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

GDXK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4593 (16 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5264
Re:GDXK
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:16 November 2020
Place:Sydney

The decision of a delegate of the Respondent dated 22 August 2020 is set aside and, in substitution, the mandatory cancellation of the applicant’s Class TY subclass 444 special category (temporary) visa is revoked.
...............................[sgd]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act 1958 – mandatory visa cancellation – section 501(3A) –application of Direction No. 79 – weighing of primary and other considerations – safety of the Australian community – expectations of the Australian community – decision under review set aside and substituted
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 23
Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
LPGJ v Minister for Home Affairs [2019] FCA 1893
SECONDARY MATERIALS
Direction No. 79 – 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
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
16 November 2020
INTRODUCTION

The applicant was brought to Australia by her parents from her birthplace in New Zealand when she was one year old,[1] arriving on 2 November 2000.[2]
[1] She was born in 1998: G9, p 62.
[2] G8, p 57.
On 20 May 2019, at the age of 20, the applicant was sentenced for various offences to an aggregate sentence of 12 months imprisonment by the Local Court of New South Wales.[3]
[3] G4, p 37.
On 30 July 2019, the applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the ground that she failed the character test.[4]
[4] G1, p 9.
The Department informed the applicant that she could make submissions as to why the mandatory cancellation should be revoked, and she did so. However, on 22 August 2020, a delegate of the respondent Minister decided not to revoke, pursuant to subsection 501CA(4) of the Act, the mandatory cancellation of the applicant’s visa.[5]
[5] G2, p 13.
The question brought to the Administrative Appeals Tribunal (the Tribunal) by the applicant is whether there is ‘another reason’ why the mandatory cancellation should be revoked, even though she fails the character test.
THE PRESENT PROCEEDINGS
The application was heard by video conference on 4 November 2020. The applicant was unrepresented. No witnesses were called by either party.
The material before the Tribunal consisted of:
(a)Submissions by the applicant filed 6 October 2020 and by the respondent dated 21 October 2020;
(b)Documents tendered by the respondent under section 501G of the Act (the G-documents);
(c)Supplementary documents tendered by the respondent (the ‘S1’ documents).
THE CHARACTER TEST
The character test is defined in subsection 501(6) of the Act. A person will not pass the character test if they have a ‘substantial criminal record’: paragraph 501(6)(a). The phrase ‘substantial criminal record’ is defined in subsection 501(7); and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c).
A PRELIMINARY ISSUE
In providing reasons for the decision not to revoke the mandatory cancellation, the delegate stated:
4. On 30 July 2019, [the applicant’s] visa was cancelled under s501(3A) as a delegate was satisfied she did not pass the character test because of the operation of s501(6)(a) (substantial criminal record) on the basis of s501(7)(c) and because she was serving a sentence of imprisonment, on a full-time basis in Grafton Correction Centre in New South Wales for an offence against a law in Australia.[6]
[6] G2, p 14.
Subsection 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) 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 delegate noted that paragraph 501(7)(c) provides that a person has a ‘substantial criminal record’, where the person has been sentenced to a term of imprisonment of 12 months or more.
The mandatory cancellation of a visa-holder’s visa under subsection 501(3A) was enlivened because the Minister was satisfied that the applicant had a substantial criminal record,[7] and therefore did not pass the character test;[8] and was serving a sentence of imprisonment of 12 months or more.[9]
[7] As defined in subsection 501(7).
[8] By reason of paragraph 501(6)(a).
[9] Migration Act 1958 (Cth), paragraph 501(3A)(b).
The sentence that the applicant was serving was an aggregate sentence of 12 months imprisonment imposed by the Local Court of New South Wales on 20 May 2019, and provided for under section 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) (the Sentencing Act).[10]
[10] See Sentencing Bench Book, NSW,
Under the Sentencing Act, a court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any two or more of those offences instead of imposing a separate sentence of imprisonment for each.[11]
[11] Crimes (Sentencing Procedure) Act 1999 (NSW), subsection 53A(1).
A court that imposes an aggregate sentence of imprisonment is required to indicate to the offender, and make a written record of the fact that an aggregate sentence is being imposed, and the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence.[12]
[12] Crimes (Sentencing Procedure) Act 1999 (NSW), subsection 53A(2).
The aggregate sentence imposed on 20 May 2019 included two offences committed on 25 December 2018,[13] and three offences committed on 18 March 2019.[14] The longest indicative sentence given for any of the included offences was nine months.
[13] Common assault (6 months); intimidation (6 months): G4, p 38.
[14] Resist police (one month); assault police (9 months); assault police (3 months): G4, p 38.
The applicant was not serving a sentence of 12 months for a single offence but for a multiplicity of offences. Is this legally significant?
The respondent argues that a person serving an aggregate sentence of 12 months imprisonment for two or more offences has a ‘substantial criminal record’ within the meaning of subsection 501(7)(c) of the Act. This would be so even if none of the included offences received an indicative sentence of 12 months, and even if the combined total of indicative sentences fell short of 12 months.[15]
[15] There is no requirement under section 53A of the Sentencing Act that the aggregate sentence imposed for the included offences equal the sum of each of the indicative sentences recorded under paragraph 53A(2)(b). Any such rule would defeat the principle of totality that the aggregate sentence provisions are intended to enforce.
Subsection 501(12) of the Act provides:
‘Sentence’ includes any form of determination of the punishment for an offence.
I note the reference to an offence (singular). But I also note that under section 23 of the Acts Interpretation Act 1901 (Cth) that:
words in the singular number include the plural and words in the plural number include the singular.
Another answer is to note that subsection 501(7A) of the Act provides that:
For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Although the respondent eschewed any reliance on subsection 501(7A) in the present case, it would be anomalous if a person’s fate under subsection 501(3A) depended on whether two consecutive six month sentences were imposed for two separate offences; or whether an aggregate sentence of 12 months was imposed with an indicative sentence of six months for each.
In the present case, none of the indicative sentences recorded under paragraph 53A(2)(b) of the Sentencing Act for individual offences exceeded the 12 month mandatory cancellation threshold.
I proceed on the basis that the jurisdictional preconditions for mandatory cancellation were triggered by the imposition of a 12 month aggregate sentence of imprisonment. Therefore, the applicant fails the character test, and the question is whether there is another reason why the mandatory cancellation should be revoked.
DIRECTION NO. 79
The Minister has given written directions relating to subsection 501CA(4) of the Act: see Direction No. 79 (the Direction), which commenced on 28 February 2019.[16] The Tribunal is required to apply the Direction in reaching a decision as to the correct or preferable decision.
[16] Direction No. 79 – 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
The Direction sets out the primary and other considerations that must be taken into account, together with certain principles that apply.
Under the heading ‘General Guidance’, paragraph 6.2(1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.2(3) provides:
The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA…
Paragraph 6.3, under the heading ‘Principles’, sets out the seven basic principles forming part of that framework. The principles are:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Taking the relevant considerations into account: paragraph 8 of Direction No. 79
The principles in paragraph 6.3 inform the manner in which the decision-maker must assess the considerations which are required to be taken into account in exercising the relevant discretion: paragraph 7(1).
Paragraph 13(2) sets out the ‘primary considerations’ to be taken into account as follows:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 sets out the ‘other considerations’ to be taken into account where relevant, and states:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 13.1(1) of the Direction provides that when considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Under paragraph 13.1(2), I should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date;
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
(a)The first incident – December 2018
The applicant moved away from her family when she was about 15 years old. She did not see her parents for the next four years. When asked about this separation, she said:
I left home at a really young age. Like, I love my mother but she's - they were really bad drinking - like, they were physical and I ran away from home and I went to refuges and then I - yes.[17]
[17] Transcript, 4 November 2020, p 12.
She moved back to the family in May 2018, working as a plasterer with her stepfather, who was teaching her the trade, but her heavy drinking continued:
It was - I was a really bad drinker. I came home and, yes, my mum wasn't really supportive but I just get lippy, you know, you're not supposed to talk back to your parents. … The fight we had had nothing to do with us, it was what I put myself in which got me into trouble. I just lashed out at my mum, I call her every name under the sun and it became physical. My brother - my siblings were there and they had to call the police because I wouldn't stop, my mum wouldn't stop, that's why they took me away from home…They locked me in a cell for a night…And I was allowed to go back home.[18]
[18] Transcript, 4 November 2020, pp 9-10.
The applicant was charged with stalk/intimidate intend fear physical etc harm (domestic).
The applicant says that she returned to her mother’s house the next day.
The matter was dealt with by the Local Court of New South Wales on 4 December 2018. The Court imposed a Conditional Release Order for nine months, along with an Apprehended Domestic Violence Order (ADVO), which prohibited her from going near her mother within 12 hours of consuming alcohol.[19]
[19] Transcript, 4 November 2020, p 22.
The terms of the ADVO are not included in the material before the Tribunal, but are referred to in the Police Facts for a subsequent offence.[20] The applicant said in evidence that she was unable to be near her mother when she was drinking.
(b)The second incident – 25 December 2018
[20] S1, p 50.
The second incident occurred in the early hours of Christmas Day in 2018.[21] The applicant and one SB had been seeing each other since the middle of 2018. The applicant spent regular nights at SB’s flat and had the access code, and often stayed there.
[21] See document prepared by the NSW Police headed Facts Sheet: S1, p 50.
At 1:30am on 25 December 2018, the applicant was asleep at the flat. SB came home with a female companion. He woke the applicant and asked her to leave. She started to leave but then became aggressive. SB had to shield his friend from the applicant’s punches. SB’s father heard the ruckus and helped to remove the applicant from the flat. But after a few minutes, she returned and, banging on the door, demanded to see SB. SB’s female friend jumped from a window and injured her foot. An ambulance was called. SB’s father escorted the applicant from the property again.
The police attended and the applicant was arrested and charged with three offences:
(i)Enter inclosed land not prescribed premises without lawful excuse;
(ii)Common assault (DV);
(iii)Stalk/intimidate intend fear physical etc harm (domestic).[22]
[22] S1, p 40.
The matter was listed before the Local Court for 8 January 2019, and adjourned to 25 February 2019. The applicant was sentenced to 50 hours of community service for common assault and stalk/intimidate.[23]
[23] Crimes (Sentencing Procedure) Act 1999 (NSW), section 8.
For the trespass offence, a conviction was recorded but no other penalty was imposed.[24] With respect, it is not surprising that the Court imposed no penalty for the trespass, because from what appears in the Facts Sheet of the NSW Police, I have no hesitation in saying that the circumstances of her eviction were deplorable.
[24] Crimes (Sentencing Procedure) Act 1999 (NSW), section 10A.
The applicant did not enter the flat on Christmas Eve as a trespasser but as SB’s girlfriend. SB had made the flat available to her, especially when she had been drinking, because she could not lawfully be around her mother. On the night in question, SB left the flat at 7.30pm. He did not tell the applicant that their relationship was over, or that she no longer had permission to use the flat. He did not say that he would be returning to the flat with his new girlfriend. She had permission to be at the flat. Consent was apparently withdrawn at 1.30 am, when she was woken from her slumber and confronted with a new reality: her relationship with SB was over, she was instantly deprived of accommodation; and the new girlfriend was present.
Such circumstances are unlikely to produce calm moderation, or critical detachment. The applicant’s eviction in the middle of the night, with no arrangements for her accommodation elsewhere, was not only heartless and unconscionable, but for a young woman in an inebriated state, it was also dangerous.

Despite this, she said that her relationship with SB ended a few weeks after this incident.[25]
[25] Transcript, 4 November 2020, p 53.
I stress that this does not excuse violence on her part. This was after all a domestic context, for the applicant and SB had been, until it was ended in this most dramatic way, in an intimate relationship. Personal violence inflicted within such a relationship counts heavily against the perpetrator of such violence. However, in assessing the nature and seriousness of the offences committed it is appropriate to consider all of the relevant circumstances and the context within which the offending occurred. Focussing too narrowly on the offending conduct without any reference to its antecedents may lead to a distorted view.
I also note that the relationship between the applicant and SB was far from straightforward. The applicant said that she gave SB an amount of $10,000. The reasons for this payment were not fully explained at the hearing. It appears that SB suggested to her that she become a sex worker when she was first made homeless, which she did for a few days, rushing back to give him the money she made. Later she worked as a sex worker in a brothel. It was a run-down business and she was the only worker. After her second arrest she went full time to a different brothel that made more business. She worked in this capacity for some months in 2019.[26] She also said that during this period she was heavily reliant on the use of cocaine.
[26] Transcript, 4 November 2020, p 24.
At some point in 2018, she received a $30,000 inheritance from her father’s estate. She says that she gave $20,000 to her mother and spent the rest on her new boyfriend SB. In evidence, she recounted her introduction to sex work in the following passage:
He [SB] was aware of your occupation?---It was his idea. I only worked five days. That was my first time. I didn't get money for my parents and it was a regular thing, every week I'd give them money and I did get money that Friday so - because I used to tell them like (indistinct) about my twin sister. She started working as a prostitute and I needed someone to talk to me and it was hard for me to deal with. It was his idea, if you like want to work just - but I need the money, you know, for Christmas and - yeah. So I worked for five days, just to give her money, yeah.
Was your mother aware of this - of what your sister and you were doing?‑‑‑My mum was aware of my twin sister. I found out three months later. But my Mum found out on my arrest. She wanted to know why I was at home and I explained to her about SB. Mum never liked SB.
And what did your mother say about your involvement?---To cop it on the chin, "You know, you did do that" and - yeah. It didn't really - we don't talk - like you know, details. Yeah.
And you say your mother was aware that your sister was involved as a sex worker?---Yes sir.
…And Mum was pretty hurt but we're adults. Mum said, you know, "At the end of the day you know, you're still my daughter". Yeah. I guess - yeah. But when I started working it was a different thing because, you know, I did it out of - yeah.
What?---I did it out of a like relationship because I just didn't get money that day. It was like an important thing in a relationship, just - the first day I met him I gave him a grand and it just - you know, constantly happened but I didn't - I didn't see any of this, I was just too busy working and drinking. I didn't need money as I was getting drinks, you know, I had everything.
And you gave SB a thousand dollars did you? Is that what you just said?‑‑‑Yeah, on the first day. So my drinking went really heavy when I got my dad's inheritance. I got 30 grand so I gave 20 grand to my mum and then I just - I blew the rest on - like mainly him.
Mainly SB?---Yes, sir. Mum knew about it. That's why mum wasn't happy with him 'cause she's got my bank on her, just to make sure I'm doing all right. But (indistinct).
But you gave $20,000 to your mother do you say?---Yes.
Can you remember when you did that?---It was the same week I met SB.
So that was after 2018?---It was July of that year.
So that was before you had the fight with your mother?---Yes. I was supposed to go to his that day but I ended up going to the pub and then to the beach 'cause we were fighting and he said I wasn't allowed to come over, so I got drunk and made mistakes and come home and lashed at my mum. Sorry, I just - I've never really spoken about it. [27]
…
(c)The third incident – 18 March 2019
[27] Transcript, 4 November 2020, pp 28-29.
Within three weeks of the court proceedings above, in the early hours of 18 March 2019, the applicant was involved in a further incident, which triggered the mandatory cancellation. The offences arose out of a disturbance that occurred outside a room that the applicant, her sister and a friend had hired at a local hotel apartment complex.
The applicant gave evidence that she and her sister wanted a quiet night away from work. It was not a party, just pizza and drinks. Unfortunately, the third girl extended an invitation on the internet and a number of young men turned up:
Me and my twin sister planned a weekend away from work. So I thought I'd offer one of my friends that I'd known for a while, it was going to be a girls night and we were, you know, just quiet, but those boys came in. Like there was just so many and I got angry because they weren't invited. It was just - me and my twin sister don't really go out much and it was like a good night for us, you know.[28]
[28] Transcript, 4 November 2020, p 58.
Heavy drinking was involved. The applicant was drinking rum, an unfamiliar drink for her. The situation soon escalated out of control. The girls confronted the men outside the apartment. There was lots of yelling and screaming. The Tribunal does not have a precise view as to what happened. It was in effect an out of control party or gathering. The police arrived and tried to control the situation. The manager of the apartment complex also came out and asked everyone to leave. At one point the applicant fell over and one member of the group accused an officer of hitting the applicant. The applicant kicked at the officer in the groin area and was arrested. Two police officers attempted to place her in the caged wagon. She resisted whereupon she was removed from the vehicle and placed on the ground. She used considerable force to resist being handcuffed. She hit out at the police officers and spat at one of the officers. She was taken to the police station and in the morning she woke up wearing someone else’s clothes:
I woke up in that little cell they put you in. I woke up and there was – you know, there was a burger still sitting there, and I was in the clothes I wasn't wearing that night. There was a big orange shirt that belonged to a boy, and it was barely covering my lower parts, and I wasn't wearing underwear, and I was covered in bruises, and I was sore.[29]
[29] Transcript, 4 November 2020, p 51.
As a result of this incident, she was charged with the following offences:
(i)Behave in an offensive manner in a public place;[30]
(ii)Resist police;[31]
(iii)Two counts of Assault police;[32]
[30] S1, p 17.
[31] S1, p 19.
[32] S1, p 21; 23-24.
In sentencing the applicant, the magistrate stated:
The offence in respect of the police officer, carries a maximum penalty of seven years imprisonment. There is a need for general deterrence, in relation to offences committed against police officers, who are just going about their business and they are entitled to not be assaulted in a violent manner, as set out in these facts, as any other member of the community, in this case the officer was bitten, kicked, spat on and that also gives rise to concerns, on the part of that officer, as to whether or not there was any health ramification, as a result.
Because the offences were whilst [the applicant] was on conditional liberty, it makes the offences more serious. It does not make them objectively more serious but it shows that there is a need for real denunciation in her conduct and also to deter you from committing further offences. I have to take that into account, in the sentencing process.
…
In my view, the offence involving the police officer is so serious and taking into account you were on conditional liberty, there is no other option than one of imprisonment. I have considered whether or not I could give you a sentence that would involve you serving that period of imprisonment in the community but because of your level of non-compliance and taking into account the level of violence and what seems to be an undressed alcohol problem, I cannot make that order, taking into account the need for the protection of the community. [33]
[33] G4, 37.
The bond relating to the first offence involving her mother was revoked, and she was sentenced to a community corrections order for six months.
In relation to the offences committed on 25 December 2018, the community corrections orders were revoked and she was sentenced to six months imprisonment for each offence.
In relation to the offences occurring on 18 March 2019, the applicant was sentenced on two counts of assaults on the police, for which she was sentenced to imprisonment for nine months and three months. She was also sentenced to one month imprisonment for resist/hinder police. For the offence of offensive behaviour in/near public place/school she was convicted with no other penalty.[34]
[34] Crimes (Sentencing Procedure) Act 1999 (NSW), section 10A.
Because the three lots of offences were committed on different days, the magistrate imposed an aggregate sentence of 12 months imprisonment with a non-parole period of six months.
The magistrate also found special circumstances and indicated a need for the applicant to address her alcohol and mental health issues.
Paragraph 13.1.1 of the Direction outlines various factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. I turn to those factors.
Violent crimes – Paragraph 13.1.1(1)(a)
I note the principle that violent crimes are viewed very seriously. On each of the three incidents described above, the applicant engaged in violent aggressive behaviour. Although the Tribunal does not have details of the applicant’s interaction with her mother that gave rise to the incident in early December, the incidents on 25 December 2018 and 18 March 2019 involved offences of violence. Her drunken out of control behaviour with the police on the last occasion was especially disturbing.
Crimes of a violent nature against women – Paragraph 13.1.1(1)(b)
Two of the offences committed by the applicant were directed against women; her mother, and a former partner’s new girlfriend. I note the principle that violent and/or sexual crimes are viewed very seriously; and crimes of a violent nature against women or children are also viewed very seriously, regardless of the sentence imposed.
The sentence imposed – Paragraph 13.1.1(1)(d)
The sentences imposed were as follows:
(a)On 4 December 2018, the applicant was convicted of one offence and given a conditional release order for nine months.
(b)On 25 February 2019, the applicant was convicted of four offences and given a conditional release order for nine months, as well as two community correction orders. For one offence she was convicted with no other penalty.
(c)On 20 May 2019, the applicant was convicted of various offences and sentenced in the Local Court of New South Wales to:
(i)Community correction order for six months;
(ii)Six months imprisonment;
(iii)An aggregate sentence of 12 months imprisonment with a non-parole period of six months. An appeal against the sentence was dismissed by the District Court of New South Wales.
The frequency of offending – Paragraph 13.1.1(1)(e)
The relevant offences were committed within a narrow time frame of three months.
The cumulative effect of repeated offending – Paragraph 13.1.1(1)(f)
The offending does not form part of a general pattern of criminal behaviour. There are three incidents committed over a narrow space of time.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I note the risks specifically identified at paragraph 13.1.2(1) of the Direction, namely:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
If the applicant engages in further acts whilst in a state of extreme intoxication it is highly probable that members of the community may be injured.
As to the likelihood of the applicant engaging in further criminal or other serious conduct, the risk is inextricably linked to her willingness or indeed capacity to moderate or reduce her level of alcohol or drug consumption. She presents as a remorseful but untreated alcoholic. She has been incarcerated for the past 10 months and one presumes that during this period she has not had access to alcohol or drugs.
It is often said in proceedings such as these, the applicant has not been tested in the community. And her habitual drinking is deeply ingrained. It will take an enormous act of will on her part to stay off alcohol and drugs.
The evidence given by the applicant during the Tribunal proceedings suggests that she is remorseful for her actions.
Other factors
The offending was not directed against vulnerable members of the community. Nor is there any evidence of offending in immigration detention, or of offending after receiving an administrative warning. There is no evidence that false or misleading information was provided to the Department. These factors do not apply in this case.
I do however note that members of the police force are in some sense government representatives, and she has been convicted of offences against the police.
The applicant suffers from alcoholism and mental health issues which explains but does not justify her behaviour. My assessment is that the offences were committed within a narrow time-frame, while the applicant was heavily under the influence of alcohol. Each of the offences was associated with extreme emotional volatility.
CONCLUSION WITH RESPECT TO PC1
My conclusion with regard to PC1 is that it weighs moderately in favour of non-revocation. I cannot find that it weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The applicant does not have minor children, but her siblings have three minor children. The evidence is that the applicant has kept her distance from these children to protect them from her drinking. The chance of developing a relationship that would be beneficial to the children in the future is low. I regard this consideration as neutral.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision- makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’), a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof.
The majority decision in FYBR supports the proposition that it is for the Tribunal as a decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
In assessing the weight to be assigned to this factor, the individual circumstances of the applicant are ‘necessarily front and centre’ in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3 which are stated to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3). Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling the visa: paragraph 6.3(4).
I note that paragraph 6.3(5) provides that:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
I note that the applicant has resided in Australia for 20 years and first arrived on 2 November 2000 at the age of one. She knows no other country. I think that this ‘higher level of tolerance’ principle applies in this case.
There is no record of criminal behaviour until the first instance of offending committed when she was 19 years old. The three offences were committed within a very short time frame and against the backdrop of relationship breakdowns, both within the family and with a partner. I note as well that the applicant was essentially homeless and impoverished and felt compelled to resort to sex work.
The most serious offending involves her interaction with the police on 18 March 2019. Her behaviour on this occasion is inexcusable. Her behaviour can hardly be excused by reference to her age, recent relationship breakdown or extreme inebriation. Her reaction to the police was hysterical and out of control. She told the Tribunal that she has no recollection about this incident.
The maximum penalty for assaulting a police officer is seven years imprisonment. The offences committed by the applicant, considered individually, attracted sentences of nine months and three months.
It should be acknowledged that any assault on the police is serious. But these instances of offending, considered in isolation, fall to the lower end of the scale. Moreover, they do not form part of a regular pattern defining her interactions with authority. It is to be hoped that her experience of incarceration has arrested her progress down that path.
In the circumstances of this case I find that the expectations of the Australian community, taking into account the length of time she has lived in Australia, her difficult personal circumstances and her special circumstances as a survivor of childhood abuse, are somewhat muted in this case.

As a matter of law, it is not open for the Tribunal to identify the expectations of the Australian community, however it can determine the weight to be assigned against the applicant, and in the particular circumstances of his case, I find that the weight to be assigned is light to the point of being ephemeral. At most it points slightly in favour of non-revocation.
OTHER CONSIDERATIONS
a) OC1: International non-refoulement obligations
The issue of non-refoulement has no application in this case.
b) OC2: Strength, nature and duration of ties
The applicant has lived in Australia as a temporary resident for 20 years. In these 20 years she has visited New Zealand twice, for a few weeks in total.[35] The fact that she has essentially lived in this country since infanthood of itself creates a strong natural tie to the country.
[35] She departed on 21 December 2003 returning on 26 January 2004. She departed again on 23 June 2011 returning on 7 July 2011. See Movements Record: G8, p 57.
She left school in Year 9 and after an interlude after school, was employed for a period as a plasterer by her stepfather. Her employment in this role was interrupted by the conflict in December 2018 with her mother. As a result she lost her employment, and in a state of some financial stringency, despite having received an inheritance from her father of $30,000, felt compelled to resort to sex work.
The applicant gave evidence that she was sexually molested as a child. She said that there were regular parties at the house and ‘like every - every night a party night and we would wake up to tongues in our mouths and other stuff…’.[36] The connection between sexual abuse as a child and the development of serious mental health problems including substance abuse has been documented scientifically and before various Commissions of Inquiry.[37]
[36] Transcript, 4 November 2020, p 71.
[37] See for example, the Royal Commission into Institutional responses to Child Sexual Abuse:
The applicant started drinking and using cannabis at the age of 15, and more recently, in order to survive the long shifts involved in her present job as a sex worker, she consumed cocaine.
Her father died while she was young. She gave evidence that she was very close to her father, and that he was buried in Queensland.
She has a difficult relationship with her mother, who is the victim of one of the offences. She seems to have a much better relationship with her stepfather. She says that he has promised to re-employ her as a plasterer. She has no plans to continue working as a sex worker. She did not think there was a future in that.
It was conspicuous that the applicant did not have the benefit of support from members of her family at the hearing. Nor did they provide references by way of support. Neither her mother nor her stepfather appeared at the hearing and although she said that the rift between them had been repaired, there was no evidence before the Tribunal to support this. However, I note in this context the natural disadvantage that applies to unrepresented litigants in understanding the importance of such evidence.
The applicant did, however, receive the support of a friend who provided a long letter of support. I remarked during the course of the hearing that it was a kind report, a comment with which the respondent agreed. I have noted the contents of the report in so far as it demonstrates a link with the Australian community.
However, despite my impressions that the relationship between the applicant and her family is fragile, it cannot be said that her ties to Australia are insubstantial. Her connection with her twin sister is very important, as is her tie to her stepfather.
This consideration weighs moderately in favour of revocation of the mandatory cancellation decision.
c) OC3: Impact on Australian business interests
There is no evidence of any impact on Australian business interests that would significantly compromise the delivery of a major project or delivery of an important service in Australia. This factor is neutral.
d) OC4: Impact on victims
There is no evidence before the Tribunal relating to the impact on any particular individual. This factor is neutral.
e) OC5: Extent of impediments if removed
This consideration relates to the extent of any impediments that the applicant may face if removed to New Zealand.
The applicant has visited New Zealand twice in the 20 years she has lived in Australia, once as an infant and on the other occasion, to attend a funeral. She has no familiarity with the country.
She has no practical support systems in New Zealand. The evidence is that she has a few relatives in that country;
(i)Her elderly grandfather resides in hospital;
(ii)Her aunt, with whom she has had no contact due to family estrangement;
(iii)Two family members who have been removed from Australia as deportees.
The applicant suffers from untreated alcoholism and other mental health issues associated possibly with her experience as a child sexual abuse survivor. Although there was a dearth of evidence presented to the Tribunal, the respondent did not challenge the assertion that she had been abused as a child. While her status as a child abuse survivor does not, of itself, provide a shield against non-revocation of mandatory cancellation, it is a relevant consideration in determining the impediments that might be faced by the applicant if she is removed to New Zealand.[38]
[38] See LPGJ v Minister for Home Affairs [2019] FCA 1893.
It is appropriate to recognise that New Zealand is a compassionate and caring nation and may offer the applicant first rate health care. But she is a stranger to the country and to the way it operates and the Tribunal recognises the difficulties of transition for a person with the applicant’s characteristics.
The applicant has a fragile mental state. Evidence has been given to the Tribunal that she has attempted suicide on a number of occasions. She is an untreated alcoholic. She has little work experience and is likely to struggle to find employment and accommodation. These factors are likely to constitute serious impediments in establishing herself and maintaining basic living standards.
I find that the applicant may face very real impediments if removed to New Zealand, and that this weighs heavily in favour of revocation.
WEIGHING THE FACTORS
The question is whether ‘there is another reason [i.e. other than the applicant passing the character test] why the original decision should be revoked’.
In synthesising all the relevant factors, certain elements stand out as special features:
(a)She has lived in Australia since she was one year old, and has no criminal record before she committed these offences at the age of 20;
(b)The applicant is a survivor of sexual violence inflicted upon her when she was nine and 10 years old;
(c)She developed an extreme dependence on alcohol and drugs at the age of 15;
(d)Her substance abuse led directly to relationship breakdowns, the loss of family support, periods of homelessness, attempted suicide, and sex work;
(e)The offences were committed by the applicant under circumstances of extreme emotional volatility, and while she was heavily intoxicated. They were spontaneous and not premeditated;
(f)While possibility of recidivism cannot be entirely discounted, especially in light of her long standing untreated alcohol and drug dependency, she has no prior history of delinquency or offending, and the offences covered in this review are closely related in point of time.
The primary considerations are as follows:
(a)PC1: Protection of the Australian community;
(b)PC2: The best interests of minor children in Australia;
(c)PC3: Expectations of the Australian Community.
PC1 and PC3 weigh very slightly in favour of non-revocation. PC2 is neutral.
The ‘other’ considerations are as follows:
(a)OC1: International non-refoulement obligations;
(b)OC2: Strength, nature and duration of ties;
(c)OC3: Impact on Australian business interests;
(d)OC4: Impact on victims;
(e)OC5: Extent of impediments if removed.
Three of the ‘other’ considerations are neutral: OC1; OC3 and OC4.
Two of the ‘other’ considerations (OC2 and OC5) weigh in favour of revocation; OC2 weighs moderately in favour and OC5 weighs heavily in favour.
There are a number of important rules governing the way in which considerations must be taken into account. One of these is that:
Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4).
While accepting that generally, primary considerations should be given greater weight than other considerations, in this particular case neither the safety of the community, nor the expectations of the community, weighs heavily in favour of non-revocation. Those primary considerations are clearly outweighed by the other considerations.
I find that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
I therefore set aside the reviewable decision.
The decision of a delegate of the Respondent dated 22 August 2020 is set aside and, in substitution, the mandatory cancellation of the applicant’s Class TY subclass 444 special category (temporary) visa is revoked.

I certify that the preceding 122 (one hundred and twenty two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

................................[sgd]........................................
Associate
Dated: 16 November 2020

Date of hearing: 4 November 2020

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Mr W Sharpe, HWL Ebsworth Lawyers

10 November 2020.

< accessed 10 November 2020.

[2020] AATA 4593

16 November 2020

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Date of hearing:	4 November 2020
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Mr W Sharpe, HWL Ebsworth Lawyers