Gallo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 18
•15 January 2021
Gallo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 18 (15 January 2021)
Division:General Division
File Number: 2020/4430
Re:Deborah Mary Gallo
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms C Burnett-Wake, Member
Date:15 January 2021
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]…………………………………………
Ms C Burnett-Wake, Member
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)Cases
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Stone v Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Ms C Burnett-Wake, Member
15 January 2021
INTRODUCTION
This is an application for review of a decision under s 501CA of the Migration Act 1958 (“the Act”) made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the respondent”) on 10 July 2020 not to revoke a mandatory cancellation under s 501(3A).
On 29 November 2018, Ms Deborah Mary Gallo's (“the applicant”) Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A). Following the cancellation, the applicant sought to have the decision revoked. The delegate decided, under s 501CA(4) of the Act, not to revoke the original decision.
The issue before the Tribunal is to consider whether there is “another reason” to revoke the mandatory cancellation decision made on 29 November 2018 in accordance with s 501CA and Ministerial Direction No. 79 (the Direction) made under s 499 of the Act.
The applicant is a 46-year-old New Zealand citizen. She was born in New Zealand in January 1974.[1] In 1988 when the applicant was 14 years of age she moved to Australia with her parents, and her only sibling.[2] She remained in Australia until 2 October 2019 when[3] she voluntarily returned to New Zealand following the cancellation of her visa and prison sentence.
[1] Exhibit R1: Personal circumstances form, page 96.
[2] Exhibit R1: Personal circumstances form, page 98.
[3] Exhibit R1: Movement record, page 189.
The applicant’s offending history has caused her to be dealt with by the Australian court system on multiple occasions since 2002. Culminating with the Brisbane Supreme Court handing down a sentence to the applicant on 29 June 2018 for a 6-year imprisonment term for trafficking dangerous drugs. She was also sentenced to further concurrent periods of imprisonment for drug related offending ranging from one to three-year terms of imprisonment. A serious drug offence certificate was issued in relation to trafficking in dangerous drugs and possessing dangerous drugs.[4]
[4] Exhibit R1: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
The applicant also has a recorded traffic history going back to 2001, which has involved multiple offences relating to speeding, unlicensed driving, failure to stop at a red light/stop sign, driving under the influence of alcohol, failure to wear a seatbelt and driving whilst a relevant drug is present.[5]
[5] Exhibit R2: Pages [16] to [22]. Traffic Record for period from 5 January 1974 to 6 August 2020 for Deborah Mary Gallo issued by the Queensland Department of Transport of Main Roads.
The Tribunal conducted a hearing of the application by video conference on 26 and 27 October 2020. The applicant was represented by Mr Joel McComber, a solicitor with Sentry Law. The respondent was represented by Mr Matthew Hawker, a solicitor with Sparke Helmore.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The applicant and the respondent each consented to the hearing proceeding on 26 and 27 October 2020 on the basis that it was conducted by audio/visual link. In addition to the COVID-19 pandemic limitations, the applicant was also physically in New Zealand, so the video conference was also practical in that regard. The Tribunal determined, pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), that the matter be heard by video conference.
The Tribunal had regard to the oral evidence given during the hearing by the applicant, her father and Psychologist Dr Jacqui Yoxall.
In conducting the review, the Tribunal had regard to the documents as tendered at the commencement of the hearing:
·Exhibit A1: Applicant's further updated bundle lodged with the Tribunal on 23 October 2020;
·Exhibit A2: Letter from Danny Senior dated 20 September 2020;
·Exhibit R1: G-Documents; and
·Exhibit R2: Respondent’s tender bundle lodged with the Tribunal on 6 October 2020.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant has made the representations required by s 501CA(4)(a) of the Act. The issue is whether the discretion to revoke the mandatory cancellation of the applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…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…”[7]
[6] [2018] FCAFC 151.
[7] 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).
There are two issues presently before the Tribunal:
·whether the applicant passes the character test; and
·whether there is another reason why the decision to cancel the applicant’s visa should be revoked.
If the applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the applicant’s visa must be revoked.[8] The Tribunal will address each of these grounds in turn.
[8] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The applicant concedes that:
·the mandatory cancellation of the applicant’s subclass 444 visa on 29 November 2018 was required by, and in accordance with, s 501(3A) of the Act; and
·for the purposes of s 501CA(4)(b)(i) of the Act, the applicant does not pass the ‘character test’ prescribed by s 501(6).
The Tribunal has had regard to the abovementioned summary of the applicant’s offending with reference to the sentencing event of 29 June 2018 where the applicant was sentenced in the Brisbane Supreme Court for “trafficking in dangerous drugs” to six years imprisonment. As the custodial term imposed was ‘a term of imprisonment of 12 months or more’, the applicant does not pass the character test by virtue of her “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the applicant does not pass the character test pursuant to s 501(6)(a) of the Act.
The applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) applies.[9] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[10]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[9] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[10] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[11] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
The Direction says that when considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[12] It adds that remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[13] These principles appear to reinforce one of the principles set out in the Preamble, the low tolerance of such conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.[14]
[12] Direction 79, cls 9.1(1), 11.1(1), 13.1(1).
[13] Direction 79, cls 9.1(1), 13.1(1).
[14] Direction 79, cl 6.3(6).
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Initial concessions made by the Applicant
With specific reference to paragraph 13.1 of the Direction, the applicant’s Statement of Facts, Issues and Contentions (“SFIC”) records the following initial concession:
22. The Applicant accepts that her past conduct, particularly her:
a) trafficking of methamphetamine from about 1 January 2015 to 28 June 2015; and
b) supply of methamphetamine on 15 August 2015, cannot be described as anything other than serious. The Applicant has acknowledged that, from her own personal experience, the proliferation of methamphetamine in the community destroys lives and has serious consequences for users’ families and can adversely affect members of the Australian community generally.
With specific reference to the nature and seriousness of the applicant’s criminal conduct, her SFIC makes the following further concession:
26. In respect of sub-paragraph (e) of paragraph 13.1.1, it is acknowledged that the six-year sentence of imprisonment imposed on the Applicant by the Queensland Supreme Court reflects the seriousness of her methamphetamine-related offending from the period 14 October 2014 to February 2017, particularly in relation to her trafficking of methamphetamine over a six-month period from early- to mid-2015.
27. …it is the case that no trafficking of a dangerous drug, and in particular methamphetamine, can be described as anything other than extremely serious…
In its SFIC, the respondent contends that:
26. The applicant’s criminal offending and other conduct to date should be viewed
as very serious.
The Tribunal is of the view that the applicant’s offending enlivens the relevant Principles contained in paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.
Having regard to the abovementioned concessions as set out at paragraphs [29] and [30] regarding the nature and seriousness of the applicant’s offending, the Tribunal is of the view that the nature and seriousness of her offending becomes readily apparent when considering the nature and circumstances of her offending history.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) ….
c) …
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g)…
h) …
i) …
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. However, it does not limit the range of offences that may be considered serious.
The applicant’s criminal offending is summarised in the following table and is a reproduction of the criminal history check for the applicant dated 8 October 2018:[15]
[15] Exhibit R1: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
| Court | Date | Offence | Result |
| Southport Magistrates Court | 5/7/2018 | BREACH OF PROBATION ORDER | ORDER(S) REVOKED NOT FURTHER PUNISHED |
| BRISBANE SUPREME COURT | 29/06/2018 | DM 5 TRAFFICKING IN DANGEROUS | CONVICTION RECORDED IMPRISONMENT: 6Y |
| BRISBANE SUPREME COURT | 29/06/2018 | DM 9&(B) POSSESSING | CONVICTION RECORDED IMPRISONMENT: 3Y |
| BRISBANE SUPREME COURT | 29/06/2018 | DM 6(1)(F) SUPPLYING SCHEDULE | ON ALL CHARGES |
| BRISBANE SUPREME COURT | 29/6/18 | DM 9&(B) POSSESSING | CONVICTION RECORDED |
| BRISBANE SUPREME COURT | 29/6/18 | DM 9(1) POSSESSING DANGEROUS | ON ALL CHARGES |
| BRISBANE SUPREME COURT | 29/6/18 | DM 9A(1) POSSESSING RELEVANT | CONVICTION RECORDED |
| BRISBANE SUPREME COURT | 29/6/18 | DM 9&(B) POSSESSING | CONVICTION RECORDED |
| BRISBANE SUPREME COURT | 29/6/18 | DM 9(1)(D) POSSESS DANGEROUS | CONVICTION RECORDED |
| BRISBANE SUPREME COURT | 29/6/18 | THE FOLLOWING MAGISTRATES | SUMMARY OFFENCES DEALT WITH |
| BRISBANE SUPREME COURT | 29/6/18 | SOUTHPORT M.C. FILE NOS: | SERIOUS DRUG OFFENCE |
| SOUTHPORT MAGISTRATES COURT | 30/01/2018 | [BA] 29(1) BREACH OF BAIL | CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 30/01/2018 | [BA] 29(1) BREACH OF BAIL | CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 30/01/2018 | [BA] 33(1) FAILURE TO APPEAR | CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 30/08/2017 | [HR] 204 UNLAWFUL POSSESSION | ON ALL CHARGES TIME TO PAY: 28D |
| SOUTHPORT MAGISTRATES COURT | 15/06/2017 | [DM] 9 POSSESSING DANGEROUS | ON ALL CHARGES TO BE COMPLETED WITHIN: 12MO |
| SOUTHPORT MAGISTRATES COURT | 2/5/2017 | [DM] 10(2)(A) POSSESS UTENSILS | CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 2/5/2017 | [BA] 29(1) BREACH OF BAIL | CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 7/4/2017 | [PPRA] 791(2) CONTRAVENE | ON ALL CHARGES WITH TRAFFIC |
| SOUTHPORT MAGISTRATES COURT | 16/2/2017 | [DM] 10(2)(B) POSSESS UTENSILS | NO CONVICTION RECORDED |
| SOUTHPORT MAGISTRATES COURT | 26/02/2015 | [DM] 9 POSSESSING DANGEROUS | ON ALL CHARGES |
| SOUTHPORT MAGISTRATES COURT | 28/1/2005 | PPRA CONTRAVENE DIRECTION | ONE PENALTY IMPOSED: (WITH |
| SOUTHPORT MAGISTRATES COURT | 22/09/2004 | DM POSSESSING DANGEROUS | CONVICTED & FINED $500 |
| SOUTHPORT MAGISTRATES COURT | 20/08/2002 | DM PRODUCING DANGEROUS | ONE PENALTY IMPOSED: |
Notwithstanding the acknowledgment by the applicant that her offending is serious, the following claims were made in the applicant’s SFIC:
…our client’s circumstances to some extent reduce the objective gravity of our client’s offending:
a) the Applicant’s trafficking and supply of methamphetamine occurred in the context of:
i. the Applicant’s addiction to methamphetamine commencing in about July 2014;
ii. the breakdown of the Applicant’s marriage in about August 2014; and
iii. the failure of the Applicant’s seven-year-old business in late 2014;
b) the Applicant’s motivation in trafficking and supplying methamphetamine was to pay for her:
i. own methamphetamine addiction; and
ii. basic living expenses;
c) the Applicant did not intend to make, and did not in fact make, any major profit which funded a lavish or luxurious lifestyle.
At this point, and for context, an overview of the applicant’s personal history and circumstances is appropriate before a discussion about the seriousness of her offending occurs, particularly because the applicant has requested the Tribunal consider her circumstances and how they reduce the objective gravity of [her] offending.
In her oral evidence the applicant told the Tribunal that she had a great childhood with no abuse and came from a stable home, where her mother worked in the stock market and her father owned and operated a steel manufacturing business. She went to a private school in New Zealand and enjoyed family holidays to places like Fiji and the beach house her parents owned in the north of New Zealand.
In 1988 when the applicant was 14 years of age she moved to Australia with her parents and only sibling, as her father had bought into an Australian business. Upon arriving in Australia, the applicant attended Benowa High School. She completed year 11 of her studies, before leaving to begin working in retail, at a chain jewellery store located on the Gold Coast. Around this time the applicant met her future husband, an Australian citizen. They married in 1996 and moved to Brisbane. They resided in Brisbane together, both working in the applicant’s father’s business, before deciding to sell their property and move back to the Gold Coast. Upon return to the Gold Coast, they purchased a firewood business, which the applicant claims to have been moderately successful. Following the firewood venture, the applicant worked at Dreamworld from 2005 through to 2008. Following her employment at Dreamworld, she and her husband were offered managerial positions with Sundowner Houseboat Holidays. One year later they were extended an offer to purchase the business, which they did.
The applicant and her husband then worked within their business, side-by-side for the following 7 years, during which time she stated that they did not have a holiday. They lived at the Marina and the applicant told the Tribunal during the hearing it was a great lifestyle around the Sanctuary Cove area.
The applicant, in her written statement and during her oral evidence, told the Tribunal that she and her husband were unable to have children, and although various fertility options were tried, they were not successful, mainly because of her phobia of needles. The applicant claimed that she suffered depression as a result and saw a psychologist briefly, however, her husband’s large extended family, which comprised of seven children and eighteen nieces and nephews assisted in coping with not having children of her own.
In 2012 a resident of the Marina, where the applicant and her husband were living, had a psychotic episode. The applicant told the Tribunal that this person was not personally known to her, however, she understood the episode was drug induced. The applicant explained the resident stabbed the Harbor Master and beheaded a pet poodle of another Marina resident. The applicant in her written statement and oral evidence to the Tribunal stated that she and her husband were alerted to the incident by the commotion they heard and assisted in the aftermath. She outlined that they went to investigate and found the Harbor Master with serious wounds to his stomach with one of his organs visible through the wound. She provided the Harbor Master with medical assistance, applying pressure to his wound, until the ambulance arrived. During this time the applicant thought he was going to die in front of her. The applicant also stated she found the head of the poodle floating in the water which she retrieved for the owner. The applicant described how the events of this incident left her traumatised and she consequently suffered from nightmares. She claimed in her evidence that she did speak to a counsellor regarding the events.
The applicant in her written statement and oral evidence told the Tribunal that she believed this incident that occurred in 2012, coupled with the day-to-day stress of running her business 7 days per week with no break and the fatigue experienced, were the triggers that led to her dependency to methamphetamine.
The applicant explained to the Tribunal that leading up to 2014 she never went out to source drugs and that they came into their life from a friend. She told the Tribunal in the hearing that the moment I had it (methamphetamine), it gave me a coping mechanism for the stress. She outlined that to begin with we were doing wonders and went well for 3-4 months. Then we noticed changes in each other.
The applicant outlined that around mid-2014 her husband left and went to North Queensland to be with his family and to remove himself from the situation. The applicant told the Tribunal that at this point she hated her husband for leaving and following a period without him, things with the business spiralled out of control and she had to employ other people. She then explained the main business asset, a houseboat, sunk off Stradbroke Island over the October 2014 long weekend when it was rented out to a group of young men. She said she believes it was anchored over an oyster reef which ripped a hole in the hull. Following this, the boat had to be collected and towed back by a salvage crew. The applicant outlined that there was approximately $20,000 in deposits for that houseboat over the upcoming holiday period, and all they could do was close the business as there was a protracted insurance claim over the houseboat and they could no longer operate.
Following these events, the applicant claims that she spiralled into depression and further drug use. In her evidence she claimed that her husband ‘stupidly thought’ selling drugs could help her. She claims her parents did not know about drugs, but they were scared about the path she was taking. The applicant claimed her mother took her to see a psychologist, Dr Tan for help. However, she continued using drugs.
The applicant claimed that after her initial methamphetamine charges and when she was released on bail, she continued with the drugs as they were a coping mechanism. She told the Tribunal at the time her thought processes was why should I stop if I am going to jail anyway? The applicant acknowledged that with hindsight if she had not had such thoughts she may have escaped going to prison. She commented that she didn’t realise she would be on bail for that long and was not familiar with the court process.
During cross-examination, the applicant, was asked about the sequence of events that triggered her methamphetamine addiction and offending. Consistency issues were raised with the timeline of events that went before the Brisbane Supreme Court, as they differed to those put forward to the Tribunal and painted a different scenario, in that the drug use occurred only after the business and marriage breakdown and when viewed this way the circumstances that led to her downfall may have benefited with how the court dealt with her during sentencing. The respondent referred to the transcript and the timeline put forward to the court by her criminal barrister, Mr Harrison, as follows:
Mr Harrison: In fact, she is unable to have children, which had an effect on her, and she received some treatment for depression over that, but then stopped – didn’t require any further treatment. She was – used cannabis. In 2012, the main houseboat sank. There was an issue with the insurance company, who refused to pay out.
His Honour: Where was the business being conducted? Here, or in New Zealand?
Mr Harrison: On the Gold Coast, your Honour. The business thereafter struggled. The marriage disintegrated. My client tried to keep the business running. On her – her instructions are that bikies became – tried to become involved in the business. She was at a low point in her life. She was Introduced to methylamphetamine. Hence the 2015 – that’s the explanation...
She ended up living from one address to another out of the kind heartedness of like minded people in the drug world. She was living hand-to-mouth and day-to-day. She did try to rehabilitate herself on a number of occasions but that failed miserably. So her first real rehabilitation of her occurred when she went into custody some five months ago, simply through abstinence.
The applicant acknowledged in cross-examination that the timeline put forward to the court, and the timing of events and the boat sinking in 2012 was incorrect, as it was the long weekend in October 2014. She also clarified that the methamphetamine use was the trigger for her marriage breakdown, and that the business had been successful up until the drug use began. It was only after her husband left and the boat sunk that the business experienced financial troubles and had to be closed.
The applicant claimed she did not know why the timeline and sequence of events differed and provided an explanation that she had only met the barrister on one occasion just before her appearance for 40 minutes, and this may account for why the events were not in sequence when presented on her behalf to the Brisbane Supreme Court.
The Tribunal acknowledges that the sequence of events regarding the applicant’s personal circumstances it has before it is different to those put forward to the Brisbane Supreme Court. However, the Tribunal is of the view that this is of little consequence to its task at hand. The applicant has been consistent with the Tribunal about the sequence of events in her oral and written evidence and accepts as plausible the applicant’s explanation that her instructions regarding the sequence of events may have been misconstrued.
The applicant’s SFIC makes the following contention:
29…. while it is accepted that the Applicant’s conduct is properly described as serious, it is submitted that her conduct does not fall within the most extreme range of drug-related offending.
The Tribunal rejects this contention. Furthermore, the Tribunal is of the view that the applicant’s circumstances do not reduce the objective gravity of her offending, as was also put forward and detailed at paragraph [36].
The applicant’s offending, as reflected in the criminal history check, includes trafficking dangerous drugs, including methamphetamine for a six-month period. The applicant also engaged in offending for an 18-month period of what is described as commercial drug-related offending.[16] Furthermore, a serious drug offence certificate was issued in relation to the applicant’s offending.[17] Relevantly, the trafficking was during the period the applicant was on probation and a significant portion of the offending occurred whilst she was on bail.
[16] Exhibit R1: Sentencing remarks of his Honour Judge Davis, page 67.
[17] Penalties and Sentences Act 1992 (Qld) s 161G.
The Tribunal notes the following sentencing remarks by His Honour Judge Davis:
Breaches of bail are serious and any period of imprisonment imposed, depending on the specific offence under the Bail Act 1980 (Qld), is either made cumulative by mandatory provision or an exercise of discretion. However, an important aspect of your offending is that much of it was committed whilst on bail. And that reflects in the head sentence that I intend to impose…[18]
…It is apparent that you were drug-addicted over the period of the offending, I formally make that finding, which reduces the maximum sentence for the charges of possession of dangerous drugs with circumstances of aggravation to 20 years from 25. The trafficking is described by the Crown as being street level and slightly above. It was said to be above street level because it seems that some of your supplies were to persons who may have been onselling. It is best to describe the trafficking as active, serious street-level trafficking. It is a serious example because some of the amounts were significant [emphasis added]. It seems that there were a total of 29 customers, about eight of whom may have been onselling…[19]
…The other counts of the indictments relate to various intercepts by police, where you were found to have been offending. Much of the offending occurred while you were on bail. The later offences of possession were clearly commercial in nature. Therefore, you have trafficked in dangerous drugs, including methylamphetamine, for a period of six months and followed that with commercial drug-relating offending in the 18-month period thereafter [emphasis added] …[20]
[18] Exhibit R1: Sentencing remarks of his Honour Judge Davis, page 66.
[19] Ibid.
[20] Ibid, page 67.
The applicant has sought to characterise both the circumstances of the offending episodes and how those offences should now be perceived in light of her personal circumstances, coupled with contentions such as there is no evidence of the direct effects of our client’s trafficking or supply or methamphetamine on any individual (other than the Applicant personally and members of her immediate family) or the community more generally; and to the extent that the Applicant’s conduct may have been associated with indirect negative consequences, there is no evidence to suggest that persons to whom she supplied methamphetamine would not have otherwise sourced methamphetemine from an alternative supplier/trafficker.[21]
[21] ASFIC, Paragraph 28, page 8.
Such contentions do not, in any way, ameliorate the nature and seriousness of the offences. Such contentions are rejected. It is plain from his Honour Judge Davis’s sentencing remarks. His Honour was aware of the applicant’s overall offending conduct and the seriousness is reflected in the head sentence that was imposed. Furthermore, the applicant in her oral evidence stated that she was aware of the consequences on the community that bought drugs from her and as a result people lost their children, assets and their homes.
There is no dispute that the applicant’s offending from 2014 onwards occurred during a period of drug dependency. However, the Tribunal is of the view that her circumstances leading to her dependency and ultimately the offences do not reduce their gravity. The applicant has put forward the two triggers that led to her drug dependency were the stresses of day-to-day life: running a business and not having a ‘holiday’ for a 7-year period; and the incident she witnessed in 2012 at the Marina they were living as detailed in paragraph [42].
The claim the applicant put forward regarding the stresses of day-too-day life of running a small business are not unique and are experienced by many. The event at the Marina, the Tribunal acknowledges, would have been stressful for the applicant. However, it occurred 2-years prior to when she began using methamphetamines, and she had, according to her own evidence, sought assistance and spoke with a counsellor. None of these contentions are of any validity in convincing this Tribunal that the offending is anything less than serious.
The applicant was middle aged and between 41 and 43 years of age during the significant offending period. His Honour Judge Davis remarked:
“…as a mature woman with a minor and irrelevant criminal history you have engaged in drug offending in an almost pathological way including after you have been intercepted by police on various occasions, charged and bailed.[22]
[22] Exhibit R1: Sentencing remarks of his Honour Judge Davis, page 67.
The Queensland Police Service documents, produced under summons, detail a history of repeat offending, continuing even with police interceptions.[23]
[23] Exhibit R2: Queensland Police Service Court Brief, page 170 to 173.
The Tribunal is of the view that, at best, an application of this sub-paragraph (a) weighs in favour of a finding that the applicant’s conduct has been at least serious, more likely very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Tribunal has carefully reviewed the applicant’s offending history and it is not able to detect any offending referable to this sub-paragraph (b). As a result, this sub-paragraph (b) is not relevant to determination of this application.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” The Tribunal has carefully reviewed the applicant’s offending history and it is not able to detect any offending referable to this sub-paragraph (c). As a result, this sub-paragraph (c) is not relevant to determination of this application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The applicant’s offending history commences in 2002 where she committed her first offences in August 2002 relating to: producing dangerous drugs; possessing dangerous drugs; and possess utensils or pipes. These offences were dealt with on 20 August 2002 where she was fined $500, however, no conviction was recorded. The second offence was in August 2004 relating to possessing dangerous drugs, this was dealt with on 22 September 2004, where she was convicted and fined $500. Following on is an offence that occurred in September 2004 relating to a traffic matter (contravene direction) which was dealt with on 28 January 2005 where she was convicted and fined $300. These offences involved the imposition of non-custodial sentences, primarily in the form of fines, with, as per usual, a specified period of custody in the event of a default in payment of that fine.[24]
[24] Exhibit R1: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
The next period of offending is addressed on 26 February 2015 and relates to multiple offences including: possessing dangerous drugs; possess utensils or pipes etc. that had been used; and failure to appear in accordance with an undertaking - all occurring between October 2014 and February 2015. No conviction was recorded for these offences; however, she received a 9-month period of probation.[25]
[25] Ibid.
The next period of offending is dealt with on six different dates before the Southport Magistrates Court throughout 2017. The applicant was convicted of multiple offences including: possessing dangerous drugs; unlawful possession of controlled drug; possessing dangerous drugs; possess utensils or pipes etc for use; breach of bail; and contravene a direction or requirement (traffic matter) all occurring between March 2016 and April 2017. These offences involved the imposition of non-custodial sentences, primarily in the form of fines and community service, with, a specified period of custody in the event of a default in payment of that fine.
The applicant then appeared before the Southport Magistrates Court on 30 January 2018 relating to breach of bail on three occasions. The applicant received fines for these breaches.
On 29 June 2018, in the Supreme Court of Queensland, the applicant plead guilty to 11 charges spread over three indictments and 49 summary offences relating to a period between February 2015 and October 2017. As a result of these proceedings, the applicant was sentenced to multiple terms of imprisonment. The head sentence imposed was six years in relation to trafficking in a dangerous drug. She also received further sentence terms of imprisonment which were to be served concurrently:
·Three years for possessing a dangerous drug in excess of two grams;
·Two years for supplying a dangerous drug;
·Two years possessing a dangerous drug;
·Three years possessing a dangerous drug in excess of two grams;
·Two years possessing a dangerous drug;
·One year possessing a relevant substance;
·Three years possessing a dangerous drug in excess of two grams.[26]
[26] Ibid.
The applicant also has an extensive traffic history in Australia, involving the commission of some 32 individual offences. They begin in 1991 and carry right through to the end of 2017. They range from speeding, unlicensed driving, failure to stop at a red light/stop sign, driving under the influence of alcohol, failure to wear a seatbelt and driving whilst a relevant drug is present.[27]
[27] Exhibit A2: Pages [16] to [22]. Traffic Record for period from 5 January 1974 to 6 August 2020 for Deborah Mary Gallo issued by the Queensland Department of Transport of Main Roads.
The applicant confirmed in her written statement and during oral evidence provided at hearing that her Queensland Traffic History dated 6 August 2020 is true and correct.
The respondent contended in their SFIC, in relation to the applicant’s traffic history:
The applicant’s Traffic Record from the Department of Transport and Main Roads reveals a concerning history of traffic offences including repeated instances of unlicenced driving, driving while relevant drug is present, driving under the influence of alcohol and speeding (TB3). The laws against driving under the influence are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence are serious and show reckless indifference to the safety of the wider community.[28]
[28] RSFIC, Paragraph 32, page 9.
During cross examination, the applicant conceded that her traffic history could be categorised as a concerning history including continuing to drive unlicensed whilst taking drugs and that she kept reoffending, including being dishonest to the police, by giving her sister’s name at the scene of an accident whilst she was under the influence of drugs.
The applicant’s offending history discloses at least ten attempts by the courts to punish the applicant’s offending through non-custodial means, be it in the form of fines, good behaviour orders and/or orders for payment of restitution. The history also discloses multiple impositions of custodial terms from June 2018. Taken cumulatively the eight sentences imposed equates to 23 years of imposed custodial time.[29]
[29] Exhibit R1: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
Accordingly, for the purposes of this sub-paragraph (d), the sentencing periods and imposition of custodial terms imposed upon the applicant very strongly supports a finding that the sentences for the applicant’s offending are at least serious, more likely very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Dealing first with the frequency of the applicant’s offending, this applicant is 46 years of age. Her offending history runs for approximately 15 years. Her driving history runs for approximately 26 years. This means that her offending and traffic history has virtually spanned the entirety of her adult life thus far. The Tribunal has earlier outlined the nature of the sentences imposed across the evolution of her offending history in Australia.
The Tribunal acknowledges there was a 9-year gap in her offending between 2005 until 2014, however, her traffic record during this period demonstrates a continued pattern of breach of traffic laws.
Regarding the discernible increasing trend in the seriousness of the applicant’s offending. The Tribunal accepts that the earlier phases of the applicant’s offending from 2002 until 2005 predominantly involved minor drug offences for cannabis and one is the failure to obey a direction relating to a traffic offence.
However, by the second part of 2014 and into 2015, the applicant was committing offences of a significantly more serious nature and had evolved into possession of dangerous drugs to multiple traffic offences, including supplying false or misleading information, not having proper control of a vehicle, failure to provide driver’s particulars to a police officer, driving a defective vehicle and driving unlicensed.
There followed further offending relating to possession of dangerous drugs and breach of bail and further traffic offences, including driving whilst under the influence of drugs. Most serious of all, was her offending involving the trafficking in dangerous drugs.
Thus, there is a clearly discernible “trend” of increasing seriousness of the applicant’s offending from 2002 to 2017.
According to her oral evidence, her offending, at least from 2015 onwards, is attributable to the then-unresolved substance abuse issues with methylamphetamine. There is no doubt that when she has been under the influence of illicit drugs and/or alcohol, her capacity to assume responsibility for her regular and lawful duties as a citizen, together with her capacity to distinguish between right and wrong and to better choose her associates, is severely impacted.
The nature of her post-2015 offending is concerning. It involves the commission of offences that demonstrate a persistent disregard for the law and conditional liberty arrangements, be they (1) in relation to possession and distribution of dangerous drugs whilst on probation and bail for earlier offences for the same; (2) the rights and responsibilities governing operation of a motor vehicle; (3) directions from lawful authority to do or refrain from doing something; and (4) the repeated breaches of bail conditions. There can be no question that her sense of right and wrong has been adversely affected by the impact of unresolved issues with illicit drugs.
Thus, an application of this subparagraph (e) leads to an inevitable finding there is an increasing trend in the seriousness of the applicant’s offending. The increasing level and severity are such as to attract a finding that it has been of at least a serious, more likely very serious, nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns an examination of the cumulative effect of an applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
There are several cumulative effects reviewing the applicant’s offending history. First, her criminal history runs for some 15 years. She has been afforded (on multiple occasions) opportunities to moderate and curb her propensity to offend. She has received the benefit, on multiple occasions, of the imposition of fines, community service, and supervisory-type non-custodial sentences including a period of probation. However, her offending continued to escalate until she received a custodial sentence.
The second cumulative effect arising from the applicant’s offending is that she has failed to develop any measure of respect for the lawful authority governing the community back into which she now seeks re-admission. There are, for example, multiple instances of a failure to appear in accordance with either a lawfully given undertaking or pursuant to duly granted bail. There are also numerous traffic offences occurring during periods she knew she had no licence to drive and extend back to 1991. There does not seem to be any measure of respect either for the rights of other people in the community and she appears to have displayed a failure to recognise her responsibilities and the privilege that she had as a road user.
A third observation about the cumulative effect of the applicant’s offending relates to whether or not her issues with illicit drugs remain unresolved. In her oral evidence, she sought to suggest that her time in both criminal custody, immigration detention and now in the NZ community had forever diverted her from a propensity to abuse such substances. Be that as it may, it can be fairly found that a predisposition towards abusing methylamphetamine was front and centre in her life.
It is also observed she had an earlier dependency on cannabis.[30] The Tribunal notes that according to the psychologist reports by Professor James Freeman and Dr Jacqui Yoxhall (which will be addressed later in this decision) it is essential for the applicant to refrain from abusing illicit drugs in order to lower her risk of re-offending. It is clear that while drugs have been part of her life, her offending has been very serious. The Tribunal has little doubt that if she were to return to abusing methylamphetamine (or any other illicit drugs/alcohol) in the general community, she would return to a pattern of serious to very serious offending as she committed in the past.
[30] Exhibit R1: Page 122 paragraph 9.2, Psychologist Report for the applicant prepared by Professor James Freeman.
The Tribunal is of the view that the cumulative effect of the nature and extent of the applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that her offending has been of, at least, a serious, more likely very serious, nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The Tribunal has carefully reviewed the applicant’s file and it is not able to detect any provision of false or misleading information to the Department in reference to this sub-paragraph (g). As a result, this sub-paragraph (g) is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal has not aware of any formal warning from the Respondent or any other element of lawful authority to the applicant. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. The Tribunal has carefully reviewed the applicant’s offending history and it is not able to detect any offending referable to this sub-paragraph (i). As a result, this sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub paragraphs (a), (d), (e), and (f) in reference to paragraph 13.1.1(1) of the Direction that are relevant, the Tribunal is of the view that the applicant’s offending conduct can be readily characterised as at least serious, more likely very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The respondent contends in its SFIC that:
34. The nature of the harm to individuals of the Australian community should the
applicant engage in further criminal or other serious conduct is wide reaching.
The type of harm the applicant’s offending inflicts includes mental illness,
violence, road trauma, chronic health issues, and loss of productivity and
engagement with the criminal justice system, all of which are serious and have
significant cost to the broader community.
35. Further, regarding the nature of the harm concerning the drug related
offending it has also been acknowledged in the Final Report of the National
Ice Taskforce, 2015 that, ‘Unlike cannabis and heroin, ice is an extremely
powerful stimulant. For some people, it can trigger psychological
disturbances or violent and aggressive behaviour. Long term use may damage
the brain and cause impaired attention, memory and motor skills. The distress
ice causes for individuals, families, communities and frontline workers is
disproportionate to that caused by other drugs’ (TB1). See also the National
Drug Strategy 2017-2026 regarding the identified “Health Harms”, “Social
Harms” and Economic Harms” (TB2).
In the applicant’s SFIC, the representative submits:
31. In the applicant’s submission, the nature of the harm that might manifest should the applicant reoffend is most rationally assessed by reference to the harm that has resulted from the Applicant’s past offending. In this regard, we repeat and rely on the contentions advanced at paragraph [28] above.
28. As has been acknowledged by the Applicant, the absence of any direct evidence relating to the harm caused by her trafficking and supply of methamphetamine does not mean that her offending was in any way ‘victimless.’ As the Applicant has acknowledged from her own personal experience, her supply of methamphetamine within the community may well have ruined another person’s life in the same way that the Applicant’s methamphetamine use ruined her life. Notwithstanding that admission by the Applicant, we submit that the Tribunal should bear the following factors in mind when weighing the seriousness of our client’s offending:
a) there is no evidence of the direct effects of our client’s trafficking or supply or methamphetamine on any individual (other than the Applicant personally and members of her immediate family) or the community more generally; and
b) to the extent that the Applicant’s conduct may have been associated with indirect negative consequences, there is no evidence to suggest that persons to whom she supplied methamphetamine would not have otherwise sourced methamphetemine from an alternative supplier/trafficker.
In the Tribunal’s view, the submission put forward on behalf of the applicant is oversimplified and untenable. Assertions that a finding can be made on the nature of harm resulting from similar or identical offending by the applicant on the sole basis of the outcomes arising or resulting from her past offending do not stand up to scrutiny and are in the Tribunal’s view merely unsubstantiated conjecture. The Tribunal rejects a contention that any future harm resulting from the applicant’s further offending will be limited to, as the applicant submits, “the Applicant personally and members of her immediate family.”
It is the Tribunal’s view that if further offending were to occur it has the potential to cause serious physical, psychological and financial harm. The applicant has also provided oral evidence to the Tribunal that she was aware of the consequences on the community that bought drugs from her and as a result people lost their children, assets and their homes.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), the Tribunal is of the view that the respondent’s abovementioned submission is correctly made particularly in regard to the harm that ‘ice’ has and the impact upon the community from a health and economic view point as detailed in the referenced Final Report of the National Ice Taskforce, 2015 and the National Drug Strategy 2017-2026.
If the applicant were to re-offend in a similar way, there is, in the Tribunal’s view, a likelihood that her offending will result in significant harm. It is therefore reasonable to find that the potential consequences flowing from the applicant engaging in similar or identical offending would be serious to very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The applicant’s written submissions
It is submitted in the applicant’s SFIC that:
32. In relation to the Applicant’s risk of reoffending in the future, we make the following observations:
a) the Applicant’s offending occurred in the context of:
i. a significant traumatic event occurring in February 2012, which the Applicant failed to adapt to;
ii. a downturn in business in early 2014, coupled with seven years of constant self-employment with limited respite;
iii. developing an addiction to methamphetamine in about July 2014;
iv. her separation from her husband in August 2014; and
v. the closure of her business in late 2014;
b) Associate Professor James Freeman, Consultant Forensic Psychologist, reports that the Applicant’s risk of reoffending is closely associated with her capacity to avoid returning to methamphetamine use;
c) the Applicant completed a substance abuse rehabilitation program on 2 August 2018;
d) the Applicant has maintained abstinence from methamphetamine since about August 2017, including over the last 11-month period where she has lived in the New Zealand community with only the most limited supervision;
e) the Applicant has been highly compliant with the conditions of her community supervision in New Zealand;
f) the Applicant has a standing offer of employment in Australia if she is allowed to return to the Australian community; and
g) the Applicant has developed insight into the cause of both her methamphetamine addiction and her offending, and has made plans to ensure that she does not put herself in a situation where she is liable to return to either methamphetamine use or criminal offending.
33. In the premises, we submit that our client’s risk of reoffending is minimal and the potential harm that might result from future offending is not oppressively serious.
34. In the premises, we submit that this primary consideration weighs only weakly against revocation.
The applicant’s evidence in chief
In her evidence in chief, the applicant was questioned about factors now militating in favour of a finding of a low risk of recidivism. Those factors comprised (1) courses she had completed while in criminal custody; (2) employment that she has lined up were she to be returned to the community; (3) support from her family; and (4) living in New Zealand and being ‘drug free’ for a 12-month period.
The applicant told the Tribunal that entering prison was a huge shock to the system and that she had never known anyone who had been to jail. She explained that although she thought she had prepared herself for it, because of the people she was surrounded with, she did not want to be there. She explained that her family were a great support. They visited every week, which was a 3-hour round trip for them. She explained it took a few months to get her head around being incarcerated and it was difficult, and that she knew the only thing she could do was to accept what she had done and undertake as many courses as she could.
The applicant told the Tribunal that whilst in prison she undertook a ‘Choices Course’ which comprised a group of 10 people. She stated this course was intense and confronting and it made her realise the values she grew up with and pointed out the triggers for her behaviour and addiction. She explained that this course equipped her with good tools to build a plan and that as a result of this course she has full confidence to never do this again.
The applicant told the Tribunal that she had experienced several traumatic events since being released from prison but has not relapsed. She explained that it was traumatic for her to arrive in New Zealand, having to adjust to her new life, find employment, accommodation and also deal with the revocation of her visa being refused. She further explained that she dealt and coped with that trauma by using the tools she learnt in the course she undertook so knows she can cope with future traumatic and stressful events and that she believes she has a positive and good future ahead.
The applicant told the Tribunal that since being in New Zealand she has been under the supervision of the New Zealand Department of Corrections. She explained that she was met at the airport upon arrival in New Zealand by probation officers. Following her arrival and during the first month they would visit weekly, then it reduced to monthly visits. She explained that once COVID-19 hit, supervision changed to monthly phone calls and that is how they have been keeping up to date with her.
The applicant told the Tribunal that she was meant to undergo routine drug testing through the New Zealand Department of Corrections, however, due to COVID-19 that did not happen. So, she paid for her own tests in September and October, which were clean.
The applicant told the Tribunal that she is surrounding herself with good people and that her previous triggers were mostly stupidity. She explained to avoid triggers it was about surrounding herself with good positive people and drawing upon the good values she grew up with that her parents as good people instilled.
The applicant told the Tribunal that she knows how to live a healthy life. That she also knows what the community expects of people and she is never going to do it again.
The applicant told the Tribunal that she has had a long time to reflect. She understands the consequences of her actions, what it did to herself physically and mentally and what it did to her husband, her parents and family and the long-term effects on her employment opportunities. The applicant further explained that she also understood the consequences it had on the community that bought drugs from her, and that people lose their children, people lose their assets and homes. She stated that she felt more remorse for them than she did for herself. She explained that a big part of this realisation was due to the courses she undertook, and she now has empathy for all the lives she affected. She explained at the time she was offending she did not think about it as she was drug induced and drug fuelled. However, she now thinks about it every day.
The applicant told the Tribunal that the biggest factor is her parents. The applicant explained that her mother has a heart condition and her father visited her in New Zealand twice before COVID-19, and that to think she could not attend her parents’ funerals kills me.
The applicant told the Tribunal that she only sees a positive future again. She has re-established her life and is working two jobs, in a café owned by family friends and as a cleaner. She told the Tribunal that she wants to move on, forget that period of my life. The applicant told the Tribunal that her parents are happy with the way she is today, that they mean more than anything to her and if she were to return to Australia, she would live with them initially.
The applicant told the Tribunal that she has organised a job with a friend, whose company deals with contracts with the Queensland government for public housing. The applicant explained that the job is located in Ormeau on the Gold Coast, however, she would live further north towards Brisbane to distance herself from old associates. She stated she does not have social media, and if she were to encounter old associates, she now has the tools to have a conversation and walk away.
The applicant told the Tribunal that she is still married, although is separated from her husband of 25 years. She explained that she speaks to her husband almost every second day and that she still tells him she loves him. She told the Tribunal that he was coming over to New Zealand for a holiday, however due to COVID-19 that has not occurred. The applicant told the Tribunal that when she returns that she does not want to initially rekindle the marital relationship, that she wants to first seek counselling. She stated that we got into the mess together. Not that I think it would trigger anything. It brings back memories. We are both of the understanding that we need couples counselling.
The applicant concluded that she had a great upbringing. She said that it was a stupid mistake that spiralled into out of control and that since abstaining from drugs, she now realises how ridiculous it was.
The applicant’s evidence in cross-examination
The applicant was questioned about her offending history and how she would categorise it. The applicant conceded that it was a serious history and that her traffic history was concerning.
The applicant was questioned regarding her traffic offences and it was put to her that she had displayed a continuous disregard for Australian traffic laws. The applicant in response stated that she had a period of 10-years she did not drive. However, there were circumstances around the drink driving charge, being she had a fight with her husband and wanted to scare him so got in the car and that she just drove it in the carpark of the complex they lived, but had no intention to drive on the roads, and she was unlucky that she was pulled over in the driveway by the police.
The applicant was further questioned by the respondent and it was put to her that she continued to drive during the ’10-year period’ as there were offences during this timeframe. The applicant was asked if she had passengers in the car when she was unlicensed. The applicant conceded that she had taken her nephew to work on one occasion but did not make a habit of it. She did so when her husband was not available.
The applicant was further questioned about driving whist under the influence of drugs and being involved in a traffic accident and being dishonest to police about her identity. In response the applicant conceded she was drug induced and had driven. She stated that she cannot deny it, she was heavily under the influence of drugs. It was something she is not proud of and readily admitted her driving history demonstrated she kept reoffending, including being dishonest to the police telling them her sister’s name. However, she stated she did tell them and came clean about who she was before they charged her.
The applicant was questioned about her earlier cannabis charges in 2002 when she was 28 years of age. The respondent put to the applicant that she had downplayed and minimised the circumstances surrounding the leafy cannabis found under the bed, and that it was 156 grams of cannabis located in addition to 12 plants in the backyard. In response the applicant claimed it was so long ago, that it was just leafy cannabis and that it was seedlings found, not mature plants and that she does not really recall, and she never got a conviction.
The applicant was then questioned about the subsequent charge when she was found in possession of cannabis whilst driving. In response the applicant said that it was her husband’s car she was driving, and she did not know it was in the car when she was pulled over.
The applicant was then questioned about her introduction to methamphetamine use and the downfall of her business. It was put to the applicant that she could not afford to pay the owners of the boats and did not refund deposits and was taking money to support her drug dependency. Further, that she was letting her associates use the boats free of charge and they fell into disrepair and were in a poor state. The applicant stated in response that she attempted to pay back the majority of the money, and it was around $6,000 she could not afford to pay back and she went to the Fair Trade Tribunal and had to wind up the business. However, she conceded that in the end she was letting people stay on the boats free of charge.
The respondent then asked the applicant to expand on who the individual was who introduced her to ‘ice’. The applicant responded that it was an employee who worked on their outboard motors and had worked for them for a considerable time who introduced her and her husband to ‘ice’. The respondent put to the applicant that she was detected of her criminal activities though taskforce Maxima and the investigation into motorcycle gangs and though tactical intercepts. The applicant conceded that she understood that to be the case. The respondent put to the applicant that even after she was detected, and she was released on bail, she kept offending and using drugs. The applicant conceded that to also be true.
The respondent then asked the applicant to clarify when she ceased using methamphetamine. The applicant responded it was approximately August 2017. The respondent then asked the applicant to clarify her involvement in an incident that occurred in October 2017 that involved her husband and the Mantra towers and him being charged with possession of drugs and utensils. The respondent put to the applicant that she was still using after the August 2017 date as claimed and that she only truly ceased using methamphetamine when she was incarcerated. The applicant responded that she was not involved in the incident with her husband at Mantra towers. She was waiting for an ambulance because of a gall bladder issue; however she did try and rehabilitate herself but did have several relapses. She stated that her parents and husband were trying to help as well.
The respondent put to the applicant that the support she claims to have from her family if she were to return to Australia was the same support she had in place during her period of offending and drug dependency, being her parents and husband, yet that available support in the past did not help her. The applicant responded that she was heavily drug induced, which she is not now. Further she is not involved with people in the drug scene.
The respondent then put to the applicant the risk assessment that was undertaken on her during her time in prison and that risk assessment returned a score of 9, meaning she had a moderate risk of reoffending.[31] The applicant responded that although she is not in the Australian community, in her mind it does not matter where she is as there will be plenty of drugs in New Zealand and she is not supervised there and if she wanted them she could, however, she does not want that in her life and has not reoffended. The applicant reiterated that she is very remorseful and that she will not go back to that life. The respondent put to the applicant that it was not true that she is unsupervised as she is subject to a returning offender order, has a supervising probation officer and is subject to standard and special conditions. The applicant conceded that she was subject to a returning offending order and was still under supervision by probation officers.
[31] Exhibit R1: Page 178, Queensland Corrective Services information Notice Security Classification.
At the request of the applicant’s lawyer, the applicant underwent psychological assessment by Psychologist Dr Jacqui Yoxall. Assessment was via video teleconference and occurred on 8 October 2020. A written report was prepared following the video teleconference, a copy of which the Tribunal has before it.[32] The findings of this report are as follows:
· The precipitating and perpetuating factors to Ms Gallo’s Substance Misuse Disorder (Methamphetamine Dependence) from 2014 onwards have been described in detail in this and other relevant documents reviewed.
· Ms Gallo’s serious offending from 2015 onwards was perpetuated by her Methamphetamine Dependence. As is the nature of substance dependence, multiple attempts to cease the use of the substances result in failure and the individual continues to experience deterioration of function and loss of relationships, employment, financial stability, health and other things because of the substance dependence. Offending commonly occurs as the individual becomes increasingly desperate to find ways to source and use the substance of dependence whilst the impact of the substance on the person includes impairment of judgment and insight. The vicious cycle of substance dependence, trauma and loss and offending is well established. When offending is driven by a dependence (as is the case for Ms Gallo), rehabilitation must focus on the substance dependence and risk of future offending is heavily dependent upon the individual’s ability to abstain from use of the substance.
· The documents provided by Ms Gallo and others, including that of Assoc Prof Freeman, outline the events that occurred prior to incarceration in 2018 and her rehabilitation attempts in prison and since. Estimates of risk of reoffending were made prior to her release back to community and as is always the case it can be difficult to estimate how successful an individual might be in implementing new strategies to maintain abstinence ad rebuild a stable life.
· In this case, Ms Gallo can demonstrate 12 months of independent living in the New Zealand community (with limited supervision by Corrective Services) whereby, according to all reports, she has not relapsed to drug use and has not reoffended. In this case, her articulation of her rehabilitation and learnings is demonstrated in her behaviour over this period of time and indicates a high degree of capacity to maintain such gains and changes if she was to return to the community in Australia. In my opinion, her risk of relapse to drug dependence and therefore offending is generally low.
· Ms Gallo has the support of her parents, her husband and other family and friends in the Australian community. She has an offer of employment. She is insightful about her past and current behaviour and committed to engage in further counselling and treatment if required.
· The only aspect of Ms Gallo’s current functioning and circumstance that has not been tested over time is the potential positive or negative influence that her relationship with her sister (also a person recovering from substance dependence and a period in prison) will have on her. Naturally people will want to view the positive aspects of such relationships and the opportunities for individuals to support each other in recovery. This is not always how things turn out. In Ms Gallo’s case, ongoing support by her parents and her husband will substantially assist her and in my view Ms Gallo is more likely to be able to maintain her changes and achievements, and manage her relationship with her sister moving forward, if she is in closer proximity to her parents and husband. It is possible that some counselling to address this matter may be of benefit to Ms Gallo to further support her sobriety.[33]
[32] Exhibit A1: Page 34-65, Psychological Report, Dr J Yoxall.
[33] Ibid.
The evidence provided by the applicant is she does not play any parental role in relation to her grandnieces and grandnephews. The Tribunal therefore gives neutral weight to sub-paragraph (b).
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the applicant’s prior conduct, and any likely future conduct, on any of the children.
As the applicant has no parental role or caring responsibilities towards her grandnieces and grandnephews and her contact with them is limited, it is, in the Tribunal’s view, not likely that the applicant’s prior conduct would have a negative impact on the children. The Tribunal therefore gives neutral weight to sub-paragraph (c).
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the children from the applicant would have on them, taking into account the applicant’s ability to maintain contact in other ways.
The applicant’s grandnieces and grandnephews have not seen the applicant since she entered custody in January 2018. The applicant told the Tribunal that she was on occasion speaking with her in-laws through telephone and video calls. She did not explicitly state that these calls extended to her grandnieces or grandnephews. The applicant only made general statements that the children would be adversely affected. She did not expand upon this, nor did she provide evidence to support her statement on how they may be adversely affected. The Tribunal is not persuaded by the applicant’s statement that the children would be adversely affected if she could not return to Australia. Furthermore, she is maintaining contact with her in-laws through technology and can continue to do that if she wishes to continue having contact with the children.
The Tribunal therefore gives neutral weight to sub-paragraph (d).
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. The applicant has no primary caring or parental role with her grandnieces or grandnephews.
The Tribunal therefore gives neutral weight to sub-paragraph (b).
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the applicant, having regard to their age and maturity.
No views of the grandnieces or grandnephews were put forward. The Tribunal notes that the applicant’s nephew made a statement that she played a pivotal part during his childhood and upbringing, however, this nephew is now an adult and over 18 so his statement is not relevant for consideration under the best interests of a child. The Tribunal therefore gives neutral weight to sub-paragraph (f).
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. There is no evidence of such abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the applicant’s conduct. The Tribunal is of the view that this sub-paragraph (h) is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the submission made on behalf of the Applicant that “Notwithstanding that our client is not the carer or parent of any minor child living in Australia, we respectfully submit that a non-revocation decision would nevertheless have an adverse effect on minor children living in Australia.”;
(b)the Respondent’s submission that “There is insufficient probative evidence before the Tribunal to support a finding it is in any relevant minor children’s best interests that the visa cancellation be revoked”;
(c)the applicant having no parental relationship or caring responsibilities for her grandnieces and nephews;
(d)the applicant having limited contact with the grandnieces and nephews prior to her incarceration and removal to New Zealand; and
(e)the lack of supporting evidence from the applicant’s family to support her claims that the children would be adversely impacted, or evidence of meaningful contact with the children.
The applicant has failed to persuade the Tribunal that her grandnieces or grandnephews would be affected by cancellation of her visa. As such the Tribunal is of the view that the best interests of the applicant’s grandnieces and grandnephews in Australia is given neutral weight of revocation of the mandatory cancellation of her visa in respect to Primary Consideration B.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[37] of the Direction provides that the Tribunal should consider whether the applicant has breached, or whether there is an unacceptable risk that she would breach, the trust of the Australian community. The Tribunal must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[38] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[37] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[38] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight allocable to this Primary Consideration C, the Tribunal has had regard to the following circumstances arising from this matter’s factual matrix:
·the applicant arrived in Australia in 1988, at the age of 14 years. She is now 46 years of age;
·she is married to an Australian citizen; however, they are separated and have been since 2014;
·the applicant has no children;
·the applicant has an extensive traffic history in Australia. The applicant’s traffic history involves the commission of some 32 individual offences. They begin in 1991 and carry right through to the end of 2017;
·the applicant’s offending history discloses at least 10 attempts by judicial sentencing officers to punish the applicant’s offending by the imposition of non-custodial means, be it in the form of fines, good behaviour orders and/or orders for payment of restitution. The history also discloses multiple impositions of custodial terms from June 2018. Taken cumulatively the eight sentences imposed equates to 23 years of imposed custodial time;
·she has at least a serious, more likely very serious, history of offending in Australia;
·the Tribunal’s finding that, were the applicant’s offending to be repeated, it could realistically have the potential for at least serious, more likely very serious, (and potentially catastrophic) physical, psychological or financial harm to members of the Australian community;
·her offending was the subject of head custodial terms in the cumulative total of six years;
·while her contributions to the Australian community – via her employment history – are acknowledged, the reality to be derived from her criminal history is that her life in Australia has been dominated by her difficulties with the abuse of illicit drugs, cumulating in a prison sentence and a serious drug offence certificate issued in relation to trafficking in dangerous drugs and possessing dangerous drugs[39];
·the Tribunal acknowledges and does not cavil with the substantive findings of Psychologist Dr Jacqui Yoxall about the applicant’s risk of re-offending. However, in the Tribunal’s view, the totality of the evidence has led to the conclusion that the applicant’s risk of re-offending, upon any return to the Australian community, remains largely untested and, therefore, uncertain;
·the Tribunal’s consequential finding that, were she to be faced with difficulty and stricture similar to that confronting her in the past, the risk of this applicant again falling back into the commission of similar or identical offending is now only marginally lower than what it was at the time of her removal from the community in January 2018; and
·it is acknowledged the applicant has engaged with courses and treatment processes. However, those engagements have occurred in the closed confines of criminal custody. The resulting rehabilitative effects now propounded by the applicant remain to be tested in the broader Australian community.
[39] Exhibit R2: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[40]
[40] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[41]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[Tribunal underlining]
[41] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[42]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[Tribunal underlining]
[42] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal underlining]
In Afu v Minister for Home Affairs (“Afu”),[43] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal underlining]
[43] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[44] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[45] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [46]
[Tribunal underlining]
[44] [2019] FCA 500.
[45] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[46] FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[47]
[47] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[48]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the applicant’s circumstances or evidence about those expectations;[49]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[50]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[51]
[48] Afu at paragraph [85].
[49] FYBR at paragraph [42].
[50] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[51] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The applicant has a long-term and stable work history in this country. In the applicant’s SFIC[52], we are told the applicant has “maintained consistent employment, including self-employment, from 1990 to 2014”. This contention is consistent with what appears in her Personal Circumstances Form, where the following work history is provided:
“From 2008-2014– Business Owner: Sundowner Houseboat HolidaysFrom 2010-2014 – Attractions Department: Macquarie Leisure Dreamworld
From 2006-2009 – Business Owner: Woodstock Firewood
From 1998-2001 – Admin Officer – Aust Cable Supports
From 1995-1997 – Admin Assistant – Mango Tree Motel”[53]
[52] Applicant’s SFIC, paragraph [41(f)].
[53] Exhibit R1: Page 105, Personal Circumstances form.
The Tribunal is mindful of the applicant’s oral evidence regarding her employment prospects if she was allowed to remain in Australia. She said she has a job with a friend. The business deals with contracts with the Queensland government for housing.
Consistent with the applicant’s oral evidence, the material contains a letter from MASSCORP (Qld) Pty Ltd dated 20 September 2020.[54] Its author is Danny Senior, Managing Director. His letter confirms there is a position for the applicant and the letter relevantly states that commencing February 2021 I will require an administration manager, which will be a sole charge position. The primary functions with this position are to direct and control accurate financial systems, processing, reporting and statutory compliance. I would be very pleased to offer you this position on the basis that I will require acceptance from you no later that the 31st December.
[54] Exhibit A2: Letter from Danny Senior dated 20 September 2020.
While Mr Senior was not called to give oral evidence in support of this letter, the Tribunal accepts it at face value.
In answering the question “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc”, in her Personal Circumstances Form, the applicant said the following:
“Marine Parks & Wildlife – Turtle Release programme 1999. Assisted in 2010 floods in Coomera River - Vessels.”[55]
[55] Exhibit R1: Page 105, Personal Circumstances form.
The applicant provided further explanatory notes regarding the turtle release program as well as the floods. She also spoke to this participation in her evidence. Regarding the turtle release program, she outlined that this was organised by Queensland Marine Parks and Wildlife and was for the purpose of recording how many baby turtles were being taken by predators. It involved tying fishing line to the turtles and releasing them into the ocean, letting them go out certain distances and recording at what distance and depth they were taken. In regards to the 2010 floods of the Coomera River, the applicant described how she and her husband saved multiple boats within the Marina they were living from sinking, and also assisting with intercepting and securing multiple vessels that had broken free from their moorings because of the floods and storm.[56]
[56] Exhibit R1: Pages 111-112, Personal Circumstances form.
The Tribunal is of the view that the applicant’s participation in community and or voluntary work is not frequent in its quantum or nature. She has only claimed to have been involved in one voluntary program, the turtle release survey which was of a limited timeframe. Regarding the assistance in the floods, it is commendable that she and her husband assisted, however, the Tribunal is of the view, that in times of emergency community members generally rally around and support each other in the way that she did.
The applicant’s at least serious, more likely very serious, offending has surely breached the expectations of the Australian community. Her offending history is demonstrative of a significant failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, the Tribunal takes into account the following factors and/or findings:
(a)as outlined above, the applicant has made (and has the potential to make) positive contributions to the Australian community through her employment history;[57]
(b)save and except for periods of incarceration prior to January 2018, the applicant lived in the mainstream Australian community for approximately 20 years prior to her voluntary removal in November 2019;[58]
(c)the very serious nature of the applicant’s offending to date;
(d)while the Tribunal does not cavil with the findings of Psychologist, Dr Jacqui Yoxall about the applicant’s risk of re-offending, the Tribunal has found that the applicant’s risk of recidivism, upon any return to the Australian community, remains largely untested and, therefore, uncertain;
(e)the Tribunal’s finding that the risk of the applicant again committing similar or identical offending is now only marginally lower than what it was at the time of her removal from the Australian community in January 2018; and
(f)the Tribunal’s assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic physical, psychological or financial harm to the Australian community were she to re-offend.
[57] The Direction, paragraph 6.3(7).
[58] The Direction, paragraph 6.3(5).
Conclusion: Primary Consideration C
The Tribunal is of the view that in the specific circumstances of this case the deemed community expectation weighs heavily against revoking the cancellation decision.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The applicant responded as follows in relation to any apprehended fear of harm were she to be removed to New Zealand:
Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘no’ box][59]
[59] G1, G7, 107.
Further, the applicant’s SFIC provides that non-refoulement obligations are not relevant to the applicant’s circumstances.
The Tribunal therefore concludes that this consideration is not relevant to the determination of this application and it is given neutral weight of revocation of the mandatory cancellation of her visa.
(b)Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“58. Whilst it is accepted that the existence of those ties favour the applicant, this
consideration does not outweigh the protection and expectations of the
Australian community which weigh heavily against the applicant.”[60]
[60] Respondent’s SFIC, page 16.
The applicant first came to Australia in 1988 aged 14 years. Weight in favour of the applicant can be found upon an application of paragraph 14.2(1)(a)(ii). The Tribunal has earlier in this decision set out the applicant’s sound employment history in Australia. The Tribunal accepts the applicant has spent time making a positive contribution to the Australian community through her long period of stable and continuous employment until 2014. On that basis a moderate level of weight in her favour can be allocated pursuant to an application of paragraph 14.2(1)(a)(ii).
Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. It is clear from the evidence that the applicant has ties with Australian citizens and/or people who have an indefinite right to remain in Australia. As mentioned earlier, she arrived in Australia aged 14 years and is now 46 years of age. She spent 30 years of her life in Australia.
The applicant is married to an Australian citizen. However, the evidence before the Tribunal is, they are separated and have been since mid-2014. The Tribunal notes that the applicant’s husband did provide a letter of support. This letter also sets out that he is unable to relocate to New Zealand because he is required to care for his parents. The letter states his mother suffers from dementia and lives in a full-time care unit. Further, his father, although living independently, requires his full-time care and is showing early signs of dementia. The letter also details that one sister has psoriasis of the liver and requires weekly treatment, and his other sister works fulltime, and his brothers live in central Queensland, so he is the only person available to care for his parents.[61] The Tribunal does not have any supporting medical information to support these claims, however, accepts them at face value.
[61] Exhibit R1: Page 141 to 144, Letter of support from the applicant’s husband.
As indicated already in this decision, the letter from the applicant’s husband was undated and was provided to the Department at the primary revocation stage, so less weight is given to this letter, as it is not contemporary. Notwithstanding this, the Tribunal accepts that the applicant has a connection with her husband. However, as they are separated and were for several years before the applicant went to prison and departed Australia, and as he did not attend the hearing to provide supporting evidence, the weight given to this relationship and the ties with the husband is somewhat reduced.
In addition to her husband from who she is separated, she also has immediate and extended family who reside here. According to her Personal Circumstances Form, those people are:[62]
[62] Exhibit R1: Page 145 to 148, Family tree (Names redacted).
“(a) Father;
(b) Mother;
(c) Aunt;
(d) Uncle;
(e) Father-in-law;
(f) Mother-in-law;
(g) Cousin;
(h) Brother-in-law
(i) Sister-in-law
(j) Brother-in-law
(k) Sister-in-law and;
(l) 9 nieces and nephews (over 18 years of age) and;
(m) 7 grandnieces and nephews (under 18 years of age)”
The Tribunal notes the evidence submitted regarding the applicant’s strong ties to her parents. The Tribunal accepts that the applicant’s parents permanently reside in Australia as the holders of Subclass 444 visas. The Tribunal further accepts that as her parents age, they will not be able to travel as frequently to New Zealand to see the applicant as they otherwise may currently be able to. The applicant gave evidence that the thing she was most concerned about was not being able to see her parents when they were no longer able to travel and not being able to return to Australia for their funerals. The applicant’s father gave the same evidence during his verbal testimony. The Tribunal accepts that if the applicant was prevented from returning to Australia it would cause her parents and herself significant emotional distress.
With specific reference to this paragraph 14.2(1)(b), the Tribunal finds that the strength, nature and duration of the applicant’s relationships with members of the Australian community are strong and palpable.
The Tribunal finds that this paragraph 14.2(1)(b) weighs strongly in favour of a finding to restore the applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), the Tribunal is of the view that it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
There does not appear to be any evidence before the Tribunal that the applicant’s continued presence in Australia would have an adverse impact on any of her victims. In the absence of such evidence, the Tribunal cannot find that this Other Consideration (d) attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(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.
In her Personal Circumstances form, the applicant speaks of adverse outcomes were she to be returned to New Zealand as follows:
“Are there any other problems you would face if you have to return to your country of citizenship?
I have no family or Support Group in N.Z. I have been in Australia for 30 yrs. I don’t even have any friends in NZ anymore. I am rehabilitated but truly need the support of my Large family here in Australia”[63]
[63] Exhibit R1: Personal Circumstances form, page 107.
The applicant is a female of 46 years of age in apparently good state of physical health.[64] In response to the question in her Personal Circumstances form “Do you have any diagnosed medical or psychological conditions?” the applicant ticked the “No” box.[65] The Tribunal is mindful of certain mental health symptoms/condition(s) regarding the applicant that appears in the material. She will however, if required, be able to access medical care, treatment and governmental social support in New Zealand[66] for those symptoms/condition(s) to the same (or very nearly the same) level as that available to her in Australia. The applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[64] Section 14.5(1) of the Direction.
[65] Exhibit R1: Personal Circumstances form, page 106.
[66] Section 14.5(1)(c) of the Direction.
The Tribunal notes there are no significant or substantial language or other cultural barriers to the applicant’s return and re-establishment in New Zealand.[67] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the applicant will face significant linguistic or cultural barriers in New Zealand, her country of birth. While the applicant contends that her lack of familial ties in New Zealand presents an impediment she would face upon a return to New Zealand, these were overcome when she did return. She in her oral evidence stated she did go through a period of adjustment re-establishing herself, however, was successful in finding accommodation and employment in New Zealand. The Tribunal considers those challenges were not insurmountable and it is demonstrated that any short-term hardship, has not precluded her successful re-settlement there.[68]
[67] Section 14.5(1)(b) of the Direction.
[68] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As mentioned earlier, the applicant had a solid employment history in Australia. There is little evidence in the material to cavil with the contention that the applicant would not be able to find work in New Zealand. In fact, since the applicant has been in New Zealand she has been continually employed.
Having regard to the totality of the evidence, the Tribunal is of the view that this Other Consideration (e) is of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weigh heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength, nature and duration of ties: strongly weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: slightly weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the applicant’s visa: either the applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As the Tribunal has noted above, the applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before the Tribunal, 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 s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B is given neutral weight in favour of, or against, the revocation;
·The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, outweigh the significant combined and determinative weight the Tribunal has attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours affirming the non-revocation decision.
Taking into account the weight attributed to the various considerations, the discretion to revoke the cancellation of the applicant’s visa has not been exercised in the applicant’s favour.
DECISION
The decision under review is affirmed.
I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms C Burnett-Wake, Member
[sgd]……………………………….
AssociateDated: 15 January 2021
Dates of hearing: 26 and 27 October 2020 Advocate for the Applicant: Joel McComber Solicitors for the Applicant: Sentry Law Advocate for the Respondent: Matthew Hawker Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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