George and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 276
•11 February 2021
George and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 276 (11 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7788
Re:Michelle George
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:11 February 2021
Place:Melbourne
The Tribunal affirms the decision under review.
....................[sgd]....................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held Class TY Subclass 444 Special Category (Temporary) visa – applicant is citizen of New Zealand – preliminary matter – applicant submits documents less than two business days before hearing – substantial criminal record – applicant concedes fails character test – consideration of Direction No. 79 – Part C – primary considerations – protection of the Australian community – the best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – other relevant matter – is the applicant an absorbed person – criteria for absorbed person visa not satisfied – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 33A
Migration Act 1958, s 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) [2004] FCA 137
Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Toia v Minister for Immigration and Citizenship [2009] FCAFC 79
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144
Secondary Materials
Migration Act 1958 – Direction No. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
11 February 2021
GENERAL BACKGROUND
Ms Michelle Anne George has brought to the Tribunal an application for a review of a decision made by a delegate of the Respondent on 17 November 2020 under section 501CA(4) of the Migration Act 1958 (the Act) not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa.
That visa had been cancelled on 29 April 2020 under section 501(3A) of the Act on the basis that Ms George had a ‘substantial criminal record’ as that term is defined in the Act and therefore fails the character test in the Act in section 501(6)(a) of the Act on the basis of section 501(7)(c) of the Act.
The letter notifying Ms George of the delegate’s decision was dated 18 November 2020 and an acknowledgement signed by the Applicant was dated 19 November 2020. Under section 500(6L)(c) of the Act, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified the decision (i.e., in this case, 20 November 2020), the Tribunal is taken to have affirmed the decision under review. The eighty-fourth day in relation to this application is therefore 11 February 2021.
The hearing was held on 14 and 15 January 2021 by videoconference, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and in accordance with the COVID-19 Special Measures Practice Direction issued by the President of the Tribunal under section 18B of the AAT Act and dated 27 April 2020. Ms George represented herself and the Respondent was represented by a solicitor advocate, Ms Elle Tattersall, of Sparke Helmore Lawyers. The Applicant gave evidence and was cross-examined.
The Respondent tendered a volume of ‘G’ documents (GD) (Exhibit R1), and a volume of supplementary documents (SGD) (Exhibit R2). The Applicant tendered a group of certificates of attainment relating to various courses she had completed (Exhibit A1). These documents were admitted into evidence.
The Respondent also submitted a Statement of Facts, Issues and Contentions, to which the Tribunal had regard.
Preliminary procedural matter
As mentioned, the matter was listed to be heard on 14 and 15 January 2021. On 12 January 2021 the Applicant emailed to the Tribunal three documents she wanted to have considered: an email letter from her daughter, ‘KLG’; various International Health and Medical Services (IHMS) clinical records relating to the Applicant; and a report with clinical notes from Ms Veronica Smith, counselling psychologist.
Section 500(6J) of the Act relevantly states that if an application is made to the Tribunal for a review of a decision under section 501CA(4) not to revoke a decision to cancel a visa and the decision relates to a person in the migration zone (i.e. within Australia and its Territories):
The Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review…
The Tribunal noted that after a telephone directions hearing held on 7 December 2020, Senior Member Tavoularis made a Direction to parties that, amongst other things, stated:
The Tribunal NOTES that the two-day rule contained in sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth) mean the Tribunal can only have regard to information presented orally in support of the Applicant's case at the hearing of this matter if that information was set out in a written document given to the Tribunal and to the Respondent on or before 11 January 2021.
Ms George agreed in response to a direct question from the Tribunal that she had been told about the ‘two business day rule’ and that, in this case, that timeframe expired at the end of 11 January 2021. She was asked whether she had any explanation as to why she had not provided the documents earlier. Ms George explained that she was taken to Midland Hospital in the evening of 11 January 2021 in connexion with a shoulder injury and had been kept at the hospital overnight. Ms Tattersall submitted that the Respondent would have no objection to these documents being admitted on the second day of the hearing, which would comply with the requirements of section 500(6J) of the Act.
The Tribunal considers that it is proper, in terms of procedural fairness, to admit the additional documents forwarded to the Tribunal (and provided by the Tribunal to the Respondent) on the second day of the scheduled hearing because that is consistent with the reasoning of the High Court of Australia in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, at [73], and in the (separate but concurring) judgment of Nettle J in that case, where His Honour stated [113]-[116]:
113. Finally, there remains the question of whether, when a hearing is adjourned from day to day, the second and any subsequent day of the hearing should be regarded as part of the hearing which began on the first day or as a separate hearing for the purposes of the provision.
114. Ordinarily, one would speak of each day of a hearing as part of the one hearing. So, as has been observed, if s 500(6H) had been drafted in terms akin to s 33(2)(a) and (b) of the AAT Act as requiring notice not less than two business days before the hearing of the application for review, there would be little reason to doubt that the requirement was to give notice not less than two business days before the first day of the hearing regardless of whether the hearing might be adjourned at the end of the first day and then continue for several days thereafter.
115. But, as has been seen, in the case of s 500(6H) the use of the expression "a hearing ... in relation to the decision under review" contemplates the possibility of more than one hearing and thereby leaves open as a possible construction that each day's hearing may be regarded as a separate hearing for the purposes of giving notice. Since that construction would have the least impact on the ability of the AAT to deal with an application for review in the manner which it conceives to be best calculated to achieve a just disposition of the application, and would also be consistent with the perceived object of the provision of ensuring that the Minister is not taken by surprise, that construction should be preferred.
The Tribunal notes that while the onus is on an Applicant to put forward documents in support of their case within the statutory period set down by section 500(6J) of the Act, in this case the hospitalisation of Ms George on the relevant day indicates that it could not be said she was deliberately ignoring the deadline of which she freely admitted she was aware. The Respondent had possession of the documents the Applicant had put forward from 12 January 2021, so was not ‘taken by surprise’. This is also not a case where the Tribunal is changing the hearing dates in order to be able to take the documents into account, because the hearing dates were not altered from those notified to the parties on 7 December last year. It is also in the view of the Tribunal that important evidence in the letter from the Applicant’s daughter was the only indication that had been provided of the view of a family member on the visa cancellation. The medical records are also informative of other statements and claims Ms George made, so it was fair and reasonable that these documents were admitted into evidence.
On 15 January 2021 the Tribunal admitted the documents: Email letter from the Applicant’s daughter KLG dated 12 December 2020 (Exhibit A2); IHMS clinical records relating to the Applicant while in immigration detention (Exhibit A3); Treatment report dated 22 December 2020 and clinical notes of Ms Veronica Smith, counselling psychologist (Exhibit A4).
MIGRATION BACKGROUND
Ms George was born in May 1973. She arrived in Australia in September 1982 (GD, p 70) from New Zealand, and according to the movement record she has not departed this country since that date. She emigrated to Australia with her mother, her then stepfather (her mother remarried in 1987), and with two siblings, a sister and a brother. As a New Zealand citizen, she was granted a Class TY Subclass 444 Special Category (Temporary) visa. This class of temporary visa entitles the holder to stay in Australia for an indefinite period but does not confer permanent residency rights.
On 20 April 2016, Ms George’s visa was cancelled under section 501(3A) of the Act (GD, p 66). The Applicant was invited to make representations to the delegate of the Minister, and she did so (SGD, p 876). The delegate decided to exercise the discretion available to revoke the cancellation of the visa (GD, p 66), notified to Ms George on 30 June 2016. On the same day (GD, p 69), the Applicant signed an acknowledgement accepting that she understood she could be considered for visa cancellation again.
On 26 June 2017, Ms George’s visa was again cancelled under section 501(3A) of the Act. She again made representations following the invitation of a delegate of the Minister and on 13 September 2017 (GD, p 63) was notified that the discretion available to revoke the cancellation of the visa had been exercised. On 14 September 2017 (GD, p 65), Ms George signed an acknowledgment that she understood she could again be considered for visa cancellation.
On 29 April 2020 Ms George’s visa was again cancelled under section 501(3A) of the Act. She was invited to make representations to the Minister’s delegate, and did so (GD, p 42). On 17 November 2020 the delegate made a decision that the they were not satisfied there was another reason why the visa cancellation should be revoked, so the visa remained cancelled (GD, p 11). This decision is the one which is before the Tribunal for review.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under section 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that Ms George fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel her visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate Ms George’s visa (Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38] (North ACJ)).
Evidence in relation to the character test
An Australian Criminal Intelligence Commission report dated 3 August 2020 (the ACIC Report) relating to the criminal history of Ms George was before the Tribunal (GD, pp 21-30). This report records that on 9 July 2015 the Applicant was convicted of a large number of offences before Perth Magistrates’ Court including a conviction for the offence of Gain Benefit by Fraud and sentenced to a term of imprisonment of 12 months. Separately, on 2 April 2020 at Joondalup Magistrates’ Court (GD, p 31), Magistrate Benn imposed a total sentence of seven months’ imprisonment on Ms George that day for the offences for which Ms George pleaded guilty, backdated to 14 February 2020.
Finding in relation to the character test
On the evidence before me, the Tribunal finds that Ms George does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c), because I am satisfied that she has been sentenced to a term of full-time imprisonment for a period of 12 months or more and was serving a sentence of imprisonment on a full-time basis on the date that her visa was cancelled (GD, p 72). I note that Ms George conceded she did not pass the character test to the delegate, and in response to a direct question from the Tribunal when the hearing commenced, she reiterated that concession.
Therefore, the remaining task for the Tribunal is to determine whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the mandatory cancellation of the Applicant’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under section 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(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.
In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and (5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
OFFENDING BACKGROUND
Ms George did not dispute the accuracy of the ACIC Report relating to her criminal history.
Her first appearance before the Perth Court of Petty Sessions was in November 1991 when she was convicted of the offence of “stealing”, fined and placed on a good behaviour bond for three months.
In November 1993 Ms George was before the Midland Court of Petty Sessions and convicted of the offences of “permit person to drive with no driver licence” and “wilfully mislead police”. She was fined for both offences.
In March1994 the Applicant was back before the Perth Court of Petty Sessions and convicted of two offences of ”fraud”, and fined.
In April 1995 at Midland Court of Petty Sessions Ms George was convicted of ”wilfully mislead police” and ”permit unlicensed driver to drive”. She received fines and was disqualified from holding a driver licence for a period of three months.
In May 1996 Ms George was before the Perth Court of Petty Sessions and convicted of the offences of “receiving”, and “refuse to supply or provide false name and address”. She was fined and disqualified from holding a driver licence for a period of three months. In August 1996 before the same Court the Applicant was convicted of the offence of “no motor drivers licence”, fined and disqualified again for a period of three months.
In May 1998 at Joondalup Court of Petty Sessions, Ms George was convicted of the offence of “no motor drivers licence – under fines suspension”. She was fined and disqualified for a further period of nine months, cumulative.
In January 2000 at Perth Court of Petty Sessions Ms George was convicted of the offence of “stealing” and was fined. In November 2000 at the same Court, the Applicant was convicted of the offences of: “exceed the speed limit by 10-19 kilometres per hour”; “refuse to supply or provide false name and address”; and “no motor drivers licence”. She was fined and again disqualified from holding a driver licence.
In January 2001 at Perth Court of Petty Sessions the Applicant was convicted of two counts of “stealing”, and a 12-month Intensive Supervision Order (ISO) was imposed. In July of the same year, she was convicted of two counts of “fraud”, and a further 12-month ISO was imposed.
In 2004 at Midland Court of Petty Sessions, Ms George was convicted of the offence of “no motor driver licence”, fined $500 and disqualified from obtaining a driver licence for 12 months.
The Applicant moved for a period to Queensland. Her offending continued in that State. In August 2004 she was before the Brisbane Magistrates’ Court and convicted of the offence of “cheating”, and fined.
In May 2005 she was before Ipswich Magistrates’ Court charged with three counts of the offence of “unauthorized dealing with shop goods”. No conviction was recorded and a fine imposed.
In March 2006 at Brisbane Magistrates’ Court, Ms George was charged with the following offences: “stealing”, “fraud – dishonestly obtains property from another” (five counts); “fraud – dishonestly gain benefit or advantage” (four counts), “fraud – dishonestly make off without paying”; and “contravene direction or requirement”. One penalty was imposed, no conviction was recorded, and Ms George was ordered to perform 150 hours of community service.
In April 2006 Ms George was before Richland Magistrates’ Court and convicted of the offences of “attempted fraud – dishonestly gain benefit or advantage”; and “uttering”. She was fined $750.
In August 2006 at Brisbane Magistrates’ Court, the Applicant was convicted of: “breach of Community Service Order” imposed in March 2006 and re-sentenced for the other charges heard before the Court in March 2006, with one-month imprisonment imposed wholly suspended for 12 months.
In September 2007 at Richland Magistrates’ Court, Ms George was convicted of the offence of “unauthorized dealing with shop goods” and fined $250.
In December 2007 Ms George was at Maroochydore Magistrates’ Court and convicted of the offence of “unlawful possession of suspected stolen property”. She was fined $200.
Ms George returned to Western Australia. In September 2008 at Perth Magistrates’ Court, the Applicant was convicted of “stealing” and one count of “Breach of Bail (failure to appear)”. She was fined.
In 2009 Ms George appeared before the court on four separate occasions. She was convicted of: “stealing”, “exceed speed limit in a speed zone between 10 and 19 kilometres per hour”; “no authority to drive”; and two further counts of “stealing”. She was fined and placed on an adult corrections order.
In 2010, the Applicant was before the courts on three occasions. She was convicted of “stealing” (four counts); “disorderly behaviour in public”; “possess a prohibited drug (Amphetamine)”; “obstructing public officer” (two counts); “possessing stolen or unlawfully obtained property” (four counts); ”breach of bail undertaking”; and “gain benefit by fraud”. She was fined in relation to these offences.
In June 2011 at Perth Magistrates’ Court, Ms George was convicted of the offence of “stealing”, “gain benefit by Fraud” (3 counts); and “breach of bail undertaking”. On this occasion she was sentenced to a total of four months’ imprisonment.
In November 2011 at Fremantle Magistrates’ Court, Ms George was convicted of the offence of “stealing” (two counts). She was fined.
In August 2012 at Perth Magistrates’ Court, Ms George was convicted of “gains benefit by fraud” (15 counts), “stealing” and “possessing stolen or unlawfully obtained property”. She was fined and placed on an ISO for 12 months and a suspended imprisonment order for a term of imprisonment of six months and one day which was wholly suspended for nine months.
In September 2012 at the same Court, Ms George was convicted of the Commonwealth offence of “obtaining a financial advantage”. She was released on a 12-month good behaviour bond and ordered to pay reparations to the sum of $12,509.96 and court costs of $118.00.
In February 2013 the Applicant was convicted of the offence of “unauthorised driving by learner drivers”, and fined.
In November 2013 Ms George was convicted of the offences of: “gain benefit by fraud”, “breach of ISO”, and “breach of corrections order without reasonable excuse”. She was fined.
In July 2015 the Applicant was before Perth Magistrates’ Court again. She was convicted of the following offences: “burglary and commit offence in dwelling”; “stealing” (five counts); “trespass”; ”without lawful excuse trespassed on a place” (two counts); “receiving” (21 counts); “gain benefit by fraud” (32 counts); “steal motor vehicle”; “breach of bail undertaking”; “give false details to police”; “breach of protective bail conditions”; “possessing things to assist unlawful entry to places”; “possessing stolen or unlawfully obtained property” (12 counts); and “possessing a controlled weapon”. She was imprisoned for a total period of 18 months, backdated to 3 November 2014 (GD, p 40).
In 2017 Ms George was before the Magistrates’ Court twice in May and once in October. She was convicted of the offences of: “give false personal details to police”; “possession of stolen or unlawfully obtained property” (seven counts); “gain benefit by fraud” (16 counts); “breach of bail” (two counts); “burglary and commit offence in dwelling”. She was fined and imprisoned for a total period of 10 months (SGD, p 242).
In 2018 Ms George was before the Magistrates’ Courts on three occasions in Fremantle, Rockingham and Joondalup. She was convicted of the offences of “stealing” (four counts), “gain benefit by fraud”; “possession of stolen or unlawfully obtained property” (two counts); and “without lawful excuse trespassing on a place”. She received a fresh Community Based Order for one year.
In March 2019 Ms George was before the Fremantle Magistrates’ Court and convicted of “breach of Community Based Order” imposed in September 2018 (seven counts); “no authority to drive (never held)”; “without lawful excuse trespassing on a place” (two counts); “breaching bail or a bail undertaking” (three counts); “stealing” (five counts); “gain benefit by fraud” (three counts).
In April 2019 the Applicant was before Midland Magistrates’ Court. She was convicted of “stealing” (two counts). In July 2019 before the same Court Ms George was convicted of “without lawful excuse trespassed on a place” (two counts). In August 2019 before Perth Magistrates’ Court, she was convicted of “Possess a prohibited drug (Methylamphetamine)”
In April 2020 at Joondalup Magistrates’ Court, Ms George was convicted of “breaching an ISO” (11 counts) imposed in March 2019 and imprisoned for one month. On the same day, she was convicted of the offences of “gain benefit by fraud” (16 counts); “possession of stolen or unlawfully obtained property” (six counts); “breach of bail”; and drug offences relating to the possession of drug paraphernalia, methylamphetamine and cannabis. She was imprisoned for a total period of seven months (backdated to 14 February 2020) and the ISO was cancelled.
ORAL EVIDENCE OF APPLICANT
Ms George was taken through the dates when she was in prison, either on remand or as the result of sentences imposed by the Courts. She did not dispute the various periods of custody suggested to her, noting that her first actual sentence of imprisonment was from June 2011 to January 2012. She agreed that from February 2020 she has either been on remand, serving a prison sentence or then, on release from prison, in immigration detention.
In respect of family in Australia, Ms George said that her mother and stepfather live in Western Australia, as do her four children, one stepchild, her sister, her ex-partner, ex father-in-law and ex sister-in-law. She said her stepfather’s family live in New South Wales. Ms George said she had no family in New Zealand and all the family she knows are in Perth, WA. She told the Tribunal that her brother died in Western Australia in 1999.
She said that she spoke with her mother and stepfather fortnightly now she is in immigration detention and that there was a period when she was in prison that she did not like to speak to her family because she did not like them to experience the prison security features if they visited her. She said that when she was not in custody she would not see them much face to face because she was not able to ‘comfortably stay drug-free’, so she avoided personal contact but she did contact them about every two weeks on Facebook.
Ms George said she had spoken in depth with her mother and stepfather about her offending and that they were very disappointed with her but happy with some of the changes she had made in her life. She agreed that they had tried to help her in the past.
In respect to her sister, Ms George said she would speak to her sister if she happened to be with her mother when she called her mother but did not have a great deal of contact with her. She did, however, see her nephew, one of her sister’s sons, at his workplace more regularly.
In respect of her own children, Ms George said she had contact with all of them. She said it had been difficult because of her drug habit and she used to watch two of them play sport at their school but had been issued an order to stay away, because at that time she was ‘entrenched with drugs’. Ms George said about four years ago the children started to rebuild a relationship with her. She said as part of her drug addiction she ‘segregated myself because I won’t allow my children to see me’.
In the last four years, Ms George said she had been to the beach, to the park and to the pub with her children and had spoken to them ‘every day, apart when incarcerated’. She said she had spoken about her offending with her children. None of them has a criminal record and they are ‘horrified’ by her offending. She said she ‘turned away from help’. She said when at liberty she would see her children twice a week, usually in the evening or at weekends because they all work.
Ms Tattersall asked Ms George whether her children had tried to help her with her drug use and offending. She responded: ‘No. I kept my drug use away from my children. Didn’t feel comfortable, and I should have known better than that.’ She said that, prior to 2018, her children had become aware of her offending but not directly from her. Ms George agreed that a restraining order had been taken out in the past to protect her two youngest children, who were at the time living with her mother.
Ms George told the Tribunal about her former romantic partnerships. She agreed that she had formerly been in a relationship with ‘PW’, who is the father of her twins. Ms George said she commenced a new relationship in March 2020 with ‘DF’. They had initially been friends but towards the end of 2019 the friendship developed into an intimate relationship. Ms George was taken to a restraining order (SGD, p 146) in relation to DF, but said that DF did not take it out, the police had initiated it after she had an argument with DF. Currently, Ms George said she speaks with DF every day and he visits the detention centre with clothes and other items she needs. Now that face to face visits have been restored as pandemic restrictions are eased, she said DF had scheduled a visit.
Ms George said her relationship with PW commenced in 1997 and ended in 2014. When asked why she had listed PW on documents connected with previous cancellations of her visa after 2014 (GD, p 50, SGD, p 898), Ms George said that ‘we split completely in May 2020 when he moved in with someone else’ but they remained on friendly terms.
The Applicant said that she had been abused as a child by her first stepfather and by his brother and recent psychiatric and psychological counselling had been ‘eye opening’ for her. She told the Tribunal that she was also the victim of what she described as a recent sexual assault in April or May 2019.
In terms of illicit drugs, Ms George said she had used methylamphetamine, marijuana, ‘fantasy’ (GHB) and heroin. She said she started using methylamphetamine aged 16 and was using it every day from the age of 17. She quit when she was three months’ pregnant with her first child and then resumed in 2006 and used this drug ‘on and off until just prior to February 2020’.
She said she first started using cannabis from the age of 14, initially every now and then and then every day until she switched over to methylamphetamine and stopped using cannabis. She said she had not used cannabis since 1999 when she fell pregnant with her twins.
In terms of the drug ‘fantasy’, Ms George said she had only used that three times early in 2019. In respect of heroin, she said she only used that drug once a day for a week in May 2019.
Ms George agreed that she had a significant history of drug abuse and had tried, unsuccessfully, to address it. She agreed that she sought counselling as a child at the Sexual Assault Resource Centre. Ms George agreed that she attended Drug Court but because of her association with PW (who was also an offender) she did not want to engage (SGD, p 229).
She agreed that she had seen court-appointed counsellors prior to 2011 and attended further counselling in July 2013. Ms George agreed that she was in prison in April 2014 but relapsed into drug use again shortly after release.
Ms George agreed that her visa was cancelled in April 2016 and then the cancellation was revoked in June 2016 and she was in detention in connexion with this cancellation from May to June 2015 but re-offended in September 2016.
Ms George agreed that her visa was cancelled again in June 2017 and the cancellation was again revoked. She said that she has been paroled from prison, but that parole was suspended when she failed to attend counselling. She reoffended in May 2018 and in September 2018 a Community Based Order was imposed but she disengaged after one month, because she relapsed into taking drugs again.
Ms George said she had been ‘going well’ under an ISO, had obtained accommodation and then was assaulted and became disengaged and failed to attend her reporting obligations, going ‘off the grid’.
Ms George said she had cut ties with people who have been a bad influence on her. She agreed in response to a question that PW has been a bad influence but said they have children together and the children will not speak to him, so she needs to keep in contact. She agreed that restraining orders were taken out against PW in 2009-10 and said this was by the police. She said he was a co-accused with her in terms of several of her offences.
In respect of her offending, Ms George agreed she had a substantial criminal record and had stolen from department stores and large supermarkets and committed two burglaries. Asked about some of her offending in detail, Ms George stated that she did not remember all her conduct between 2013 and 2016 because of “horrific drug use; I have patches of clarity. I used a ball of methylamphetamine a day and every time I went to Court, I pleaded guilty. Even if I haven’t done it, it makes up for when I have.”
Ms George said she had a way of justifying her offences by targeting shops, which she said she now realises was irrational. She said she stole food and clothes and items to on-sell to obtain cash for drugs, such as electronic goods.
When asked whether it was right to categorise her many fraud offences as obtaining identity or financial documents belonging to others and then purchasing goods, Ms George said that she would sometimes go through rubbish bins and find credit cards or receipts and sometimes took items from letter boxes. On one occasion she said she picked up a credit card in a car park. She admitted stealing items from an unlocked car and using a stolen credit card to purchase flights and groceries and accommodation. She admitted also to stealing large amounts of jewellery, also perfume, fishing equipment and sporting goods.
Ms George volunteered to the Tribunal that between the period of around 2010 to around 2013 she expected she had been responsible for ‘about $365,000 worth of fraud’. She said when she and PW were arrested around 90 per cent of the property stolen could not be returned because it had been on-sold, and she was not proud of that.
In respect of one of the trespass charges, Ms George said she followed her partner (PW) to a big block of apartments. She did not realise it was an aged care facility and they stole a toolbox and another item. When asked about theft of a ‘seniors’ card’ (SGD, p 396), Ms George said she found the card on the floor outside a gaming venue.
In terms of violent offences, the Applicant said she can recall being charged with obstruction and assault offences. On one occasion she said she pushed past a person in a shop, and police came and arrested her nearby. She said one of the convictions in May 2019 for disorderly conduct was after she had been involved in a domestic violence incident.
In respect of the various driving offences of which she has been convicted, Ms George told the Tribunal she had never had a driver licence, only ever a learner’s permit. She said she drove regularly including with her children and always admitted she did not have a licence if stopped by the police. Ms George said she stopped driving some years ago.
Ms George agreed that she had a lengthy history of failing to comply with court orders, and said she made no excuses for that.
Asked by the Tribunal whether she knew her visa could be cancelled, because it had been twice cancelled before, Ms George agreed that she did know that after 2016, she had previously thought she was an ‘absorbed person’ because she had been resident in Australia so long. She said she did not consider herself a New Zealander.
In respect of other family in Australia, Ms George said that her sister had three sons, one of whom was a minor (aged 16), and two of them had young children of their own. She said she has maintained contact with her nephews and their children through Skype calls.
In regard to her mental health, Ms George said she had been seeing a psychiatrist while in immigration detention, Dr Alexander Van Hattem. He has diagnosed both PTSD and an Anxiety Disorder and has worked out a plan of medication (Exhibit A3). She said she sees a psychiatrist one week and a psychologist, Veronica Smith, in the alternate week. Ms George said she had a shoulder injury from throwing a ball and needs surgery for that. Asked by the Tribunal about a former possible diagnosis for cervical cancer mentioned in previous visa cancellation submissions, Ms George said that had not eventuated, but she had had laser treatment and needed a monitoring check every six months.
In terms of any relatives in New Zealand, Ms George said she had never known her biological father. She was always of the belief that her mother’s parents had died. She believes her mother has one brother, but she has no contact with him.
Oral submissions of the Applicant
Ms George said she accepted she had an extensive criminal record. She said “My drug habit has been an issue for a long time. I will always be a recovering addict. I continue to try.”
Ms George said she felt a lot better having been diagnosed by a psychiatrist and having regular counselling in knowing what is wrong, and learning ways to deal with her challenges. She said she did not hurt people intentionally and did things out of stupidity. She said there was no excuse for the frauds she had undertaken, but she had not gone out to intentionally harm people: ‘I didn’t rob them with a knife or anything like that.’
The Applicant said she understood she has been given a chance twice before but has always thought of herself as Australian and not as a New Zealander. She said she knows she now needs a mental health plan and does not want to ever take drugs again.
Ms George said she had a long way to go with counselling and ‘needs to stick with it’. She said she had been trying to improve herself with study, having left school in Year 9. She has now finished a Year 10 certificate, and Years 11 and 12. She had applied to undertake a preparatory course at Murdoch University for persons without an academic background; she had to postpone that because of being in detention. Her aim is to complete a bachelor-level degree course in media and communication.
Ms George said she had arranged temporary accommodation if released from immigration detention at Zonta House, a women’s refuge in Perth.
APPLYING THE DIRECTION
As discussed above, decision-makers, including the Tribunal, must take guidance from the Direction because of the provisions of section 499 of the Act.
Primary consideration – protection of the Australian community (paragraph 13.1)
When considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(Paragraph 13.1.1.) The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain listed factors, as relevant to the particular circumstances.
(Paragraph 13.1.1.(a)) The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously:
There is evidence that Ms George has been convicted of some crimes against the person, although these offences are not prominent in her extensive criminal history, which generally relates to property crime and fraud. There is no evidence of the Applicant being responsible for any sexual crime.
(Paragraph 13.1.1(b)) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed:
There is no specific evidence before me of crimes of a violent nature against women or children. Whilst not within the category of offending contemplated in this part of the Direction, it is relevant to observe that Ms George did admit that she had never held a driver licence at any stage, and volunteered that she drove her children around on many occasions. This is intrinsically dangerous, because, as the driver, she had never passed a required test to drive on public roads, so her driving ability had never been objectively tested. It may also have insurance implications, including personal injury coverage if she was ever involved in a motor vehicle accident. There was no specific evidence of this before the Tribunal, other than her own admission, but the Tribunal is satisfied that Ms George was cavalier about her obligations to her children (when young), other passengers and other road users.
(Paragraph 13.1.1(c)) The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious:
There was evidence before the Tribunal that Ms George used someone else’s seniors’ card to her own financial advantage. She said that she found this card on the street and it was a public transport concession card. There was also some evidence that she may have stolen mail or taken into unlawful possession identity documents of persons at an aged care facility, although the references to this by a Magistrate in a transcript before the Tribunal (GD, p 33) is far from clear. Ms George herself said that she and her partner stole a toolbox from a complex of buildings that she later learned was an aged care facility.
The Tribunal is not satisfied that there is specific evidence that the Applicant specifically targeted vulnerable members of the community, such as the elderly and disabled, in her criminal activity. It would appear from her evidence that she was not discriminating about from where she stole (or took into unlawful possession) personal documents which she later used to fraudulently purchase goods Because of this, it is probable that certain vulnerable members of the community would have been affected by her criminal activity, particularly in relation to the offences of gaining benefit by fraud.
(Paragraph 13.1.1(d)) The sentence imposed by the courts for a crime or crimes:
Ms George was initially treated relatively leniently by the Courts (GD, pp 28-30). She was first fined and placed on good behaviour bonds. Other sanctions were applied such as disqualification from obtaining a driver licence. On many occasions she was given time to pay the fines imposed. Sometimes no conviction was recorded by the presiding Magistrate. She then was placed on a variety of orders by the Courts with reporting and other obligations, in an attempt to monitor and convince her to rectify her conduct. As the above offending history spells out, it was not until Ms George had made many journeys to the Courts, from her first appearance in 1991, that she was eventually given a sentence of imprisonment in 2011 (GD, p 28).
(Paragraphs 13.1.1(e) and (f)) The frequency of the Applicant’s offending and whether there is any trend of increased seriousness, and the cumulative effect of repeated offending:
Ms George has offended frequently over the last thirty years, amassing more than 190 offences and receiving terms of imprisonment which, added together, total more than eleven years. There has been a steady trend of increasing seriousness, partly because of the melancholic monotony of a growing number of fraud and stealing offences. Ms George herself volunteered in her evidence that she estimated that in one short period of offending of around three years she had perpetrated frauds amounting to “about $365,000”.
The Applicant admitted that she had frequently breached bail and other orders imposed by the Courts and had either failed to engage in court-ordered counselling or had disengaged after a short period. It may be accepted that the principal driver of this offending was to fund her drug addiction, but she also told the Tribunal that she used the proceeds of crime for other costs of daily living, such as clothes, accommodation, and airfares. The cumulative effect of repeated offending has led to more significant sanctions by the Courts, such as terms of imprisonment.
(Paragraph 13.1.1(g)) Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending:
There was no evidence before the Tribunal that Ms George had provided false or misleading information, although her citing of PW as her partner could be regarded in this category. The Tribunal does not accept that PW could still be cited by Ms George as her partner in documents provided to the Department in 2016, 2017 and 2020 when on her own evidence the relationship ended in 2014 and both she and he have subsequently commenced other relationships. It is unconvincing that she described him as such purely on the basis that he was the father of her twins.
(Paragraph 13.1.1 (h)) Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour):
As is outlined in detail earlier in these reasons, Ms George’s visa has been cancelled on two earlier occasions before the cancellation in April 2020. It was cancelled in 2016 and then restored, and again cancelled in 2017, and restored. On each occasion after cancellation Ms George has signed acknowledgements that she was aware that it was open to the Minster to cancel the visa at any time, and yet she nonetheless reverted to further offending, generally in a short period after being released from immigration detention.
The Tribunal understands the submissions from the Applicant that she has resided continuously in Australia since 1982 when she came her with her family at a young age. Her contentions that she was unaware of the fact that she held a temporary visa cannot be sustained after the visa was cancelled (for the first time) in 2016. She admitted in response to a direct question from the Tribunal that she did know her visa was not a permanent visa because she had made representations to have it restored on two previous occasions, before the 2020 cancellation.
Paragraph 13.1.1 (i)) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act (paragraph 13.1.1(i)):
There was no evidence before the Tribunal of any misconduct in detention.
(Paragraph 13.1.2) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In considering the risk to the Australian community, the Tribunal must have regard, cumulatively, to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further criminal conduct, taking into account available information and evidence on the risk of re-offending.
The Respondent submitted that the nature of harm should Ms George engage in further criminal or other serious conduct is far-reaching, and includes financial harm and loss of productivity and engagement with the criminal justice system, and that the particular type of offending Ms George has been convicted of has a significant cost to the broader community. The Respondent cited the remarks of Magistrate Benn when passing sentence on Ms George on 2 April 2020. His Honour said:
And, yes, people can get that money back from the bank, but that still costs the community. When it costs the bank, it costs the community. And then there’s all the business of people losing their credit cards, having to cancel everything, having to reinstitute payments on those cards and it has a huge impact on people’s lives. They don’t want the kind of stress that comes from all of that; the difficulties, the inconvenient [sic], as well as the financial cost to the community…
The Applicant underwent a ‘LS/RNR Assessment’ dated 18 March 2020 (SGD, p 828). This risk assessment tool is used by corrective services authorities to assess the level of risk and ‘risk-need-responsivity’ of prisoners on remand, to gauge the nature of future supervision that may be assessed as appropriate to the person.
The LS/RNR tool considers whether a person has breached a justice order, in Ms George’s case this was in the affirmative. The assessor considers the number of current offences, adult convictions in the last 10 years, the age of the person and other attributes. Recorded against the Applicant’s name were the following assessments: Criminal History – High; Education/Employment – Very High; Family/Marital – Very High; Leisure/Recreation – High; Companions – Very High; Alcohol/Drug Problem – Very High; Procriminal Attitude/Orientation – Very High; Antisocial Pattern – Medium. This gave a total LS/RNR ‘score’ of 38, which placed Ms George at ‘Very High risk’ with the comment “Recidivist risk of reoffending assessed as very high.” (SGD, p 829). Needs that contributed to this assessment were listed as substance misuse, pro-criminal attitude and behaviours, mental health/trauma, a lack of pro-social support and a lack of pro-social activities, and the fact that the offender had not made lifestyle changes since the most recent conviction. The overall risk needs analysis comment reads:
Ms George’s risks to offending appear to be linked to poor coping skills, problem solving as a result of unresolved trauma and poor mental health, resulting in illicit drug use and negative peer associations. Ms George acknowledged her inability to problem solve or cope during following a stressful and traumatic event resulted in her relapse to illicit drug use and subsequent offending. It was noted that Ms George conveyed insight into a requirement for her to continue engaging in counselling and intervention to develop appropriate coping skills and relapse prevention strategies. Should the Court consider a community disposition at sentencing, Ms George may benefit from referrals to individual psychological and substance abuse counselling. Ms George may also benefit from referrals for assessments for residential programs. In the event Ms George fails to adequately address her treatment needs, she is considered likely to continue offending in a similar manner…
The officer went on to comment and reported that:
Ms George presents with no recent harmful behaviour and a very high recidivist risk of reoffending; risk harm matrix suggests medium supervision appropriate. Ms George has entrenched and complex treatment needs that remain outstanding and would benefit from the support medium supervision would provide.
Ms George in her evidence made no claims to have sloughed off her drug addiction, although she said she was making steady and positive progress while in detention, and felt she had particularly benefited from seeing Dr Van Hattem, psychiatrist, and Ms Smith, counselling psychologist. The Tribunal notes that she said: “My drug habit has been an issue for a long time. I will always be a recovering addict. I continue to try.”
There was a frankness about Ms George’s presentation to the Tribunal in her evidence and submissions that the Tribunal found authentic. She did not try and suggest that she had overcome her illicit drug addiction, only that she was continuing to try and tackle the challenges that it presents for her.
Ms George’s own insight into the precipitators of her offending is only half the equation; what is also needed is a genuine commitment not to revert. She admitted in answering questions from the Respondent’s representative that she had disengaged on several occasions from counselling. There was some evidence (for example, Exhibit A1) of some short courses she had successfully completed, but there was also other evidence of breaching orders to continue counselling.
Magistrate Benn remarked in his sentencing remarks in 2020 on the historical failure of court-ordered counselling and other orders (GD, p 32) and on rehabilitation having been of ‘little effect’ (GD, p 33).
The accumulation of all the evidence is that there is a very high risk of Ms George re-offending, and that is the finding of the Tribunal. This primary consideration therefore weighs strongly against revocation of the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child. The Respondent’s written submissions were that this consideration is not relevant in this matter. The Tribunal rejects the Respondent’s submission on the evidence before it.
The Applicant has four children of her own, daughters born in 1991 and 1993, and twins (a son and daughter) born in 1999. She also has a stepdaughter born in 1992. None of these persons are minors. Ms George confirmed to the Tribunal that none of her children yet had children of their own.
Ms George told the Tribunal that her sister has a son who is aged 16. She keeps in contact with this nephew through Skype. Two of her other nephews also have minor children of their own, as does a son of PW. The Respondent submitted at the hearing that limited weight should be given to the relationships the Applicant has with these children, because the relationship with the Applicant is non-parental.
There was a paucity of information before me on the relationship Ms George has with the children of her nephews, such that the Tribunal cannot make a definitive determination in regard to their relationship with the Applicant. There is slightly more information in relation to Ms George’s 16-year-old nephew. The Tribunal accepts that there is some contact, but also accepts the submission from Ms Tattersall that other persons already fulfil parental roles in relation to this minor child (paragraph 13.3(4)(e)). There is no information before me on the views of this nephew.
The Tribunal makes a determination that it would be in the best interests of this minor child that the mandatory revocation of Ms George’s visa be revoked. The weight that is attached to this conclusion is not significant, given the only intermittent contact between the Applicant and her nephew.
The Tribunal finds that this primary consideration weighs very slightly in favour of the Applicant.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
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 not to 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.
An older, superseded, version of the Direction (Direction No. 65) contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority of the Full Court found that this part of the Direction expresses a ‘norm’.
The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other assessment process.
Charlesworth J stated at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
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 refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable…
In a separate judgment, Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(1)non-citizens will obey Australian laws when in Australia;
(2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(3)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive…”
His Honour said (at [102]) that ‘…the character assessment, even through the prism of community expectations, may not be decisively against the applicant…’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances. On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
Ms George’s many appearances before various Courts in two States over the period from 1991 to 2020 and her convictions for numerous offences relating, particularly, to fraud and stealing, would in the Tribunal’s view incline the ‘prism’ of community expectations against her retaining a visa. There would no doubt be a tempering because of the length of time that Ms George has resided in Australia – all of her adult life and half of her pre-adult life. However, what mitigation there might be felt in this respect would be likely, in the Tribunal’s view, to be radically diminished by the fact that the Applicant’s visa has been twice cancelled on the basis of her offending on previous occasions, and twice restored on the basis of assurances of improved conduct. Swift resumption of offending nevertheless ensued.
The Tribunal’s considered view is that the scope of the offending and its relentlessness would cement an expectation that Ms George would not be expected by the Australian community to continue to hold a visa to remain in Australia.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively strongly so.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
Ms George is a citizen of New Zealand, was born and spent her early life in that country. She would be repatriated to New Zealand in the event that her visa is not restored. No submissions were made by either party that Australia’s obligations not to return (‘refoul’) a person to New Zealand because there are substantial grounds for believing that the person would be exposed to harm or danger are engaged in Ms George’s case.
The Tribunal finds that this consideration weighs neutrally.
Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether he or she arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community.
Regard must also be had for the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents or people with an indefinite right to remain in Australia, including the effect on the non-citizen’s immediate family of non-revocation.
Ms George told the Tribunal that she had some history of employment in Australia. She had worked in department stores and, when living in Brisbane, for Queensland Rail, being promoted to be a station master. She obtained a traineeship with a government department at one stage and worked in telemarketing. The Tribunal noted that Ms George was articulate and able to present her submissions effectively.
The Tribunal admitted into evidence a letter dated 12 January 2021 from KLG, the oldest child of the Applicant. It relevantly stated:
I write this letter on behalf of my brother and sisters in regards [sic] to the possible deportation of our Mother, Michelle George.
We love our Mother and have been through a lot with and because of her.
With that said the changes in her now are amazing and we have managed to rebuild our relationships with her. We understand that she made mistakes but we feel that she has already paid her dues. To take away our Mother would be devasting. You will not only take her away from us but will ultimately deny any chance of our future children their grandmother.
We miss the times where we catch up and mum cooks all day for us. Or the time at the beach that hold so many memories. Underneath everything mum has the biggest heart and is truly a special lady. We have all grown into fully functioning adults that hold full time employment and have never been on the wrong side of society. Please we ask you not to penalise us further by taking mum away from us.
We all support our mothers future intentions and we be the driving force to make sure she accomplishes the plans we as a family have agreed upon. That being that she continue with her counselling for PTSD and that she also continue her work with Reset and the Wugening program. We will also support and encourage her to fulfil her life long dreams and accept her offer for the On-track program with Murdoch University.
We respectfully agree that mum’s conduct hasn’t been the best, we are also grateful that it hasn’t been a lot worse. The impact of losing mum again will again shatter our lives. So we ask that you please allow her the opportunity to be home with us.
In the absence of corroborating evidence, the Tribunal cannot accept that this statement is in fact endorsed by each of Ms George’s children, other than the writer, KLG. However, the Tribunal accepts that there is no reason to doubt that the general sentiments may be shared by KLG’s siblings.
It is accepted that repatriation of Ms George to New Zealand would have a significant effect on her children. It is also accepted and is to the Applicant’s credit and consistent with her oral evidence, that all of her children have, notwithstanding the disruption of their home life, grown into adults who are contributing positively and successfully to Australian society.
It is also relevant that there have been historical court orders, admitted by the Applicant, against her having contact with some of her children when they were younger, and that at least two of them were taken into care by her mother. Overall, notwithstanding the turbulence of the past, the Tribunal accepts that steps have been taken on both sides, by Ms George and by her children, to rekindle their relationship. That is reflected in the letter from KLG. It is also accepted that, although they would be free to visit their mother in New Zealand if she is repatriated, it would be desirable from their perspective if Ms George had the visa reinstated so she could remain in Australia, near to them.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa. The weight is lessened, according to the exhortation in the Direction, because the Applicant began offending relatively soon after arriving in Australia (some nine years), and because the time Ms George has spent making a positive contribution to this country is objectively outweighed by the comprehensive and long nature of her offending history.
Impact on Australian business interests (paragraph 14.3)
The Direction requires the Tribunal to take into account the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.
While, as outlined above, Ms George has had some periods of employment in Australia in her working life, I do not consider that these rise to the level that warrant consideration under this paragraph in Part C.
The Tribunal finds that this consideration weighs neutrally.
Impact on victims (paragraph 14.4)
The Tribunal is required to take into account the impact of a decision not to revoke on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal interprets this as meaning that information must be before it that a victim of the Applicant’s offending must (a) know of the Applicant’s immigration status and (b) must have expressed a view on whether Ms George should retain a visa. There is no such information in the papers before me. The Tribunal therefore finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that Ms George may face if removed from Australia to New Zealand, in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account: her age and health; any substantial language or cultural barriers; any social, medical and/or economic support available to her in New Zealand.
Ms George told the Tribunal that she had no connexion with New Zealand, having left it aged nine, and having no relatives of whom she is aware in New Zealand. It is not in contention that New Zealand would not present any linguistic barriers, being a predominantly English-speaking country like Australia. The Respondent drew the Tribunal’s notice to the recent decision of the Full Court of the Federal Court of Australia in Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144. In that case, Besanko, Kerr and Charlesworth JJ were considering an Applicant being potentially repatriated to Samoa or American Samoa. However, they reiterated at [44] that the situation regarding commonalities in language and culture in the United Kingdom and New Zealand, vis-à-vis Australia, are matters of common knowledge.
While the Tribunal understands that there would be some hardship, particularly emotional hardship, for the Applicant if she is repatriated, it is common knowledge that the New Zealand Government administers a comprehensive social security system and there is no information before me that Ms George, as a New Zealand citizen, would not be able to avail herself of social security entitlements. It is accepted that a psychiatrist has relatively recently diagnosed the Applicant with PTSD and an anxiety disorder (Exhibit A4), and has recommended Ms George continue taking prescribed medication (on weaning dose) and continue psychological counselling as treatment, but there is no information before me that Ms George would not be able to seek out such mental health support that is available through New Zealand Government services to its citizens. (See, relevantly, the observations of Robertson J in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296, at [69]).
The Tribunal finds that this consideration weighs neutrally.
OTHER RELEVANT MATTER – Is the Applicant an ‘Absorbed Person’?
In her oral submissions and in her submissions in relation to the cancellation of her visa which is the subject of this review, and in her written submissions to the Department on the two previous occasions when her visa has been cancelled, Ms George submitted that she should be regarded as an ‘absorbed person’. In her written submissions dated 1 May 2016 (SGD, p 888), she cited the decision of French J (as His Honour then was, when of the Federal Court), in Johnson v Minister for Immigration and Multicultural and IndigenousAffairs (No 3) [2004] FCA 137; 136 FCR 494 (Johnson). She reiterated her claim to be an ‘absorbed person’ in her written submissions dated 7 July 2017 (SGD, p 895) in relation to the 2017 cancellation of her visa.
The delegate referred to this contention in the delegate’s decision dated 17 November 2020, (GD, p 18) and said:
Ms GEORGE has resided in Australia for 38 years, having arrived as a child of nine years. She submits that she should be considered an ‘Absorbed Person’ in the community. She has not been found to meet the criteria for recognition as the holder of an Absorbed Person visa but given Ms GEORGE has lived in Australia for most of her life from a young age, I hold the view that the Australian community may afford a somewhat higher tolerance of her criminal conduct. I further note that even if she had been the holder of an Absorbed Person visa, she would still have been liable for visa cancellation, so her present position would be unchanged.
While the Applicant did not elaborate on these submissions in any substantial way at the hearing, on 22 January 2021, after the hearing had concluded, the Tribunal requested written submissions from the Respondent as to whether Ms George may be a person within the compass of section 34 of the Act. Section 34(2) of the Act provides that certain persons who were in Australia on 2 April 1984 and who had not left Australia may be taken to have been granted an absorbed person visa on 1 September 1994. This is a special type of visa which allows a certain category of person to remain in, but not re-enter, Australia.
The Respondent provided written submissions in response to this contention on 4 February 2021 and submitted that section 34 does not apply to Ms George. The Respondent submitted that the Applicant held a Class TY (Subclass 444) Special Category (Temporary) visa and had not formally challenged that she formerly held that visa. The Minister submitted that such a challenge should properly be pursued in the Federal Court of Australia. Ms George was invited to provide any written submissions in reply to the Respondent’s submissions but did not do so within the timeframe advised.
The Respondent further noted that he did not recall any specific argument being advanced during the course of the hearing that the visa cancelled under section 501(3A) of the Act was not the visa in fact held by the Applicant, and that Ms George instead focussed her submissions on the length of time she has spent in Australia, a matter the Minister conceded is relevant in considering the strength, nature and duration of ties Ms George has under the Direction.
In terms of section 34, the Respondent noted that an absorbed person visa is a statutory visa, for which there is no application nor any notice to a person that they hold such a visa (see Toia v Minister for Immigration and Citizenship [2009] FCA 166, at [5]).
Section 34 of the Act states:
1.There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
2.A non-citizen in the migration zone who:
(a)On 2 April 1984 was in Australia; and
(b)Before that date, had ceased to be an immigrant; and
(c)On or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d)Immediately before 1 September 1994, was not a person whom section 20 of this Act as in force then applied;
Is taken to have been granted an absorbed person visa on 1 September 1994.
3.Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to absorbed person visas.
The Respondent submitted that Ms George meets the requirements of sections 34(2)(a), (c) and (d), but does not meet the requirement of section 34(2)(b) of the Act.
Consideration of this question
The Tribunal takes the view, particularly in the case of an unrepresented Applicant, that where an argument has been advanced that may be relevant, even where the submissions may be unparticularised, it is proper for the Tribunal to consider them. In this case the argument that she is an ‘absorbed person’ has been advanced on each of the three times Ms George’s visa has been cancelled, and in the case of the first cancellation, she specifically cited Johnson.
It is also relevant that, while the delegate, as set out above, asserted that Ms George “has not been found to meet the criteria” for an absorbed person visa, there was no explanation as to (a) what the criteria are and (b) who made this finding and (c) when it was made.
In Johnson, the Applicant, Mr Silas Johnson, had been brought to Australia by his family as a minor, aged 6, in June 1981. He had the same category visa as Ms George which was cancelled by the Minister under section 501 of the Act because of substantial criminal offending. The Court found that the cancellation was a jurisdictional failure because it found Mr Johnson held an absorbed person visa, so accordingly the cancellation of a visa he did not hold was void.
In that case, His Honour stated, at [60]-[61]:
The judgment about membership of the Australian community with respect to the Johnsons must be made as at April 1984. It is not, however, irrelevant to consider the family’s subsequent history to the extent that it may inform an assessment of their pre-existing degree of commitment to, and membership of, the Australian community. So far as the parents are concerned their subsequent history supports rather than undermines a finding that they had achieved membership of the Australian community in 1984.
In my opinion, all the relevant indicators, other than time elapsed since the move to Australia, point strongly to the proposition that the Johnson family had become part of the Australian community as at 2 April 1984. Absent any statutory constraint upon the speed with which absorption may occur, there is no bright line for judging the minimum time that must elapse before a person ceases to be an immigrant for constitutional purposes. The lapse of time is not of itself necessarily a condition of membership of the Australian community but may constitute part of the evidence that such membership has been achieved. In my opinion, in this case, although the time since entry was probably at or close to the lower bound of the time necessary to move beyond immigrant status in the constitutional sense, the evidence taken as a whole indicates that as a matter of substance the Johnsons had become members of the Australian community at the relevant time.
(Emphasis added.)
Putting to one side the Respondent’s submission that Ms George has tacitly accepted she holds a temporary visa, she faces two difficulties in any claim that she may be determined to be a person holding an absorbed person visa. The first difficulty relates to the length of time she had resided in Australia before 2 April 1984. The second difficulty relates to information about the intentions of her family at that date.
The movement record (GD, p 70) records her arrival in Australia, aged 9 years and four months, on 17 September 1982. The Respondent concedes the fact, which is evident from this record, that Ms George has not departed Australia since that arrival. However, an assessment under section 34(2)(b) of the Act as to whether she was not an immigrant must be made as at April 1984. It may be that Ms George’s mother and first stepfather intended to permanently settle in Australia, and what evidence there is evidence before the Tribunal of their subsequent conduct tends to support that conclusion, but there was no specific evidence before the Tribunal about their intentions at the point in time, unlike the facts in Johnson.
In Johnson the Court set out, at [46] what His Honour described as a non-exhaustive list of things that might be included in making an assessment as to whether a person was no longer an immigrant.
The list was:
1.The time that has elapsed since the person’s entry into Australia.
2.The existence and timing of the formation of an intention to settle permanently in Australia.
3.The number and duration of absences.
4.Family or other close personal ties in Australia.
5.The presence of family members in Australia or the commitment of family members to come to Australia to join the person.
6.Employment history.
7.Economic ties including property ownership.
8.Contribution to, and participation in, community activities.
9.Any criminal record.
Importantly, this list must be considered in the light of the evidence that can be established at a point in time, i.e. 2 April 1994. As discussed above, Ms George would appear not to clear the first hurdle. She may have at that time satisfied the second and fourth points, but there is a paucity of evidence about several of the others measures suggested by His Honour and, owing to her age at that time, points six, seven, eight and nine are not relevant.
Taking the yardstick of the period of just short of three years that Mr Johnson had been in Australia as, according to French J, “at or close to the lower bound necessary to move beyond immigrant status”, and noting Ms George had been in Australia for around 18 months at the relevant date, the Tribunal cannot be reasonably satisfied that the Applicant satisfied section 34(2)(b) before 2 April 1984. As section 34 is conjunctive, she therefore cannot satisfy the criteria set out in that section for being a person taken to have been granted an absorbed person visa. If the Tribunal had on the other hand been reasonably satisfied of this point, the Tribunal may have considered it reasonable to remit the matter to the Minister for further consideration.
It is relevant to vote that, even if Ms George had been found to hold an absorbed person visa, that category of visa, although conferred by the Act itself, is vulnerable to cancellation on character grounds (see the more recent case of Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 where Mr Moore was a person with an absorbed person visa which was cancelled by the Minister under section 501 of the Act).
CONCLUSION
In the consideration and weighing of the various considerations set out in Part C of the Direction, the Tribunal has found that two primary considerations weigh against the Applicant, both relatively heavily; they are the nature and seriousness of the offending coupled with the risk of reoffending, and the expectations of the Australian community. The consideration relating to the best interests of minor children affected by the decision weighs very slightly in favour of the Applicant, but the relevant children have others in parental roles and do not have frequent contact with Ms George, so the weight in favour of revocation is slight.
In regard to the other considerations, the only one that weighs other than neutrally is the one relating to strength, nature and duration of ties with Australia. The length of time Ms George has been in Australia, some 38 years, the fact that she has four Australian-born children here, and that her mother and sister and other relatives all live here, weigh relatively heavily in favour of revocation.
What is particularly unfortunate about this case is that Ms George has had many opportunities to mend her behaviour, and two previous opportunities where the Respondent’s delegate has exercised the discretion in her favour. She has had her visa cancelled on two previous occasions, in 2016 and 2017, and has made representations, claims and assurances about future conduct which have led to the restoration of the visa. On each occasion she has relapsed into re-offending. Her visa has now been cancelled a third time and I am regrettably unconfident that she is other than a very high risk of re-offending, yet again. She did not present any coherent strategy to the Tribunal to tackle her recidivism, other than to say that she was now much happier because she had a better insight into her mental health conditions and to point to prospects of accommodation at Zonta House (at least for an interim period) and to some further courses she wishes to undertake.
I commend Ms George for her honesty in saying at the hearing that she ‘continues to try’ to overcome her drug addiction. She did not attempt to disguise this challenge. Regrettably, it is funding this drug addiction that has been inextricably linked to her offending, and to her apparently inevitable return to offending, even after sanctions of the criminal justice system, including gaol terms. The conclusion of the Tribunal, accepting that there will be a significant effect on the Applicant and on her mother, stepfather and children, and wider family, is that this risk of re-offending is determinative.
The Tribunal finds that that the decision under review, in all the circumstances, was correct in law and that the discretion provided for in section 501CA(4)(b)(ii) of the Act is not enlivened.
DECISION
The decision under review is affirmed.
I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[sgd]................................................
Associate
Dated: 11 February 2021
Dates of hearing: 14 & 15 January 2021 Applicant: Self-represented Advocate for the Respondent: Ms Elle Tattersall Solicitors for the Respondent: Sparke Helmore Lawyers
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