GJRR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

GJRR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3104 (15 September 2022)
Division:GENERAL DIVISION
File Number(s):2022/5337
Re:GJRR
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member W Frost
Date:15 September 2022
Date of written reasons: 23 September 2022
Place:Canberra

The Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958 (Cth).
........................[SGD]......................................
Member W Frost
Catchwords
MIGRATION – mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – failure by Applicant to pass the character test – violent offences – Direction 90 – primary and other considerations – protection of the Australian community – whether the conduct engaged in constituted family violence –expectations of the Australian community – consideration of the interests of minor children – weight to be given to the primary and other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 499(2A), 500(1)(ba), 501(3A), 501(6), 501(7), 501CA(4)
Child and Young Persons (Care and Protection) Act 1998 (NSW) ss 49
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member W Frost
21 September 2022
INTRODUCTION

The Applicant, GJRR, sought review by the Administrative Appeals Tribunal (Tribunal) of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa (Visa) under subsection 501(3A) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, pages 1-27.
GJRR is a New Zealand citizen who arrived in Australia in 2001, aged 11.[2] She has been convicted of multiple criminal offences, including an act of violence against her then partner for which she was sentenced to 18 months’ imprisonment in 2017.[3] GJRR’s Visa was thereafter mandatorily cancelled under subsection 501(3A) of the Act.[4] She sought revocation of the cancellation decision, but a delegate of the Minister refused this request.[5] As a result, GJRR applied to the Tribunal for merits review of the decision.[6] For the following reasons, the Tribunal has decided to affirm the decision under review.
[2] Ibid., page 126.
[3] Ibid., page 50.
[4] Ibid., pages 127-132.
[5] Ibid., pages 28-48.
[6] Ibid., pages 1-27.
background
GJRR is 33 years old.[7]
[7] Ibid., pages 1, 49 and 126.
In 2001, aged 11, GJRR arrived in Australia from New Zealand on the same class of visa the subject of this decision, being a Class TY Subclass 444 Special Category (Temporary) visa.[8]
[8] Ibid., page 126.
In November 2003, following two months in New Zealand, GJRR returned to Australia on the Visa the subject of this proceeding.[9]
[9] Ibid.
From 2003, aged 13, GJRR commenced her criminal offending in Australia.[10] Up until 2017, these offences included robbery, larceny, assault occasioning actual bodily harm, stealing, assaulting and resisting an officer in the execution of their duty and contravening apprehended violence orders (AVO).[11]
[10] Ibid., pages 49-52.
[11] Ibid.
On 7 June 2017, GJRR was convicted in the Campbelltown Local Court of, among other offences, ‘Reckless wounding (DV)-T1’, which she committed in April 2016, and was sentenced to 18 months’ imprisonment with a non-parole period of six months.[12]
[12] Ibid., page 50 and 59.
On 11 August 2017, as a result of the immediately preceding conviction, GJRR’s Visa was mandatorily cancelled pursuant to section 501(3A) of the Act.[13] GJRR was invited to make representations to the Minister about revoking the decision to cancel her Visa.[14]
[13] Ibid., pages 127-132.
[14] Ibid, page 128.
On 25 August 2017, the Minister’s Department received GJRR’s representations requesting revocation of the cancellation of her Visa pursuant to subsection 501CA(4) of the Act.[15]
[15] Ibid., pages 90-105.
On 16 May 2019, GJRR was convicted in the Parramatta District Court of ‘Wound person intend to cause grievous bodily harm (DV)-SI’, ‘Do act etc w/i to pervert the course of justice-SI’ and ‘Contravene prohibition/restriction in AVO (Domestic)’ and which she committed in January 2017 before being imprisoned for the earlier offences from 2016. For the first two of these offences, GJRR was sentenced to an aggregate term of imprisonment of eight years and six months with a non-parole period of four years and six months concluding on 2 May 2022.[16]
[16] Ibid., pages 49-50 and 84-85.
On 2 May 2022, GJRR was released on parole and transferred to Villawood Immigration Detention Centre, where she continues to reside.[17]
[17] Exhibit 3, page 150.
On 22 June 2022, a delegate of the Minister decided not to revoke the mandatory cancellation of GJRR’s Visa under subsection 501CA(4) of the Act.[18]
[18] Exhibit 1, pages 28-48.
On 27 June 2022, GJRR applied to the Tribunal for review of the delegate’s decision not to revoke the mandatory cancellation of her Visa.[19]
legislation & DIRECTION
[19] Ibid., pages 1-27.
The Act
Subsection 501(3A)(a) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’ because they have a ‘substantial criminal record’ and 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’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ where the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Pursuant to subsection 501CA(3) of the Act, when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the decision to cancel the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body must comply with such a direction pursuant to subsection 499(2A) of the Act.
On 8 March 2021, the then Minister made a written direction under section 499 of the Act, being Direction 90 titled, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA, which commenced on 15 April 2021 (Direction 90).
The Preamble to Direction 90 sets out its objectives and principles, relevantly including:
(a)a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)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 (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4)); and
(h)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
Paragraph 6 of Direction 90 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations set out at paragraphs 8 and 9 of Direction 90, where relevant to the decision.
Paragraphs 8 and 9 of Direction 90 identify the considerations relevant to deciding whether to revoke the mandatory cancellation of a non-citizen’s visa under subsection 501CA(4) of the Act. They comprise four ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’.
Paragraph 8 in Direction 90 sets out the four ‘primary considerations’ as follows:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Paragraph 9 in Direction 90 lists ‘other considerations’ that must be taken into account where relevant, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Paragraph 7 of Direction 90 states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
issueS
The issues for the Tribunal to determine in this proceeding are:
(a)whether GJRR passes the ‘character test’ defined in subsection 501(6) of the Act, for the purpose of subsection 501CA(4)(b)(i) of the Act; and
(b)if not, whether there is ‘another reason’ why the original decision cancelling the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
evidence
Lay evidence
GJRR
GJRR provided a written statement to the Tribunal, which has been considered in making this decision.[20] GJRR also gave evidence at the Tribunal hearing by video from Villawood Immigration Detention Centre and confirmed adherence to her written statement provided in this proceeding.
[20] Exhibit 2, pages 1-7.
In cross-examination, GJRR told the Tribunal she had been living with her parents and two siblings in New Zealand before arriving in Australia in 2001. GJRR has extended family in New Zealand but has not seen them for 22 years since arriving in Australia. She told the Tribunal she can talk to them but is ‘not really close with family in New Zealand’ and has lost contact. However, GJRR agreed that she has recently had some contact with family in New Zealand.
When GJRR moved to Australia, she lived with her parents and siblings from 11 to 14 years of age. After this time, she was at school and ‘running away all the time’. This lasted for ‘quite some time’ and she did not return home. GJRR told the Tribunal she completed Year 9 in Australia and, as an adult, has always rented her own premises.[21]
[21] The Tribunal notes for completeness that GJRR also told Dr Kwok in 2022 that she completed Year 9 (see Exhibit 2, page 11), but in a Personal Circumstances Form from 2017, GJRR stated that she completed Year 10 (see Exhibit 1, page 101). The Tribunal relies throughout these reasons on GJRR’s most recent evidence, including that at the hearing, regarding the level of her schooling.
GJRR confirmed that her criminal record before the Tribunal was accurate.[22]
[22] Exhibit 1, pages 49-52.
GJRR told the Tribunal that her relationship with Mr B, the biological father of her three children, first began in 2006; she was 17. The relationship lasted approximately eight or nine years. The couple rented their own house from around 2006. In 2012, they moved to Perth, with their first child, to live with her father. They moved for ‘a new beginning’, to get a job and ‘get away from Sydney’. GJRR’s family, aside from her mother, moved to Western Australia (WA) and they stayed for around two and a half years. She confirmed her offending continued in WA, including property and driving offences.
GJRR moved back to Sydney in 2013 ahead of the birth of her second child. She told the Tribunal she ended her relationship with Mr B in 2014 and after the birth of this child. GJRR described the time in WA as being ‘very violent’ and Mr B was said to have been charged and went to gaol for domestic violence offences.
In July 2015, GJRR’s three children were removed from her very soon after the birth of the third child. She said this occurred due to the ‘domestic violence’ and ‘nothing else’ and her drug use was ‘after’ her children were removed. GJRR told the Tribunal this occurred because the State thought she was ‘not protecting the kids’ and was instead ‘looking out’ for Mr B. She confirmed that, in 2016, final orders were made awarding custody of the children to the State of NSW. GJRR also confirmed the current arrangement is for her to have contact with her children six times each year, being every two months. GJRR said she always maintained her visits with the children and remained in contact by telephone, video or letter, but agreed there was a period of one year, around 2016, before she went to gaol, when she lost contact with her children. This was because she ‘went downhill’ after losing her children, going through ‘a mental state of mind’, she was drug affected and did not want to see her children when in that state.
GJRR was referred to a letter from The Benevolent Society from August 2022, which stated that her contact with the children has been less frequent since being in immigration detention from May this year.[23] GJRR told the Tribunal that she has ‘only had one contact’ with the children, but she passes messages to her children via their carer. She did not know why more regular contact had not occurred, but had been ‘trying to reach out’ to the case worker for another visit.
[23] Exhibit 2, page 20.
The Minister’s representative took GJRR to records of her offending in April 2016 against her then partner, Mr G. She recalled the Statement of Agreed Facts for her reckless wounding offence.[24] GJRR also confirmed that her relationship with Mr G was on and off since November 2015 and lasted for eighteen months to two years. The couple lived together for about ‘six to eight weeks’, although they lived together at other’s premises and shared expenses such as for rent, food and clothing. She described him as her ‘partner’ and a ‘good guy’. GJRR agreed with her written statement that she loved and cared for Mr G.[25]
[24] Exhibit 3, pages 392-393.
[25] Exhibit 2, pages 1-4.
GJRR agreed that she was contending she is a completely different person from the person who committed the criminal offending. The Minister’s representative referred GJRR to her statement accompanying the application to the Tribunal for review regarding her concerns that the non-revocation decision does not reflect the person she is today and her changed behaviours.[26] GJRR was also referred to her statutory declaration made on 29 August 2022, that she is embarrassed, understands what she did was wrong and the only way to ensure that she will not reoffend is by not taking drugs and continuing with her sobriety.[27] GJRR told the Tribunal that she maintained these statements.
[26] Exhibit 1, page 4.
[27] Exhibit 2, pages 1-4.
To this end, GJRR was referred to her recent consultation with Dr Kwok, Psychologist, whom she informed that she had not taken drugs in gaol or immigration detention. GJRR said she had told Dr Kwok she relapsed when she ‘first got here’ but did not take drugs in prison. She confirmed her evidence that she did not take drugs in prison. GJRR was referred to a document from the NSW Department of Corrective Services detailing punishments from her time in gaol.[28] She agreed with the list of incidents. GJRR was then referred to the record of a punishment in July 2018 for drug possession. She told the Tribunal that this was a non-prescribed drug. GJRR was referred to the incident details document for this particular event, which referred to her and another inmate being in possession of ‘green vegetable matter’.[29] She accepted that this was cannabis. GJRR denied smoking cannabis and told the Tribunal that it was ‘someone else’s’, she was in the other person’s room and so was charged with drug possession.
[28] Exhibit 3, page 153.
[29] Ibid., page 324.
GJRR was taken to another incident in gaol where she was found in possession of contraband in May 2019.[30] The incident details document records GJRR having a ‘gaol made syringe’ and the prohibited drug, Buprenorphine, or ‘Bupe’.[31] She told the Tribunal that she was ‘holding it’ and was selling the syringe. She said she was ‘going to pass it’ to another person. She said she was ‘not using needles’ in gaol. She again denied selling drugs in gaol, but agreed she was charged with possessing the syringe and was attempting to sell it. GJRR denied procuring or being in possession of the prohibited drugs and this was ‘not my business’. She was referred back to the incident details document before the Tribunal, which stated that she had been ‘located with gaol made syringe and Bupe’.[32] On multiple occasions, she again denied being caught with Bupe, but admitted ownership of the syringe. When pressed, she clarified that she was found in possession of ‘Bupe’ and took full responsibility for it. She was unaware from where it was procured, but agreed her possession contravened prison rules.
[30] Ibid., page 326.
[31] Ibid.
[32] Ibid.

GJRR was referred by the Minister’s representative to an incident in gaol on 23 December 2019.[33] The NSW Department of Corrective Services records one inmate stating that ‘she had been cornered in the hallway by two inmates who punch and pushed her into wall’.[34] GJRR was identified as one of the assailants.[35] She initially told the Tribunal that she could not recall the incident but agreed with what was recorded. GJRR then remembered receiving ‘3 day cellular confinement’ as a result of this incident and said the victim was ‘yelling at me and she wanted to have a go’. GJRR agreed that she ‘gave her a go’, but said the victim hit her first, which was not recorded. She said she was in a ‘protective mode’ so ‘retaliated back’. GJRR agreed at the time she thought the only way to get out of a pressurised situation was through violence.
[33] Ibid, page 328.
[34] Ibid.
[35] Ibid.
GJRR was then referred to an incident in June 2020 where a package sent by mail containing the contraband, Buprenorphine, was addressed to her in gaol.[36] She recalled being told about the contraband but denied knowing the person who sent the package or why someone would send it directly to her in prison. GJRR also denied selling contraband drugs but acknowledged she had done on one occasion.
[36] Ibid., page 331.
GJRR was taken to the Department of Corrective Services’ incident details from November 2020, in which it was recorded that video footage showed that she ran towards another inmate and appeared to throw punches at the back of that person’s head.[37] She recalled the incident and told the Tribunal that she had ‘no excuses’. GJRR said it was ‘due to having a go’, ‘having a fight’ and in gaol you do what was required; they ‘both had a go’. GJRR again agreed that at the time she thought the only way out from a difficult situation was through violence.
[37] Ibid., page 333.
The Minister’s representative referred GJRR to a case note report regarding her hospitalisation from prison in July 2021.[38] She told the Tribunal that her heart rate was too high and she was admitted for observation. GJRR admitted this was because she had used ice which had been left behind by an inmate. GJRR was referred to a case note report entry from August 2021, which stated that her cell ‘was searched and a small quantity of Bup [sic] was found [GJRR] admitted ownership and has been charged’.[39] She recalled the incident and possessing the contraband. GJRR told the Tribunal that she received it ‘from a friend’ to consume. Another case note report detailed that in September 2021, GJRR was observed by video handing to another inmate an envelope which ‘contained what appeared to be a strip of Orange BUPE wafer 5mm by 10mm in size’.[40] GJRR agreed this was correct and told the Tribunal she was ‘just helping a friend’. She said we were ‘all on the program’ and ‘she wasn’t so I gave it to her’. This was a reference to being on a program where she received prescription Bupe in gaol. GJRR then said it was not her Bupe, but she had received it from another friend and passed it to another person ‘as a favour’, but it was intercepted. She agreed, at that time, she was adept at procuring Bupe. However, GJRR denied being involved with drugs at that time, although she was ‘helping’ and it was ‘not much’. She denied these incidents showed a pattern of her using and dealing drugs in prison, but this happened ‘sometimes’ when recorded in incident reports and she was not otherwise involved.
[38] Ibid., page 275.
[39] Ibid., page 278.
[40] Ibid., page 281.
The final incident in gaol GJRR was referred to occurred on 30 October 2021.[41] The incident details document records that GJRR ‘was observed kicking and punching’ another inmate ‘in the head’.[42] She recalled this incident and said this was her girlfriend at the time who would ‘come in and out of my cell and slap me around’. On this occasion, GJRR followed this inmate out of the cell and kicked and punched her. She denied striking her head but then agreed to attempting to punch her in head because she was provoked. GJRR said violence was ‘the only thing I knew at that time’, being in October last year.
[41] Ibid., page 342.
[42] Ibid.
The Minister’s representative referred GJRR to her telling Dr Kwok that she had not used drugs while in immigration detention.[43] She confirmed to the Tribunal that she did relapse in detention. After initially denying telling a counsellor in Villawood in May this year that it was very hard to stay clean in detention due to the large number of drugs, GJRR agreed she made this statement.[44] GJRR said ‘for me, it’s hard’, but she ‘can handle without it’. She told the Tribunal she had only once relapsed in detention shortly after arriving at Villawood. GJRR told the Tribunal that she is on an opioid substitution program receiving monthly injections of Buvidal. GJRR was referred to clinical records made by a Mental Health Nurse in June 2022, in which GJRR reported smoking ice ‘3-4 days ago’.[45] She told the Tribunal that she smoked alone and ‘found it’; she picked up a package, unwrapped it and knew it was ice because she tasted it and then smoked it. GJRR agreed that she is presently on daily anti-psychotic medication and is assisted by counselling.
[43] Exhibit 2, page 16.
[44] Exhibit 3, page 439.
[45] Ibid., page 438.
GJRR was asked whether she had continued to be violent in detention. She said ‘there was an incident in here’, where she was sparing with another detainee and it escalated to her hitting this person. This occurred ‘straight after I arrived’ in detention. GJRR was referred to a report of an incident on 20 May 2022, which stated that another detainee was making dinner when ‘attacked unprovoked’ by GJRR.[46] It further stated that GJRR took responsibility for the incident but ‘was not sure why she assaulted’ the detainee.[47] GJRR told the Tribunal that due to her ‘relapse’ and ‘drug psychosis’ she was going through ‘psychosis at that time’. It was put to GJRR that her relapse was a couple of weeks after this incident. GJRR said she took ice after this incident. She confirmed to the Tribunal her position that her mental state in May 2022 was affected by her drug use weeks later in June 2022. When it was put to GJRR that this was nonsensical, she told the Tribunal she was confused because there were ‘two occasions’. GJRR said at the time of the violent incident in May this year she was ‘going through a mental state of mind’, which is when she feels ‘agitated maybe around people’ because she is used to being by herself. GJRR did not mean to ‘hit her out of the blue’ but she had used ice and this was the reason for her violence. She agreed that this was another drug relapse but denied any other incident except those recorded.
[46] Ibid., page 446.
[47] Ibid.
GJRR was asked whether she agreed that the incidents she was involved in during her time in gaol and immigration detention do not point to a person who has turned a corner. GJRR told the Tribunal that she ‘can’t say that I’m the same person because I do have morals and boundaries’ but puts herself in positions that she ‘can’t get out of due to my own mistakes’ and was brought up around ‘a lot of violence’ and takes full responsibility for ‘all my wrongs’. GJRR told the Tribunal that she has ‘changed’. It was put to GJRR that given her conduct in gaol and detention, referred to in cross-examination, comprising drug use and unprovoked acts of violence, she cannot say that she has changed and is a different person. GJRR said that the only thing she can do is ‘prove it’. It was put to GJRR that her conduct in prison and detention is not that of someone who acknowledges that it is important to stay off drugs. She told the Tribunal that she is diagnosed with certain mental conditions and this is ‘why I’m the way I am’. GJRR said she does know right from wrong and takes responsibility for ‘all my wrongs’. It was further put to GJRR that her conduct is not that of someone who is able to regulate their behaviour. She said she the only thing is ‘to get better’, she has been away from family and friends and ‘this is the only thing I know until I get out’. GJRR told the Tribunal she can maintain her behaviour. She was asked whether she chooses to engage in random unprovoked acts of violence, but denied this was her choice and said ‘if that’s the choice to make then, you know, then I’m going to make it’.
GJRR was asked whether she accepted that the Tribunal could not have confidence that she will stay off drugs in the community when she could not stay clean in gaol and detention and without all of life’s pressures on her. GJRR replied, ‘yeah, you’re right’, but she has confidence in herself to do so, but it ‘ain’t going to change who I am’.
GJRR was referred to her conflicting statements about the relationship with her mother.[48] She said her mother has visited her in gaol, they have a ‘distance relationship communication with her’ and her mother has ‘always had her back’, but there are times when she is closer with her father. She described having a ‘beautiful’ relationship with her mother.
[48] Exhibit 2, pages 1 and 10.
GJRR was referred to Mr G, her former partner and agreed she still thinks about him ‘sometimes’. GJRR does not think something will happen with him in the future because they have not spoken ‘in a while’ and she thinks he ‘just wants to move on’. GJRR told the Tribunal her last contact with Mr G was ‘about three’ years ago when he visited her in gaol. GJRR agreed that she was read her parole conditions when leaving gaol and that she signed agreement to them, which included not contacting Mr G. As a result, GJRR was taken to a NSW police entry from 19 May 2022, which stated that one of her parole conditions is to not have contact with Mr G and that ‘[a]bout 4.30pm on Wednesday 18^th May 2022 [Mr G] received a message via Facebook messenger that appeared to be from the PN [GJRR] that said “Hi Honey, I miss you”. [Mr G] did not accept the message nor did he reply’.[49] GJRR told the Tribunal that she sent this message but said this is not an active Facebook account for Mr G and she just ‘texted him a message’. GJRR did not consider that she is not allowed to communicate with Mr G under her parole conditions, although acknowledged that she cannot stalk or harass him or be within 50 metres of his residence. She referred to being provided with legal advice that communicating with Mr G was permissible under her parole conditions.
[49] Exhibit 3, page 28.
In re-examination, GJRR confirmed that she has an aunt living in NZ, but she was two years old when they last saw each other and have had no contact. She also told the Tribunal that she has an ill grandmother in New Zealand whom she has spoken to once in 20 years. GJRR said her grandmother ‘would’ provide support if she was deported.
In relation to GJRR’s three children, she does not have ‘much contact’ with the children’s carer. The carer was said to send text messages from GJRR’s children sending their love in response to her messages.
GJRR’s representative referred to her evidence regarding ‘turning a corner’, that she is not the same person and has changed. GJRR told the Tribunal this meant she has changed in relation to managing her mental health, relationships, addressing her behaviours, including through courses in gaol. She explained that she could stay off drugs because she has ‘good plans’ if released; her ‘version of me’ is to help youth, her music, courses, more contact with her children, undertaking courses to address past conduct and obtain custody, she would look for work and have counselling and adhere to parole conditions. These courses include a parenting course ‘to be with the kids’, she will do ‘as much courses as I can’ to obtain custody and help herself. GJRR said her work plans, if released into the community, involved ‘pick and pack’, factory and processing work, hairdressing and beauty and her ‘clothing brands’ she is launching with her sister.
GJRR’s father
GJRR’s father provided a Statutory Declaration made on 22 August 2022, which has been considered in preparing these reasons.[50] GJRR’s father also gave evidence by telephone at the Tribunal hearing and confirmed adherence to his written statement.
[50] Exhibit 2, pages 22-29.
GJRR’s father was referred to his statement that his daughter ‘could not stay with my family left in New Zealand’ and told the Tribunal this was because she ‘doesn’t really know them’, she was young when she arrived in Australia and has only returned once to New Zealand.
GJRR’s father recalled living for approximately one year with his daughter in Sydney from mid-2015. He remembered the police being called to the premises on a number of occasions during this time and said it was because of ‘arguing and fighting’ between GJRR and her then partner. GJRR’s father told the Tribunal the couple were having ‘domestics’, he had ‘jumped in’, but ‘made things worse’. He further recalled breaking into the home in mid-2015 and hitting his daughter on the back of the head. GJRR’s father said he was telling her to stop ‘what she was doing’, due to her drug use and fighting with her partner, he ‘got fed up’, ‘lost control’ and ‘put my hands on her’. She is the only child that he has hit because she has really ‘stressed me out’ during periods of her life. At the moment, GJRR’s father tells his daughter to ‘stay positive’. They have not seen each other for ‘a number of years’ and he does not know how she ‘operates’, but he did visit her in gaol.
GJRR’s father was referred to a reference to an Intensive Drug and Alcohol Program Treatment Completion Report from January 2021, contained in a pre-release report from 2022, which stated that GJRR was ‘introduced to methamphetamine by her father’.[51] GJRR’s father told the Tribunal this was incorrect; he had told his children to leave his room when he was ‘doing drugs’ with his friends and thought his daughter was already taking drugs at that time.
[51] Exhibit 3, page 138.
GJRR’s sister
GJRR’s sister provided a Statutory Declaration made on 28 August 2022, which has been considered by the Tribunal in preparing these reasons.[52] GJRR’s sister also gave evidence by telephone at the Tribunal hearing and confirmed adherence to her written statement.
[52] Exhibit 2, pages 33-38.
In cross-examination, GJRR’s sister was referred to her written statement that she is unfamiliar with the ‘further details’ of her sister’s drug use and criminal offending. She told the Tribunal that she did not know the details of her sister’s offence, but heard she was convicted for obstructing the law and committing a violent offence against her ex-boyfriend. GJRR’s sister did not know the particular information until she contacted her sister’s solicitor who informed her of the offending. GJRR’s sister told the Tribunal that she was aware that her sister ‘had a record since she was young’ and was twice convicted of stabbing her former partner. She was asked whether she knew, in relation to the second stabbing incident, that her sister had done so while there was an AVO in place, she stabbed her then partner in the neck, ran to the kitchen and grabbed another knife, stabbed him in the cheek and almost killed him. GJRR’s sister said that she had been told of this offence, however it did not concern her because ‘that was my sister back then’. She told the Tribunal that she was unaware of the details of the obstruction of justice offence and did not want to know the details and was not then in contact with her sister.
The Minister’s representative asked GJRR’s sister whether she knew what her sister had been doing while in gaol or detention. She did not. GJRR’s sister confirmed that she was unaware that her sister continued to smoke ice, sold drugs while in gaol or that she was involved in unprovoked assaults against inmates and detainees.
GJRR’s sister told the Tribunal that the reason for the distance from her sister before she was incarcerated was because she considered it unsafe for her own children and had moved suburbs. GJRR’s sister agreed that she did not want anything to do with her sister at the time she was offending and using drugs in the community. It was put to GJRR’s sister that nothing much had changed, and her sister’s drug use continues, together with violent assaults. She was asked whether this changed her present view. GJRR’s sister said it did not and that once her sister was home and around family this is where she ‘thrives best’. GJRR’s sister said she was not willing to judge her sister on her past but help her with her future. She told the Tribunal that she was unconcerned about the recent drug use and violence in detention. GJRR’s sister confirmed that she is ‘happy’ to bring her sister home to reside with her own four children, but if her sister ‘chooses to go down that path again’ she will not be supported. GJRR’s sister told the Tribunal that she knows her sister will not ‘look into that lifestyle’ and has ‘changed’. GJRR’s sister said she is focused on what her sister’s plans are when she gets out of detention. These plans include focusing on mental health, working together on a planned clothing business which is about to launch, proving to be an honest person in the community and regaining a relationship with her own children. GJRR’s sister further expanded on her sister’s plan to work on mental health and said this would be done through counselling, accessing the women’s justice network, support networks of work and family and a ‘strict’ home life and ‘creating a bond’ with her children and being in the community.
GJRR’s sister agreed with the proposition that her sister had available supports in 2017, such as work and community, which did not prevent her almost killing someone. However, she considered that these factors would now be sufficient based on knowing her sister ‘will be a different person once she is home with family’ and will be focused on her plan to make herself better within the community.
Ms M
Ms M provided a written statement dated 29 August 2022 for this proceeding, which has been considered by the Tribunal in preparing these reasons.[53] The document relevantly stated that GJRR is her partner’s cousin and Ms M has known her for five years. Ms M operates a recruitment agency; she is willing to help GJRR ‘secure ongoing stable work’ and has ‘multiple job offers for [GJRR] to attend’.[54]
[53] Ibid., page 40.
[54] Ibid.
Ms M gave evidence by telephone at the Tribunal hearing and confirmed adherence to her written statement. She also confirmed her willingness to secure GJRR employment, including in manufacturing, cosmetics, or a ‘pick and pack’ role. Ms M told the Tribunal that she was aware of GJRR’s criminal record and denied this would affect her potential employment.
In cross-examination, Ms M told the Tribunal that her recollection of GJRR’s criminal record is that she was facing a charge of ‘attempted murder’ and although she did not know the formal charge against GJRR, Ms M was aware that it was a ‘very serious charge’ and GJRR ‘physically hurt somebody’. To this end, Ms M said she was led to believe that GJRR ‘stabbed somebody’ and this occurred on two separate occasions. Ms M was asked about the second stabbing offence. She was unsure of the exact details but had been told that GJRR felt her brother was going to be harmed so she took things into her own hands and stabbed the person twice. Ms M was referred to GJRR’s ice use and said that her addiction led to the delusion that her brother was going to be killed. Ms M said that GJRR and her sister had told her this version of events. Ms M told the Tribunal she was aware that the victim suffered life threatening injuries due to the stabbing, but that she did not want to know too many details.
Ms M confirmed that she was aware of GJRR’s ‘very vast, long criminal history’. She knew that GJRR had a ‘heavy drug addiction’ when she entered gaol. Ms M was referred to the incidents of GJRR smoking ice in May and June this year. She was unaware of these incidents and had not spoken to GJRR about them. However, Ms M told the Tribunal that these were not a concern because her recruitment agency drug tests prospective employees and if she was actively smoking ice then she would not be able to work, but Ms M believed that with support, family and a good system, GJRR can be released and work in the community. Ms M said working would be rewarding and beneficial for GJRR, make her accountable and see her earn money. She considered that while GJRR has been in gaol and detention, she ‘gave up’ and saw no other way.

Ms M told the Tribunal that she has placed numerous people in work with a similar background to GJRR. She confirmed that her recruitment agency meets with and asks candidates about their lives and any addictions that would prevent them from attending work. Ms M said that she spoke to GJRR yesterday and told her to remain positive and about job opportunities from prospective employers if she is released. Ms M did not ask GJRR about personal matters, but understands that she is ‘very honest’ and ‘very, very remorseful’ for everything she has done.
Ms M was asked whether her clients are willing to employ people recently out of gaol or detention who are using drugs. She replied, ‘No’, but this is why they ask rigorous questions and perform drug tests before sending someone to an employer’s business. Ms M again said that some of the best workers are those with similar backgrounds to GJRR and everyone deserves a second chance. Ms M was asked whether prospective employers would be happy to employ GJRR if they were told that she was smoking ice this year. Ms M told the Tribunal that she would tell employers that GJRR has had a ‘troubled past’ and some clients are willing to support the rehabilitation and that having a job would provide her with support; she is happy to give GJRR an opportunity. In this regard, Ms M further said that employers are willing to give people chances given the current labour shortages. She has considered GJRR for landscaping jobs because she has worked on grounds maintenance while incarcerated. Additionally, Ms M has clients in the clothing and cosmetics industries willing to provide ‘pick and pack’ opportunities for GJRR. Ms M told the Tribunal that her agency provides a prospective employee induction, conducts listening tests, has short videos on the workplace, engages in training programs with trial shifts and one-on-one work with daily contact and supervision once placed with an employer.
Expert Evidence
Dr Emily Kwok – Psychologist
On 8 August 2022, Dr Kwok, Psychologist, produced a written report for this proceeding, which has been considered by the Tribunal in preparing these reasons, and relevantly stated that:[55]
[55] Ibid., pages 5-19.
Based on the current assessment, there are a number of risk factors that need to be addressed to reduce [GJRR]’s likelihood of further criminal or other serious conduct. Firstly, it is noted that she had prior domestic incidents predating the stabbing incidents in July 2016 and January 2017. She also had prior non-domestic incidents that included assault offences. Given [GJRR]’s childhood exposure to family violence, exposure to violence during her relationship with the children’s father, and the domestic offences in her most recent relationship, [GJRR] would need to be educated on domestic violence to help her identify risk situations and develop self-management strategies. This includes education on protecting her children from further exposure to violence. I understand that [GJRR] is currently connected with Benevolent Society, which organisation can provide her with suitable family and parenting support if she is permitted to return to the community.
In addition, there are a number of other criminogenic needs which [GJRR] has to address. On the basis of her offending history and psychosocial history, I am of an opinion that [GJRR] had childhood Conduct Disorder as evidenced by her oppositional and defiant behaviours from the time she arrived in Australia, and repeated contact with juvenile justice from age 13. [GJRR]’s antisocial behavioural and personality patterns need to be treated by psychological therapy that targets her poor emotional regulation and poor coping, and help her acquire skills to make judgments in social settings that comply with social rules and standards of public behaviours.
[GJRR] has a long history of substance abuse and which was a major contributing factor to her offending. Although [GJRR] alleged she has not used drugs during her time in detention, I take into consideration that she would be returning to a stressful situation if she returns to the community. That is, she will still be indefinitely separated from her children because the process of applying for restoration will take time and there is also a likelihood that she may not be successful. As [GJRR] attributed her previous problematic drug use to the removal of her children, there is a risk she would, again, relapse in the community without her children. I am satisfied that [GJRR] has completed some intervention for substance abuse in gaol and she will, at least, have basic understanding and skills for preventing relapse. I recommend that she continues this intervention in the community if she is permitted to stay in Australia…
I note that [GJRR]’s psychiatric symptoms prior to her most recent offending were previously not adequately addressed. If she stays in Australia, I recommend that she obtain a referral from her general practitioner to be assessed and managed by a psychiatrist, for the purpose of identifying and managing any early psychotic symptoms. At the time of my assessment, [GJRR] did not present with any delusional thoughts or hallucinations.
There are a few protective factors for [GJRR]. She stated that she has not been in contact with the victim for 6 years and she reported no intention of doing so. Her risk for future offending will significantly reduce if she continues to cease contact with him. [GJRR] also did not report any intention of returning to the abusive relationship with her children’s father. Her future plan is reportedly to live with her sister until she can make other arrangements. It would be another protective factor if her father can, indeed, connect her with employment once she leaves detention.
Overall, I accept that [GJRR] recognises the seriousness of her offending and its impact on the victim, as well as on her children. Given her completion of various courses and programs in gaol, I am satisfied that she is willing to take responsibility to address her problems. I also accept that she is genuine in wanting to change her life for her children, although she has had limited ability to demonstrate these changes in detention.
On the balance of the risk and protective factors, I am of the opinion that [GJRR] has a moderate to high risk of re-offending in a domestic setting if she returns to an abusive relationship or a relationship that involves substance use. This level of risk will reduce if she does not return to a problematic relationship. [GJRR] has a moderate risk for general non-domestic offending, and will reduce if she responds to treatment.
…
On the basis of my assessment, it is concluded that:
• [GJRR] has a moderate to high risk of re-offending in a domestic setting if she returns to an abusive relationship or a relationship that involves substance use. This level of risk will reduce if she does not return to a problematic relationship.
• [GJRR] has a moderate risk for general non-domestic offending, and will reduce if she responds to treatment.
• [GJRR] has a moderate to high risk of being a risk/threat/danger if she returns to an abusive relationship or a relationship that involves substance use. This risk will reduce if she is supported by prosocial relationships, such as family, prosocial friends and community services including Benevolent Society.
• [GJRR] has a moderate risk of being a risk/threat/danger to the Australian community in non-domestic settings, and this can reduce if she engages in, and responds to, the intervention.
• [GJRR] needs intervention including community-based services for parenting and domestic violence, psychiatric assessment and monitoring of any re-emergence of psychotic symptoms, drug and alcohol counselling, and psychological treatment for antisocial traits and emotional distress.
• [GJRR]’s prognosis is more positive in Australia where she has family support than it would be in New Zealand.
Dr Kwok gave evidence by telephone at the Tribunal hearing and confirmed adherence to her written report in this proceeding.
By way of cross-examination, Dr Kwok told the Tribunal that she assessed GJRR by video on 1 August 2022 for approximately one and a half hours. Dr Kwok confirmed that no psychometric testing was conducted due to GJRR’s inability to access the internet; this would usually have been undertaken to assess someone’s risk of reoffending.
Dr Kwok was referred to the passage in her report regarding GJRR denying any drug use in gaol.[56] Dr Kwok confirmed that during the assessment GJRR did not inform her of any such drug use. The Minister’s representative put to Dr Kwok that while GJRR was in prison, from early 2017 to May 2022, she failed five drug tests, was found with ‘Bupe’ twice, on one of these occasions with a gaol-made syringe, GJRR gave evidence to the Tribunal that she sold ‘Bupe’ in gaol and was caught passing ‘Bupe’ to another inmate and admitted smoking ice in prison and was transferred to hospital for observation as a result. Dr Kwok was also referred by the Minister’s representative to the statement in her report that ‘[GJRR] alleged she has not used drugs during her time in detention’.[57] In this regard, Dr Kwok told the Tribunal that she would have asked GJRR about drug use in gaol and detention. The Minister’s representative further put to Dr Kwok that GJRR in her evidence to the Tribunal admitted smoking ice twice in detention, in May and June this year, and on one of those occasions she claimed to have found a random package on the floor, picked it up, opened it, tasted it, identified that it was ice and smoked it. Dr Kwok agreed that she would classify this as drug seeking behaviour.
[56] Ibid., page 11.
[57] Ibid., page 16.
Dr Kwok was then referred to the passage in her report that she was ‘satisfied that [GJRR] has completed some intervention for substance abuse in gaol and she will, at least, have basic understanding and skills for preventing relapse’.[58] Dr Kwok told the Tribunal this opinion was based on GJRR’s attendance at some courses that discussed substance abuse. She was unaware of any other recent intervention. Dr Kwok was also referred to her statement that GJRR is high risk, despite some intervention, and needs ongoing and further intervention in the community for her drug use. She was asked whether GJRR had obtained any other skills and Dr Kwok told the Tribunal these were those she gained from the sessions. Dr Kwok agreed that she was assuming that GJRR had ‘taken in’ what she was in attendance to hear at those sessions.
[58] Ibid.
Dr Kwok was also taken to the statement in her report regarding GJRR’s ‘protective factors’, including not having been in contact with the victim of her violent offences for six years and that she had no intention of doing so.[59] Dr Kwok considered that if contact had in fact been three years ago, this was still a significant length of time and did not change her view because GJRR was already at ‘moderate to high risk’ of reoffending in a domestic setting if she returns to an abusive relationship or one that involves substance abuse. When the Minister’s representative referred to GJRR contacting the victim in May this year, Dr Kwok agreed this would change her assessment of this protective factor. In this regard, Dr Kwok said that, based on this more recent attempt to contact her victim, GJRR may have ‘difficulty’ refraining from contacting the victim if she was released into the community and therefore there was a higher chance of interactions with the victim. As a result, Dr Kwok told the Tribunal that she would change her opinion of the risk of reoffending in this setting from ‘moderate to high risk’ to ‘high risk’.
[59] Ibid., page 16.
Dr Kwok was referred to reports of GJRR engaging in unprovoked violent conduct in prison and immigration detention and GJRR’s evidence that violence was at the time the only way she knew how to deal with the situation. The Minister’s representative asked Dr Kwok, with that background, and the information about drug use in gaol and detention and GJRR’s contact with the victim, whether she agreed that GJRR was not truthful in her psychological assessment. Dr Kwok agreed and told the Tribunal that a lack of candour can be due to a lack of insight or an attempt to promote a positive portrayal of herself for the assessment. Dr Kwok said there was a ‘good likelihood’ that GJRR was seeking to promote herself positively. Dr Kwok was asked how else this affected her risk assessment of GJRR. She told the Tribunal that it ‘increased her risk’ of reoffending, but was unsure whether GJRR was experiencing psychosis in prison which had contributed to her behaviours. To this end, Dr Kwok acknowledged that she was limited in what she can comment on regarding GJRR’s behaviours in prison but considered that her risk for ‘general non-domestic offending’ is increased from Dr Kwok’s previously assessed ‘moderate’ risk to ‘moderate to high risk’.
contentions
GJRR
GJRR did not dispute that she does not pass the character test under subsection 501(6) of the Act because of her ‘substantial criminal record’, as defined by subsection 501(7) of the Act. However, GJRR contended that there is ‘another reason’ why the original decision to cancel her Visa should be revoked pursuant to subsection 501CA(4)(b)(ii) of the Act. GJRR conceded that each of Primary Consideration 1 in Direction 90, being protection of the Australian community, Primary Consideration 2, being family violence committed by the non-citizen, and Primary Consideration 4, being expectations of the Australian community, weigh against revocation. However, she submitted that Primary Consideration 3, the best interests of minor children in Australia, weighs strongly in favour of revocation of the original decision and outweighs the other three primary considerations. GJRR also submitted that the two relevant ‘other considerations’ in Direction 90, being the extent of impediments if removed and links to the Australian community both weigh heavily in favour of revoking the original cancellation decision.
The Minister
The Minister contended that there is not ‘another reason’ why the cancellation decision should be revoked and that, accordingly, the Tribunal should affirm the decision not to revoke the mandatory cancellation of GJRR’s Visa. The Minister submitted that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 4 all weigh very heavily against revocation and that the weight in GJRR’s favour under Primary Consideration 3, the best interests of minor children in Australia, was limited. In relation to the ‘other’ considerations submitted by GJRR to weigh in her favour, the Minister contended that they are outweighed by the primary considerations weighing against revocation of the decision to cancel the Visa.
consideration
Does GJRR pass the character test under the Act?
On 7 June 2017, GJRR was sentenced to an aggregate term of 18 months’ imprisonment in Australia.[60] Under subsection 501(7)(c) of the Act, GJRR has a ‘substantial criminal record’ because she has been sentenced to a term of imprisonment of 12 months or more. As a result, pursuant to subsection 501(6)(a) of the Act, GJRR fails the character test due to having a substantial criminal record. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is not satisfied that GJRR passes the character test as defined by section 501 of the Act. The Tribunal again notes that GJRR accepted that she does not pass the character test under the Act.[61]
[60] Exhibit 1, page 50.
[61] Applicant’s Statement of Facts, Issues and Contentions dated 5 August 2022 at paragraph 10.
Is there another reason why the original decision to cancel the Visa should be revoked?
As a result of the Tribunal’s finding that GJRR does not pass the character test, pursuant to subsection 501CA(4)(b)(ii) of the Act, it turns to consider whether there is another reason why the mandatory cancellation decision should be revoked.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 90 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 5.1(4) of Direction 90 relevantly provides that the purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under section 501CA of the Act. Accordingly, the Tribunal sets out below its decision against the criteria under Direction 90.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 90 states that:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)     the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of GJRR’s conduct
Paragraph 8.1.1 of Direction 90 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, which relevantly includes:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
…
(ii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
…
(ii) crimes committed against…government representatives or officials due to the position they hold, or in the performance of their duties;
…
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending…
As previously mentioned in these reasons, GJRR began her criminal offending in 2003, aged 13, two years after arriving in Australia.[62] Six of her offences were committed as a minor between 2003 and 2005 and included robbery, larceny and assault occasioning actual bodily harm.[63] She continued to offend between 2008 and 2015 and the nature and seriousness of GJRR’s offending escalated from 2016.[64] On 12 and 13 July 2016, GJRR was convicted of two counts of ‘Contravene prohibition/restriction in AVO (Domestic)’.[65] On 7 September 2016, GJRR was convicted of the following:[66]
(a) ‘Resist officer in execution of duty-T2’; ‘Assault officer in execution of duty-T2’; ‘Stalk/intimidate intend fear physical etc harm (personal)-T2’; and ‘Destroy or damage property <=$2000-T2’, for each of which she was sentenced to eight months’ imprisonment, wholly suspended upon entering an eight month good behaviour bond;
(b) ‘Goods in personal custody suspected being stolen (not m/v)’, for which she was required to enter into a 12 month good behaviour bond;
(c) ‘Use offensive language in/near public place/school’ and ‘Possess prohibited drug’, with no other penalty; and
(d) ‘Contravene prohibition/restriction in AVO (Domestic)’, which was called up from earlier in 2016 and she was placed on a 12 month good behaviour bond.
[62] Exhibit 1, pages 52 and 126.
[63] Ibid., page 52.
[64] Ibid., pages 51-52.
[65] Ibid., page 51.
[66] Ibid.

On 7 June 2017, GJRR was convicted of ‘Reckless wounding (DV)-T1’, for which she was sentenced to 18 months’ imprisonment, with a non-parole period of six months and was also convicted of another count of ‘Contravene prohibition/restriction in AVO (Domestic)’ and sentenced to three months’ imprisonment.[67] Additionally, six of GJRR’s offences from 2016 were called up for resentencing and she received various periods of imprisonment and non-parole periods.[68] According to a Statement of Agreed Facts presented to the Local Court of NSW, the victim of GJRR’s reckless wounding offence was a male, identified as Mr G in this decision, with whom she was recorded to have been in an ‘on/off relationship since November 2015’.[69] In April 2016, the Statement of Agreed Facts reports, GJRR, Mr G and another person ‘smoked methylamphetamine’ and soon after ‘an argument occurred between the victim and offender’.[70] It relevantly continued as follows:[71]
The offender said, ‘You’re a snitch, you’re stupid.’ The victim said, ‘I’m gonna leave’. The offender said, ‘No you’re not. You’re not going anywhere.’ The offender became agitated and produced a kitchen knife.
The offender asked the victim to hand her his car keys. The victim declined. The offender raised the knife in one hand and pointed it at the victim. The offender punched the victim on his left shoulder and the left hand side of his face with her other hand.
The victim attempted to stand up. As he did so, the offender stabbed the victim in his left thigh and left forearm, causing immense pain and bleeding. The offender lunged at the victim and stabbed him in his right shoulder. The offender put the knife in her handbag and punched the victim in the face.
[67] Ibid., page 50.
[68] Ibid.
[69] Exhibit 3, page 392.
[70] Ibid.
[71] Ibid., pages 392-393.
On 16 May 2019, GJRR was convicted in the Parramatta District Court of the following offences:[72]
(a)‘Wound person intend to cause grievous bodily harm (DV)-SI’, for which she was sentenced to eight years’ imprisonment with a non-parole period of four years and six months;
(b)‘Do act etc w/i to pervert the course of justice-SI’, for which she was sentenced to four years and six months’ imprisonment; and
(c)‘Contravene prohibition/restriction in AVO (Domestic)’, with no other penalty.
[72] Exhibit 1, pages 49-50.
These offences were committed in January 2017, while GJRR was on bail awaiting sentencing for the earlier offences from 2016.[73] The aggregate sentence imposed on GJRR was eight years and six months, expiring on 2 May 2026, with a non-parole period of four years and six months, expiring on 2 May 2022.[74] The sentencing remarks from the District Court in 2019 relevantly stated that:[75]
[73] Ibid., page 66.
[74] Ibid., page 85.
[75] Ibid., pages 69-73.
My assessment of the misconduct is that the offence of wounding falls above midrange objective seriousness perhaps at a point about midway between midrange and halfway toward the upper end where a worst case example would rest…
First of all, the wounding occurred in two separate attacks in which the offender used different knives. Knives were used in each of the attacks leading to the wounds inflicted. The offender first struck stabbing the victim in the neck causing what was described as profuse bleeding. There was at least the risk of more serious harm, perhaps even loss of life, striking someone in the neck in that region. This was the opinion offered in the medical material to which the Crown had access, which included the proposition that but for the timely intervention of emergency services the victim might not have survived.
In what must have been a state of distress the victim withdrew the knife and sought safety away from the offender as she retrieved the second larger knife and then inflicted the second wound penetrating through the victim’s cheek…
The offence was unprovoked and, one might also accept, unexpected, at least in the first blow that was struck…
…
The facts underpinning the present prosecution outline the relationship that they [GJRR and Mr G] had including the appearance at Campbelltown Local Court on 18 January 2017 for sentence. The matter was adjourned from that date, with bail conditions attaching, including abstinence from drugs and alcohol and not to make any contact with the victim [Mr G] and to comply with an apprehended violence order which was put in place for the protection of the victim. She is in breach of the apprehended violence order as a consequence of what fell thereafter.
After leaving Campbelltown Local Court they attended the hotel at Doonside. That was in breach of the apprehended violence order.
At 6.30pm that evening both the offender and the victim were picked up in a vehicle by mutual friends…they consumed cannabis over about an hour and a half…The victim was seated to the offender’s right hand side in a corner lounge. She hugged him and said “I love you” and then without provocation stabbed him in the neck with a knife and then ran into the kitchen. The victim pulled the knife out of his neck and began bleeding profusely from the wound. He attempted to stem the flow of blood from his neck using his hand.
…
The offender ran back into the kitchen, obtained another larger kitchen knife. She returned to the lounge room where the victim was and stabbed him again in the cheek. The victim tried to deter her with a bar stool that was positioned in the lounge room to create some distance from the offender and prevent further harm. He ran from the house to the front lawn…The offender came out to the front lawn, still armed with a kitchen knife. There was a short conversation and then she walked south down Knox Road.
Police arrived and the victim reported the matter. He was conveyed to Westmead Hospital. He had an elevated heart rate of 140 beats per minute. There was surgery on 19 January 2017, commenced at 0014 hours, and completed at 0228 hours. An angiogram was performed revealing a significant arterial bleed…
There are a number of important nerves and vessels that run near to the sites of these wounds; continuing bleeding from one of his injuries even after transportation to hospital suggests that the outcome to the victim may have been different had emergency care not been available. He remained intubated until 20 January 2017 and was discharged on 23 January 2017.
…
The second offence of perverting the course of justice was between 26 January and 7 March 2017, a significant period of time. Calls were made from where the offender was in custody. The facts describe the conversations which took place on the various dates. The statements by the offender are recorded. The calls were respectively on 26 January 2017 on two occasions; on 27 January 2017; on 12 February 2017, three times; on 28 February 2017; and on 7 March 2017.
In the course of these utterances she told him that he could not say anything to the police, acknowledged the breach of her apprehended violence order, pressed the victim not to say anything to the police, asked that he not go against her and do not snitch, advised him that all he needed to do was drop the AVO and drop the charges.
In the call on 28 February 2017, call 13, she said:
“You better drop the – the fucking charge on me and you’ve got to talk to them, man, or fucking kill them or something, because I don’t want, I don’t want to get done for that”.
She acknowledged that he would be arrested were he to comply with her request but he would suffer a more limited penalty than that to which she is exposed.
It was said that in the circumstances this offence is at the low end of the range of objective seriousness. I do not agree. I agree that it is below mid-range but not at the low end of the range as was suggested. [emphasis in original]
Based on the evidence before the Tribunal, it is satisfied that GJRR has engaged in violent crimes, including acts of family violence, which, pursuant to paragraph 8.1.1(1)(a) of Direction 90, are crimes or conduct that are viewed very seriously by the Australian Government and the Australian community. For the avoidance of doubt, the Tribunal also finds these crimes and conduct of GJRR to be very serious. GJRR’s criminal offending included the use of multiple weapons against her then partner, Mr G, which resulted in him receiving numerous stab wounds on two occasions in 2016 and 2017, the latter having the potential to result in his death. Additionally, GJRR’s offences in 2017 were committed while she was on bail awaiting sentencing for her earlier violent offence in 2016 and while she was subject to a good behaviour order.[76]
[76] Ibid., pages 50-51.
Additionally, GJRR has been convicted of multiple offences against members of the police force in the course of their duties which, pursuant to paragraph 8.1.1(b) of Direction 90, are considered to be serious crimes by the Australian Government and the Australian community.[77] As previously detailed in these reasons, GJRR has assaulted a police officer in the execution of their duties and resisted an officer in the performance of their duties. After these convictions from 2016 were called up in 2017, GJRR received sentences of eight months for each offence, with a non-parole period of four months.[78] The Tribunal finds GJRR’s crimes against members of the police in the performance of their duties to be serious.
[77] Ibid., pages 50-52.
[78] Ibid.
The overall seriousness of GJRR’s criminal offending is reinforced by her being sentenced to multiple terms of imprisonment, including 18 months with a six month non-parole period for the 2016 offence of ‘Reckless wounding’, which led to the mandatory cancellation of the Visa, and the aggregate sentence of eight years and six months for the 2017 offences of doing an act to pervert the course of justice and wounding a person with the intent to cause grievous bodily harm. Plainly, a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.
GJRR has also engaged in frequent and repeated offending in Australia, the cumulative effect of which is significant. She has committed violent crimes and been found guilty of those crimes in Australia. There is a trend of increasing seriousness in GJRR’s offending, exhibited by her convictions as a child for robbery, larceny and assault occasioning actual bodily harm, followed by crimes as an adult against the police in the performance of their duties and then the commission of very serious violent offences on two separate occasions against the same victim, the latter of which also led her to attempt to pervert the course of justice by asking her victim to assist her to avoid conviction. GJRR also continued to offend despite being the subject of multiple good behaviour orders, and, in this regard, having been given the benefit of remaining at liberty in the community. For the avoidance of doubt, based on the evidence before the Tribunal, it does not accept the submissions that the majority of GJRR’s offending consists of stealing and dishonesty offences while she was homeless. As detailed in these reasons, GJRR has a long, varied and concerning criminal record, the seriousness of which has increased over many years such that she was finally incarcerated for a very serious act of family violence committed in 2016, therefore having her Visa mandatorily cancelled in 2017 and also having a substantial term of imprisonment imposed in 2019 for her last offences, again involving a very serious and violent criminal offence and seeking to pervert the course of justice.
GJRR did not dispute her criminal record or the substantive facts behind the commission of her offences. This weighs in her favour. However, for the avoidance of doubt, the Tribunal finds that the cumulative effect of GJRR’s repeated offending exacerbates its seriousness and it does not accept that her culpability is impacted by her mental health conditions or that this offending should be viewed through the prism of any other vulnerabilities so as to moderate culpability for the offences. While these matters provide context, and some, such as drug use, have likely contributed to her offending, there is no excuse for violent crimes, including those of the very serious nature committed by GJRR. Moreover, the task of the Tribunal is not to assess GJRR’s culpability for her offending. That is the role of the courts and they have found her guilty of multiple serious offences, including violent crimes constituting acts of family violence. The Tribunal’s task in this proceeding is guided by the Act and Direction 90.
Having regard to all the evidence and relevant considerations in paragraph 8.1.1 of Direction 90, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of GJRR’s conduct, weighs heavily against revocation of the original decision to cancel the Visa.
The risk to the Australian community
Paragraph 8.1.2 of Direction 90 states as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal is satisfied that the nature of the harm that would be caused if GJRR were to engage in further criminal conduct is very serious and is likely to involve significant physical and psychological harm to members of the Australian community. To this end, based on the evidence before the Tribunal, it is satisfied that the conduct and harm that would be caused, if it were to be repeated by GJRR, is so serious that any risk of it being repeated is unacceptable. As previously detailed in these reasons, GJRR has been convicted of numerous wide-ranging criminal offences between 2003 and 2019, including the very serious violent crimes of ‘Reckless wounding (DV)-T1’ and ‘Wound person intend to cause grievous bodily harm (DV)-SI’, for both of which she received custodial sentences. Accordingly, the nature of the harm to individuals or the Australian community should GJRR engage in further criminal or other serious conduct is likely to be significant and potentially lethal. This weighs very heavily against revocation.
Furthermore, the Tribunal is not satisfied that the likelihood of GJRR engaging in further criminal or other serious conduct is presently low. As previously detailed in these reasons, in Dr Kwok’s evidence to the Tribunal at the hearing, and due to the evidence regarding GJRR’s drug use and violence in gaol and immigration detention and her recent attempt to contact her victim, Mr G, Dr Kwok re-rated GJRR’s risk of reoffending ‘in a domestic setting if she returns to an abusive relationship or a relationship that involves substance use’ from ‘moderate to high risk’ to ‘high risk’. She also re-rated GJRR’s risk of reoffending for ‘general non-domestic offending’ from ‘moderate’ to ‘moderate to high risk’. Additionally, Dr Kwok’s evidence was that GJRR’s present risk of reoffending is reliant on protective factors being in place upon her release into the community.[79] Dr Kwok’s assessment is in line with that made about GJRR for the purpose of a ‘Pre-release report’ in 2022 in relation to the then upcoming end of her non-parole period in May 2022.[80] GJRR was in that report said to have ‘been assessed at a Medium-High risk of reoffending’ and ‘assessed as a HIGH risk of possible future violence’.[81] The NSW District Court in 2019 also referred to an assessment that GJRR falls ‘within the group of persons with a risk for violent offending that is statistically high in frequency and greater’ than the theoretical average offender.[82]
[79] Exhibit 2, pages 8-19.
[80] Exhibit 3, pages 136-147.
[81] Ibid., pages 144 and 146. See also Exhibit 3, page 288.
[82] Exhibit 1, page 81.
Furthermore, while the Tribunal finds, based on GJRR’s testimony and the evidence before the Tribunal, that she has some level of insight into her offending and its consequences, including due to her acceptance of her crimes, the weight attributable to this is lessened because of the continued violent behaviour in gaol and immigration detention and her use of illicit drugs in those settings. As a result, the Tribunal is satisfied that the likelihood of GJRR engaging in further criminal or other serious conduct is at least a moderate risk and not presently low. Having regard to all the evidence before it, the Tribunal finds that there is currently an ongoing and real risk of GJRR reoffending and that this may reduce from the present moderate risk, subject to the multiple factors outlined by Dr Kwok being secured, including the support of a range of services to assist GJRR, employment and familial and community-based support. That is, on the available evidence, the Tribunal finds that there is presently a real and not insignificant or low risk that GJRR will reoffend.
GJRR’s history of criminal conduct demonstrates repeated offending despite the criminal justice system affording her multiple opportunities to address her behaviour by imposing non-custodial sentences. On the evidence before the Tribunal, GJRR did not make the most of the opportunities to rehabilitate provided by the courts through the imposition of good behaviour orders over many years. The evidence before the Tribunal demonstrates that while there have been steps taken by GJRR to engage with support services to demonstrate rehabilitation, there was a lack of evidence that this was directly addressed towards her family violence offending or had any impact on her violent behaviour or drug use in gaol or immigration detention. In this regard, noting that GJRR has either been imprisoned or in immigration detention since January 2017, a period of over five and a half years, she has continued to engage in violent and other serious conduct in these settings, including unprovoked assaults on other inmates or detainees and illicit substance use. There was also no evidence that GJRR had undertaken any targeted rehabilitation in relation to domestic violence offending. Dr Kwok opined that such education was required for GJRR.[83] She also recommended psychological therapy to address her emotional regulation, but there was no material evidence that this has occurred. While GJRR did complete some drug and alcohol treatment programs in gaol, she continued to use illicit substances or contraband in both gaol and immigration detention which undermines the submission that this has had an effect on GJRR in removing drug use as a factor in her risk of reoffending. To this end, GJRR has not demonstrated during her time in gaol or immigration detention that she has reached a state of rehabilitation that has seen her abstain from drug use or acts of violence towards others. This factor weighs against GJRR.
[83] Exhibit 3, page 15.

Paragraph 5.2(4) of Direction 90 states that Australia has a low tolerance of any criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time, although ‘Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australia community for most of their life, or from a very young age’. In this respect, GJRR arrived in Australia in 2001, aged 11. As a result, GJRR has not been in Australia ‘only for a short period of time’. She is now 33 and has lived in the Australian community for 22 years, noting that she has either been incarcerated or held in immigration detention for the last five and a half years. While GJRR recorded her first criminal conviction two years after arriving in Australia due to the offence of robbery in company and has continued to offend with an increasing seriousness over a substantial period of time, the Tribunal finds that she has been in Australia ‘from a very young age’ and lived in the Australian community for most of her life. She has had three children in Australia, she has been employed in various jobs, thereby paying income tax, and spent time with her extended family in Australia. Accordingly, and despite GJRR’s numerous interactions with law enforcement over the years she has lived in Australia, the Tribunal accepts that GJRR has also participated in, and contributed to, the Australian community for a substantial period of time. The Tribunal finds that these matters moderate the weight against revocation of the Visa under Primary Consideration 4.[121]
[121] Ibid., pages 49-52.
Having regard to all of the relevant matters in paragraph 8.4 of Direction 90 set out above in these reasons, the Tribunal finds that Primary Consideration 4 weighs heavily against revocation of the decision to cancel GJRR’s Visa.
Conclusion – Primary considerations
In concluding its analysis of the primary considerations under Direction 90, the Tribunal has found that Primary Consideration 1, the protection of the Australian community, Primary Consideration 2, family violence committed by the non-citizen, and Primary Consideration 4, the expectations of the Australian community, all weigh heavily against revocation of the original decision to cancel GJRR’s Visa. The Tribunal has also found that Primary Consideration 3, the best interests of minor children in Australia, weighs moderately in favour of GJRR and revocation of the original decision to cancel the Visa.
Other considerations
Paragraph 9 of Direction 90 provides that ‘other considerations’ must also be taken into account where relevant and include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including the strength, nature and duration of ties to Australia and impact on Australian business interests. The Tribunal turns to address these ‘other considerations’ contained in Direction 90 and notes that they are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection:[122]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 90] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 90] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 90] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[122] [2018] FCA 594.
International non-refoulement obligations
Paragraph 9.1(1) of Direction 90 provides that a non-refoulment obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. GJRR, a citizen of New Zealand, acknowledged that international non-refoulement obligations are not applicable. The Tribunal is also satisfied that no such obligations exist and this consideration is therefore given no weight in this proceeding.
Extent of impediments if removed
Paragraph 9.2 of Direction 90 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: the non-citizen’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The Tribunal finds that GJRR will likely face some difficulty if removed from Australia to New Zealand, noting that she left that country in 2001. However, GJRR is 33 years old, has worked in physical roles in Australia and does not have any diagnosed physical medical conditions. However, based on the evidence, the Tribunal accepts that GJRR has a number of mental health conditions. In this regard, GJRR contended that she suffers from personality disorder, psychotic substance disorder, schizophrenia, and paranoia.[123] Dr Kwok referred to GJRR not reporting ‘any medical condition or health problems’, although she is ‘currently medicated’ with a ‘mood stabiliser’ for personality disorder.[124] Dr Kwok reported that GJRR believed she suffered from psychosis and was diagnosed with Borderline Personality Disorder by a psychiatrist in 2016.[125] Dr Kwok opined that, given GJRR’s offending and psychosocial history, she had childhood Conduct Disorder and her ‘antisocial behavioural and personality patterns need to be treated by psychological therapy’.[126] In addition, Dr Kwok noted that GJRR’s psychiatric symptoms prior to her most recent offending were ‘not adequately addressed’ and recommended assessment and management by a psychiatrist for the purpose of ‘identifying and managing any early psychotic symptoms’, noting that ‘[a]t the time of my assessment, GJRR did not present with any delusional thoughts or hallucinations’ and there was ‘no observable evidence of mental illness or disorder’.[127] Dr Kwok did consider that GJRR has a ‘longstanding history of substance abuse disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM-V)’ and recommended ‘assessment into the possibility of other personality disorders’, in addition to childhood Conduct Disorder, including ‘Antisocial Personality Disorder which is common in adults who had conduct disorder as children’.[128] Dr Kwok further opined that, at the least, GJRR has ‘antisocial personality patterns’, as suggested by her offending history.[129]
[123] Exhibit 1, page 102.
[124] Exhibit 2, pages 11 and 15. See also Exhibit 1, page 102.
[125] Ibid., page 12.
[126] Ibid., page 16.
[127] Ibid., pages 9 and 16.
[128] Ibid., page 17.
[129] Ibid, pages 17-18.
While accepting the requirement for GJRR to receive psychological treatment for various mental health conditions, including counselling and medication, there was no evidence that she would be denied access to the general health system in New Zealand or would otherwise not have access to medical and economic support services that are available to other citizens, including currently prescribed medication. In this regard, the Tribunal is satisfied that New Zealand has a medical and social support system comparable to that in Australia and any available support in New Zealand will be of a similar standard to that which would be available to GJRR in this country. There was also no evidence that GJRR, as a New Zealand citizen, would not be able to access any required treatment upon her return. She conceded in written submissions that she could access the medical system in New Zealand, although contended that she did not have the ‘contacts or support or knowhow’. The Tribunal does not accept that GJRR could not access the medical system due to these factors or that they present an impediment to accessing and receiving the required support. However, the Tribunal accepts that GJRR’s mental health will likely deteriorate if she is removed from Australia because, as Dr Kwok suggested, she will not have the same motivation to undertake required psychological and other treatment due to the lack of contact and support from her children and broader family in Australia, especially given the likelihood that she will not in those circumstances be afforded an opportunity to play a parental role to those children in the foreseeable future.[130] To this end, the Tribunal accepts that GJRR will face some practical and emotional hardship upon any return to New Zealand, but it is not satisfied that this presents an impediment to establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
[130] Ibid., page 17.
In this regard, the Tribunal agrees with Dr Kwok’s assessment that GJRR will not have any language or cultural barriers in returning to New Zealand.[131] She is a citizen of that country, left at 11 years old, has some family living in New Zealand and speaks English, the predominant language of the country.[132] To this end, New Zealand is culturally and linguistically similar to Australia and there was no evidence that those factors present any impediment to GJRR establishing herself and maintaining basic living standards if she were returned to the country of her birth.
[131] Ibid.
[132] Exhibit 3, page 236.
The Tribunal accepts that GJRR would have limited social support in the form of friends and family in New Zealand because the majority of her family reside in Australia and she left New Zealand when she was 11 years old. GJRR’s evidence was that, despite having family in New Zealand, she has ‘not maintained any contacts’ in that country, which the Tribunal accepts. GJRR’s father’s written evidence was that his father, aunties, uncles and a brother live in New Zealand, although his oral evidence indicated that one of GJRR’s uncles was now living in Australia.[133] However, GJRR’s father said that his daughter could not stay with her grandfather because he lives in a small flat.[134] In this regard, the Tribunal also accepts that GJRR may initially face some financial difficulty and will be required to secure accommodation in New Zealand, which may also be difficult but, given the history of her ability to work, the Tribunal is satisfied that this potential financial impact is lessened. Moreover, GJRR told the Tribunal that her grandmother would be able to assist with support in New Zealand. GJRR completed schooling to Year 9 level and has previously worked productively in Australia. For example, there was evidence before the Tribunal that GJRR has worked as a waitress, a butcher’s assistant, bartender, hairdresser and in ‘pick packing’ roles.[135] She was also said to have worked in the kitchen in gaol and on grounds maintenance in detention.[136] As a result, the Tribunal is not satisfied that the minimal social support available to GJRR presents an impediment to establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand.
[133] Exhibit 2, page 22.
[134] Ibid., page 23.
[135] Exhibit 1, page 101.
[136] Ibid., page 100.
Having regard to all of the relevant factors in this consideration, and for the aforementioned reasons, the Tribunal finds that the extent of the impediments for GJRR if she were removed from Australia and returned to New Zealand are moderate. As a result, the Tribunal finds that this other consideration weighs moderately in favour of revocation of the decision to cancel the Visa.
Impact on victims
Paragraph 9.3(1) of Direction 90 relevantly states that decision-makers must consider the impact of the section 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available.
It was not contended by GJRR that this consideration weighed in favour of revocation and there was no direct evidence or information before the Tribunal from the victim of her family violence offending regarding the impact, if any, the decision may have on him and his family members. In the absence of any evidence in relation to this consideration, the Tribunal finds that it is neutral in the decision-making process and is given no weight.
Links to the Australian community
Paragraph 9.4 of Direction 90 states that, reflecting the principles set out at paragraph 5.2, decision-makers must have regard to the following paragraphs of Direction 90:
9.4.1 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. in doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrives as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
9.4.2 Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The strength, nature and duration of ties to Australia
As set out above in these reasons, paragraph 9.4.1(1) of Direction 90 requires the Tribunal to consider any impact of the decision on GJRR’s immediate family members in Australia. In circumstances where consideration is being given to whether to revoke the mandatory cancellation of the Visa, the Tribunal must also consider the strength, nature and duration of any other ties that GJRR has to the Australian community, including how long she has resided in Australia and familial or social links in this country.
GJRR arrived in Australia 22 years ago, in 2001, aged 11. Two years after her arrival, GJRR commenced offending when she was 13 years old. Following numerous non-custodial orders, she was convicted of very serious violent crimes committed in 2016 and 2017. GJRR was sentenced to separate terms of imprisonment for these offences. In August 2017, GJRR’s Visa was mandatorily cancelled under the Act. Since the end of her non-parole period in May this year, GJRR has resided in immigration detention. That is, GJRR was living in the Australian community, and not in some form of detention in Australia, for approximately 16 years.
The Tribunal accepts that an unfavourable decision for GJRR will have a negative impact on her immediate family members, most particularly her children, for reasons previously described in this decision under Primary Consideration 3, and also on her parents, sisters and a brother. While GJRR’s father is currently receiving medical treatment for metastatic cancer, there was no evidence that GJRR has previously engaged in an active caring role in relation to her father, who lives with a long-term partner, or that she would be required do so in the future, although the Tribunal accepts that she may, and has expressed a desire to do so, if released into the community and would plainly seek to spend time with her father.[137] For the avoidance of doubt, the Tribunal accepts that an adverse decision would have a significant impact on GJRR’s father, as it would with her mother, with whom she described having both a ‘beautiful’ and ‘distant’ relationship.[138]
[137] Ibid., pages 3 and 7-8.
[138] Exhibit 2, pages 1 and 10.
The Tribunal accepts the submission that GJRR has a close extended family in Australia and that these links are strong. In addition to GJRR’s parents, these include her two sisters and one brother, four nieces and nephews, a grandfather, uncles and aunts, and cousins.[139] As a result, GJRR considers Australia to be home. To this end, the Tribunal has considered the statements in support of GJRR and accepts that her immediate and extended family in Australia would be negatively impacted by a decision not to revoke the decision cancelling the Visa and that this weighs in GJRR’s favour.[140] She is plainly very close to her family in Australia and has maintained relatively strong links to them despite not living in the community for over five years. For example, GJRR describes her adult sister as her ‘support person’, with whom she has a ‘close relationship’, as she does with her two other siblings.[141]
[139] Exhibit 1, page 99.
[140] Ibid., pages 114-125; Exhibit 2, pages 22-41.
[141] Exhibit 2, page 1.
For completeness, the Tribunal does not consider the impact of the decision on either Mr G, the victim of GJRR’s most recent offending and her immediate former partner, or the impact on Mr B, her former de-facto partner and the biological father of her children. There was no evidence of the impact of the decision on these people or that they are now in a relationship with GJRR such that would make them family and enliven deliberation under this other consideration. There was also no submission made to this effect.
As set out above, GJRR has resided in Australia since 2001, but has not lived in the community since 2017. That is, she spent approximately 16 years living in the Australian community between 2001 and 2017. The Tribunal accepts that she arrived as a young child, aged 11, and has spent her entire adulthood in this country; she is now 33 years old. This weighs in her favour. However, from 2003 to 2017, a period of 14 years, GJRR committed criminal offences in Australia. This offending started two years after her arrival in this country, which the Tribunal accepts was not soon after she arrived, but it increased in seriousness and led to a term of imprisonment due to the commission of a violent crime against her then partner, therefore being an act of family violence that the Tribunal has found, pursuant to Direction 90, was very serious. While on bail and awaiting sentencing for this offence, GJRR committed a further very serious violent crime against her then partner, which led to the imposition of a sentence of eight years for wounding with the intent to cause grievous bodily harm. Related to this offence, GJRR was also convicted of attempting to pervert the course of justice and sentenced to a term of imprisonment of four years and six months. In total, GJRR received an aggregate term of imprisonment for these 2017 offences of eight years and six months, with a non-parole period of four years and six months, which underlines their seriousness.

As a result of her repeated and serious offending over many years, GJRR has made a modest positive contribution to the Australian community, noting again that she has not lived in the community for more than five years since early 2017. In this regard, GJRR was employed for periods of time during her 16 years living in the community and is accepted to have paid income tax on those occasions. She also listed her positive contributions as being youth work and the music industry, TAFE work for hairdressing and church.[142] However, there was no evidence to corroborate GJRR’s involvement in these activities. Despite this, for the purpose of this consideration, the Tribunal accepts that they were undertaken and weigh in favour of GJRR. She did not disclose any other relevant links, including any other social ties in Australia beyond her own family. The Tribunal also notes that GJRR completed Year 9 of secondary school and her cousin’s partner, Ms M, gave evidence that she can offer GJRR employment in various settings through her recruitment agency if she is released into the community.
[142] Exhibit 1, page 101.
On balance, for the foregoing reasons, the Tribunal finds that the strength, nature and duration of GJRR’s ties to Australia favours revocation of the decision to cancel the Visa, but the weight attributable to this consideration is moderated due to the nature and duration of GJRR’s criminal offending in Australia since she was 13 and her modest positive contribution to the Australian community.
Impact on Australian business interests
On the evidence before the Tribunal, GJRR started working in the Australian community after completing her schooling, which was said to have been at the end of Year 9.[143] This employment included factory work, ‘pick packing’, hairdressing, being a butcher’s assistant and waitressing. GJRR has also worked in the kitchen in gaol and on grounds maintenance in immigration detention.
[143] Exhibit 2, page 1; Exhibit 1, page 101.
Paragraph 9.4.2 of Direction 90, set out above in these reasons, relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would ‘significantly compromise the delivery of a major project or delivery of an important service in Australia’. While acknowledging the current skills shortages in many sectors of the economy, there was no evidence before the Tribunal that the decision under section 501CA of the Act would have the impact contemplated by this consideration. Accordingly, the Tribunal finds that this element of the other consideration of links to the Australian community is neutral in its decision and is given no weight.
Conclusion – Links to the Australian community
For the foregoing reasons, the Tribunal finds that this ‘other consideration’, links to the Australian community, weighs moderately in favour of GJRR and revocation of the decision to cancel her Visa.
conclusion
The Tribunal has found that GJRR does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of her ‘substantial criminal record’. Following this finding, the critical issue for determination by the Tribunal was whether there is ‘another reason’ why the original decision to cancel GJRR’s Visa should be revoked. This required a consideration of Direction 90.
The Tribunal has found that there is not another reason why the original decision should be revoked. The Tribunal is satisfied, based on its assessment of all considerations in Direction 90, that the two relevant listed ‘other’ considerations, together with Primary Consideration 3, regarding the best interests of minor children in Australia, which all weigh in favour of revocation, do not outweigh the three remaining primary considerations, being the protection of the Australian community, family violence committed by the non-citizen and the expectations of the Australian community, which all weigh heavily against revocation. The Tribunal also again notes that, pursuant to paragraph 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 4 outweigh those considerations in favour of GJRR and revocation of the decision to mandatorily cancel her Visa. Accordingly, GJRR’s application before the Tribunal is unsuccessful.
decision
The Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Act.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................[SGD]........................................
Associate
Dated: 23 September 2022

Date(s) of hearing: 1 and 2 September 2022

Date final submissions received

29 August 2022

Solicitor for Applicant:

Ms Marta Mamarot, South West Migration & Legal Services

Solicitor for Respondent:

Mr Aaron Taverniti, Sparke Helmore Lawyers

[2022] AATA 3104

15 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	1 and 2 September 2022
Date final submissions received	29 August 2022
Solicitor for Applicant:	Ms Marta Mamarot, South West Migration & Legal Services
Solicitor for Respondent:	Mr Aaron Taverniti, Sparke Helmore Lawyers