Gaunavou and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2059
•13 October 2025
Gaunavou and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2059 (13 October 2025)
Applicant/s: Alena Kotobalavu Gaunavou
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4505
Tribunal:General Member R Cameron
Place:Melbourne
Date:13 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides:
The mandatory cancellation of the applicant’s Class BB, Subclass 155 Five Year Resident Return visa (“the visa”) under s 501CA (4) of the Migration Act 1958 (“the Act”) is revoked.
.........................[SGD]..............................
General Member R. Cameron
Catchwords
Migration Act 1958 - Substantial criminal records 501 (6) (a) - Character test s 501 (6) -Decision of delegate of respondent not to revoke the mandatory cancellation - Whether there is another reason why the decision to cancel the visa should be revoked - Decision set aside.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, 27-8 [76].Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [97].
Secondary Materials
Department of Foreign Affairs and Trade: “DFAT COUNTRY INFORMATION REPORT FIJI-20 May 2022.
Statement of Reasons
INTRODUCTION
The Applicant seeks a review of a decision made by a delegate of the Respondent of 23 July 2025 not to revoke the mandatory cancellation of her Class BB, Subclass 155 Five Year Resident Return visa (“the visa”) under s 501CA (4) of the Migration Act 1958 (“the Act”) (“the reviewable decision”).[1]
[1] The mandatory cancellation of the applicant’s visa occurred on 1 October 2024.
The Applicant is a citizen of Fiji. She arrived in Australia in July 1996 as a seven-year-old with her father and sister. Her mother apparently abandoned the family when she and her sister were comparatively young children. There has been no contact with her mother, certainly since the Applicant’s arrival in Australia. The Applicant has resided continuously in Australia since her arrival here in 1996.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:
(a)The Applicant;
(b)Her father;
(c)Her sister.
As for documentary evidence there were the “G” documents and Supplementary “G” documents which were tendered and received in evidence. Additionally, a “Tender Bundle” (“TB”), which was a compilation of other documents including documents produced in response to summonses served on the Registrar of the Liverpool Local Court and New South Wales Police together with various incident reports, a document concerning Fiji prepared by the Fiji High Commission to the United Kingdom, and a DFAT Country Information Report for Fiji was before the Tribunal.
SOME INITIAL OBSERVATIONS ON THE APPLICANT’S EVIDENCE
It is appropriate comparatively early in these reasons to make some initial observations concerning the evidence given by the Applicant. The Tribunal found her to be a candid witness. In response to questions put both to her by the Tribunal in evidence in chief and in cross examination she answered such questions directly and did not resort to questioning the questioner, making statements, or otherwise giving her evidence with an air of embellishment, exaggeration, or implausibility. It did not understand the Respondent contending to the contrary. She made appropriate concessions at all times. These observations are to some extent further amplified by reason of the fact that the Applicant has had very limited education. She did not receive much education prior to her arrival in Australia, undertook primary schooling after her arrival here, but only sporadically attended secondary schools.
Additionally, a feature of her evidence was that she did not in any way seek to downplay her offending or portray in an inappropriate light. She candidly confronted what she had done. It is fair to say that the Applicant’s history is a very sad story indeed. For most of her life she has experienced significant adversity, difficulty, family troubles, some level of family violence and significant social disruption. In that setting it seems quite remarkable that her history of offending only commenced in her early 30s. It is apparent that the catalyst to her offending was brought about by her introduction to the drug heroin by a former partner. This partner inflicted upon her significant family violence and was clearly very controlling, which is often a hallmark of domestic and family violence as it is understood these days. More will be said about these matters later in these reasons. However overall, the Tribunal formed a very favourable impression of her from her evidence. It accepts the gravamen of her evidence in its entirety. This does weigh significantly in her favour when the Tribunal undertakes the task conferred upon it by the relevant provisions of the Act and the applicable Ministerial Direction.
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or a Territory.
The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[3]
[3] Direction 110 commenced on 21 June 2024.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the Applicant has made representations to the Respondent in compliance with s 501CA(4)(a) of the Act.[4]
[4] See G-10 to G-17, for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent prior to making the reviewable decision. That material has also been read and considered by the Tribunal.
Therefore, two issues remain for determination by the Tribunal as follows:
(a)whether the applicant passes the character test; and
(b)if she does not, whether there is another reason why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The Applicant does not pass the character test. She does not do so by operation of s 501(6)(a) and s 501(7)(c) of the Act, as she has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. She was on 5 July 2024 convicted in the Drug Court of New South Wales at Parramatta of, amongst others, multiple charges of shoplifting.[5] She was given an aggregate sentence of 12 months imprisonment. Both before this Tribunal, and in submissions made to the delegate of the Respondent on her behalf, the Applicant did not dispute the contents of the National Criminal History Check which was in evidence.
[5] The National Criminal History Check G-3, and the Final Sentence in the Drug Court of New South Wales at Parramatta on 5 July 2024 G-4, are referred to with respect to the sentence imposed on the applicant.
Therefore, by reason of the Applicant not passing the character test, the remaining issue for determination by the Tribunal is whether there is another reason why the decision to cancel the visa should be revoked.
DIRECTION 110
At the outset it is appropriate to refer to several of its provisions which guide decision-makers such as the Tribunal, and to note the considerations to be taken into account as articulated in Direction 110 when considering whether there is another reason why the decision to cancel the visa should be revoked. This overview is of course in no way exhaustive, and no substitute for careful consideration of the language is used in each of its provisions. Several of those provisions warrant mention at this stage of the process.
Paragraph 4 “Interpretation” provides a definition of several expressions or terms that are referred to in the “primary” and “other” considerations that the Tribunal is obliged to apply.
Paragraph 5.1 “Objectives” articulates the objectives of the relevant provisions of the Act. Amongst other things, the objectives include:
(a)To regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa;
(b)Specifically, under subsection 501 (1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision maker must consider the specific circumstances of the case in deciding whether to exercise that discretion;
(c)The purpose of this Direction is to guide decision makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499 (2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 “Principles” provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501, or whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(b)The safety of the Australian community is the highest priority of the Australian Government.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
(d)The Australian community expects that the Australian Government can and should cancel non-citizens visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(f)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation.
(g)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Making a decision” provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that:
(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(c)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 “Primary considerations”, provides that in making a decision under, amongst others, s 501CA (4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature, and duration of ties to Australia;
(d)the best interests of minor children in Australia;
(e)expectations of the Australian community.
Paragraph 9 “Other considerations”, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(f)legal consequences of the decision;
(g)extent of impediments if removed;
(h)impact on Australian business interests.
PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 110 provides that decision-makers should also 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.
Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:
(a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c)with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose Visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
(f)the cumulative effect of repeated offending.
The Applicant’s offending
Details of the Applicant’s offending before the Tribunal are contained in the Check Results Report contained in the G documents. There are several things that emerge from an examination of the contents of that document.
The Applicant has an extensive criminal history. The Check Results Report comprises no less than 24 pages. It does not in the view of this Tribunal serve any useful purpose to record in these reasons each and every offence for which the Applicant has been convicted. There are simply too many.
Another feature of the Applicant’s offending as recorded in the Check Results Report is that there are a significant number of convictions for assaulting public officials. Those public officials include police officers, corrective services officers, and other custodial officers in the execution of their duties, with whom the Applicant has had contact from time to time.
Save for some driving offences, which in the scheme of things, were comparatively minor, perhaps other than driving with a middle range level of alcohol in her system, her more serious offending did not commence until February 2021 when she was convicted of shoplifting. There was a consistent pattern of offending after that date. Several things emerge from a consideration of these facts. Her more serious offending and her downward spiral into a pattern of repeated offending did not occur until she was in her 30s. This is comparatively unusual.
The Applicant’s explanation for this descent into a pattern of repeat offending was due to her drug addiction about which more will be said later. It seems to the Tribunal that the Applicant’s drug taking only commenced when she was introduced to them by her then partner who was a frequent user of heroin. She says that she tried the drug not appreciating the dangers and adverse effects would cause her, including ultimately leading to her committing repeated acts of theft to support her drug habit. This cycle of drug addiction and criminal offending to support such addiction as depicted by the Applicant in her evidence, is understandable but does not of course, excuse her behaviour.
The most common offence for which the Applicant was convicted was shoplifting. There were occasional convictions for larceny. An examination of the Check Results Report reveals, on a rough count conducted by the Tribunal, over 50 such convictions. This is as already noted, consistent with the Applicant’s evidence that she was shoplifting to support her drug habit and that of her partner. Additionally, most of the shoplifting convictions were for goods stolen of a value exceeding $2,000. Occasionally they exceeded $5,000.
Details of the circumstances surrounding the Applicant’s offending before the Tribunal was comparatively limited. There were reasons in the sentence of an acting Judge of the Drug Court of New South Wales 5 July 2024[6] and a transcript of proceedings before a Magistrate in the Local Court at Fairfield on 20 September 2023.[7]
[6] G 4.
[7] G 5.
A brief outline of the sentencing judge’s comments in the Drug Court of New South Wales on 5 July 2024 warrant mention. The Applicant was initially sentenced by that Court on 17 January 2024. Such sentence was for a term of 12 months in relation to a significant number of larceny or theft matters. Consistent with the provisions of the applicable legislation, the court did not impose a non-parole period but suspended such sentence to permit the Applicant to enter and participate in a drug treatment program. She was released to a treatment facility known as Guthrie House on 22 January 2024. However, she absconded on the same day resulting in a warrant being issued for her arrest. She made no attempt to contact the program. Accordingly, on 20 February 2024 it was deemed the Applicant had abandoned such program and her participation in it was formally terminated by the Court. Subsequently, the Applicant was arrested on or about 27 May 2024.
The Tribunal would observe that it is most unfortunate that the Applicant did not participate in the program at Guthrie House having been given the opportunity to do so by the court and released from custody. It seems evident that had she done so, it is quite possible that significant progress could have been made in addressing her underlying drug addiction.
By reason of the program being terminated by the court following her abandonment of it and failure to participate, the court is obliged under the applicable legislation to reconsider the initial sentence, take into account any participation in the program, any sanctions imposed, time held in custody referrable to the matters dealt with. The court then has the discretion to either set aside the initial sentence and re-sentence the accused, or alternatively confirm the initial sentence. It should be observed that the final sentence cannot be greater than the initial sentence imposed.
Briefly, the Tribunal will turn to the observations made by the sentencing judge concerning the offences for which the Applicant was sentenced on 5 July 2024. There were 3 counts of assaulting an officer in the execution of the duty, and two additional counts of assaulting a law officer, not a police officer, and inmate in an attempt to escape from lawful custody. There were also 2 counts of larceny, and one for possession of a prohibited drug.
The first three charges of assaulting a police officer in the execution of their duty related to events that occurred on 28 April 2022 when the Applicant was the driver of a vehicle that collided with a motorcycle. The police attended the scene of the collision and there was what was described as an escalation between the witnesses. Police arrested the Applicant’s partner. This prompted her to approach the police screaming at them and throwing punches towards them, remonstrating with them, and telling them to stop. Whilst remonstrating with the police she punched a female officer in the right arm and then punched another officer to the throat area. Not unsurprisingly, the Applicant was then arrested and handcuffed. The evidence indicates that she was heavily intoxicated throughout this incident.
After her arrest, the Applicant was conveyed to a nearby police station. Whilst there she proceeded to yell, and it would appear, remonstrate with the police. On this occasion she raised her leg and kicked a female officer below the right knee.
The fourth and fifth charges of assaulting an officer in the execution of their duty occurred on 15 September 2023. On that occasion the Applicant was being held in custody by Corrective Services. Apparently, she required some kind of health check which required her to attend the Concord Hospital. Whilst doing so she was supervised by a female Corrective Services officer. After telling that officer that she needed to use the bathroom her hand cuffs were removed. Upon their removal, with two hands, she suddenly pushed the officer to the ground. The officer stated that she felt pain following that push as a result of landing on the ground. The Applicant then attempted to escape by running out of the room and down the hallway. Such an attempt did not last long. After running approximately 30 or 40 metres, she was captured. The attempt on the part of the Applicant to escape was ham-fisted in both its intentions and execution. Yet again, most likely a reflection of the drug addled state that she was in at that time.
The sentencing judge on 5 July 2024 decided to set aside the initial sentence and resentence the Applicant.
Assaulting an officer in the execution of their duty under s 58 of the Crimes Act (NSW) carries a maximum term of 5 years imprisonment. A conviction of assaulting a law officer, not a police officer under s 16A (1) of the same act carries a maximum term of 12 months imprisonment. With respect to an attempt to escape from lawful custody, s 310D (a) of that act prescribes a maximum penalty of 10 years imprisonment.
With respect to the three charges of assaulting a police officer, the sentencing judge observed that it was in essence an ongoing course of conduct directed towards police who had a responsibility to uphold the law. However, he did note that the matters were assaults rather than cases of actual bodily harm. The Tribunal considers this relevant in assessing the nature and seriousness of the Applicant’s offending in this instance. Nevertheless, quite rightly, the sentencing judge considered that they were relatively serious matters. He noted the Applicant’s intoxication was self-induced and that there is a general obligation to ensure that those police officers there to protect the community are in turn protected.
Concerning the incidents at the Concord Hospital on 15 September 2023, the sentencing judge also noted in that case that it was an assault rather than actual bodily harm. Nevertheless, he noted that it was an assault effected with some force causing the officer to fall to the ground. Such escape attempt was of short duration as already noted. He considered each of them, in his view they represented matters towards the lower end of the offending scale. The Tribunal also agrees with this assessment of such offending by the Applicant.
The remaining charges dealt with on July 2024 were larceny which involved the theft of goods to the value of $287.92 from Chemist Warehouse in March 2024. The sentencing judge considered that it represented a relatively minor example of that type of matter. Similarly, with respect to the possession of the prohibited drug, it was a small amount of heroin, which he also considered was a low-end example. The Tribunal concludes that both these observations by the sentencing judge accurately assess the limited gravity of the Applicant’s offending with respect to such charges.
On 20 September 2023, the Applicant was sentenced in the Fairfield Local Court. On that occasion she had pleaded guilty at the first possible opportunity to 16 offences of shoplifting committed between 15 June and 17 July 2023. There was also a charge of failing to appear before the court on that day. Throughout the time when these offences occurred, the Applicant was also subject to a prevailing community corrections order.
The sentencing Magistrate observed that in terms of the objective seriousness of her offending which was before that court on that day, there was a considerable spate of offending over a period of just greater than one month. The approximate total value of the goods taken by her from various retail premises were $21,000. He concluded that the offences were serious, particularly when taking into account the amount taken. He described them as falling well within the mid-range of seriousness for offences of such type, aggravated by the fact that she was subject to an existing community corrections order. Therefore, he considered that only a sentence of imprisonment was appropriate.
When assessing the seriousness of the Applicant’s offending the Tribunal is of course guided by the language used in paragraph 8.1.1 of Direction 110.
Convictions of assaulting an officer in the execution of their duties fall within the description of crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties as articulated in paragraph 8.1.1 (1 (b) ii of Direction 110. These crimes are considered by the Australian Government and the Australian community to be serious. The Tribunal did not understand the Applicant to contend otherwise. The observations of the sentencing judge that they were relatively serious matters must be repeated and relied upon in undertaking this assessment. Additionally, the maximum sentences imposed for such offences which were previously referred to in these reasons also reflect the seriousness of such offending from the perspective of the Parliament of the State of New South Wales and clearly the Australian community. They are significant terms of imprisonment that may be imposed in appropriate cases.
There was an attempt to escape lawful custody. That is an inherently serious crime. It attracts a maximum penalty of 10 years which also reflects the gravity attaching to such offending that has been prescribed by the legislature.
Also relevant in assessing the gravity or seriousness of the Applicant’s offending must be of course the sentences imposed. She has been sentenced to several community corrections orders that she failed to adhere to. Additionally, she has been sentenced to several terms of imprisonment. Community corrections orders are the offender’s last chance before custodial sentences are imposed. They are designed to be tailored to the individual needs of the offender, such as the Applicant in this instance who had a significant drug addiction. Sadly, when the Applicant was released to Guthrie House on 22 January last year, she absconded. It is disappointing indeed that she did not take this important opportunity to turn her life around.
On the question of sentences imposed, understandably the Respondent emphasises that liberty of the subject is considered paramount, and therefore the imposition of a prison sentence is the last resort in the sentencing hierarchy. That the Applicant has been sentenced to terms of imprisonment clearly reflects the objective seriousness of her offending. The Tribunal agrees with this assessment.
In terms of the impact of the Applicant’s offending on any of her victims, the evidence before the Tribunal is extremely limited. With respect to the assaults on the officers in the execution of their duties, fortunately, it appears that none of them suffered any injuries. In terms of her frequent shoplifting convictions insofar as the goods stolen were not recovered, this causes a direct loss to those retail outlets from whom she stole. That is an impact in the relevant sense on her victims. Ultimately, not only does the impact effect businesses who incur or suffer such losses but, also the end consumers or customers of such businesses are affected by way of higher prices. Businesses that are subject to shoplifting or theft usually factor it into the cost of doing business and adjust the prices they charge their customers accordingly. It is a factor that should not be underestimated.
The frequency of the Applicant’s offending and whether there is any trend of increasing seriousness is also a relevant consideration prescribed by paragraph 8.1.1 (1) (e) of Direction 110. The frequency of the Applicant’s offending has already been addressed. In the Check Results Report, there were no less than 24 pages of prior convictions. It is a frequency, which although the more recent origin, is extraordinary. It is all the more extraordinary that it effectively occurred over a 2-year time span.
Unfortunately for the Applicant, there was also a trend of increasing seriousness. The trend of increasing seriousness arose in several ways. Firstly, there was the increased frequency of her offending which has already been touched on. Secondly, there were the significant number of convictions for assaulting officers in the execution of their duties which is plainly unacceptable. Thirdly, there was the value of goods stolen which over time increased to significant levels. Fourthly, the trend of increasing seriousness of offences committed by the Applicant must be viewed in the context of her failure to comply with several community corrections orders and her failure to participate in a drug treatment program at Guthrie House following the suspension of a custody or sentence imposed upon her. This is an aggravating factor. Finally, ultimately the increasingly serious nature of her offending resulted in custodial sentences being imposed, as noted earlier.
Paragraph 8.1.1 (1) (f) of Direction 110 requires the Tribunal to consider the cumulative effect of the Applicant’s offending. In the absence of direct evidence on this topic it is a factor that is very difficult to accurately assess by the Tribunal. One can identify several effects that directly flow from the effects of her offending.
Firstly, there is the effect on her victims, be they the victims of the assaults or the businesses from whom she stole goods. Secondly, of course, there is the diversion of police, prosecutorial, court and corrective services. No doubt if those services were not diverted in addressing the consequences of the Applicant’s offending, they could have been applied elsewhere to better benefit the Australian community. There may be other effects such as the unnecessary recourse to the healthcare system, social welfare support and other services ultimately paid for by the Australian taxpayer.
One must then turn to reaching some conclusion or assessment as to the nature and seriousness of the Applicant’s criminal offending.
Whilst at first blush, after having considered the matter as articulated above, one might be inclined to draw the conclusion that the Applicant’s offending was very serious. The Tribunal does not reach this conclusion. It considers, as did the sentencing judge in the Drug Court at Parramatta in July 2024, that they can be more appropriately classified or categorised as relatively serious. In some respects, this is what the sentencing Judge did with respect to the charges arising from the misguided attempt to escape lawful custody at the Concord Hospital in September 2023 which he considered were towards the lower end.
Also, as already recorded in these reasons, clearly the Applicant assaulted officers in the execution of their duties and has done so on quite a number of occasions. Fortunately, there were no injuries. These offences probably should be viewed from the perspective that the Applicant, when those offences occurred, was either heavily intoxicated and/or under the influence of addictive drugs. They were offences that were overwhelmingly committed as a mature adult in her 30s, which is surprising. This does not in any way excuse her offending, but it does place it in its context and indicates that they were by no means the worst examples of such offending or at the higher end of the scale.
For these reasons, the Tribunal concludes that the Applicant’s offending was relatively serious.
Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2 (2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm to individuals or the Australian community
Paragraph 8.1.1 (2) of Direction 110 requires the Tribunal to have regard to, amongst other things, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, it seems more probable than not, will be of a similar nature to that occurred with respect to the offences committed by her previously. Most likely, her offending will take place in the context of a relapse into drug addiction. Presumably, were she to relapse into drug addiction, she would resume shoplifting or other forms of thievery to obtain goods that she could use to fund her habit. As observed earlier, if she were to engage in further and repeat offences of shoplifting, there is harm directly to the businesses who suffer the loss and consequent effect on their profit margins together with the potential for end consumers having to pay more for goods by reason of the cost of theft being factored into those retailers’ costs of undertaking their business. The Respondent also, quite understandably, identified further potential categories of harm being the use or diversion of resources from the justice, corrections, and healthcare systems, amongst others. Yet again, more likely than not, they would be resources that the Australian taxpayer would ultimately have to fund at times when there are considerable fiscal demands made on the Treasury.
Were she to reoffend by assaulting officers in the execution of the duties, probably it would be as before, assaults committed when she is in a drug affected state not behaving rationally. There is the risk of physical harm to those public officials or officers by way of physical injuries and also consequential psychological harm which such officers quite regularly suffer such as work induced PTSD, depression or anxiety, by way of example.
Remorse and insight into offending
In terms of remorse and insight into the Applicant’s offending, the Tribunal observed that in her evidence to it from the witness box she expressed profound regret for her offending and the effects of such offending on a variety of people and organisations. The Tribunal reached the conclusion that her expressions of remorse were genuine. Since her arrest, subsequent imprisonment and latterly being placed in immigration detention she has had much time to reflect upon her offending and its consequences for her victims, her family, most critically her two daughters and of course herself.
The Respondent on the other hand contended that any expressions of regret or remorse on the part of the Applicant for her offending should be given little weight or emphasis given her history of reoffending after having been given many opportunities to turn her life around and reform. The Tribunal acknowledges the force in this contention. The Tribunal, whilst acknowledging these contentions on the part of the Respondent, does not agree. It was persuaded after having had the opportunity to assess the material before it and observe the Applicant, her sister and father in the witness box that her expressions of regret and remorse were genuine.
Concerning the most recent offences for which she was convicted of assaulting police officers in April 2022, she acknowledged that she had drank to excess on that day. She stated that assaulting police officers was embarrassing for her and generally out of character. She explained that the next day she wrote an apology to the police and left it at the police station.
In terms of insight into her offending, the Applicant clearly understood that it was inextricably linked to her drug addiction. To her credit she readily acknowledged that she understood that the work and steps she needs to take to overcome addiction is ongoing. Indeed, in response to one question in cross examination she stated that she realised that she is forever going to be addicted and that she must never take drugs again. Her evidence was that since being imprisoned by order of the Drug Court of New South Wales in July of last year she has not consumed any drugs. There was no evidence before the Tribunal to suggest that she has. It was not suggested in cross-examination that she had otherwise done so. It is fairly well-known that drugs are reasonably well available in both prisons and immigration detention. That she has not used any drugs during that time is very much to her credit and indicative of an attempt by her to break the cycle of drug addiction.
Another feature of both the remorse and insight into her offending that emerges from the evidence in the witness box, concerned the several breaches of community corrections orders and the release to Guthrie House to participate in a treatment program. She acknowledged the seriousness of her failure to comply with those orders. She stated on reflection she very much regretted that she had not complied with them. She acknowledged that the courts on those occasions were lenient with her and gave her a chance to turn her life around. She profoundly regretted her subsequent further offending. In a partial explanation for such failure to comply with those community corrections orders, she stated that in her sick and considerably drug affected state her only priority was to return to her children as quickly as possible. As misguided as this is, one can understand in the circumstances how that may have occurred.
A very strong theme that emerged from the Applicant’s evidence about the remorse she feels and insight she has gained with respect to her offending came from her evidence about the effect that such offending and her subsequent incarceration has had on her two daughters. The Tribunal accepts not only from the Applicant’s evidence but also that of her sister and father that the Applicant has an extremely strong bond with her daughters. Being removed from them now for a long time has had a devastating effect upon her. She described the time in prison and subsequent immigration detention as a big wake-up call, which motivated her to express deep remorse for her offending and also gain insight into it. This has prompted her to realise that if she does reoffend, not only is she likely to experience a protracted absence from her children, she might well be deported.
The Applicant’s sister who made a statement and gave evidence from the witness box at the hearing of this application also addressed the question of the Applicant’s remorse. She expressed the view that the Applicant was genuinely remorseful and had made progress. Since her imprisonment and subsequent immigration detention, her sister observed that she had seen much change in the Applicant and a development in her maturity. This evidence was not challenged in cross-examination. It is accepted by the Tribunal.
Overall, the Tribunal has concluded that the Applicant has expressed genuine remorse for her offending and gained an appropriate level of insight into such offending. Particularly, she is acutely aware of her drug addiction being the catalyst for offending and accepts that she can never take drugs again.
Rehabilitation
The question of the Applicant’s rehabilitation poses some difficulties. Unfortunately, because the Applicant was self-represented and simply did not have the funds to obtain any, there were not, as often as the case of applications such as these, expert reports from a suitably qualified healthcare professional such as a forensic psychologist who could express an opinion about rehabilitation, in particular the risk of relapse into drug taking and the likelihood of her reoffending.
The Respondent placed significant emphasis on the fact that there was no evidence of the Applicant undertaking any drug and alcohol awareness or treatment programs. Further it was submitted there was no evidence that she had developed any strategies to avoid taking alcohol and drugs in the future which might be the catalyst to subsequent offending. It is further contended by the Respondent that the Tribunal is left with the Applicant’s bare assertions that she has rehabilitated. Further emphasis is placed by the Respondent on the Applicant’s failure to undertake the rehabilitation program that she was directed to by the Drug Court of New South Wales in January 2024. These contentions on the part of the Respondent are powerful.
Also, the Respondent contended that insofar as the Applicant relies upon her relations with both her children and her extended family as constituting protective factors or providing assistance which would lead her away from a pathway of reoffending, such factors did not deter her in the past.
Several of these concerns expressed by the Respondent have already been addressed earlier in these reasons. The Tribunal considers that notwithstanding the lack of particularly professional evidence about her rehabilitation, and also the fact that she has not undergone any drug or alcohol awareness and/or treatment programs, she has taken significant steps towards rehabilitation for which she should be given credit.[8]
[8] It is acknowledged that in her Personal Circumstances Form lodged with the respondent in October 2024 the applicant referred to having completed several courses. Unfortunately, no further details were provided. There was also a Certificate of Completion of the Short Sentence Intensive Program of 29 September 2024 which was completed during her term of imprisonment. It is surprising given the applicant's history that once she was imprisoned that there were not specific courses such as drug and alcohol awareness and treatment programs that she could have been able to attend during her time in custody. The Tribunal infers from her evidence that had such specific courses been available to her at any time she would have undertaken them.
These steps include the fact that she has not taken drugs since she was imprisoned last year. This would indicate some significant level of rehabilitation. The Tribunal, as already noted, accepts the Applicant’s evidence that the significant term of imprisonment and of subsequent immigration detention has provided her with a significant wake-up call. Another thing that emerged from her evidence along these lines, which should not be underestimated, was the fact that the Applicant really did not contemplate that she was facing the prospect of deportation. That fact alone as had a chilling effect upon her. The Applicant gave very compelling evidence about the effect that the protracted absence of her children has had upon her. That should not in this Tribunal’s view be underestimated in terms of the process of rehabilitation.
Another vital factor in the course of rehabilitation about which the Applicant gave evidence concerned how she actually came to be a drug addict. There was compelling and moving evidence from her about the relationship she had with her most recent partner who is the father of her youngest daughter. She described that relationship in various ways including that it was toxic, she was subjected to a very controlling partner, and he was a user of heroin. The Applicant’s evidence was also that her partner was a violent individual who was violent to her. Ultimately, this resulted in the police obtaining an intervention order against him to prevent him from committing acts of family violence against her.
Very moving evidence was given by the Applicant about her descent into heroin addiction caused by her partner. She explained how he pressured her to keep taking the drug because if she didn’t, she would become sick. In this context she said she started shoplifting to support both her habit and that of her partner. He clearly encouraged her to do so. She stated she didn’t resist because she did not wish to have a fight or an argument with him because of the consequences that flowed. Also, she just did not want to get sick. When it was suggested to her that she should have sought help for her addiction, she explained understandably she thought, as misguided as it was, that if she did seek help the Department of Community Services would take her children away from her. She was clearly petrified of that potential outcome.
Fortunately, since her imprisonment at subsequent immigration detention the Applicant has cut off all contact with her former partner. This is a very positive development. It seems to the Tribunal that if she is able to have no contact with her former partner in the future, which is her overwhelming desire, her endeavours to remain totally abstinent from drugs are more likely to be successful. This total avoidance of any contact with her former partner the Tribunal considers to be an important limb or component of her rehabilitation.
For these reasons, overall, the Tribunal considers that the Applicant has made significant progress towards rehabilitation and should deserve some positive attribution for having done so.
Risk of reoffending
Some of the relevant factors that are relevant to assessing the risk of the Applicant reoffending have already been addressed in several of the sections above, including those of remorse and an insight into her offending together with that of rehabilitation. Insofar as those matters raised also are relevant to undertaking the assessment of a risk of her reoffending, they are referred to and repeated for the purposes of this assessment.
It is, as already noted, unfortunate that some form of expert professional opinion by a suitably qualified professional such as a forensic psychologist was not available to the Tribunal, or for that matter even a suitably qualified community corrections officer.
As noted, the Tribunal accepts the Applicant’s evidence about her firm desire to avoid reoffending. It also accepts her evidence that she desperately wishes to be reunited with her two daughters whom she profoundly misses.
Previously, it was observed that collectively the Applicant considered her imprisonment, subsequent migration detention and the prospect of deportation to have been a wake-up call for her. It appears that she did not realise the extremely serious consequences that her offending could have both in terms of custodial sentences being imposed and the potential for deportation. The future prospects of these events occurring again seem to this Tribunal to be a powerful motivating factor against future offending. This emphasis also should be seen in the context of the potential for her to be separated from her two daughters who she clearly loves dearly.
The Tribunal also accepts the evidence of her sister on this question. There were several aspects to her sister’s evidence which is accepted in its entirety by the Tribunal. Also, the Applicant’s sister’s evidence was not challenged in cross-examination. Her sister was a genuine and credible witness. She explained what she had observed with the Applicant going downhill as she descended into a cycle of heroin addiction and offending. She described it as having phases of ups and downs.
Her sister also emphasised, consistently with the evidence of the Applicant, that her problems really started when she formed a relationship with her then partner who introduced her to heroin. This was also coupled with the fact that the Applicant was exposed to significant and repeated acts of family violence.
Whilst her sister candidly admitted that the Applicant had made promises in the past which regrettably were broken or not achieved, she stated in uncontested evidence that she had observed a lot of change since the Applicant has been imprisoned including a development of maturity. When probed on the Applicant’s expressions of genuine change, her sister stated that she believed that such changes were motivated by a genuine desire to be reunited with her children. It should also be observed that her sister’s evidence was that throughout the Applicant’s time in prison and immigration detention, they have been in regular contact by telephone and the Internet.
Another aspect on the question of risk arising from the evidence of the Applicant’s sister concerns potential employment should the Applicant be released into the community. Her sister works at General Mills in Rooty Hill as a machine operator. She had no doubt that if the Applicant is released into the community, she would be able to arrange a job for her. Whilst the Respondent contends nothing is certain and it is certainly not an open offer, the Tribunal considers nonetheless from the sister’s evidence that it is more probable than not that she would be able to favourably arrange an employment opportunity for her.
Although the evidence on the risk of the Applicant reoffending is perhaps not as one would like it to be, overall, for the reasons explained the Tribunal considers that she is a relatively low risk of reoffending.
Conclusions on primary consideration 8.1 of Direction 110
The Tribunal must now turn to consider what weight to attach to this primary consideration.
There are several paragraphs of Direction 110 that guide the Tribunal as decision-maker in undertaking such an assessment. Paragraph 5.2 “Principles” subparagraph (2) specifies that the safety of the Australian Community is the highest priority of the Australian Government. Further, under paragraph 7 of that Direction “Taking the relevant considerations into account”, this primary consideration being the protection of the Australian community is generally to be given greater weight than other primary considerations. However, it does confer a discretion on the Tribunal which must be properly exercised after it has considered all the evidence before it.
The Tribunal has reached the conclusion that with respect to primary consideration 8.1 of Direction 110 Protection of the Australian community, significant weight must attach to it against revocation of the mandatory cancellation of the visa. However, whilst reaching the conclusion that significant weight must be attached to this primary consideration as mentioned, it should be emphasised that it has not attached heavy or particularly heavy weight to it.
In reaching this conclusion that it has not attached heavy or particularly heavy weight to this primary consideration the Tribunal observes that it has not done so for several reasons. Those reasons may be summarised in no particular order of priority. They include that the assaults on public officials did not result in any injuries to them. The observations of the judge of the New South Wales Drug Court of July 2024 on these assaults are referred to and repeated. Whilst relatively serious there was no actual bodily harm, and with respect to the assault during the escape attempt, he considered they were towards the lower end. Secondly, some allowance should be given for the fact that the shoplifting crimes committed by the Applicant, although frequent and in a comparatively short timeframe, were carried out in the context of a chronic heroin addiction in order to sustain that habit and that of her then partner. They were also carried out at the time that she was subject to a controlling partner who was committing acts of domestic violence on her. That the Applicant was a victim of family violence inflicted on her by her then partner was not contested by the Respondent. Thirdly, the Tribunal, as explained earlier, is persuaded about the Applicant’s remorse and insight into her offending, her attempts at rehabilitation, the wake-up call that imprisonment and immigration detention have given her and the great distress she has clearly experienced by reason of being separated from her children. Finally, there is a conclusion reached as explained, why the Tribunal considers she is a relatively low risk of reoffending.
Primary consideration 8.2 of Direction 110 - Family violence committed by the non-citizen
There have been no acts of family violence committed by the Applicant. As such, both parties accept that this primary consideration is not relevant to this application. Therefore, no weight attaches to it.
Primary consideration 8.3 of Direction 110 - The strength, nature, and duration of ties to Australia
Paragraph 8.3 of Direction 110 provides as follows:
1)Decision makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature, and duration of any other ties that the non-citizen has to the Australian community. In doing so decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia as previously explained in 1996 as a seven-year-old. As is evident from that fact, she arrived in Australia as a comparatively young child.
It has also previously been recorded in these reasons that the Applicant did not really commence any sustained pattern of offending until she was in her early 30s. She lived in Australia for many years without offending and overall contributed relatively positively to the community. For many of those years until the birth of her second daughter she was gainfully employed. One should observe that the contribution she made, about which more will be said later, was affected notwithstanding the fact that as a comparatively young girl she had an extremely challenging life. Some of this has already been touched on.
Upon arriving in Australia, the Applicant lived with her father and sister. As already noted, the Applicant’s mother abandoned the family when she was an extremely young girl in Fiji. There has been no contact since. Upon arrival in Australia her father was the sole breadwinner. She described him as being a relatively heavy drinker which did not assist in creating a harmonious home life. Notwithstanding these challenges on the home front, having heard from the Applicant’s father and her sister it appears that their relationship was reasonably strong and remains so to this day. The Applicant and her sister also apparently have five half siblings. They know nothing about them and do not have any contact.
Upon arrival in Australia the Applicant attended primary school and ultimately completed it. Unfortunately, she had very little secondary education. She attended some high schools but only in a fragmented way usually for not very long at a time. After leaving primary school from approximately the age of 12 she spent little time in the home with her father and sister. She described staying with friends or even on the streets. Her sister left home at approximately the age of 15. She became pregnant at approximately 18 years of age and had her first daughter. The father of her first daughter has had absolutely no role to play in either the Applicant or her daughter’s lives either by being present physically or making any financial or other contribution to their maintenance and support.
From approximately 2010 the Applicant worked at a chicken factory. To her credit she then undertook a certificate of Hospitality Studies at Mount Druitt TAFE. After obtaining that qualification she worked at hotels and in an RSL club. She continued working until she met the father of her youngest daughter. According to her evidence she worked for approximately six years.
As has already been stated the Applicant’s immediate family include her two daughters. The eldest daughter was born in August 2007 and the youngest daughter in May 2017. They are both Australian citizens. Presently those daughters are living with the Applicant’s sister who gave evidence at the hearing before the Tribunal. Her other family members are of course her father who is approximately 66 years of age and her sister who is approximately 39 years of age. Her sister has five children who are all Australian citizens ranging in age from 19 to 8. Additionally, the Applicant has an auntie who is a permanent resident of Australia aged approximately 55 years. There are no other known relatives with whom the Applicant has any contact or relationship.
From the evidence given by the Applicant’s sister, her father and not to mention herself, the Tribunal concludes that they are reasonably close. The relationship between the Applicant and her sister was obviously very strong and one of deep love and dedication. Her sister has, notwithstanding five children of her own, taken the Applicant’s two children in since her imprisonment and subsequent immigration detention. Her evidence on this topic was quite impressive. She stated that with 7 children under one roof things can be “pretty hectic, but we are managing”.
The Applicant stated that since she has been in prison and immigration detention, she has maintained contact with her children every day on FaceTime. The duration of these FaceTime calls varies depending on a number of different factors. This could include whether the children have some other commitment, whether they are doing something with their cousins or are simply not at home at the relevant time. The Applicant explained that such calls could last as long as one hour, 20 minutes or even 5 minutes.
In terms of social links with Australia the evidence from all of the witnesses who gave evidence included that they had been over the years active members of a Fijian church in Sydney. That church is connected with the Assembly of God. The Applicant explained that the church she attended, which was also attended by other members of her family, including his sister, her auntie, her father and her nieces and nephews, was a reasonably important social and spiritual aspect of their lives. The Applicant explained that her uncle is the priest there. She said that he is aware of her problems and that they have talked about her difficulties from time to time. He appears to have been the source of some guidance and support to her.
The Applicant’s eldest daughter until recently was in Year 12 at Liverpool Girls High School. Apparently, she was a reasonably competent student and recently dropped out. Presently, she is looking for work. The Applicant in her evidence said she thought that her eldest daughter would endeavour to complete secondary school and go on to higher study. However now she just seems to wish to get a job. It was the Applicant’s conclusion that her absence had probably been a contributing factor to her eldest daughter’s decision to prematurely finish up at secondary school.
The youngest daughter of the Applicant is at the same school as her cousins which is the Busby Public School. She appears to be progressing quite well and adapting to the slightly different home environment with her cousins. No doubt they are providing support to her in several ways which does to some extent counter the absence of the Applicant in her life.
From the comparatively limited evidence before the Tribunal on this primary consideration it concludes that the Applicant has very strong ties to Australia and her immediate family. Additionally, there is a social network with the Fijian community that is galvanised by her family’s attendance at the Fijian church. The Applicant’s Fijian sense of identity and her connections with that community do seem to be extremely strong. Her bonds with both her sister, her sister’s children and even her father, are extremely strong also. The support provided by the Applicant’s sister in taking in her two children has also strengthened those connections.
There can be little doubt that if the Applicant were to be removed to Fiji there would be significant impacts on both her children. It seems that her eldest daughter probably has been more profoundly affected by the absence of her mother than the younger daughter. Clearly, the bonds that the Applicant has with her sister and sister’s children lead one to conclude that they too would be profoundly affected if the Applicant were to be removed to Fiji.
Given all these factors the Tribunal concludes that extremely heavy weight must attach to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
Primary consideration 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision
There is now only one child of the Applicant in Australia under the age of 18 years. Her eldest daughter turned 18 in August.
Her youngest daughter was born in May 2017 and is an Australian citizen.
In addition to the Applicant’s youngest daughter there are four nieces and a nephew of her sister who are Australian citizens. Three of those nieces and the nephew are under the age of 18 years.
Under paragraph 8.4 (3) of Direction 110, if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. To this extent it is considered that the interests of the Applicant’s daughter should be considered separately from those of her nieces and nephew.
Paragraph 8.4 (4) identifies several factors that, where relevant, must be considered by the Tribunal when applying this primary consideration.
Subparagraph 8.4 (4) (a) of Direction 110 requires the Tribunal to consider several factors. The evidence before the Tribunal establishes that prior to her imprisonment and subsequent immigration detention, the Applicant was the full-time carer for her youngest daughter. It is also satisfied from the evidence of not only the Applicant but also her sister that the bond between the Applicant and her youngest daughter is a strong one. The strong bond that has developed between the Applicant and her youngest daughter has also been amplified by reason of the negligible role that the biological father has played both as a parent and also given his acts of domestic violence towards the Applicant. His role in leading the Applicant into a cycle of drug addiction is also a relevant factor in the view of this Tribunal.
It is acknowledged that since the Applicant has been imprisoned then subsequently placed in immigration detention that there has been a significant period of absence in terms of physical contact or interaction between the Applicant and her youngest daughter. However, as already recorded, there has been daily contact by means of the FaceTime medium which the Tribunal is satisfied has enabled the strong bond between the Applicant and her youngest daughter to be maintained.
The Tribunal has concluded that the Applicant, despite the setbacks and challenges that she has faced in her life in recent years, nonetheless remains an important part of her youngest daughter’s life. Were the Applicant to be returned to Fiji, it is satisfied that there would be significant ramifications for her youngest daughter. This is notwithstanding the fact that her youngest daughter has for some time resided with the Applicant’s sister’s family and is clearly fitting in and treated as a part of that family with a large number of other children. This has been already commented on, and to the extent that it has been, those references are referred to and repeated.
The Respondent accepts that on the evidence available to the Tribunal the Applicant appears to have a close relationship with her youngest daughter. This certainly accords of the observations already recorded with respect to this primary consideration above. It is also acknowledged by the Respondent that it appears the Applicant played a positive role in her daughter’s life prior to her descent into drug addiction and offending. This is an appropriate concession. Further, it is acknowledged by the Respondent that on the evidence available to the Tribunal and given that approximately nine years will pass before she reaches adulthood, the Applicant could play a positive role in her youngest daughter’s life in the future.
As required by paragraph 8.4 (4) (b) of Direction 110 the Tribunal is required to consider the extent to which the Applicant is likely to play a positive parental role in the future. It should be repeated that the Tribunal has had the opportunity to consider the evidence of both the Applicant, her sister, and to a lesser degree, her father. It concludes that notwithstanding the challenges of the last few years experienced by the Applicant by reason of her drug addiction and criminal offending, she is devoted to her youngest daughter. It also appears to the Tribunal that she is acutely aware of how her more recent conduct has failed her daughter’s best interests. The Tribunal concludes that her endeavours to rehabilitate and genuinely engage with her daughter in a positive way are bona fide. Although she has been in custody and immigration detention, the daily contact by medium of FaceTime, whilst the Applicant has been drug-free, has enabled a much deeper relationship to be restored. The Applicant’s daughters mean the world to her. She recognises that she needs to be there for them and with the support of her broader family and the Fijian community, there appear to be reasonable prospects of her being able to achieve these ends.
The impact of the Applicant’s prior conduct, and any likely future conduct, and whether it has or will have a negative impact on the child is a factor that must be considered under paragraph 8.4 (4) (c) of Direction 110. Much of that impact will be self-evident from the matters that have been addressed earlier in these reasons. It has clearly caused significant disruption to the Applicant’s youngest daughter’s life. She has been brought up for almost 2 years by her auntie in a family home with 5 other children without the immediate physical presence of either a father or a mother. That is a significant impact. Although there was limited evidence on the topic, it would appear that during the period of drug addiction and offending the Applicant’s youngest daughter would surely have been profoundly affected one way or another.
As for the likely effect that any separation from the Applicant would have on her youngest daughter, taking into account the ability to maintain contact in other ways, it seems that were the Applicant returned to Fiji, things would continue as they presently are. Her youngest daughter would continue to live with the Applicant’s sister and her cousins. The Applicant presumably would continue to maintain contact by means of FaceTime. Presumably, were finances to permit it, her daughter at a suitable age and stage in life would be able to travel to Fiji to see her mother. Whilst it is not strictly relevant, one also has to acknowledge the burden that caring for the Applicant’s youngest daughter has placed upon her sister and her husband. Although the Applicant’s sister was clearly quite content to fulfil that role and did so without complaint, the burden upon them should not be underestimated.
On this note, one should observe, as is required by paragraph 8.4 (4) (e) of Direction 110, that the Applicant’s sister and her husband, by taking her youngest daughter in, are fulfilling a significant parental role in relation to her. Clearly, they are doing a very good job without complaint.
There are three nieces and one nephew of the Applicant’s sister who are under the age of 18 years. They are presently 17, 16, 15 and 8 years of age. They live in the family home with their parents and older sister who is now 18 years of age, and the Applicant’s youngest daughter. Little evidence was before the Tribunal concerning these children. The Applicant sister explained, as is the case with many Fijian families, that they have always been comparatively close to one another. Generally, they have lived reasonably close to each other.
The Applicant says that her nieces and nephew mean a great deal to her. Given the interaction of the Applicant’s children with her sister’s children, as has been described to the Tribunal in evidence, this seems highly likely.
As is the case, the Respondent contends that with respect to the nieces and the nephew, their parents play the primary parental role. Quite so. It is difficult to see that the Applicant will have played any positive role in her nieces and nephew’s lives over the last few years given her cycle of drug addiction and of course subsequent imprisonment and immigration detention. Any positive future role to be played by the Applicant would be dependent on her remaining drug-free and not reoffending.
The Tribunal now must turn to what weight to attach to this primary consideration. Not unsurprisingly, the Respondent contends that whilst it would weigh in the Applicant’s favour, it does not do so determinatively. The Tribunal cannot agree.
There are several reasons for this. They have been canvassed earlier in its analysis of this primary consideration. The Tribunal accepts that the Applicant is completely devoted to her youngest daughter. This bond has been forged over the course of her youngest daughter’s life. The strength of the bond has also been fortified by reason of the behaviour of her youngest daughter’s father, both in terms of the acts of family violence he committed towards the Applicant, his absence from the family unit, his lack of contribution to the maintenance and support of his daughter and of course his drug addiction. Faced with these challenges, the Applicant shouldered a very significant parental burden which she has done her best to achieve. It is also satisfied that there is an exceptionally strong bond between them. That bond has continued to be maintained notwithstanding that the Applicant has not been present in the community by reason of serving terms of imprisonment and immigration detention. However, during that time whilst drug-free, she has made every endeavour to maintain contact with her daughter by FaceTime.
Notwithstanding that the Applicant’s youngest daughter has lived for some time with her auntie and her nephew and nieces, that does not diminish the bond between her and the Applicant. Both the Applicant and her youngest daughter would be devastated if the Applicant were returned to Fiji.
For these reasons, the Tribunal attaches very heavy weight to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
Primary consideration 8.5 of Direction 110 - Expectations of the Australian Community
Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non-citizen to enter or remain in Australia.
It is also provided in paragraph 8.5(2) of Direction 110 that in addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind, amongst others:
(a)acts of family violence; or
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is also provided in paragraph 8.5(4) of Direction 110 that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[9] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”.[10] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[11] These expectations are established and are to be applied as norms.
[9] (2019) 272 FCR 454.
[10] Ibid.
[11] Ibid [67].
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[12] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[12] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of the Ministerial Direction itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by the Ministerial Direction is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[13]
[13] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [97]. It should, for the sake of completeness, be noted that this decision addressed a different Ministerial Direction. However, it contained a primary consideration in the same language as Direction 110.
Applying the language adopted by this primary consideration of Direction 110 which articulates that the Australian community expects as a norm that the Government not allow a non-citizen who has engaged in serious breach of such expectation, or an unacceptable risk that they may do so, to remain in Australia, to the facts and circumstances of this application, one reaches the conclusion that non-revocation of the mandatory cancellation of the visa is appropriate.
Whilst this primary consideration is adverse to the Applicant where she has failed the character test and it reflects an expectation on the part of the Australian community as a norm that it expects non-citizens to obey the law, the question for the Tribunal in this exercise is to determine what weight to attach to this primary consideration. It is also acknowledged that these expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
The Tribunal is also mindful of the provisions of paragraph 8.5 (2) (d), that the commission of crimes against government representatives or officials due to the position they hold or in the performance of their duties may make it appropriate not to revoke the mandatory cancellation of the visa.
Given these factors, the Respondent submits that this primary consideration should weigh heavily against the Applicant. This is notwithstanding that it is conceded that a higher tolerance for the Applicant’s behaviour might be afforded her in the light of her having lived in Australia since she was a comparatively young child.
It is not unreasonable to say that assessing what weight to attach to this primary consideration is problematic. The Tribunal concludes that it must weigh against mandatory cancellation of the visa. However, it does not accept the Respondent’s contention that it must weigh heavily against her. It has concluded that limited weight should be placed on this primary consideration.
It reaches this conclusion for several reasons. There is the fact that the Applicant has lived here for a very long time certainly since comparatively early in her childhood. She lived a relatively crime free life until her early 30s when she fell into a spiral of drug addiction and offending. She has two children who are Australian citizens to whom she is clearly devoted. Additionally, there is her broader family particularly her sister nephew and nieces. The apparent bond between that broader family unit is one that is not always the situation in matters that come before this Tribunal.
As for the gravity of the Applicant’s offending. It cannot be downplayed. However, it has already been noted that no one suffered any injuries as a result of her assaults of public officials. Although she frequently shoplifted it was solely in order to support a raging drug habit.
The Tribunal concludes for all these reasons that she should be afforded some latitude. Therefore, it will place very limited weight on this primary consideration against mandatory cancellation of the visa.
Paragraph 9.1 of Direction 110 – Legal consequences of the decision
Given the cancellation of the visa, the immediate legal consequences of the decision are that the Applicant is liable to removal from Australia as soon as reasonably practicable under s 198 of the Act. In the interim, she is subject to detention pursuant to s 189 of the Act. Paragraph 9.1 (1) of Direction 110 informs decision-makers, such as this Tribunal, that they should be mindful of such consequences.
No claim has been made by the Applicant that gives rise to Australia’s international non-refoulement obligations.
In these circumstances the Tribunal will apply no weight to this other consideration.
Paragraph 9.2 of Direction 110 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical, and/or economic support available to them in that country.
As previously noted, the Applicant is presently 36 years of age.
There was no evidence before the Tribunal that she presently has any health problems save for occasional asthma attacks which she treats by use of a conventional puffer.
No evidence was available at points to substantial language or cultural barriers that the Applicant would face were she to return to Fiji. English is widely spoken there.
As for social, medical, and/or economic support available to the Applicant were she to return to Fiji, there was in evidence before the Tribunal, namely a Country Information Report prepared by the Department of Foreign Affairs and Trade in May 2022.[14] That document has been considered by the Tribunal. Brief reference should be made to several observations contained in that document.
[14] TB, 6.
In terms of economic overview, the World Bank defined Fiji as an upper middle-income country. It was recorded that it is one of the largest economies in the Pacific region.
With respect to healthcare, the DFAT report stated that healthcare is generally available for those who need it. The quality is said to be better in urban areas and is somewhat basic in rural areas, particularly the outer islands. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health. This is particularly so in large hospitals. Health care is free to the patient, but an increasing number of people are taking out private health insurance that allows them to access elective surgery and the like treatment outside the public system.
In terms of workforce participation, in 2020 the official unemployment rate was approximately 4.8%. There is a pension system under the Fiji National Provident Fund.
DFAT advised that it was not aware of any official or societal discrimination against returnees.
The Respondent contends that it would be accepted that there would be a period of adjustment for the Applicant were she to return to Fiji. It is also conceded, that economic opportunities are not as readily available as in Australia.
The Applicant contends, understandably, that she has no ties with Fiji, has never returned there since she arrived in Australia and has no comprehension of what it would be like to suddenly return there living on a day-to-day basis. The Tribunal accepts that she has no connections with Fiji anymore and this would place her in significant difficulty were she to return there. It is quite apparent that in every respect, given that she has lived most of her life in Australia since a very young age, that she is fundamentally an Australian with Australian values and outlook.
It also appears that if the Applicant is return to Fiji on her own without her children she will be in a particularly difficult situation. To be returned to Fiji without her children will have a devastating effect upon her. It will place upon her added stresses and strains which, more probably than not would make it harder for her to reintegrate into Fijian society and re-establish herself to a reasonable standard such as that available to other Fijian citizens.
As for her employment prospects, it is difficult to say. She has obtained qualifications that have enabled her in the past to work in the hospitality sector in Australia. That should stand her in reasonably good stead were she to seek employment in Fiji which does have a significant tourism and hospitality sector. Nonetheless, it still will not be easy for her.
In the circumstances, the Tribunal considers that overall, a return to Fiji will be very difficult for the Applicant for a variety of reasons. Therefore, it considers very heavy weight must attach to this other consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 9.3 of Direction 110 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. The parties acknowledged that it was not applicable to this application. Therefore, no weight will be attached to it.
CONCLUSION
The Tribunal has concluded significant weight must attach to it against revocation of the mandatory cancellation of the visa in accordance with primary consideration 8.1 of Direction 110, Protection of the Australian community, with respect to this application. It is noted that under paragraph 7, taking the relevant considerations into account, this primary consideration is generally given greater weight than other primary considerations.
Extremely heavy weight has been attached to the primary consideration 8.3, The strength, nature, and duration of ties to Australia, in favour of revocation of the mandatory cancellation of the visa.
For the reasons explained, the Tribunal has attached moderate weight in favour of revocation of the mandatory cancellation of the visa with respect to primary consideration 8.3 of Direction 110, The strengths, nature, and duration of ties to Australia.
The Tribunal has attached very heavy weight to primary consideration 8.4 of Direction 110, Best interests of minor children in Australia affected by the decision.
Limited weight has been attached to primary consideration 8.5 of Direction 110, Expectations of the Australian community for the reasons outlined earlier.
Very heavy weight has also been attached in favour of revocation of the mandatory cancellation of the visa with respect to the other consideration 9.2 of Direction 110, Extent of impediments if removed.
This matter, in the view of the Tribunal, is very finely balanced. Explanations have been provided above for why the particular weight has been assessed and placed on each of the applicable primary and other considerations. Whilst at first blush one might rush to say that an appropriate application of the provisions in Direction 110 call for a decision to not revoke the mandatory cancellation, the Tribunal considers that on the evidence before it that is not the case. It is considered that this matter should be viewed with a degree of realism. The Applicant has lived in Australia most of her life since the time she was a very young girl. She has faced significant challenges at a number of different levels, for which she ought to be given some level of consideration. Her only family, including her two daughters, sister, nephew, and nieces are present in Australia. There is simply no real connection with Fiji. The effect on the Applicant’s daughters and on her, were she removed to Fiji, would be devastating.
The weight that the Tribunal has attached to each of the primary considerations and the other consideration in favour of revocation of the mandatory cancellation of the visa being, The strength, nature and duration of ties to Australia, Best interests of minor children in Australia affected by the decision and Extent of impediments if removed, it is considered to cumulatively, but only just, outweigh those in favour of non-revocation of such mandatory cancellation being the Protection of the Australian community and Expectations of the Australian community.
By reason of the foregoing, the Tribunal is satisfied that there is another reason why the decision to cancel the visa should be revoked.
DECISION
Accordingly, by reason of the foregoing matters, the reviewable decision is set aside.
176. I certify that the preceding 175 (one-hundred-seventy-five) paragraphs are a true copy of the reasons for the decision herein of General Member R. Cameron.
………………………[SGD]………………………
AssociateDated: 13 October 2025
Date of hearing: 30 September and 1 October 2025 Applicant: Self-Represented Solicitor for the Respondent: Ms Carly Warren, Spark Helmore Lawyers
0
3
0