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

[2021] AATA 70

Goodier and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 70 (28 January 2021)

Division:GENERAL DIVISION

File Number:          2020/7011

Re:Karyn Goodier

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:28/01/2021

Place:Brisbane

The decision under review is affirmed.

..................................[sgd]......................................

Senior Member Theodore Tavoularis

Table of Contents

REASONS FOR DECISION

ISSUES

Does the Applicant pass the character test?

Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

Primary Consideration A – Protection of the Australian Community

The Nature and Seriousness of the Applicant’s Conduct to Date

Applicant’s contentions

Respondent’s contentions

Application of factors in Paragraph 13.1.1(1) of the Direction

The Applicant’s drug-related offending

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

The likelihood of the non-citizen engaging in further criminal or other serious conduct

Is the Applicant’s age and propounded level of maturity significant to now lower her risk of recidivism?

To what extent can the Applicant’s level of insight into her past offending now be said to be informative of her risk of re-offending?

What does the Applicant’s lengthy history of participation in very serious drug offending now tell us about her risk of recidivism?

To what extent can it now be said that the Applicant’s risk of re-offending is lower due to her having a support network around her?

What do the Applicant’s lay-witnesses say about her risk of recidivism and to what extent can any meaningful weight be allocated to that evidence?

Findings about the Applicant’s risk of recidivism

Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia

The Applicant’s written evidence

The Applicant’s oral evidence at the hearing

Written evidence of the Applicant’s daughter, Ms L S (biological mother of the Applicant’s grandchildren)

Application of Factors in Paragraph 13.2(4) of the Direction

Conclusion: Primary Consideration B

Primary Consideration C: The Expectations of the Australian Community

The relevant paragraphs in the Direction

Factual circumstances relevant to this Primary Consideration C

The Evolution of the Australian Community’s “Expectations”

Analysis – Allocation of Weight to this Primary Consideration C

Conclusion: Primary Consideration C

Other Considerations

(a) International non-refoulement obligations

(b) Strength, nature and duration of ties

(c) Impact on Australian business interests

(d) Impact on victims

(e) Extent of impediments if removed

Conclusion

Decision

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2019] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member Theodore Tavoularis

28/01/2021

1. Ms Karyn Goodier (“the Applicant”) is a 55-year-old citizen of New Zealand.[1] Movement records indicate the Applicant initially arrived in Australia on 15 January 1984 and has had the following movements inwards and outwards from Australia:

   [1]See Exhibit G1, G23, page 127.

   ·arrived 15 January 1984;

   ·departed 7 September 1984;

   ·arrived 30 January 1985;

   ·departed 19 June 1985;

   ·arrived between 19 June 1985 and 18 December 1985; [2]

   [2]Note: it would appear that the Movement Records of the Applicant are incomplete. The records cite two consecutive departures on 19 June 1985 and 18 December 1985 with no intervening arrival back into Australia.

   ·departed 18 December 1985;

   ·arrived 8 January 1986;

   ·departed 19 January 1987;

   ·arrived 26 January 1987;

   ·departed 28 November 1987;

   ·arrived 9 December 1987;

   ·departed 7 August 1990;

   ·arrived 25 August 1990;

   ·departed 25 September 1992;

   ·arrived 1 December 1992;

   ·departed 7 August 1994;

   ·arrived 21 August 1994;

   ·departed 10 December 2014; and

   ·arrived 17 December 2014.[3]

   [3]Exhibit G1, G23, pages 127–128.

2. Upon her final arrival in Australia on 17 December 2014, the Movement Records indicate the Applicant was granted a “Class/Sub class TY-444” visa (“Visa”).

3. The Applicant has not left Australia since 17 December 2014. I have had regard to inward and outward movements from Australia. During the period of those movements (January 1984–December 2014) plus during the period of her final arrival (December 2014) to present, the Applicant has spent approximately 35 of her 55 years in Australia.

4. The Applicant has a history of criminal offending in Australia – primarily in the realm of illicit drugs – spanning over two decades. She was first dealt with by lawful authority in October 1998. Her most recent sentencing episode was at the Supreme Court in Cairns on 30 January 2020 involving the imposition of a head custodial term of seven years.[4]

   [4]Exhibit G4, pages 30–31 and 42. I note the sentencing remarks of His Honour Henry J (Exhibit G1, G5, page 40, lines 38–40) appear to indicate that a seven year imprisonment sentence was to be allocated to each of the offences, however the Verdict and Judgement Record makes clear that the Applicant was only convicted of one seven year term. For the purposes of this decision, the Tribunal will consider that the Applicant was convicted of only the one head sentence of seven years imprisonment arising from the sentencing episode dated 30 January 2020.

5. While the Applicant was serving a term of imprisonment (that is, in actual criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 10 March 2020 to mandatorily cancel the Applicant's visa on the basis that she did not pass the character test.

6. The Applicant requested revocation of the mandatory cancellation decision by making the necessary representations to that end. On 4 November 2020 another delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the mandatory cancellation of the subject visa.

7. After being notified of the non-revocation decision pursuant to s 501CA(4) of the Act on 5 November 2020, the Applicant, via an Application lodged with this Tribunal on 11 November 2020, sought review of the non-revocation decision dated 4 November 2020. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.

8. The hearing of the instant application proceeded before me, by way of video link, on 14 January 2021. The hearing received oral evidence from: (1) the Applicant; (2) Mr E R (the Applicant’s younger son); (3) Mr J S (the Applicant’s elder son); (4) Ms L S (the Applicant’s daughter); and (5) Mr M P[5] (for whom the Applicant has, in the past, acted as a carer).

   [5]Note: The written statement for Mr M P appears in the G Documents (Exhibit G1, G15, pages 104–105). 

9. The Tribunal also received written evidence. That written evidence was compiled into an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.

   ISSUES

10. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:

    (4)       The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

11. As mentioned, the Applicant has made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]

    “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view[…]”[7]

    [6][2018] FCAFC 151.

    [7]Ibid, [21] citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

12. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

13. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.

    [8]Ibid.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

14. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

15. The Applicant makes the following concessions. In her written material, she said:

    “I acknowledge Full Responsibility for my actions.

    […]

    I now realise my misguided attempts at helping my daughter and friend have resulted in our current situation. At my age I should have known better.”[9]

    [9]Exhibit G1, G11, page 91.

16. The following exchange occurred in her oral evidence during cross-examination:

    “Mr Kyranis:[10] I take it that you’ve had a look at the criminal history, your criminal history contained in the G documents, is that right?

    Applicant: Yes, I have.  Yes, I have.

    Mr Kyranis: It’s on page 30 of the G documents as you’re pulling it up.

    […]

    Mr Kyranis:  Is the record accurate?

    Applicant: Yes, it is.”[11]

    [10]Mr Jake Kyranis, Senior Associate, Sparke Helmore Lawyers, Solicitor for the Respondent.

    [11]Transcript, page 19, lines 15–22.

17. As mentioned, the Applicant has a history of offending in this country that runs beyond two decades. Even a cursory review of her criminal history demonstrates she has received the following custodial terms:

Sentence Date	Offence	Imprisonment Term
4 April 2003	Supply Dangerous Drugs[12]	12 months
24 May 2007	Possession of Dangerous Drugs[13]	1 month
25 November 2008	Breach of probation order	3 months
	Possession of dangerous drugs[14]	3 months
23 December 2009	Possession of dangerous drugs[15]	9 months
14 April 2010	Possession of dangerous drugs[16]	3 months
16 June 2010	Possessing anything for use in the commission of a crime[17]	2 months
18 February 2013	Trafficking in dangerous drugs[18]	4 years
30 January 2020	Trafficking in dangerous drugs[19]	7 years
Total	13 years, 9 months

[12]Pursuant to s 6, Drugs Misuse Act 1986 (Qld) (“DMA”).

[13]Pursuant to DMA s 9.

[14]Ibid.

[15]Ibid.

[16]Ibid.

[17]Pursuant to DMA s 10(1)(A).

[18]Pursuant to DMA s 5.

[19]Ibid.

1. Having regard to the aforementioned custodial terms imposed upon the Applicant, there can be no question that she does not pass the character test pursuant to s 501(6)(a) of the Act. I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.

   IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

2. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[20] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[21]

   (1)…a decision maker:

   …

   b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

   [20] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.

   [21] The Direction, sub-paragraph 7(1)(b).

3. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

   a)    Protection of the Australian community from criminal or other serious conduct;

   b)    The best interests of minor children in Australia;

   c)    Expectations of the Australian community.

4. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.

5. The Other Considerations which must be taken into account are provided in a
   non-exhaustive list in paragraph 14 of the Direction. These considerations are:

   a)    International non-refoulement obligations;

   b)    Strength, nature and duration of ties;

   c)    Impact on Australian business interests;

   d)    Impact on victims;

   e)    Extent of impediments if removed.

6. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[22]

   “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

   [22] [2018] FCA 594 at [23].

7. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

8. I will now turn to addressing these considerations.

   Primary Consideration A – Protection of the Australian Community

9. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

10. In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.

1. In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The Nature and Seriousness of the Applicant’s Conduct to Date

   Applicant’s contentions

2. In her written material, the Applicant says the following:

   “Nature and Seriousness of my Criminal Conduct

   * I acknowledge Full Responsibility for my actions.

   * The evidence was 27 days audio/video surveillance of my Daughters house and my friend [Ms N M]’s Wedding Business by the Cairns Police. (I was not charged outside the 27 day period)

   * My involvement was in counting money, banking money in my friends Personal Account and on two occasions posting money for my friend [Ms N M].

   * I was helping my Friend of 20yrs [Ms N M] (who is still to be sentenced for Trafficking/Possession) by counting money for her and taking it to [Ms N M]. And keeping a record of money paid/owed by her.

   * I was not selling / dealing drugs

   * I received no Financial Gain

   * I haven’t used Drugs for 7 years

   * I am deeply remorseful for my actions. I now realise my misguided attempts at helping my Daughter and Friend have resulted in our current situation. At my age I should have known better.”[23]

   [Errors in original]

   [23]Exhibit G1, G11, page 91.

3. In her oral evidence, the Applicant also made the following limited concession:

   “Mr Kyranis: Would you agree with the characterisation of your criminal history that it should be regarded as very serious because of the number of drug offences that have been committed?

   Applicant: Yes.”[24]

   Respondent’s contentions

   [24]Transcript, page 22, lines 29–31.

4. After citing and applying the terms of certain of the sub-paragraphs appearing at paragraph 13.1.1(1) of the Direction, the Respondent makes the contention that “… the Applicant’s offending can only be regarded as very serious”.[25] I am of the view that this contention is correct but will now endeavour to justify that view (and finding) upon my own application of the relevant factors informative of the nature and seriousness of the Applicant’s conduct as they appear in Paragraph 13.1.1(1) of the Direction.

   [25]Exhibit R1, page 7, paragraph [30].

5. It is pertinent to have initial reference to the abovementioned principles appearing at Paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.

6. As will be noted from my following discussion, the policy represented by each of the abovementioned principles is activated upon an analysis of the Applicant’s history of offending in Australia via an application of the relevant sub-paragraphs appearing in Paragraph 13.1.1(1) of the Direction.

   Application of factors in Paragraph 13.1.1(1) of the Direction

7. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The complete list of those factors comprises the following:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

   (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (f)The cumulative effect of repeated offending;

   (g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

8. Paragraph 13.1.1(1) of the Direction provides “[i]n considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …” [My underlining] The use of the word “including” indicates to me that the list of factors after this introductory pre-amble is non-exhaustive. That is to say, it is not a complete statement of the types of criminal conduct which the Australian community should be protected from. A particularly significant element of the Applicant’s offending results from her participation in trafficking in methylamphetamine. That unlawful activity has demonstrably and over a significant period of time resulted in devastating effects to the social fabric of this country.

9. Not only consumers/users/addicts of these illicit substances are affected. They obviously are, because they are most the most visible victims. But there are other victims as well. It is well known that the families and other connections of those adversely affected by illicit drugs also suffer. They suffer perhaps not in the immediate physical way that an addict suffers, but the adverse effects of a relative’s or friend’s addiction represents an unexpected and often very damaging emotional and often financial impost on their lives. The scourge of illicit drugs has consumed more than its fair share of the community’s resources relating to police and law enforcement, the judicial system, and the healthcare system.

   The Applicant’s drug-related offending

10. The Applicant has convictions for very serious offences relating to illicit drugs. In particular, she has three convictions for drug trafficking committed across two periods of her offending history. The first of the three charges was sentenced on 18 February 2013, when she was sentenced to a head custodial term of four years for trafficking in dangerous drugs. The relevant period across which this offending was committed ran from 1 September 2009 to 27 February 2010.

11. Notably, the Applicant committed these offences in her mid-forties. Her sentencing episode before His Honour Henry J occurred when she was aged 48 years. His Honour noted that:

    “You are now 48. Exhibit 1, the criminal history, demonstrates that you have had many appearances before Courts including this one and been given many, many chances, thus avoiding, it appears, actual gaol time. You do not come before me as a young person or before me as a person with little relevant criminal history.”[26]

    [26]Exhibit G1, G6, page 2.

12. Henry J further noted that the Applicant’s offending occurred in the context of her having “a prolonged problem with drug addiction”.[27] The Applicant was detected for this offending as a result of a much broader police operation targeting other participants in the illicit drug trade in the Applicant’s area. Evidence was gathered through listening devices and the accessing of text messages capable of being backdated from after the time police became interested in the Applicant’s unlawful activities. Henry J had regard to the evidence gathered and made the following observations:

    “The communications show that you would come into possession from time to time of methylamphetamine and then text or sometimes call potential buyers. The Crown submitted that you were persistent in endeavouring to offload the drug once you would acquire possession of it, and that is a reasonable characterisation given the large number of communications to which it referred, in which you were obviously endeavouring to make arrangements to sell the product. There were often references to drug language such as you holding pool or an eight-ball or game. On occasion you made it plain that you held methylamphetamine in ice form.”[28]

    [27]Ibid.

    [28]Exhibit G1, G6, page 47.

13. In sentencing the Applicant, Henry J turned his mind to the seriousness of the trafficking conduct before him. His Honour noted, inter alia, that the Applicant (1) continued to offend after initial police searches or “raids”; (2) concealed evidence; (3) was persistent in maintaining a rate of sales of the illicit drug; and (4) made no admissions upon being initially detected:

    “The prosecution submits that I should not regard your level of trafficking as being towards the bottom end of the range, relying in particular on the following propositions: Firstly, that you continued to offend after the police conducted searches. That demonstrates obvious persistence on your part, although it is consistent equally with a drug-addled lifestyle and the complete absence of willpower associated with that, the absence of willpower to change or the absence of ability to do so without proper help. Secondly, that you concealed evidence. Again, that seems to pick up on the same theme of the first point, rather than really indicating where at a comparative level you fall to be compared to others. Thirdly, that you were persistent in your approach to selling. The point is well made, although again, whether that makes you high level or low level depends on how much you were selling and, as I say, we have little detail to go on there. The fourth point is that you made no admissions.”[29]

    [29]Exhibit G1, G6, pages 48–49.

14. In terms of categorising the level of seriousness of the Applicant’s trafficking offending, His Honour did not consider its seriousness to be of a high level and thought fell “somewhere between low and medium”:

    “It seems to me that really all four of those points go to your attitude of the offending behaviour and your drug-addled persistence with it when you were offending, rather than actually marking where your behaviour falls in a comparative sense as to whether this is a low level trafficking, medium level or high level. It is obviously not high level. I suspect it falls somewhere between low and medium.”[30]

    [30]Exhibit G1, G6, page 49.

15. In formulating a sentence, Henry J told the Applicant that “given your long history of offending, there is some utility in the continued observation of you on your release from custody.”[31] His Honour added “[m]y approach then will be to impose a head sentence within  the range of which I have spoken, tempered somewhat to reflect the circumstances in mitigation, but really not to any great extent…”[32] His Honour then sentenced the Applicant to four years imprisonment, suspended for an operational period of four years after serving six months in actual custody.

    [31]Ibid, page 55.

    [32]Ibid.

16. No lesson was learned and no deterrent effect was experienced by the Applicant consequent upon the sentencing paradigm imposed by Henry J. Rather, the Applicant maintained a very serious involvement with illicit drugs.

17. In 2020, she was sentenced (again by Judge Henry) for the commission of two further offences involving the trafficking of methylamphetamine. Indeed, it is reasonable to presume that Judge Henry must have (by 2020) acquired some measure of familiarity with the Applicant and the very serious nature of her offending.

18. When she came before Henry J for sentencing at the end of January 2020, His Honour made the following observations:

    “You come before the Court with a criminal history that is problematic for you. As I explained last time I sentenced you in relation to trafficking, it does tell the story of someone who had a long time problem with drugs. Having been sentenced for trafficking and knowing that, inevitably, would be a problem for you if you came back before the Court for trafficking, you have made the cataclysmic error of judgment in engaging again in trafficking activity, albeit that it involves you acting as  an agent or aider in respect of the trafficking business of one [Ms N M] and of one [Ms L S], the latter person being your daughter.”[33]

    [33]Exhibit G1, G5, page 36, lines 6–13.

19. As mentioned, Henry J appeared to recall the circumstances of the Applicant’s previous offending in relation to methylamphetamine for which he sentenced her. On the earlier occasion, His Honour was prepared to accept her offending may have been motivated by her own drug addiction problem. On this occasion, His Honour observed a different, and, to my mind, much more serious motivation behind the offending:

    “The material before me suggests that your motivation for being involved in this offending was not driven, as it seems last time your trafficking offending was, by your own drug addiction problem. Through your counsel, you have explained that indeed after the last time I sentenced you, you did end up going drug free and the  problem was that you remained friends with some of those in the drug world and, the inference is, that led into you making the misguided judgment that you would assist their trafficking businesses.”[34]

    [34]Ibid, lines 15–⁠21.

20. Even a cursory review of the material demonstrates the Applicant’s financial motivations for participating in the unlawful activity which [Ms N M], the Applicant and the Applicant’s daughter assumed respective levels of responsibility in. Judge Henry observed as follows:

    “It seems to me that of course the fact that [Ms N M], one trafficker, was your friend and the other trafficker, [Ms L S], was your daughter would mean that there may have been a degree of mixed loyalty, or misguided loyalty on your part, in deciding to help their trafficking business. But as I intimated, it seems to me really quite obvious that you were motivated by yourself gaining a degree of financial benefit from that, at least supplementing your existing lifestyle to cover the costs of living and not living quite so parlously as you would be if you were just getting by on health benefits.”[35]

    [35]Ibid, lines 29–⁠33.

21. A sample of the size and scope of the operation can be gleaned from the “Statement of Facts” appearing in the Tender Bundle.[36] With particular reference to “Count 1: Trafficking in a Dangerous Drug [[Ms N M] only]”, the “Statement of Facts” discloses these things:

    “15. Police During that period, at least two packages containing large sums of cash were posted by [Ms N M]. $60,000 cash and $35,000 cash was posted on 8 July 2018 and 10 July 2018 respectively. The cash was packaged and taken to the Post Office by GOODIER on both occasions.

    […]

    18. Financial analysis of [Ms N M]’s business and personal accounts revealed that [Ms N M] had an expenditure beyond her known income, of $300,510.55. [Ms N M] used digital scales to weigh $50 - $100 notes in order to count it.”[37]

    [Errors in original]

    [36]Exhibit R2, TB2, pages 35–⁠42.

    [37]Ibid, page 37.

22. A specific picture of the nature of the Applicant’s involvement can be gleaned from the portion of the Statement of Facts bearing the following heading: “Indictment 2: Count 1 – Trafficking in methylamphetamine [GOODIER only]”. A particularly regrettable and appalling facet of the Applicant’s offending involved her active participation in assisting with the operation of the unlawful business operated by her daughter, for which her daughter was also convicted and sentenced to a custodial term of seven and a half years:

    “1. GOODIER aided and counselled [Ms L S] to traffick in methylamphetamine in the following ways:

    a. GOODIER took an active role in the financial aspects of [Ms L S]’s business. She regularly initiated conversations with [Ms L S] about [Ms L S]’s outstanding debt to [Ms N M]. GOODIER frequently explained to [Ms L S] how much money was owed to [Ms N M]. She would calculate the amount owed to [Ms N M] in conversations with [Ms L S], by reference to the quantities of methylamphetamine purchased by [Ms L S], and the amounts paid by either GOODIER or [Ms L S]. On occasion, GOODIER recommended how much should be paid to [Ms N M] and how much should be kept by [Ms L S].

    […]

    b. GOODIER counted and bundled the profits made by [Ms L S], often correcting bundles previously counted by [Ms L S] and had regular discussions with [Ms L S] about how much money she had at the residence;

    c. When [Ms L S] lost track of how much methylamphetamine she purchased from [Ms N M] and how much she owed, GOODIER told her “Ok so in the future only give the money to me, don’t give it to her... I handle your account then it doesn’t get confused, because if I don’t see you for a day or two, or her for a day, then it fucking fucks up. But I come here every day to count yours, and I will handle getting the money to her. So in the future, only give the money to me, then me and you we’ve got communication and we don’t have any messes…”;

    d. On three occasions, GOODIER delivered methylamphetamine to [Ms L S]’s customer ‘[Mr J S]’. On the first and third occasions, the quantity was approximately 0.5 grams. On the second occasion it was 0.2 grams[…]

    […]

    e. GOODIER weighed and packaged methylamphetamine for [Ms L S] on [a] few occasions, including wrapping the packages in tape to avoid detection. […]

    […]

    f. On 29 June 2018, GOODIER told [Ms L S] not to have too many people at her address at one time, because it ‘looks really bad’ if she got ‘raided’;

    g. After some of  [Ms L S]’s customers were intercepted after leaving her address late in the evening and found in possession of methylamphetamine, GOODIER told [Ms L S] not to supply after 10pm as it drew too much attention to herself;

    h. When GOODIER suspected a listening device was installed in the unit, she told [Ms L S] to communicate with her customers by writing on a notepad or small whiteboard. She left a notepad at [Ms L S]’s address on the table where [Ms L S] weighed, packaged and distributed methylamphetamine;

    i. GOODIER also communicated to [Ms L S] and her customers using a notepad, ensuring there were no audible conversations about supplying or purchasing methylamphetamine. In an attempt to reduce [Ms L S]’s culpability, GOODIER stated multiple times from 10 July 2018 that [Ms L S] had ‘retired’, despite [Ms L S] supplying customers at that time. On one occasion, GOODIER stated aloud that [Ms L S]no longer supplied drugs, pretending that a customer had arrived at the house.”[38]

    [38]Ibid, pages 39–42.

23. Therefore, the Applicant’s second episode of offending in relation to the unlawful trade in methylamphetamine not only contributed to the adverse impact of those drugs upon our community, but directly impacted upon the life of her own daughter.[39] One would have reasonably thought that after her involvement with the sentencing process for precisely this type of offending in 2013, the Applicant would have developed some type of understanding of the adverse impacts of drugs on our community and, perhaps even more particularly, her own daughter who  is a member of our community.[40] Instead, her conduct amounted to propounding an involvement in this very serious unlawful activity with little or no thought about its consequences upon anyone. She now claims she “made no financial gain” from this conduct. Such a contention is to be safely rejected on the basis of Judge Henry’s observation to this effect: “…it seems to me really quite obvious that you were motivated by yourself gaining a degree of financial benefit…”

    [39]Note: it is also apparent in the material the Applicant supplied methylamphetamine to her son (See paragraphs [‎119]–⁠[‎121], below.

    [40]See paragraph [‎208], below.

1. Thus, the Applicant’s involvement in the illicit drug trade leading to her conviction in 2020 is strongly suggestive of a reality that she knowingly has played a role in the “…well-documented” devastation that methylamphetamine inflicts on our community. As observed by this Tribunal in one of its earlier Decisions from 2017 involving an applicant who had similarly offended:

   “46…The trial evidence shows that he intended to sell or supply those drugs in the Australian community. Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime. MrLau’s failure to acknowledge the consequences of his actions is inexcusable in these circumstances.”[41]

   [My underlining]

   [41]Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138 at [46] per DP Kendall – as he then was.

2. It is not difficult to reach a similar conclusion about this Applicant’s offending – particularly her above-described convictions in 2013 and 2020 – as the Tribunal reached in the above decision involving one Mr Lau. Thus, consideration of this Applicant’s offending involving the unlawful trafficking in methylamphetamine and, as well, taking into account the very significant adverse impacts of that offending on the lives of others in our community (including that of her own daughter), leads to no other finding than that her offending to date has been of a very serious nature.

3. I turn now to an application of the relevant factors contained in paragraph 13.1.1(1) of the Direction as they apply to the Applicant’s offending history.

4. Sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction provides that (a) crimes of a violent and/or sexual nature are viewed very seriously and (b) crimes of a violent nature against women and/or children are also viewed very seriously. The Applicant’s history is not suggestive of any singular offence or sequence of offences involving the infliction of serious violence upon victims. Nor does there appear to be any offending of a sexual nature. Similarly, the history is not redolent of crimes of violence committed against women and/or children. It is safe to find that the terms of sub-paragraphs (a) and (b) of this component of the Direction are not engaged by the Applicant’s offending.

5. Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” While the criminal history contains repeated references to the flouting and/or breaching of lawfully imposed orders upon her, that history does not contain an offence against people/entities covered by the ambit of this sub-paragraph (c). She has not, for example, challenged the authority of law enforcement officers, nor has she sought to harm, physically or financially, vulnerable members of the community. This sub-paragraph (c) is not engaged by the Applicant’s offending.

6. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort[42] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[43]

   [42]See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.

   [43]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.

7. The Applicant’s criminal history discloses some 23 separate sentencing episodes involving the commission of 41 offences[44]. On at least 8 of those sentencing episodes, she received custodial terms. Those custodial terms are as follows:

   [44]Note: this number includes the Applicant being dealt with for breaches of extant orders, be it in the form of Probation Orders, breaches of bail, or breaches of other lawful orders.

   ·4 April 2003 – 12 months;

   ·24 May 2007 – 1 month;

   ·25 November 2008 – 3 months;

   ·25 November 2008 – 3 months;

   ·23 December 2009 – 9 months;

   ·14 April 2010 – 3 months;

   ·16 June 2010 – 2 months;

   ·18 February 2013 – 4 years; and

   ·30 January 2020 – 7 years.

8. Section 501(7A) of the Act relevantly provides that in calculating the amount of custodial time for the purposes of applying the character test, “[…] if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently whether in whole or in part, the whole of each term is to be counted in working out the total of the terms […]” Applied to the above table, the aggregate time of imprisonment imposed on this Applicant amounts to 13 years 9 months. Doubtless, a more favourable calculation of cumulative custodial time would be arrived at if one were to take into account concurrent sentences that were imposed on her. Be that as it may, a proper application of this sub-paragraph (d) must be made on the formulaic basis stipulated in s 501(7A) of the Act.

9. As I have mentioned, judicial sentencing officers have punished the Applicant’s offending by the imposition of custodial terms on at least eight separate occasions. Those custodial terms cumulatively amount to over 13 years. It may fairly be said that His Honour thought the earlier offending episode (punished in 2013) had some measure of derivation from the Applicant’s then-difficulties with addiction. However, His Honour made it plain when sentencing her in 2020 that the circumstances of her offending had an obvious and identifiable commercial imperative.[45] That imperative traversed into the realm of aiding her daughter’s offending and, indeed, playing the role of mentor, advisor and administrator to the daughter’s unlawful activity.

   [45]See paragraphs [46]–⁠[48], above.

10. It is not a stretch to read the Applicant’s earlier custodial sentences (that is, those imposed between October 1998 until November 2008) as being measures aimed at giving her some kind of “shock treatment” or deterrent effect such that it was intended for her to receive “a taste” of threatened or actual custody as a means of dissuading further offending. With a significant increase in the nature and seriousness of the offending comes a commensurate, and in this case, dramatic, increase in the head custodial terms that are imposed. The nature and seriousness of the Applicant’s offending that came before Henry J for sentencing in 2013 and 2020 was so serious that it was punished by cumulative terms of 11 years of head custodial time.

11. Therefore, I am of the view that for the purposes of this sub-paragraph (d), the totality of sentencing regimes imposed upon this Applicant – certainly those sentencing regimes imposed upon her in February 2013 and January 2020 – very strongly militate in favour of a finding that her offending has been very serious. This finding (and allocated weight to this sub-paragraph (d)) is only augmented by having regard to the totality of the sentences imposed upon her. Putting aside the abovementioned 11 years of custodial time from just two sentencing episodes, some further three and a half years of custodial terms have been imposed upon her for the balance of the offending.

12. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.

13. Turning firstly to the frequency of the Applicant’s offending, it is necessary to note that she is now 55 years of age. She has been in Australia for something like 35 of her 55 years. Her offending history in this country first came before lawful authority for punishment in October 1998. She was last before lawful authority for sentencing in January 2020. She has committed approximately 41 offences and has appeared before lawful authority for sentencing on 23 separate occasions. She has offended (in terms of wrongdoing that has been punished by lawful authority) at a rate of greater than one offence per year.

14. I have little or no difficulty in forming the view that the Applicant’s difficulties with illicit drug addiction and consequential offending have come to dominate her life in this country. The offending has crystallised into not just offences relating to illicit drugs. It includes offences most probably resulting from a compulsion to meet the financial requirement of maintaining and supporting an addiction in relation to illicit drugs. This is most probably why there are seven convictions for fraud and one conviction for stealing in her history. There can be no question that the Applicant’s offending in this country has clearly been of a frequent nature for the purposes of this sub-paragraph (e).

15. I turn now to the second component of this sub-paragraph (e): whether there is any trend of increasing seriousness in the offending. Any such trend is readily detectable from two evolutions. The first evolution relates to the nature of the sentences imposed on the Applicant. During its formative stages (i.e. from October 1998 until May 2001), the nature of the sentences imposed upon the Applicant were exclusively non-custodial. She derived the benefit of (1) “no conviction recorded” notations on her history and the imposition of a fine, (2) a fine simpliciter, (3) fine option orders, (4) community service orders, (5) payment of compensation to victims in lieu of further punishment, (6) orders for probation, and (7) orders for restitution. The first custodial term (12 months) appears in the history as being imposed in April 2003, some five years after the history commenced.

16. Thereafter, respective custodial terms were imposed in May 2007 (one month), November 2008 (three months and three months), December 2009 (nine months), April 2010 (three months), June 2010 (two months), February 2013 (four years) and January 2020 (seven years). Thus, the evolution of the nature of the sentences imposed on the Applicant clearly speaks to its demonstrably increasing level of seriousness.

17. The second evolution relates to the level of seriousness inherent in the offending. Once again, the formative years of the offending involve the Applicant in behaviour predominantly limited to offending in the realm of drug possession, fraudulent conduct, stealing and repeated breaches of favourable non-custodial sentences. Then, from April 2003 onwards, the criminal history predominantly and almost exclusively features offending in the realm of illicit drugs and breaches of orders imposed for drug-related offending. That evolution in the predominant theme of her offending culminated in the circumstances of her commission of the very serious trafficking offences that came before Judge Henry for sentencing in 2013 and 2020. There can be no question that the nature, extent and commercial scope of her offending punished in 2013 and 2020 is in significantly stark contrast to the nature of her offending committed prior to that time. Thus, I am of the view that there is a clearly discernible trend in the increasing seriousness of this Applicant’s offending.

18. Her offending has been frequent and it does involve a demonstrable increase in the trend of its seriousness. It is safe to find that an application of this sub-paragraph (e) results in an inevitable finding that both the frequency and increasing seriousness of the Applicant’s offending both strongly militate in favour of a finding that her offending has been of a very serious nature.

19. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Several cumulative effects can be gleaned from the Applicant’s offending history. The analysis of the extent to which this sub-paragraph (f) has application to the circumstances of the Applicant’s offending is best understood by reference to three aspects resulting from it.

20. First, she has failed to experience any genuine deterrent effect from the sentencing regimes previously imposed upon her. During cross-examination, she appeared to readily concede both commission of the offences.[46]  It is a most probable reality that she would have received warnings and admonitions from judicial sentencing officers to moderate or cease her offending conduct in order to avoid the ever-increasing harshness she would experience via more significant and severe sentences.

    [46]See, eg, Transcript, page 19, lines 15–23.

21. I have earlier referred to the predominantly non-custodial basis of sentences imposed upon her for at least the first five years of her offending history.  She received virtually the full ambit of non-custodial punishments. She experienced no deterrent effect from this non-custodial regime of punishment and continued to offend, with an escalating level of seriousness. Further to that, even when she started to receive custodial terms (from April 2003 onwards), not even those custodial punishments had a deterrent effect on her, even in circumstances where it can safely be presumed that she had primary care and responsibility for her then much younger three children. The more difficult aspect of this second part of her history to comprehend is that, once again, she continued to breach non-custodial terms and forms of punishment, even in the midst of her receiving custodial terms. She continued to breach the terms of suspended sentences and orders for probation, for example.

22. Second, even a cursory review of her criminal history is demonstrative of a reality that a further cumulative effect of her offending is that she has failed to develop any measure of respect for the lawful authority governing the community back into which she now seeks re-admission. She does not appear to understand (or respect) the lawful authority represented by, for example, a grant of bail to go at large in the community pending finalisation of her then-alleged criminal offending. She does appear to have respected the lawful authority represented by an order for probation or the favourable aspect of a suspended sentence. Her history is redolent of persistently repeated breaches of such orders.

23. While I have not captured her conviction in September 2000 involving “contravene direction or requirement” of a police officer[47] under the auspices of sub-paragraph (c) of the Direction, I am of the view that precisely this type of offence is demonstrative of a failure to respect the lawful authority represented by police officers charged with responsibility of maintaining law and order in the Australian community back into which this Applicant now seeks to be re-admitted.

    [47]Pursuant to the Police Powers and Responsibilities Act 2000.

24. Third, while not a predominant feature of her history, the Applicant has demonstrated little or no hesitation in failing to respect the property rights of others. She has not hesitated to purport to deprive others of their lawful property by means of unlawful conduct in the realm of fraud and stealing. As mentioned, there are at least six convictions for fraud and one conviction for stealing.

25. I am of the view that the cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this sub-paragraph (f) in favour of a finding that her offending has been of a very serious nature

26. Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending. The material does not contain any reference to any such aspect of the Applicant’s conduct with regard to “the department” and, accordingly, this sub-paragraph (g) is not relevant to determination of the instant application.

27. Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. There is such a letter in the material containing precisely this type of warning. The letter, sent by registered post, is dated 22 August 2013 and was obviously sent consequent upon the Applicant’s offending episode in February 2013 coming to the Respondent’s attention. The terms of the letter are largely self-explanatory and are worthy of being quoted in this decision:

    “REGISTERED POST

    [Tracking number redacted]

    Ms Karen [Applicant’s maiden name redacted] alias Karen GOODIER

    [Address redacted]

    Dear Ms [Applicant’s maiden name redacted],

    NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501

    OF THE MIGRATION ACT 1958

    On 4 July 2013 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

    After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class TY Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

    […]

    Please acknowledge receipt of this letter by signing and returning the attached page by fax on [number redacted] or by mail in the enclosed envelope.

    Yours sincerely

    […]

    National Character Consideration Centre

    22 August 2013”[48]

    [Emphasis in original]

    [48]Exhibit G1, G24, page 131–132.

28. There can be no question that the Applicant received this letter. A duly signed acknowledgment of receipt appears in the material.[49]

    [49]See Exhibit G1, G24, page 133.

29. Despite receipt of this letter, the Applicant did not cease offending. Instead, she re-offended and to an escalating level of seriousness. It is not a stretch to say that her most serious offending was committed after she received the warning from the Respondent. Put another way, the offending which attracted the attention of the Respondent and caused the Respondent to send the abovementioned warning letter was punished by a head custodial term of four years. The offending committed by the Applicant after receipt of this warning letter (committed in mid-2018, punished in January 2020) involved the imposition of a head custodial term of seven years.

30. Clearly, the Applicant learned nothing from this warning letter and did not otherwise derive any deterrent effect about offending or apprehend any threat to her visa represented by the terms of the letter. In these circumstances, one wonders about what further the Respondent can be reasonably expected to do in order to urge the Applicant to curb her offending conduct so as not to imperil her visa status to remain here. Upon an application of the terms of this sub-paragraph (h), it is safe to find that its terms militate very strongly in favour of a finding that the Applicant’s history of offending now before the Tribunal is of a very serious nature. 

31. Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. The material does not contain any reference to the Applicant’s commission of a crime while in immigration detention. This sub-paragraph (i) is not relevant to the determination of the instant application.

1. I am mindful of the Applicant’s age (55 years) and also mindful of her symptomatology as she has described it.[151] It would have been helpful – for the purposes of allocating weight to this Other Consideration (e) – if some material had been provided from a treating clinician and/or institution saying something about the clinical nature and extent of these symptoms.[152] That said, I consider it safe to find that each of the abovementioned medications and/or treatments sought and received by the Applicant in Australia will be available to her in New Zealand. As a citizen of that country, she will be able to access medical care, treatment and governmental support in New Zealand[153] for her symptoms/conditions to the same (or very nearly the same) level as that available to her in Australia. She will have access to those medical services and other social and economic supports in New Zealand in the context of what is generally available to other citizens of that country. The Applicant’s age and range of ongoing symptoms/conditions are factors that do attract some measure of weight to this Other Consideration (e).

   [151]Paragraph 14.5(1)(a) of the Direction.

   [152]Note: On the day of the hearing, the Applicant was required to undergo certain medical testing. The Tribunal received a letter signed by a clinician. The Tribunal is not in a position to have regard to this document due to the operative effect of ss 500(6H) and 500(6J) of the Act.

   [153]Paragraph 14.5(1)(c) of the Direction.

2. In cross-examination, the Applicant did not appear to cavil with the contention that she would be able to obtain necessary medication and treatment for her heart condition if returned to New Zealand:

   “Mr Kyranis: In your personal statement that you gave to the department you said that you’re a diet-controlled diabetic, you have cardiomyopathy and have a pacemaker, you take daily medication for your heart, and you have reviews by a cardiologist.  That’s the case, is it?

   Applicant: Yes, it is.

   […]

   Mr Kyranis: You haven’t provided the tribunal with any medical evidence about those conditions, have you?

   Applicant: No, sorry, I don’t believe I did.

   Mr Kyranis: Would you say that with medication and diet your medical conditions are well controlled?

   Applicant: Yes, they are.

   Mr Kyranis: You’re not suggesting, are you, that      ?

   Applicant: (Indistinct) pardon?

   Mr Kyranis: I will start again.  You’re not suggesting, are you, that you wouldn’t be able to obtain the necessary medication for your heart condition and to see a cardiologist in New Zealand if you were to return, are you?

   Applicant: No, I’m not suggesting that.  It’s a concern, obviously, that I would have to find another cardiologist.  But I’m not suggesting, no, that that would be difficult.”[154]

   [My emphasis and underlining]

   [154]Transcript, page 14, lines 13–16, 22–34.

3. The Applicant spent the first 18 years of her life in New Zealand and, as the movement records have indicated, she has returned to New Zealand apparently on recreational visits. I do not consider there to be any significant or substantial language or other cultural barriers to her return and re-establishment in New Zealand.[155] I note the Applicant’s contention that a relative lack of familial ties in New Zealand does represent some measure of an impediment to her re-establishment there. In her “Personal Circumstances Form” she said: “My Father and Brother in NZ want no contact with me due to my being in jail.”[156] Be that as it may, these challenges, real though they are, would not be insurmountable and would only present as a short-term hardship and would not preclude her successful re-settlement in New Zealand. The Applicant stated this in cross-examination:

   [155]Paragraph 14.5(1)(b) of the Direction.

   [156]Exhibit G1, G11, page 84.

   “Mr Kyranis: You arrived in Australia in 1984 as an 18 year old.  Is that right?

   Applicant: Yes.

   Mr Kyranis: Did you spend the first 18 years of your life in New Zealand?

   Applicant: Yes.

   Mr Kyranis: It’s the case, is it, that your father and brother live there.  Is that right?

   Applicant: Yes.

   Mr Kyranis: But you say they want no contact with you.  Is that the case?

   Applicant: Yes.

   Mr Kyranis: How do you know that?

   Applicant: My brother has spoken to a friend of mine in Australia, and also to my daughter since my daughter has been out of gaol, and he’s concerned that my father gets upset at the mention of me.  You know, he knows that I’m in gaol, and he doesn’t want any further upset caused to my father. He said if I absolutely have no place to go - like, he won’t see me homeless, I can stay there, but he’s very, very reluctant (indistinct).

   Mr Kyranis: So as I understand it, your brother told your daughter that if you had nowhere else to go, that you can stay there as a last resort with your father.  Is that right?

   Applicant: Yes, that's correct.  My father is 90 years old, 91 years old.  He lives with my brother and my brother’s wife.  But he said as a last resort he (indistinct) you know.

   Mr Kyranis: Do you have any other family members in New Zealand apart from your brother and father?

   Applicant: No.

   Mr Kyranis: Do they live in Wellington?---

   Applicant: Paraparaumu, which is about an hour out of Wellington.”[157]

   [157]Transcript, page 13, lines 32–47; page 14, lines 1–11.

4. The Applicant has worked in the beauty therapy field in Australia and has also acted as carer for Mr M P.[158] She appears to have some type of managerial and/or organisational acumen. In sentencing her in January 2020, Henry J observed that “You really took control of the financial aspects of her [trafficking] business using your organisational skills to help her …” Provided the Applicant secures similar or identical medication and treatment for her stipulated symptoms/conditions, there would be little or nothing physically impeding her from returning to a role either in beauty therapy, disability support or even (strictly for legitimate purposes, of course) some type of role in financial/business administration.

   [158]See paragraphs [‎194]–⁠[‎195], above.

5. Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of moderate weight in favour of revocation.

   Findings: Other Considerations

6. With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which favour non‑revocation very strongly, and strongly, respectively. The application of the Other Considerations in the present matter can be summarised as follows:

   ·international non-refoulement obligations: not relevant;

   ·strength nature and duration of ties: weighs strongly, but not determinatively, in favour of revocation;

   ·impact on Australian business interests: not relevant;

   ·impact on victims: neutral; and

   ·extent of impediments if removed: moderately weighs in favour of revocation.

   CONCLUSION

   Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

7. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

8. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

   ·Primary Consideration A weighs very strongly in favour of non-revocation;

   ·Primary Consideration C weighs strongly in favour of non-revocation;

   ·Primary Consideration B weighs moderately in favour of revocation;

   ·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the moderate weight I have attributed to Primary Consideration B, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations A and C; and

   ·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.

9. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 229 (two hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

......................................[sgd]..................................

Associate

Dated: 28 January 2021

Date of hearing:	14 January 2021
Applicant:	Self-represented
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore Lawyers

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (paged 1–171)	-	24 November 2020
RESPONDENT’S MATERIAL
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1–15)	23 December 2020	23 December 2020
R2	Respondent’s Tender Bundle (paged 1–144)	23 December 2020	23 December 2020
APPLICANT’S MATERIAL
A1	Applicant’s Statement of Facts, Issues and Contentions (3 unnumbered pages)	3 December 2020	3 December 2020
A2	Letter of support from Mr E R, Applicant’s son (1 unnumbered page)	3 December 2020	3 December 2020
A3	Letter of support from Mr J S, Applicant’s son (1 unnumbered page)	3 December 2020	3 December 2020
A4	Letter of support from Ms L S, Applicant’s daughter (1 unnumbered page)	3 December 2020	3 December 2020
A5	Applicant’s written response to the Respondent’s Statement of Facts Issues and Contentions (3 unnumbered pages)	6 January 2021	6 January 2021