

4. The Tribunal received into evidence various documents filed in the Tribunal contained within the G documents,[2] Supplementary G documents (volume 1),[3] Supplementary G documents (volume 2),[4] together with the documents tendered during the hearing, namely the Applicant’s Tender Bundle,[5] and Attachment A to the NDIS plan of the Applicant’s son.[6]

   [2] Exhibit A.

   [3] Exhibit B.

   [4] Exhibit C.

   [5] Exhibit D.

   [6] Exhibit E.

   BACKGROUND

5. The Applicant was born in New Zealand in September 1980. She is a citizen of that country. She is currently 41 years of age. She arrived in Australia on 15 April 1988 aged seven years,[7] with her mother and two older half-sisters.[8] 

   [7] Exhibit A – Movement History, page 195.

   [8] Exhibit A – Personal Circumstances Form, pages 79-93, at page 82.

6. The Applicant’s parents had been in a de facto relationship while in New Zealand, however they had been separated for some time prior to the Applicant’s arrival in Australia. The Applicant’s father remained in New Zealand. Prior to the Applicant’s arrival to Australia, the Applicant’s mother commenced a new relationship. Her new partner also relocated to Australia. This relationship ended approximately two years later.

7. The Applicant enjoyed a happy childhood while in New Zealand and initially in Australia, however she started to misbehave. The Applicant missed her father and in January 1994 aged approximately 13 years, she returned to New Zealand on a temporary basis to live with her father for 12 months. In February 1995, the Applicant’s father returned her unaccompanied to Australia and without notifying her mother of her return. The Applicant has had no further contact with her father since her return to Australia, except for a telephone call following the death of the Applicant’s daughter in 2014.

8. Upon her return to Australia, the Applicant’s mother had commenced a new relationship. The Applicant said she did not feel welcome and did not want to reside in her mother’s house. About three days after her return, the Applicant stole money from her sister, and as a result, her mother sought help from the Department of Family Services. The Applicant was put into 28 days emergency care and was subsequently made a ward of the State until she was 18 years of age.

9. In 1995, the Applicant was placed in foster care where she remained for approximately 10 months. In the last 3 to 4 months of foster care, she was sexually and emotionally abused by the foster carer’s son-in-law who was in his late 30s. One morning before school, she ran away and never returned to the foster home. She was 15 years of age.

10. The Applicant travelled to Perth where, at age 17 years, she conceived her first child, a daughter TW who was born in July 1998.[9] The Applicant and TW lived together in Perth until the Applicant turned 18 years of age. The Applicant then returned to Queensland with TW. The Applicant said in evidence that she did not return to Queensland earlier because she feared she may be returned to foster care and be at risk of further abuse. The Tribunal accepts the Applicant’s evidence, including that she was sexually abused in foster care, which was unchallenged.

    [9] See Change of Name Certificate, exhibit A, attachment G24, page 169.

11. TW lived with the Applicant until she was approximately 3 to 4 years of age. By then, the Applicant was in new but violent relationship and to protect TW, she delivered TW to her mother (TW’s grandmother), who then cared for her. When TW was approximately 13 to 14 years of age, she returned to the Applicant’s care. TW was the victim of bullying at school and committed suicide in November 2014. TW was 16 years of age.[10] The Applicant found TW who had hung herself from the backyard clothesline. This incident had a significant effect on the Applicant.

    [10] Exhibit A, attachment G24.d.

12. The Applicant’s second child, a son LW, was born in August 2001 when the Applicant was 20 years of age. He was placed for adoption and the Applicant has had no contact with him since birth. He is now an adult.

13. The Applicant’s third child, a son T, was born in May 2009. The Applicant did not have a long-term relationship with T’s father but he would see T from time to time. In 2016, when T was 7 years of age, the father failed to return T to the Applicant’s care, following an access visit. T then remained in the care of his father and his girlfriend. Court proceedings were issued, and the Applicant was granted regular access to T. After 6 months, the father was imprisoned, and in the absence of court orders in relation to the arrangements for T, the Child Safety Department permitted T to remain in the care of the father’s girlfriend. After 3 months, T was placed in foster care. The Applicant said in evidence that T had been abused when T was in the care of his father the girlfriend.  

14. The Applicant has maintained regular contact with T. During the 9 months that T was in the care of the father and or his girlfriend, she initially saw T for 2 hours per fortnight until court proceedings were initiated. Contact then progressed to once a week and later twice a week and each alternate weekend. In the 8-month period before July 2020 when the Applicant was last taken into custody, she had access twice a week and every second weekend.

15. Since being in prison and immigration detention, the Applicant has maintained regular contact with T by telephone and video calls. The Applicant’s mother then had the care of T three weekends a month and the Applicant has maintained regular video calls with T. The Applicant said that she has a good relationship with T’s foster parents, and she can ring and speak to T at any time, which she does regularly. I accept that evidence.

16. The Applicant said that T had learning difficulties at school and the Applicant pressed for him to be assessed. T was diagnosed with ADHD and autism. The Applicant sought assistance for T, and he was approved as a participant in the National Disability Insurance Scheme (NDIS) with support directed to his schooling and home needs.

17. The Applicant said that T continues to reside in foster care but now spends each weekend with the Applicant’s mother. The Applicant’s sisters will see him on weekends from time to time.

    ISSUES

18. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides that:

    4. The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)that the person passes the character test (as defined by section 501); or

    (ii)that there is another reason why the original decision should be revoked.

19. The Tribunal is satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal namely (a) whether the Applicant passes the character test; and (b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

20. It is conceded by the Applicant that she does not pass the character test. I am satisfied that having regard to the conviction and sentence imposed by the District Court of Queensland on 19 May 2021, that the Applicant does not pass the character test. She has “a substantial criminal record”, within the meaning of paragraph 501(7)(c) of the Act and therefore does not pass the character test on account of paragraph 501(6)(a) of the Act.

21. The Applicant cannot rely on s 501(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s 501CA(4)(b)(ii) of the Act, there is another reason why the original decision should be revoked.

22. When considering the exercise of the discretion in s 501CA(4) of the Act, the Tribunal is bound by subsection 499 (2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies.[11]

    [11] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.

23. In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:

    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.

    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.

    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.

    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.

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

24. Paragraph 6 of the Direction provides that:

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

25. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:

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

    (2)whether the conduct engaged in constituted family violence;

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

    (4)expectations of the Australian community.

26. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. 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:

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

    (iv)impact on Australian business interests.

27. I will now deal with each of those Primary and Other Considerations in turn.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

28. Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

29. Paragraph 8.1(2) of the direction requires decision-makers give consideration to:

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

    (b)  the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    I will deal with each of those considerations in turn.

    The Nature and Seriousness of the Applicant’s Conduct to Date

30. Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.

31. The Applicant has a lengthy history of criminal offending.[12] Her antecedent history indicates she was first dealt with in the Ipswich Magistrates Court on 18 April 2002 and was convicted for breach of bail undertaking. It is accepted that this was an offence committed in 1995 when the Applicant was a child.  On 8 November 2002, when the Applicant was an adult, she was dealt with for various offences of dishonesty for which no conviction was recorded, and she was ordered to perform 100 hours of community service.

    [12] See Antecedent Criminal History Report, Exhibit A, attachment G6, pages 37-45.

32. Thereafter, the Applicant regularly appeared before various courts including for offences of dishonesty, violence, domestic violence, wilful damage, unlawful possession, drug related offences, breach of bail, and breach of suspended sentence conditions. She received the benefit of a range of sentencing options including without conviction, fine, suspended sentences, bonds, intensive drug rehabilitation order, together with sentences of imprisonment to be served.

33. On 19 May 2021, the Applicant was dealt with for wounding with intent to cause grievous bodily harm – domestic violence offence, and was sentenced to four years imprisonment. This was the offence to which the delegate referred as giving rise to the mandatory cancellation of the Applicant’s visa.

34. That same day, the Applicant was also dealt with for contravention of domestic violence order (aggravated offence) and was sentenced to one year imprisonment to be served concurrently with the sentence of four years imprisonment. I note that the Learned Sentencing Judge ordered that time spent in custody pending sentence, namely 221 days, was deemed to be time already served and that the Applicant was given a release date that same day. That meant that the Applicant was immediately eligible for parole on and from 19 May 2021.

35. On 29 June 2021, the Applicant was dealt with for a number of offences of dishonesty, drug related offences and violence. She was sentenced to imprisonment with a parole eligibility date of 29 June 2021.

36. The Respondent rightly observed that the Applicant’s criminal behaviour has been a financial burden on the Australian community. Albeit there were periods of time when the Applicant was not before the courts including 2005, 2009, 2017 and 2019, her offending has been significant and by virtue of the sheer number of offences, her offending was serious.

37. Much of the Applicant’s criminal offending when viewed individually could best be described as petty crime or street offences. She said in evidence and I accept that over the period of her offending she was, from time to time, using drugs including “speed” and methylamphetamine and she offended to finance her drug habit. There were other periods of time when she was abstaining from drug use but still offended. The Applicant said that this was in response to periods of stress and distress when she would lash out and offend, or because she was in financial difficulty living on Centrelink payments and was trying to meet accommodation and living expenses for herself and her two children TW and T.

    Overview of offending

1. Counsel for the Respondent took the Applicant through a number of her criminal convictions. Without referring to each and by way of general overview, on 7 June 2007, the Applicant was dealt with the various offences including breach of bail. She said this time she was “hanging out with the wrong people” and started using drugs regularly. She said it was as if she did not care.  She was using “speed” and she offended at or about this time to pay for a habit which was costing her about $200 day. There were a number offences at about this time and including 2008 that she could not recall.

2. On 4 February 2010, the Applicant was dealt with for a large number of dishonesty offences. The Applicant said that she agreed with the allegations contained within the Police Court Brief[13] and explained that at the time of the offending, she was on the Drug Court Rehabilitation Program. At the time, she was not using drugs but was struggling financially and instead of putting items on lay-by she stole certain items.

   [13] Exhibit B, Supplementary G Documents Police Court Brief, pages 248-249.

3. On 30 May 2012 she was dealt with for having stolen nappies. She said that she had been abstaining from drug use following the birth of T in 2008 but this was a time she was struggling financially. Another example is the dishonesty offence for which she was dealt with on 20 June 2012. She stole a bottle of Nurofen for children, from a chemist shop.

4. On 9 May 2013, the Applicant was again dealt with for a number of offences of dishonesty. In January 2013, she stole a computer from JB Hi-Fi.[14] The Applicant explained that this was a time when she suffered a drug relapse and was regularly in the company of a gentleman who was an old friend and a drug user. She was using methylamphetamine. One such offence was on 17 January 2013. She stole a telephone from an Optus store and on 21 January 2013, she tried to pawn an Apple telephone and signed a loan agreement warranting that she was the owner of the telephone. She said these offences were committed to get cash to feed her drug habit.

   [14] Exhibit B, Supplementary G Documents, Police Court Brief, page 218.

5. On 30 April 2015, the Applicant was dealt with for offences committed on 29 April 2015[15] when she attended a sports store and stole items of clothing and sports shoes. The Applicant explained that albeit she does not clearly remember the offending, she believed the items must have been for her son T. This offending occurred not long after her daughter’s death in November 2014. This was when the Applicant was still struggling to deal with her passing of her daughter. Initially, she coped but when she was required to move house, she had a “breakdown” and was having difficulty in the day-to-day care of her son T.

   [15] Exhibit B, Supplementary G Documents, Police Court Brief, page 190.

6. The Applicant explained that albeit she had finished the Drug Court Program by the time of this offending, the counselling did not minimise the offending because the program targeted the drug habit and not the criminal behaviour. It was focused on being drug-free and mending relationships. Some of her offending was not the consequence of using drugs but occurred in stressful situations where she found herself lashing out in a negative way. She described by way of example, T’s father not being home for a number of days, and she would self-sabotage by going to a shop and committing an offence and then face new criminal charges.

7. The Applicant was cross-examined about various offences of violence and in particular, domestic violence. On 11 January 2018, the Applicant was dealt with for contravention of a domestic violence order, which occurred on 17 September 2016. She was also dealt with for a number of other offences including drug offences that occurred in 2016 and 2017.

8. The circumstances of the contravention offence were contained in the Police Court Brief[16] which were put to the Applicant. She agreed the record was accurate. Relevantly, a domestic violence order dated 15 August 2016 was in place, which included conditions that the Applicant be of good behaviour towards Ms X and not commit domestic violence towards her. On 17 September 2016, Ms X had attended the Applicant’s home. They had a loud argument heard by neighbours. The Applicant and X left the property via the front gate. Ms X turned around and was yelling at the Applicant. Ms X tripped and fell. The Applicant ran up to her and struck her in the head three to four times. The Applicant then returned to her home. Ms X laid on the ground for about one minute before getting up and leaving.

   [16] Exhibit B, Supplementary G Documents Police Court Brief, page 178.

9. The Applicant said that Ms X was a friend whom she had known for a number of years. She was a drug addict. The Applicant had allowed Ms X to stay at her home in June or July 2016 because she felt sorry for her. The Applicant said she (the Applicant) was mentally vulnerable at the time. Ms X had been to jail for stalking. After 2 to 3 days, Ms X refused to leave the Applicant’s home. Ms X became obsessed with the Applicant and would stalk her. Police had been called to the house on a number of occasions. Ms X would come to the Applicant’s house and hide from the Applicant. On one occasion, she found Ms X hiding under the floorboards of her house.

10. The offence occurred on the occasion of the Applicant’s sister’s birthday and the family were due to arrive for a celebration. Ms X was refusing to leave the Applicant’s home, which was the subject of the argument in the front yard of the Applicant’s home. The Applicant was yelling at Ms X “to leave and keep going”.

11. The Applicant said she did not condone what she did, but she had been pushed and pushed by Ms X. Police had been to her home on a number of occasions and nothing had happened. The Applicant said she just wanted to be left alone and on this occasion, she reached her breaking point and struck Ms X.

12. The Applicant was referred to another breach of the same DVO involving Ms X, which occurred on 17 February 2017. The Applicant was referred to the Police Court Brief. The Applicant in evidence said that this incident again occurred at her home. She left the property, shut the front gate and as she walked down the street, Ms X came from a side street. The Applicant said she asked Ms X to leave her alone. Ms X made an offensive comment. They had a physical altercation. Ms X fell through a brick wall that had already collapsed. When police arrived both women had left the scene. The Applicant said she did not seek out Ms X, rather “she came to my house”. As a result of that incident, the Applicant was unable to have her son T at her house that day as planned. 

13. The Tribunal accepts the Applicant’s evidence about her offender history. She was honest and reliable and did not seek to minimise her culpability. She has good insight into her offending and that inappropriateness of her behaviour, particularly her violent offending and domestic violence offences.

14. The Applicant was asked about the conviction of wounding with intent to cause grievous bodily harm for which she was sentenced on 19 May 2021 to 4 years imprisonment. There were some discrepancies in her evidence compared with the agreed statement of facts presented to the sentencing court and consequently the basis upon which the Applicant was sentenced. It is not a function of the Tribunal to go behind the factual basis for the sentencing of the Applicant. The agreed facts can be briefly summarised as follows:[17]

    ·The Applicant and Mr NC were in a de facto relationship for approximately seven months prior to the offending;

    ·On 27 July 2020, a mutual protection order was made between the Applicant and Mr NC

    ·On 26 September 2020 Mr NC was at the Applicant’s house. An argument ensued which escalated, and Mr NC went to the bedroom to collect his clothes and leave the house;

    ·The Applicant followed Mr NC into the bedroom, “went crazy and produced a knife and came at” Mr NC;

    ·Mr NC tried to resist and was stabbed in the chest and arm. He did not initially feel the injury but realised he was bleeding.

    ·Mr NC was taken to hospital with a 10 – 15 cm laceration to his upper left arm which was closed with sutures; he received a “1/5 – 2cm penetrating injury to his chest which caused a pneumothorax, namely a small segment of the lung to collapse but with no respiratory embarrassment.

    [17] Exhibit B, supplementary G Documents, S23, volume 1, pages 324-329.

15. The Applicant said that during the relationship both she and Mr NC had been using drugs, in particular, smoking “dope” and “ice”. The relationship was all right in the beginning, but Mr NC became violent and mentally abusive. On one occasion he struck the Applicant giving her a black eye. His parents spoke to him about the incident and his treatment of women. He became jealous, and demanding the Applicant spend time with him. It was against that background that this incident occurred. The Applicant regrets what happened. I accept the Applicant’s evidence about her relationship with Mr NC.

16. The Applicant was taken into custody where she remained for 221 days (seven months and one week) until sentenced. The Learned Sentencing Judge had regard to the Applicant’s early plea, and her attempt at rehabilitation. His Honour noted that she seemed to have responded well in prison and referred to courses that she had undertaken. She worked both in the workshop and as a cleaner in the prison. Further, he noted the Applicant herself was the subject of domestic violence, the subject offending was not a considered act, but was entirely spontaneous and that she demonstrated significant remorse. His Honour ordered that the Applicant be immediately eligible for parole.

17. In having regard to the seriousness of the offence, I also note that the Applicant received a warning dated 19 November 2014 which she received on 24 November 2014.[18] I note that this was approximately one week after her daughter committed suicide and at a time when the Applicant was very distressed and depressed and that at the time, she did not proper regard to the warning. I accept that explanation.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    [18] Exhibit A, attachment G27, pages 191-193.

18. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

19. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

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

20. The nature of the Applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.

21. The Applicant’s offending is directly related to her personal circumstances, including being sexually abused when she was in the care of the Government and placed in foster care, life’s difficulties that followed, including living in Perth in fear that should she may be returned to foster care if she returned to Queensland before turning 18 years of age, the birth of TW when in Perth, the tragic suicide of TW, her inability to cope with life’s stressors and financial difficulties, drug use and involvement in violent and abusive relationships generally, and her inappropriate response to violence directed at her.

22. The Applicant was a recidivist offender, and her offending escalated such that she has, more recently, reacted violently when threatened or abused. However, as observed by the Learned Sentencing Judge, the Applicant has engaged in treatment and self-improvement programs when in prison. The Tribunal notes that the Applicant has also voluntarily pursued similar learning whilst in immigration detention. She has received a significant number of certificates and has provided records of Queensland Correctional Services which attest to the efforts she has made to better herself and provide a foundation for the future.[19]

    Dr Emily Kwok – Forensic and Clinical Psychologist[20]

    [19] Exhibit A, G25, pages 171-187.

    [20] Exhibit D, Applicant’s Tender Bundle, pages 12-22 and Curriculum Vitae, pages 23-24.

23. The Tribunal was assisted by a very detailed report from Dr Kwok dated 25 April 22, together with her oral evidence. The history given to Dr Kwok by the Applicant was consistent with the evidence before the Tribunal. That history included the Applicant’s early life, sexual abuse in foster care resulting in her moving to Perth, violent relationships including the conviction of wounding with intent to cause grievous bodily harm – domestic violence offence which occurred in the context of a violent relationship. Dr Kwok described that relationship as toxic and abusive both mentally and physically.

24. Dr Kwok observed that the supporting materials she received, including the sentencing remarks of a Magistrate on 11 June 2015,[21] which stated that the Applicant “had a long-term heroin addiction but had substituted amphetamine with heroin after her daughter committed suicide”, indicated that the Applicant’s drug use was more problematic than she reported in the interview.

    [21] Exhibit A, G10, pages 55-56.

25. That observation is consistent with the Tribunal’s impression of the Applicant’s drug use having regard to the evidence.  An example includes the Applicant’s evidence that prior to her daughter’s death she had been abstaining from drug use for some time and relapsed on only one occasion after her daughter died, when she used methylamphetamine. However, the Applicant said that she did not have proper regard to the formal warning given to her which was received not long after her daughter’s death at a time she was distressed, depressed and using drugs, which I infer was not an isolated occasion.

26. The Applicant reported to Dr Kwok that when aged 24 years, she was diagnosed with depression, and at 28 years was diagnosed with post-traumatic stress disorder and attended sexual health counselling when in jail.

27. The Applicant’s reported history in relation to her children TW and T was also consistent with her evidence before the Tribunal.

28. In terms of a psychological assessment, Dr Kwok opined that the Applicant was not currently experiencing any psychological distress or symptoms and that she is, in the words of the Applicant, coping as well as she could. She does experience difficulty sleeping and during the day, she undertakes online courses on child psychology, relationship counselling, understanding children’s emotions, and parenting skills training. She has conducted research on ADHD so that she has a better understanding of her son T, should he be returned to her care.

29. The psychometric assessment which was a point in time psychological symptoms assessment was generally unremarkable. Her depressive symptoms were above average but not clinically noteworthy.

30. In considering the likelihood of reoffending, Dr Kwok noted the Applicant’s extensive history of non-violent offending, which, to a large extent was to support her drug habit. Dr Kwok opined at [42]:

    “Her likelihood of reoffending will, therefore, be dependent on her ability to address her substance abuse problem. At the time of assessment it appeared that [the Applicant] had minimised her drug use or she had avoided speaking about it. I take into consideration that [the Applicant] may have been motivated to engage in positive impression management. In other words, she may be aware of her problematic drug use but she wants to appear more socially acceptable and less symptomatic for the purpose of this assessment.”

    Dr Kwok noted the Applicant had been referred to a drug court program which suggest she has some understanding of her problem and that she has previously attempted to stop using drugs on multiple occasions. She left a relationship in order to achieve this outcome. Dr Kwok then said:

    “I am satisfied that [the Applicant] does not want to live a lifestyle that involves illicit drug and alcohol use. If [the Applicant] is permitted to stay in Australia, I would recommend that she recommences drug and alcohol counselling for the purpose of relapse prevention and finding alternative methods to cope with her life stressors. Without this support and intervention, her history indicates that she will likely relapse, and she will be a moderate risk of reoffending.”

31. In respect of offences of violence Dr Kwok said at [43]:

    [The Applicant] does not have an extensive pattern of violent behaviours or anger disposition. Her history of domestically violent behaviour is recent and mainly in the context of abusive relationships. Within these relationships, she demonstrated reactivity and poor emotional regulation. In situations of high stress with dysfunctional relationships, she had failed to exercise problem-solving and consequential thinking, which had resulted in a domestic violence order against her as well as multiple convictions. [The Applicant] would require psychological therapy that focuses on modifying cognition that underlines her violent and aggressive behaviour, anger management in stressful situations and education on how to respond to abusive relationships”.

    Dr Kwok said the Applicant would benefit from community-based family relationship support to help her to leave abusive relationships before she reacts in a similar manner as before. She then reported:

    “One of the positive factors for [the Applicant] is that she denied any interest in returning to the abusive relationships. She also said that she had attended a free online course on relationship counselling whilst in detention which suggests that she recognises her need of help in this area…… Overall, as [the Applicant] does not have an extensive history of violence within relationships and she appears willing to seek help I am of the opinion that she has a low risk of further domestically violent offending.”

32. Dr Kwok opined that the Applicant would benefit from in-person treatment and counselling should she return to the community and not merely the online counselling she has pursued given her limitation being in immigration detention.

33. Dr Kwok said that it is critical that the Applicant maintain a connection with community-based family services for relationship counselling and support, and that she abstains from drug use which has contributed to problems in prior relationships.

34. Dr Kwok in evidence said that the Applicant had tried to abstain from drug and alcohol use in the past which demonstrated insight into her condition and that she would need further support and counselling in the future. The courses she has undertaken are an effective start in building support and if she returns to the community, she needs to seek support. The Applicant has also demonstrated abstinence from drug use during the period she has been in custody and immigration detention which is further indicative of her insight and that she is now a moderate risk in returning to drug use and reoffending.

1. Dr Kwok opined that the Applicant has unresolved trauma in relation to her sexual abuse, foster care, domestic violence and loss of her daughter. Her daughter’s death had been a major stressor in her life.

2. In evidence the Tribunal referred Dr Kwok to the Applicant evidence about her childhood, her arrival in Australia as a 7-year-old child, her returned to New Zealand then back to Australia; her placement in foster care and the sexual abuse; that she ran away to Perth; there gave birth to TW when she was 17 years of age; and remained in Perth until 18 years of age out of fear of returning to Queensland and being put in foster care. The Tribunal asked if that history is accepted, what impact that had upon the Applicant and events demonstrated in her personal history.   Dr Kwok said that the Applicant became distressed when speaking about her sexual abuse in foster care, and it was difficult to discuss that history, but she opined that there was a relationship between that event and later life psychological problems including PTSD. Further, there was a higher risk that she would suffer from depression and antisocial behaviour. Dr Kwok opined that there was certainly an impact which was demonstrated in her presentation and adult life history. That history as described, would put a young person at higher risk of engaging in antisocial behaviour, of substance abuse problems and also finding oneself in problematic relationships because of her early life history. It placed her at risk of not having secure attachments, which would mean the Applicant would find herself in and out of relationships or in dysfunctional relationships. That pattern was found throughout the Applicant’s life and despite her endeavours to change these patterns, they are hard to change without professional intervention.

3. Dr Kwok opined that the Applicant had unresolved trauma as a consequence of the sexual assault in foster care and loss of her daughter, and that it was important that she address these and other emotional needs.

   Mrs AI – the Applicant’s mother

4. Mrs AI provided an unsigned statutory declaration[22] and gave oral evidence. She corroborated the Applicant’s evidence and her general life history.

   [22] Exhibit D, Applicant’s Tender Bundle, pages 25-30.

5. Mrs AI said that she had been aware of the Applicant’s drug use and had previously raised it with her. She asked the Applicant to get help and the Applicant tried to do so.

6. Mrs AI referred to the Applicant’s offences of domestic violence. As to the offence involving the stabbing of her former partner, she acknowledged that this was a serious offence but said that the Applicant’s partner had been abusive towards the Applicant and that she had an apprehended violence order (AVO) issued against him as a result his violence. She had never known the Applicant to be violent nor demonstrate violence towards anyone.

7. As to the violent altercations involving Ms X, she described Ms X as a person who suffered serious mental health and behaviour issues and that police had placed an AVO against Ms X to ensure the Applicant’s safety which order remains current. She said that Ms X had stalked the Applicant for the last six years and that the Applicant does not want any further contact with her. Nonetheless, Ms X continues to try and contact the Applicant.

8. Mrs AI said that the Applicant will receive support in the future and that she will always be available to her to talk through any issue and to make good life choices. She and the family will support her to ensure she does not reoffend.

9. The Applicant will live with her sister, Ms SF, whom Mrs AI said will be a good supportive person for the Applicant. The Applicant and her sister have a good relationship.

10. Mrs AI described the Applicant’s visa cancellation as a huge wake-up call and has given her time to reflect on her poor choices and behaviour. The Applicant wants to return to her son and family. The Applicant’s family will all embrace her return and will provide her with support for the future.

    Ms SF – the Applicant’s sister

11. Ms SF is the Applicant’s sister who provided an unsigned statutory declaration[23] and gave evidence before the Tribunal. Her evidence was also consistent with that of the Applicant particularly in terms of their family relationship. Ms SF has a daughter who is 21 years of age and another daughter, H who is 11 years of age and lives with her. H is very close to the Applicant and T.

    [23] Exhibit D, Applicant’s Tender Bundle, pages 35-36.

12. Ms SF confirmed the Applicant’s remorse for her offending. She knew the Applicant used drugs but never saw her do so. She confirmed that if the Applicant is released back into the community, it is the intention that the Applicant will live with her and H. Ms SF lives in a three-bedroom apartment and there is a spare bedroom ready for the Applicant to move into. Ms SF said she is very close to the Applicant and will always be there for her and support her financially and emotionally.

13. Ms SF was aware that the Applicant was the victim of domestic violence and she would stay with Ms SF from time to time to remove herself from that environment. She referred to the Applicant’s former partner who was the victim of the stabbing offence. She said he attended the Applicant’s home following their separation and he was harassing her. The Applicant tried to obtain alternative housing but was unsuccessful and she offered the Applicant her residence as a place to stay. They lived approximately five minutes apart from each other and would see each other regularly.

14. Ms SF believes that she will be able to be a positive influence on the Applicant and prevent her from committing further crimes. Living together will be good for the Applicant and Ms SF will be able to drive her to any appointments as required. Ms SF is currently a member of the Salvation Army and can reach out to the Salvation Army for extra help. She said the Salvation Army will be an organisation to lean on for that help which includes providing a study allowance should the Applicant return to further studies.

    Ms CP – the Applicant’s eldest sister

15. Ms CP provided a statutory declaration[24] and gave oral evidence before the Tribunal.

    [24] Exhibit D, Applicant’s Tender Bundle, pages 31-34.

16. Ms CP evidence was consistent with the Applicant including with respect to the family’s early years in New Zealand and Australia. She referred to the Applicant running away and eventually moving to Perth.

17. Ms CP said that the Applicant made bad choices in her relationships and that her use of drugs resulted in her offending. No one else in the family used drugs.

18. Ms CP and the Applicant had been estranged for some time but in the last couple of years there has been a healing and reconnection between them, particularly arising from her most recent jail sentence and detention. Ms CP said that in the period the Applicant has been away from bad influences and has remained drug-free, this has been a positive experience for her and the Applicant. Previously, the Applicant had been caught up in a vicious cycle with drug rehabilitation and relapse which Ms CP found difficult. She said that previously she would try to help the Applicant but would get hurt, and so from about 2010 to 2020, their relationship was distant.

19. Given the change in the relationship, Ms CP said that she will now have an influence on the Applicant’s life in the future, provide more positive interactions, and help in the Applicant’s day-to-day life.

    Conclusion - Primary Consideration A

20. The majority of the Applicant’s offending when considered individually, has been minor offending. To a large extent, the Applicant’s offending was driven by her drug addiction, financial difficulty and also as a poor response to periods of stress and distress. The Respondent rightly observed that the totality of her offending has been a financial burden on the Australian community.

21. The incidents of domestic violence are intrinsically linked to the Applicant’s lifestyle, drug use and poor life choices. I note that the offending involving Ms X occurred at the Applicant’s home when Ms X has attended the home and refused to leave This gave rise to an argument in which both women assaulted each other. On another occasion, consistent with allegations of stalking the Applicant, Ms X stepped from a side street near the Applicant’s home and was abusive, which resulted in an altercation between both women. The Applicant’s mother corroborated the Applicant about the dysfunctional friendship with Ms X who stalked and continues to stalk the Applicant.

22. I accept the Applicant’s evidence about the nature of the relationship with Ms X. They did not have an intimate relationship and it is best described as one of domestic co-dependency. The Respondent argues that should the Applicant be released back to the community and reside with her sister, she will be in the same neighbourhood where the previous offending occurred, hence, she will be at risk of re-engaging with Ms X and reoffending. Despite the strength in that argument, I am satisfied that the Applicant will have significant support from the members of her family and her sister Ms SF, which will mitigate the likelihood of any adverse interaction between the Applicant and Ms X.

23. I am satisfied that the offence involving the stabbing of the Applicant’s partner was the culmination of an abusive and relationship in which both the Applicant and her partner were using drugs. The Applicants introduction of a knife into an argument with her former partner was reprehensible, but I accept that it was not a premeditated act of violence and was committed against a background of the Applicant herself being the victim of violence in a relationship in which mutual use of drugs was commonplace.

24. I am assisted by the evidence of Dr Kwok whose evidence and opinion I accept. I am satisfied that without support and intervention, the Applicant’s risk of general reoffending is moderate but with the benefit of support and counselling, that risk would be low. Further, I am satisfied that the Applicant’s risk of violent offending in the future will be low. Nonetheless, even a low risk exposes the Australian community to offences of dishonesty, and financial loss and violence. I am satisfied that the Applicant will engage with the services recommended by Dr Kwok. However even though the risk of reoffending is low, it is an unacceptable risk and must weigh against the revocation of the Applicant’s visa cancellation.

25. In considering the weight to be given to this Primary Consideration, of major significance is the sexual abuse that the Applicant suffered when in foster care and its consequence. The fact that the Applicant at 15 years of age, ran away to another state where she remained and lived out in fear of being returned into foster care should she return home to Queensland had a very significant impact upon her and her future. As Dr Kwok said, that history would put a young person at higher risk of engaging in antisocial behaviour, of substance abuse problems and also finding oneself in problematic relationships because her early life history. It placed her at risk of not having secure attachments which would mean the Applicant would find herself in and out of relationships or in dysfunctional relationships. That pattern was found throughout the Applicant’s life and despite her endeavours to change these patterns, they are hard to change without professional intervention.

26. I am satisfied that the Applicant’s unfortunate life as an adolescent was a significant contributing factor to the lifestyle that she has pursued culminating in her most recent imprisonment and immigration detention.

27. A very important factor in the Applicant returning to the community and no longer offending is that she remains drug-free. I am satisfied that the Applicant has demonstrated insight into her personal deficiencies and the need for improvement and ongoing counselling. The Applicant has sought out and undertaken numerous courses directed to bettering herself as a person and a mother, and has remained drug-free. I accept the Applicant’s evidence that drugs are readily available in immigration detention, but she has remained drug-free and distanced herself from those involved in drugs.

28. I also accept that the Applicant has been employed when in the community, mainly in the hospitality industry. She also commenced Certificate 3 in Nail Technology training, which she was unable to complete because she could not afford the course. It is the Applicant’s intention to renew that training and start her own business. I accept the Applicant’s evidence, which demonstrates that she is making positive plans for the future and intends to self-improve.

29. I am confident that the Applicant’s expressed intention to remain drug-free, and continue with counselling and support services is genuine. I have taken into account that the Applicant has offended after receiving a formal warning, but I am satisfied the receipt of that warning was proximate to her daughter’s death and at a time when she was distressed and depressed and that she did not have proper regard to it. I am reminded that in her handwritten letter dated 29 October 2021,[25] the Applicant said that her mother would remind her that if she reoffended, she may be deported to New Zealand.

    [25] Exhibit A, pages 101-110, at page 103.

30. I accept the evidence of the Applicant’s mother and two sisters who will provide ongoing support to the applicant should she return to the community.

31. The weight to be given to Primary Consideration 1 must be in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation. Were it not for those matters personal to the Applicant to which I have referred, this Primary Consideration would weigh heavily in favour of the non-revocation of the Applicant’s visa cancellation. However, having balanced the various considerations in the Direction, including the warning, the seriousness of the offending including violence and domestic violence and the low risk of reoffending with those matters personal to the Applicant, including being sexually abused in foster care, her difficult adolescence thereafter which underpinned much of her behavioural pattern up to and including the date of the relevant offending, and the tragic loss of her daughter TW, I am satisfied that it is appropriate to give medium weight to Primary Consideration 1 and the non-revocation of the Applicant’s visa cancellation.

    Primary Consideration 2 – Family Violence

32. Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).

33. Paragraph 8.2 (3) provides that when having regard to the seriousness of the family violence, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence; and

    (c)rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.

34. Paragraph 8.2(3)(d) also requires the Tribunal to have regard to whether the non-citizen has reoffended since formally been warned or made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence; including warnings about the non-citizen’s migration status should he or she engage in further acts of family violence.

35. I have already outlined in detail the circumstances of the Applicant’s violence against Ms X and her former partner together with the previous warning received by the Applicant. I will not repeat those comments, but I have taken them into account when considering this Primary Consideration.

36. In respect of the breaches of DVO in 2016 and 2017 involving Ms X, I am satisfied that they had not been in a relationship but were merely friends and by the time of the offending Ms X was, by her stalking behaviour, causing significant stress and distress to the Applicant. Nonetheless, as the offending was in breach of a DVO, it is properly considered under this Primary Consideration.

37. I accept that the relationship between the Applicant and Ms X was infected by their mutual drug use, Ms X’s stalking behaviour and their drug fuelled violence towards each other. They were both the subject of a DVO directed towards each other. I also note, as I said before, that these offences occurred when Ms X attended the Applicant’s home resulting in the altercations that occurred between the two of them.

38. The offence involving the Applicant’s former partner was also against the background of the Applicant being herself a victim of domestic violence and their joint drug abuse. That does not excuse the introduction of a knife into their dispute but does provide context for her inappropriate response to the circumstances that prevailed at the time.

39. I have also had regard the trend of increasing seriousness including the introduction of a weapon into the incident involving her former partner.

40. However, as I have previously detailed, there are significant matters personal to the Applicant, which differentiate her conduct from more recognised incidents of family violence.

41. I am satisfied that the Applicant understands the impact her behaviour had on both victims. I am also satisfied that she recognises her drug abuse was a significant contributor to this violence and has taken steps to address her drug use, has engaged in on-line services to better herself and intends to pursue appropriate services if returned to the community as recommended by Dr Kwok. These serve to minimise the future risk of reoffending.

    Conclusion – Primary Consideration 2

42. As with Primary Consideration 1, this Primary Consideration must the weigh in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation. Again, were it not for those matters personal to the Applicant to which I have referred, including that she too was the victim of abusive relationships this Primary Consideration would weigh heavily in favour of the non-revocation of the Applicant’s visa cancellation. But given the unique circumstances of this matter and matters personal to the Applicant, I am satisfied that Primary Consideration 2 ought to be given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.

    Primary Consideration 3 – The best interests of minor children in Australia

43. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.

44. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     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);

    ·     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;

    ·     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;

    ·     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;

    ·     whether there are other persons who already fulfil a parental role in relation to the child;

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    ·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

1. There are two children to whom this Primary Consideration applies namely the Applicant son T and her niece H.

   Son T

2. T was born in May 2009 in Australia, and he is an Australian citizen. The Applicant’s relationship with T’s father did not last for very long. The father was involved in drugs and the Applicant did not want T brought up in that environment.

3. The Applicant was the primary caregiver to T until he was aged seven years at which time T’s father did not return him following access. T remained in his father’s care and that of his girlfriend for nine months. Court proceedings were instituted to address ongoing custody and access to T. The Applicant had fortnightly access to T. T’s father was subsequently taken into custody for drug-related offending and three months later when allegations of abuse arose, T was removed from the girlfriend’s care and was placed into foster care where he has remained.

4. The Applicant said and I accept that she has a good relationship with his foster parents and until she was taken into custody, she had regular access to T. T would also see the Applicant’s mother and her sister Ms SF on a regular basis. Since being in custody, the Applicant’s mother continues to care for T three weekends a month and Ms SF and her daughter H regularly visit Mrs AI’s home and sees T.

5. It is not disputed that the Applicant has always had a very close and loving relationship with T. The Applicant pressed for him to be assessed, whereupon he was diagnosed with ADHD and autism. T is a participant in the National Disability Insurance Scheme and the Applicant has played a role in T’s case plan. The Tribunal received the copy of the plan and Attachment A to that plan,[26] which indicated the Applicant’s continued involvement in T’s future albeit currently ex-custody and immigration detention. Attachment A reports the Applicant’s concern about whether a long-term guardianship order will be made, and T being reunited with his father who will not provide him with the stability and care that he requires. The Tribunal notes that Court proceedings remain ongoing between the Applicant and T’s father with respect to the future care arrangements for T.

   [26] Exhibit E.

6. Attachment A provides for T’s continued living arrangement with his foster parents and respite care with Mrs AI. Child Safety continues to conduct regular visits to ensure everyone is well supported and their needs are being met. The Applicant and T’s father will continue to be involved in meetings about his education when appropriate.

7. The Applicant expressed the wish that T remain in his current foster care arrangement and if she is returned to the community, it is hoped that she can work with the foster parents and authorities to achieve a graduated return of T to her full-time care.

8. The Applicant said that her relationship with T is very close and that he is very sad that he is currently separated from her due to her imprisonment and immigration detention. The Applicant said T was living in hope that she will be returned to the community. She said, “he is here with me on weekends and school holidays and brings me much joy.” She speaks to him regularly by telephone video and has an arrangement with the foster parents that they can contact each other whenever they want.

9. The Applicant said that she receives updates from NDIS and that she is T’s carer. His foster mother is the person who is T’s representative in the scheme.

10. The Applicant’s mother and sisters confirmed the close relationship between the Applicant and T and that he would be devastated if his mother was not returned to the community.

    Niece H

11. The Applicant also has a close and loving relationship with her niece H, who is 11 years of age. She said there is a one-year difference in age between T and H and they spend a lot of time together. She will also video call H regularly from immigration detention. Prior to her imprisonment and detention, the Applicant would see H once or twice a week because they lived close together.

12. Ms SF confirmed the Applicant and H had a very close relationship and they speak regularly by telephone, at least once a week. H would have a sleepover at the Applicant’s home from time to time and the Applicant would often come and see H at school events. Ms SF said that the Applicant played a parenting role when H was in her care including during sleepovers. The Applicant would take H shopping, go to the park, and would do things involving H and T.

    Conclusion Primary Consideration 3

13. The Tribunal is satisfied that the Applicant has a close and loving relationship with her son, which continues despite her imprisonment and immigration detention. She played the significant parenting role for the first seven years of his life which was interrupted when T’s father removed him from her care. Nonetheless, she continued to have access to him and when T was in foster care, she continued to have regular contact and care of T.

14. T is a participant in the NDIS having been diagnosed with ADHD and autism. The Applicant continues to play an important role in T’s involvement in the Scheme and in overviewing his future education.

15. The Tribunal accepts that there are current proceedings between the Applicant and T’s father for T’s ongoing care. It is not disputed that T’s father was imprisoned for drug-related offending and that T was removed from that care by Child Safety because of allegations of abuse. It is important that the Applicant remain in the community to ensure that she can be involved in those proceedings relating to T’s care, and to achieve the best outcome for his future taking into account his special needs.

16. I accept that the Applicant’s return to New Zealand would not preclude her from maintaining contact by video telecommunication or other means, but that is an unsatisfactory arrangement having regard to T’s best interest and his very close relationship with the Applicant. It is in T’s best interest that the Applicant remains in Australia and continue her relationship with him in person and play an important role in determining the future of T’s ongoing NDIS funding and care arrangements for T until he turns 18 years of age.

17. The Tribunal accepts that the Applicant has a close loving relationship with H and that she has on occasions played a parenting role, particularly when she has been in the Applicant’s care for example during sleepovers. The Tribunal also accepts that the Applicant had, until taken into custody, regular contact with H, particularly as they have resided close to each other for much of H’s life.

18. The Applicant and Ms SF gave evidence about Ms SF health issues in the past and ongoing which the Tribunal accepts. The Tribunal accepts that if the Applicant is released into the community that she will reside with her sister and H and provide support to them both. Once living in the same home, the Applicant will, where appropriate, play a parenting role with respect to H.

19. Having considered the best interest of T and H separately, I am satisfied that the best interests of the children weigh in favour of the Applicant and that Primary Consideration 3 weighs heavily in favour of the revocation of the Applicant’s visa cancellation.

    Primary Consideration 4 - The Expectations of the Australian Community

20. In making the assessment for the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

21. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

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

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

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

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

    (f)worker exploitation.

22. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

23. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

24. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[27].

    [27] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

25. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

26. The Tribunal is very conscious of the expectations of the Australian community as articulated in paragraph 8.4(2) which make very clear that family violence or violence against women are offences which would give rise to the expectation that the Applicant’s visa should remain cancelled. But the question for the Tribunal is, having regard to the unique circumstances of this matter, the appropriate weight to be given to this Primary Consideration.

27. The Applicant’s personal history particularly the sexual abuse in foster care and running away to Western Australia, aged 15 years, where she remained out of fear of being returned to that abusive environment, and the impact that had on her future, insight much sympathy.

28. The Applicant said in evidence that as a result of that sexual abuse, in 2020 she received a $95,000 compensation payment from the Government together with an offer of an apology. She declined the latter. She said and the Tribunal accepts that she gave the majority of that money to her mother to purchase a car, took her mother and T on a holiday to the Gold Coast, and to her sisters to pay off their debts. The Applicant created a trust fund in the sum of $20,000 for T until he turns 18 years of age.

    Conclusion Primary Consideration 4

29. The factors relevant to this Primary Consideration have been detailed above and I will not repeat them. I am satisfied that in the unique circumstances of this matter, the Australian Community would expect that less weight be given to this Primary Consideration than would otherwise be the case, in particular, taking into account the sexual abuse in foster care, the impact that had on her life, the Applicant’s personal tragedy of losing her daughter, and herself being the victim of domestic violence in a number of abusive and dysfunctional relationships.

30. Accordingly, in the unique circumstances of this matter, Primary Consideration 4 should be given moderate weight in favour of the non-revocation of the Applicant’s visa cancellation.

    OTHER CONSIDERATIONS

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

    Other Consideration (a) - International non-refoulement obligations

32. No evidence has been led that enlivens the Tribunals obligation to consider this Other Consideration. Hence, neutral weight is attributed to Other Consideration (a).

    Other Consideration (b) - Extent of Impediments if Removed

33. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

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

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

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

34. The Applicant is now 41 years of age and currently does not suffer from any identified psychological condition albeit she reported to Dr Kwok,[28] a history of PTSD and depression. I do not have the benefit of a diagnosis from a mental health practitioner in respect of her past mental health condition such that I can be satisfied those diagnoses were made by an appropriately qualified clinician. Nonetheless, I am satisfied that the Applicant has undergone significant life events which have impacted upon her mental health. She reported to Dr Kwok traumatic events including removal from her parents, being placed in foster care, being a victim of child sexual abuse, witnessing the death of the daughter, and being involved in multiple abusive relationships, which she detailed in her evidence and which I accept occurred and impacted significantly upon her life to date.

    [28] Ibid, pages 21-22.

35. I accept Dr Kwok’s opinion that the Applicant has experienced “significant distress in response to situational stressors” and “Her experiences of trauma in the past continue to distress her and produce recurrent episodes of anxiety.”

36. I am satisfied that the Applicant will benefit from ongoing counselling as discussed by Dr Kwok that will contribute significantly to ensure continued abstinence from drug abuse and provide coping mechanisms in dealing with relationships and other personal issues and stressors. It is not suggested that general medical and mental health support and counselling services similar to those available in Australia will not be available to the Applicant should she be relocated to New Zealand. I am satisfied that similar support services are available in New Zealand.

37. The Applicant has not maintained contact with her father since he sent her back to Australia when she was 15 years of age save for one telephone call following the death of TW when he extended his condolences. She has not maintained any contact with other relatives although members of her family may have done so. In evidence, she said that she does not wish to engage with them should she return to New Zealand. She would be embarrassed to tell them she had been deported from Australia. The Applicant has no social supports in New Zealand.

38. Dr Kwok also opined that if the Applicant returns to New Zealand and is separated from T, she will likely relapse into drug use and experience significant distress including anxiety and depressive episodes in response to those stressors. I accept Dr Kwok’s opinion.

    Conclusion Other Consideration (b)

39. Should the Applicant be relocated to New Zealand she will not face any language or cultural barriers. There is no evidence that social, medical or economic support are unavailable to her and I accept that those services would be available to a similar level as other members of the Australian and New Zealand community. She would also have the ability to seek and obtain work in those industries in which she worked in Australia.

40. However, the Applicant’s ability to establish herself and maintain the same basic living standards generally available to other New Zealand citizens will likely be significantly affected by the impact her relocation will have on her mental health particularly given the absence of any familial or other supports in New Zealand and her separation from T.

41. Dr Kwok said the Applicant will benefit from supports by community-based family relationship services, such as services offered by CatholicCare, Anglican or and Family Relationship Centres in addition to psychological treatment to address her problematic behavioural issues. Should similar supports not be in place upon her relocation to New Zealand, the relocation will likely impact significantly upon the Applicant to her detriment. 

42. The Applicant has now abstained from drugs for approximately 3 years, nonetheless I am satisfied that her mental health is best described as fragile and that accessing those services by somebody who is unfamiliar with New Zealand, and who is trying to deal with the difficulties of separation from her family and the stress that would be accompanied by her relocation to a new country without family or other supports, will likely impact upon her mental health.

43. I am satisfied that the Applicant will, by virtue of the deterioration in her mental health, be impeded in identifying and engaging with appropriate treatment services because of the impact her relocation will have on her. Therefore, Other Consideration (b) weighs significantly in favour of the Applicant and the revocation of her visa cancellation.

    Other Consideration (c) – Impact on Victims

44. No evidence has been led that enlivens the Tribunals obligation to consider this Other Consideration. Hence neutral weight is attributed to Other Consideration (c).

    Other Consideration (d) - Links to the Australian Community

45. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

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

    (b)the impact on Australian business interests.

    The Respondent submitted that there was no evidence enlivening consideration of paragraph 9.4.2(b) namely the impact on Australian business interest. I agree.

    The strength, nature and duration of ties to Australia

46. The Applicant has spent the majority of her life in Australia. The Applicant’s immediate family members namely her mother, two sisters, all reside permanently in Australia and the Applicant has a very close relationship with each of them. Her son T is an Australian citizen, and the Applicant and T are also very close.

47. The Applicant’s mother and sister, Ms CP have said that they would both visit the Applicant if she returned to New Zealand but her sister Ms SF with whom the Applicant is particularly close, will not be able to afford the visit.

1. I accept that it is the genuine intention of the Applicant and Ms SF that if the Applicant is returned to the community, they will reside together along with Ms SF’ daughter, H. Although not necessarily a permanent arrangement, this arrangement will be a support for the Applicant and also Ms SF, who has had some health issues and hospitalisation. This arrangement will also provide support for H.

2. The Applicant also has a close relationship with the foster parents of her son T, who have provided significant encouragement and support to the Applicant in maintaining a regular ongoing relationship with her son. This support ensured that she continued to see T in person on a regular basis when she was in the community, and to continue contact including by electronic means when in prison and immigration detention.

3. The ongoing relationship with the foster parents is also important in ensuring from the Applicant and her family’s perspective, that T’s interests and his safety and well-being are at the forefront of ongoing Court proceedings involving T’s natural father, the Applicant and foster parents. The Applicant referred to T being abused when living with his father, and that it is her wish that the foster care arrangement continues, and she wishes to pursue a graduated return to the full-time care of T. Those objectives are best addressed by the Applicant remaining in Australia.

4. Further, the Applicant’s personal ongoing engagement with NDIS in regard to T as a participant in the Scheme is an important consideration and preferable that this be undertaken in person rather than engaging with NDIS by electronic means from New Zealand.

   Conclusion Other Consideration (d)

5. In considering this Other Consideration I have had regard to paragraph 9.4.1(2) (a) i and ii of the Direction, and the offending relative to the Applicant’s arrival in Australia and the time spent positively contributing to the Australian community. The Applicant’s contribution to the community has not been significant albeit she has been employed over time in addition to receiving Centrelink benefits. I have also had regard to the Applicant’s offending being underpinned by the abuse she suffered in foster care and the significant and detrimental impact that had upon her and the rest of her life.

6. The Applicant’s links to the Australian community are significant when having regards to paragraph 9.4.1 of the Direction. Accordingly, I am satisfied that Other Consideration (d) weighs heavily in favour of the Applicant and the revocation of her visa cancellation.

   Further Other Consideration

7. The Respondent’s counsel submitted that the Applicant’s relocation to New Zealand will likely have a detrimental impact upon the Applicant because she will be precluded from visiting her daughter’s grave. I am satisfied that this is not a link to the Australian community and it is appropriate to consider this submission separately.

8. I have not received evidence from the Applicant on point, but the Respondent did not challenge this submission. I accept the Applicant’s submission is of some weight, given the circumstances of her daughters passing, the consequent depression suffered by the Applicant and continued unresolved grief and other issues facing the Applicant. Accordingly, I give slight weight to this Further Other Consideration in favour of the Applicant and the revocation of her visa cancellation.

9. There are no Other Considerations enlivened for the consideration of the Tribunal.

   CONCLUSION

10. Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

11. Based upon the Applicant’s serious offending, she does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.

12. The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence as reflected in Direction 90, in addition to her failure to pass the “character test”. Nonetheless the unique circumstances of this Applicant, including the significant abuse she suffered in her adolescence and that she was the victim of stalking and violence before she reacted inappropriately, and her personal circumstances, mitigate the weight I would otherwise give to the circumstances of family violence.

13. Accordingly, the Tribunal finds:

    (a)Primary Consideration 1 – Protection of the Australian community – is given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;

    (b)Primary Consideration 2 – Family violence – is given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;

    (c)Primary Consideration 3 – Best interests of minor children – weighs heavily in favour of the Applicant and the revocation of her visa cancellation;

    (d)Primary Consideration 4 – Expectations of the Australian community – weighs moderately in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;

    (e)Other Consideration (a) – International non-refoulement obligations – is given neutral weight;

    (f)Other Consideration (b) – Extent of impediments if removed – weighs significantly in favour of the Applicant and the revocation of her visa cancellation;

    (g)Other Consideration (c) – Impact on victims – is given neutral weight;

    (h)Other Consideration (d) – Links to the Australian community – weighs heavily in favour of the Applicant and the revocation of her visa cancellation.

    (i)Further Other Consideration (e) – Separation from her daughter’s grave – weighs slightly in favour of the Applicant and the revocation of her visa cancellation.

14. The combined weight of Primary Consideration 3, Other Considerations (b) (d) and (e) is such that they outweigh the weight attributed to Primary Considerations 1, 2, 4.

15. The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.

16. Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

17. For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 February 2022 revoking the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa granted on 22 February 1995.

180.    I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...[Sgnd]..........................

Associate

Dated: 7 June 2022

Dates of hearing:	3, 4 and 9 May 2022
Advocate for the Applicant:	Marta Mamarot, Southwest Migration & Legal             Services
Advocate for the Respondent:	Abby Tinlin, Minter Ellison