GWSC and Minister for Home Affairs (Migration)

[2018] AATA 4353

GWSC and Minister for Home Affairs (Migration) [2018] AATA 4353 (22 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5338

Re:GWSC

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:22 November 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of visa – serious drug offences – further offending while on bail – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – consideration of Ministerial Direction – primary considerations – other considerations – any other reason – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 35
Migration Act 1958 (Cth), ss 499, 501, 501CA

Migration Regulations 1994, reg 2.52

Cases

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Lam and Minister for Immigration and Multicultural Affairs; Re: (1999) 28 AAR 431
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

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

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction Under Section 499 – visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s 501CA (Made on 22 December 2014)

REASONS FOR DECISION

Senior Member D. J. Morris

22 November 2018

1. The Applicant was born in Thailand in 1977 and is a citizen of that country.  She stated that she first came to Australia for a holiday in 2006.  In 2007 she said she returned on a student visa in order to learn English.  In 2008 she married an Australian citizen and in 2010 was granted a Class BS Subclass 801 Partner (Residence) visa.  She separated from her husband in 2012 when he left Australia for Thailand.

2. On 16 January 2017 the Applicant’s visa was cancelled by the Department of Home Affairs (the Department) under section 501(3A) of the Migration Act 1958 (the Act).  The visa was cancelled because a delegate of the Minister for Home Affairs (the Respondent) was satisfied that the Applicant did not pass the character test under the Act.  The Respondent contended that the Applicant has a ‘substantial criminal record’ under section 501(6)(a) of the Act, and the Applicant in supplementary written submissions (paragraph 4 of submission dated 6 November 2018) conceded this point.

3. A delegate of the Respondent made a decision on 31 August 2018 to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Act.  The Applicant has asked the Tribunal to review this decision.

4. The hearing was held on 12 and 13 November 2018.  The Applicant was self-represented, made submissions, gave evidence, was cross-examined and called witnesses to speak on her behalf.  The Respondent was represented by Ms Siran Nyabally of the Australian Government Solicitor.  Interpreters in the Thai language assisted the Tribunal, although the Applicant chose to speak in English.

5. At the conclusion of the hearing, the Applicant made an application to the Tribunal for a confidentiality order in relation to her identity. The Respondent did not oppose this application. Mindful of the principle in section 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth)(the AAT Act) that it is desirable that evidence before the Tribunal should be available to the public and all interested parties, the Tribunal nevertheless was satisfied there was a reason for the request and determined that the name of the Applicant and material tending to identify her should be prohibited from publication. On 13 November 2018 the Tribunal made an Order under section 35(4) of the AAT Act to that effect. The Applicant will be referred to in these reasons by the pseudonym ‘GWSC’ and the identity of certain other persons will be restricted to their initials.

6. The Respondent tendered two volumes of documents under section 501 of the Act (G and SG documents), which were taken into evidence.  The Tribunal also had before it Statements and Supplementary Statements of Facts, Issues and Contentions from the Applicant and the Respondent (SFIC) and other exhibits which are described in Appendix 1. 

   Issues and legislation

7. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if two conditions are met.  One, the applicant made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in reg 2.52); and two, the Tribunal determines that the Applicant passes the “character test”; or, as provided for under subsection 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. 

8. A letter dated 3 September 2018 advising GWSC of the delegate’s decision not to revoke the mandatory cancellation of her visa was before the Tribunal (G2, p 8).  The Applicant claimed in her application for review that she received the decision on the same day.  The Respondent did not contest that GWSC had made representations within the prescribed period. 

9. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (a)       the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…

   …; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10. Before the Tribunal was a National Police Certificate (the Certificate) dated 18 April 2017 (G5, p 26).  The Certificate recorded that GWSC had been sentenced by the Victorian Supreme Court on 16 November 2016 in relation for her conviction for the offence of cultivate narcotic plant – comm quantity, with a sentence of imprisonment of 2 years 6 months.  On the same date GWSC was sentenced in relation to her conviction for the offence of poss unregistered general category hgun [handgun], with a sentence of 3 months imprisonment, 2 months of the sentence to be concurrent; for her conviction of the offence of commit indictable offence whilst on Bail Granted, with a sentence of 6 weeks imprisonment, 2 weeks of the sentence was to be concurrent; for her conviction of the offence of possess a drug of dependence (2 charges), with a sentence of an aggregate     1 month imprisonment; for her conviction of the offence of poss/use/carry proh weapon wo exempt/appr and deal property suspected proceed of crime, with a sentence of 1 month imprisonment on each count, concurrent – a total of 2 years 9 months’ imprisonment; and for her conviction of the offence of possess cartridge ammunition w/o lic/permit, with conviction and fine of $250.  The convictions had been made by the County Court of Victoria on 15 July 2016 (G5, p 46).

11. The Certificate also recorded that GWSC appeared before the Heidelberg Magistrates’ Court on 23 December 2016 and was convicted of: the offence of traffick [sic] methylamphetamine, with a sentence of an aggregate 42 days imprisonment; the offence of possess controlled weapon without excuse, with a sentence of aggregate 42 days’ imprisonment; and the offence of deal property suspected proceed of crime, with a sentence of 42 days’ imprisonment.  The sentences were to be served concurrently.

12. Section 501(6)(a) of the Act states that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. 

13. Section 501CA of the Act then relevantly provides that:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (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.

14. Section 501(6) sets out the grounds for failing the character test.  It states, in part:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)The person has a substantial criminal record (as defined by subsection (7); or…

15. Section 501(7) states,:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more…

16. The Tribunal had before it the Reasons for Sentence given by Her Honour Judge Hampel of the County Court of Victoria on 15 July 2016 (G5, p 28).  The sentence, but not the convictions, was appealed by GWSC to the Court of Appeal of the Supreme Court of Victoria.  That Court re-sentenced the Applicant to a total effective sentence of 2 years and 9 months’ imprisonment, with a non-parole period of 1 year and 3 months (G5, p 60), which is the sentence reflected in the National Police Certificate.  On the basis of this evidence, the Tribunal is satisfied that GWSC has a substantial criminal record as defined in the Act.  The Tribunal finds that she fails the character test by virtue of this substantial criminal record. 

17. The sole issue before the Tribunal, therefore, becomes whether there is another reason why the original decision to cancel GWSC’s visa should be revoked.  In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 North ACJ stated at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

    Minister’s Direction – Direction No. 65

18. Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act.  On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. 

19. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.  Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

20. Relevantly, the Direction includes the following principles:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

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

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

21. In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part C, which are divided into primary considerations and other considerations.

22. The primary considerations in Part C are set out in paragraph 13(2) of the Direction:

    ·    Protection of the Australian community;

    ·    The best interests of minor children in Australia affected by the decision; and

    ·    Expectations of the Australian community.

23. Other considerations set out in paragraph 14(1) of the Direction include but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

24. The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5) of the Direction).

    GWSC’s contentions

25. In the Applicant’s SFIC, it was set out that GWSC was arrested, charged and convicted of cultivating a commercial quantity of cannabis with her partner at the time.  As a result of this, she was incarcerated.  She submitted that she was offered parole well before the completion of her sentence and that she has been clean from drug use since being arrested.  GWSC submitted that she completed numerous courses while in prison to improve her skills and regularly volunteered in self-help programmes.  She submitted that she has undergone counselling in person and by telephone from her psychologist, Dr Julie Kruss, who provided three statements to the Tribunal.  GWSC submitted that she has a son in Australia who is a permanent resident and who has applied for Australian citizenship; and that her son has relied on her for many years because his father died when he was aged around 5 years.  GWSC submitted that returning to Thailand would be damaging not only to her physical but also her mental health.

26. GWSC contended in her SFIC that her former partner “coerced her into taking the fall for the charges on behalf of her partner, Mr [HN] (at the time), in return for protection and care for her son” by Mr HN’s family.  It was further contended that GWSC’s current behaviour shows that she is a reformed individual who is desperate to give back to the community and will not pose a risk to society.

27. In her oral submissions at the hearing, GWSC accepted responsibility for offending against the law and said she was not proud of what she did.  She said that, at the time, she was taking drugs and this affected her ability to think clearly.  She said that, following her arrest, her then partner’s sister came to see her in prison and said that if GWSC pleaded guilty they (her partner’s family) would look after her son until she was released from gaol.

28. GWSC gave extensive details about the courses she had undertaken while in prison, including learning English, and that being incarcerated has helped her to stop using drugs.  She said she now has a network of support from friends and from her son.

    GWSC’s evidence

29. GWSC gave evidence that she grew up in Sukothai, a city around four hours’ drive from Bangkok.  She has one younger brother, who lives in Thailand with their parents.  GWSC said she had a difficult upbringing, clashing with her mother in particular, who she said could be violent.  She said on one occasion her mother ‘poisoned’ her.  At the age of 15 or 16 she moved to Bangkok, returning home for holidays and at some weekends.  In Bangkok she commenced a relationship with Mr BW, and lived with him for one year (SG, p 678).  After they separated she found she was pregnant and gave birth to her son, Mr NK (born 1998), when she was 20.  In 2004 Mr BW died.  GWSC said she worked in Bangkok in an office, as well as completing a Diploma of Accounting.  Her son was brought up by GWSC’s grandparents in Sukothai.  GWSC said her parents were both imprisoned for a term of 13 years 8 months for drug-related offences in 1999.

30. GWSC came to Australia in 2007 on a student visa.  She said she worked in a restaurant and a factory in Sydney.  She also worked in what she described as a massage shop and admitted that this sometimes involved the provision of sexual services.  At the massage shop she met Mr CO.  She returned to Thailand.  In October 2009 GWSC returned to Australia and shortly moved in with Mr CO in Sydney.  He is a Turkish-born Australian citizen.  They married on 4 March 2008 (SG, p 680).  GWSC said that Mr CO was ‘controlling, abusive and violent’.  She said he forced her to work in the sex industry and to do what he dictated.

31. GWSC said she and Mr CO returned to Thailand and lived for a time with her parents in Sukothai.  Mr CO then moved to work in Bangkok.  She said he then took up with a new girlfriend.  GWSC said she brought her son to Australia in 2014 as her grandparents were then too old to care for him.  Her son was then 8 years old.  She moved to Melbourne to have ‘a new start’.  GWSC said she had been diagnosed with a brain tumour in 2013. 

32. GWSC told the Tribunal she first started taking drugs in 2012 because of the long hours she was working, some 20 hours a day.  She first used cocaine, from a customer, and started regular drug use in 2013.  She said that the stress of her health condition and having to deal with sexual assault in her work led to her to turn to drugs.  She started taking methylamphetamine (ICE) and sometimes cocaine, but denied using heroin.  The Tribunal noted that Judge Hampel referred to GWSC also using ecstasy and heroin, but the Applicant was adamant in her evidence that she never used heroin.

1. GWSC said she used around one gram of ICE a week which initially cost her around $500 per week.  After she met a new partner, Mr HN, at the end of 2013 he was able to get it for her cheaper, around $300 per week. GWSC said she shielded her son from her drug use and even drug-tested him because she was paranoid that he might come into contact with illicit drugs.  She admitted sometimes driving her son to school when she was affected by taking ICE.

   Background to the convictions

2. GWSC met Mr HN as a massage client and commenced a relationship with him.  They moved in together to an apartment in Southbank, Melbourne, which was leased in GWSC’s name.  Later they lived with Mr HN’s parents briefly and then moved to a property in the city of Truganina, Victoria.  By this time GWSC’s son had moved to Australia to live with his mother and he resided with her and Mr HN at Truganina.  On 24 September 2014 Victoria Police executed a warrant on the Southbank apartment.  Police seized various items including a large number of cannabis plants.  On 30 September 2014 GWSC was interviewed by police in relation to this search and she admitted she was aware of Mr HN’s hydroponic equipment and that she ’went at night’ to help do the cleaning at the location.  She was not charged with any offences at this time.

3. GWSC told the Tribunal that on 1 September 2015 she was travelling with a companion in a motor vehicle.  Police stopped the vehicle and discovered several items, among them: a cigarette containing cannabis; a bag containing one gram of ICE; and, in GWSC’s handbag, a further three bags containing ICE.  At this time GWSC was arrested and charged with trafficking in ICE, possessing a controlled weapon (a meat cleaver) and dealing in property suspected of being the proceeds of crime.  GWSC was released on bail and directed to appear at the Heidelberg Magistrates’ Court on 30 November 2015.

4. On 30 September 2015 Victoria Police executed a warrant on the Truganina residence; GWSC, Mr HN and her son Mr NK were all present.  When the police arrived, GWSC was wearing a gardening glove with blackened tips and carrying gardening shears.  Police discovered that two bedrooms of the property were set up as ‘grow rooms’ and that there were 69 cannabis plants at various stages of maturity, weighing a total of just over 31 kilograms.  Police also found various other items at the house including 476.6 grams of dried cannabis, 12 ecstasy tablets, 6.7 grams of ICE, an amount of cash, two handguns and a Taser.  GWSC, Mr HN and Mr NK were arrested.  Mr NK was later released without charge.

5. Initially GWSC and Mr HN pleaded not guilty and the charges were listed for a committal hearing.  On the day of the committal hearing, GWSC pleaded guilty to one charge of cultivating a commercial quantity of cannabis; two charges of possessing a drug of dependence (ICE and ecstasy); one charge of possession of an unlicensed firearm; one charge of committing an indictable offence whilst on bail; and three summary offences relating to possession of ammunition, the Taser (a prohibited weapon) and the cash, suspected of being proceeds of crime.  These were the pleas that related to the sentence which has, in turn, enlivened the ‘substantial criminal record’ clauses of the Act and the ultimate cancellation of GWSC’s visa.

6. Under cross-examination, GWSC admitted that she bought drugs ‘one time’ 'from an associate.  When shown during cross-examination extracted text messages apparently between this associate and her, GWSC said she could not remember the exchanges and at first denied that a mobile telephone seized by the police, a photograph of which was in the SG documents, was hers; a position she later changed in evidence.

7. As to why she was wearing a gardening glove that day, she told the Tribunal she wore it to stop the smell of ICE getting on her hand.  She accepted that ‘about 20’ of the cannabis plants found by the police at the Truganina house were hers but claimed that 49 others were Mr HN’s.  She said that the revolver found was not hers, but was Mr HN’s, and believed that the other weapon found, a homemade gun, was also his.  She said that the Taser found was not hers but accepted that the ecstasy tablets and ICE bags found in various parts of the house were hers.

8. When asked by Ms Nyabally why she had pleaded guilty before the Court to the possession of firearms and the Taser, which she was now denying, GWSC said she didn’t understand the paperwork she received from her lawyers at the time, as she was stressed and her English was not good.  She intimated to the Tribunal that she was unaware of the actual charge sheet until she had been provided with the National Police Certificate in relation to her Immigration proceedings.

   Evidence from other witnesses

9. GWSC called other witnesses to give evidence on her behalf.  Ms KD gave evidence that she came to know the Applicant as her daughter was in the same unit at the Dame Phyllis Frost Centre.  Ms KD said she would offer accommodation in her home to both GWSC and, if he wanted it, her son.  She said she would also help her go to appointments and to find work.

10. The Applicant’s son, Mr NK, also gave evidence.  He said that he was unaware of the drugs being cultivated at Truganina because he was prevented from entering those rooms in the house.  He said he was unaware that GWSC and Mr HN were drug-users until the day the police executed the search warrants.  He visited his mother regularly in prison.  He said that, if GWSC had to return to Thailand, he would visit her but would not return there to live.  He is a permanent resident of Australia and has applied for Australian citizenship (G5, p 180).  Mr NK told the Tribunal that he was formerly on Centrelink benefits but has now obtained a full-time job and is undertaking a TAFE trade course.

11. Ms KH gave evidence by telephone.  She said she knew GWSC through a mutual friend and was prepared to offer her full-time work at her food processing factory in Braybrook, if GWSC was allowed to remain in Australia.  She said she had not met GWSC but was prepared to offer her a cleaning and packing position at her factory.

12. Ms AN also gave evidence.  She said she met GWSC while a fellow inmate at Dame Phyllis Frost Centre (for a non-drugs offence).  Ms AN said she would help GWSC find employment and would provide emotional support and spiritual support through the Buddhist temple she attends.

    Consideration of the Direction

13. As mentioned above, the Tribunal must, consider the merits of the decision under review in terms of the application of the Direction and, relevantly, Part C of that instrument.  This Part relates to mandatory cancellation of visas when the non-citizen has been convicted of an offence carrying a sentence of more than 12 months.

    Primary consideration: Protection of the Australian community (paragraph 13.1 of the Direction)

14. The Direction sets out that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and 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 conduct (paragraph 13.1.1)

15. The offences for which GWSC has been convicted are objectively serious.  The Tribunal was troubled by GWSC’s partial denial of elements of the offences for which she has pleaded guilty.  At the County Court hearing, Judge Hampel considered the question of whether GWSC’s pleas of guilty were fully informed and the result of a free choice (G5, p 37).  Her Honour concluded that she was satisfied that GWSC “should be treated as having intended to cultivate not less than a commercial quantity”.

16. Judge Hampel referred to the conclusions of a psychologist, who assessed GWSC for the purposes of her plea as “naïve, gullible and easily led”.  Her Honour did not conclude that there was any impaired intellectual capacity.  Consequently, the effect of taking ICE, such as agitation and affective blunting and impaired judgement, as caused by ICE use, were not mitigating factors.  Judge Hampel said (G5, p 45-46):

    It is clear that cultivation is a serious offence and commercial quantity cultivation more so.  It carries a maximum sentence of 25 years, ten years greater than the sentence for cultivate simpliciter.  People who cultivate crops for profit must understand that, when detected, they will be punished.  The sentence must deter others who think of engaging in this trade from doing so.  It is no excuse, or mitigation, to declare that you were cultivating to support your ice habit, or to provide you with income from a source other than sex work.

    As a first offender and a vulnerable and isolated woman, I consider your culpability to be at the lower end of the scale and this instance of cultivation, although of a commercial quantity, also at the lower end of the scale.  It is absent the hallmarks of sophisticated rings, exploitation of others and associated criminal activity often associated with large scale professional commercial quantity cultivations.

    I consider the consequences already visited on you already count as significant personal deterrents and that your prospects for rehabilitation should be regarded as good.  So far as the other offences are concerned, I consider it is likely you possessed the other drugs, as you instructed, for your own use and that you were able to buy them in greater than single use quantities, by reason of your cultivation activities.

    Possession of the firearm is a concerning charge, even if as you assert, you were looking after it for someone, or were treated as a safe person with whom to stash it.  I do not find, in the circumstances, that you possessed it for a purpose associated with protection of the crop.  Thus the aggravating feature often associated with such a charge in connection with cultivation, that is, a possession of a firearm to protect the crop is absent here.  The same applies to the possession of the taser.  I consider that the proceeds of crime charge to be associated with the cultivation charge and will sentence accordingly, and I consider that as you were denied bail, that you have already been substantially punished for committing an offence whilst on bail and moderate the sentence for that charge accordingly.

17. It is well established that the Tribunal cannot look behind a conviction; as outlined in the Full Court of the Federal Court decision of Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [45]:

    To impugn the sentencing process…is bad as a matter of public policy.  It is improbable that the legislature intended that an administrative tribunal with wide investigative powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual basis of a conviction and of the resulting sentence.

18. The Tribunal made clear to GWSC that she has served a prison sentence in relation to her convictions and that this hearing was not some form of ‘re-punishment’ for those crimes. It was purely concerned with whether or not she should be permitted to remain in Australia.  The Tribunal asked if GWSC now maintained that the weapons found were not hers at the time, why did she not make that clear, because it directly affected the severity of the sentences she received.  GWSC gave an inchoate response about not understanding the ‘lawyer’s paperwork’.

19. The Tribunal is unconvinced by GWSC’s claims that she did not understand what she had been charged with, more so because as the sentencing remarks point out, she made specific representations, through her counsel, about the weapons.  The Tribunal is unpersuaded that her admissions were not freely made before the Court at the time.  Notable in this regard, Judge Hampel said (SG5, p 39):

    He [GWSC’s counsel, Mr Backwell] told me that [GWSC] was represented at all times and that, as far as he was concerned, and he has been counsel throughout, [GWSC] was fully informed, aware of the case against her and her options and was aware, at the time she entered her guilty pleas, that [Mr HN] would be pleading guilty to a charge of cultivate simpliciter.  Mr Backwell said he was unaware of any pressure being brought to bear on [GWSC] by anyone and in the course of a video conference conducted two days before he made these submissions to address the matters I had raised and a conference at which [GWSC], Mr Backwell, his instructing solicitor and a Thai interpreter were present, [GWSC] had raised no such concerns with him or his solicitor.

    I accept what Mr Backwell has told me and despite the unease I had articulated about her position, I proceeded to sentence her on the basis that she has been independently represented, well and fully advised and must be taken to have entered her pleas in the exercise of a free and informed choice.

20. It is true that GWSC did not have a history of offending and indeed had not committed any offences for around the first five years of being in Australia.  However, when a person is convicted of drug offences relating to cultivation in commercial quantities, this is a category of offence more serious than possession or personal use of an illicit substance.  The Parliaments of Australia have passed laws reflecting that fact, because the logical consequence of commercial cultivation is trafficking and the exacerbation of the drug scourge in our society. 

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

21. The Direction requires decision-makers to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.  While the Tribunal considers that GWSC’s expressions of apology about her conduct were genuinely made, it is clear that she has been, as the assessing psychologist concluded, gullible in her past conduct.  It may be the case that she had been led into her offending by association with dominating partners, but there is no evidence before the Tribunal that that vulnerability is not still present.

22. Mathews J (sitting as a presidential member of the Tribunal) said in Re: Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431, at [51]:

    Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending...

23. The fact that GWSC committed further criminal offences whilst on bail shows disregard for the law in Australia. Her dissimulation under cross-examination at this hearing, about elements of what happened in the past relating to various convictions, especially about text messages that may implicate her in the sale or at least provision of drugs to others, inclines the Tribunal to conclude that there is a risk of re-offending.  GWSC was not frank about large parts of the circumstances of crimes to which she has pleaded guilty.  The Respondent’s written submissions were:

    The fact that the applicant pleaded guilty to cultivation of cannabis, yet has subsequently disputed her culpability by stating that she only pleaded guilty at the behest of [Mr HN], suggests that she is trying to downplay her criminal responsibility and that there is more than a remote risk of recidivism.  Further, the offences which led to the November 2016 sentences were committed while the applicant was on bail for the 1 September 2015 offences.  The applicant’s conduct suggests that she has a disregard for Australian laws generally and underscores the risk that she would engage in further unlawful conduct.

    In oral submissions, Ms Nyabally submitted that there was a “small but appreciable risk” that GWSC will re-offend.

24. It is to GWSC’s credit that she has sloughed off her drug habit whilst in prison, and her statements to this effect were corroborated by urinalysis reports.  The Tribunal considers she fully appreciates the personal consequences that her drug-taking had upon her.  However, what was not stated was an understanding of the wider harm to the community of engaging in such activity.  It was particularly disturbing that GWSC admitted driving her then teenaged son to school while affected by ICE, an action that might have had catastrophic results for her, Mr NK and innocent members of the community, had she caused a motor vehicle accident.

25. The Tribunal does not accept the Respondent’s submission of a “small but appreciable” risk of re-offending.  The risk of re-offending may be reduced because of the counselling GWSC had in prison and the impressive number of courses she has successfully completed.  This risk may be further reduced if GWSC had more stable accommodation and employment. However, because of her criminal history and gullibility, there is still a risk that I conclude is, at the very least, in all the circumstances, moderate.

26. Taking the evidence into account, this consideration weighs against revoking the mandatory cancellation decision.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)

27. There are no minor children relevant to this matter.  Mr NK is now aged 20 and is the only child of GWSC, and neither party suggested there is any other minor child who would be affected.  The Tribunal therefore did not consider that this consideration was engaged.

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

28. The Direction states that the Australian community expects non-citizens to obey Australian laws whilst in this country.  The Tribunal believes this to be axiomatic, and of course it is an expectation that applies equally to citizens.  The Tribunal was referred by the Respondent to a news item by ABC News dated 2 July 2018 titled ‘The green house next door.’ (SG11, 685-686) The article is about commercial cannabis production in residential properties in Australia.  It relevantly states:

    In 2017, Victoria Police seized about 33,000 plants, weighing more than 14 tonnes, from about 160 grow houses….

    The properties used for cannabis cultivation are either leased or bought and can be converted into a grow house within a day.  Every room itself becomes a mini grow house, with its own lighting, watering and nutrient system, and plants at different stages of growth installed in separate spaces…

29. The article also discusses other impacts of this illegal activity, such as the amount of power illegally stolen from the national grid and the danger of electrocution from unauthorised wiring to support hydroponic cultivation.  While this is a general article, and caution must be exercised when considering general media reports against specific individual circumstances, the Tribunal was provided with photographs of the Truganina residence showing the sophisticated lighting and growing apparatus; and notes (SG3, p 368) detailing various other items located by police including: a ledger book containing notes of amounts; digital scales; snap-lock bags; an instruction book on growing marijuana; 21 power transformers; power boards; 19 lighting shrouds (with GWSC’s fingerprints); and, in the garage, a further 32 lighting shrouds. 

30. The Respondent drew the Tribunal’s attention to the remarks of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, where Her Honour said, at [76] “In substance this consideration is adverse to any applicant.”  And, at [77]:

    “It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).”

    The Tribunal, with respect, agrees with this conclusion; however, properly considered, the weight of this consideration in the Direction may nevertheless undulate significantly according to the context and circumstances in which a non-citizen’s offending has occurred.  The Tribunal concludes that members of the Australian community, properly informed, would adopt an unfavourable view of what is on the evidence a well-planned illicit drug growing enterprise, given the pernicious impact the illegal drug trade has on society.  Adding to that GWSC’s separate convictions for possessing weapons and for trafficking in ICE, this consideration weighs strongly towards not revoking the mandatory cancellation of the visa.

    Other consideration: International non-refoulement obligations (paragraph 14.1)

1. The Respondent noted that GWSC has not expressly claimed to be a person to whom Australia has protection obligations.  In her statements and evidence, GWSC raised concerns that her parents or her ex-husband may force her down the path of engaging in illegal activity if she returns to live in Sukothai.  She has not claimed that the Thai police would be unable or unwilling to help her, except to say the police generally avoid becoming involved in family disputes.  The Tribunal directly asked GWSC why she was not free to live in some other location in that country, but no cogent explanation was given, other than financial constraints.  The Tribunal pointed out that she had given evidence that Mr CO had a new partner so there was no evidence he would seek to re-engage with her, but GWSC suggested that as her ex-husband was Muslim he could have several wives.  While GWSC said she had signed divorce papers sent by Mr CO to her in prison and sent them back to him, she was unclear as to whether they were ever lodged in Court; she said she never received advice of the finalisation of the divorce.

2. The Respondent noted that GWSC has not applied for a protection visa.  The Tribunal noted this fact but also that GWSC made certain claims about other potential harm that may befall her if she is repatriated.  The Tribunal takes the view that the words ‘any other reason’ why the mandatory cancellation decision should be set aside should be treated as a positive exhortation to a decision-maker to consider factors that may constitute “non-protection visa harm”. 

3. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [53], Robertson J stated:

   The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa.  This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant’s representations referred.  The Minister did not presently consider the applicant’s representations as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made.  The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability of the applicant, on application, of a Protection visa.  As a result of that reasoning the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4).

   Accordingly, the Tribunal will address GWSC’s claims in this regard later in these reasons.

   Other consideration: Strength, nature and duration of ties (paragraph 14.2)

4. The Respondent accepted that Mr NK clearly loves and supports his mother and that he will experience personal hardship if she returns to Thailand.  The Tribunal found Mr NK a credible witness.  Although he has only been in Australia for some five years he has managed well with the dislocation of his mother first going into custody and then prison, and subsequently into detention.  He has, as mentioned above, secured a full-time job and is studying part-time at TAFE with his employer’s support.  These achievements of Mr NK compare well with many others, citizens and non-citizens alike.

5. Mr NK has lodged an application for Australian citizenship and there is nothing before the Tribunal to indicate that he will not meet with success.  There is no doubt that if GWSC returns to Thailand that separation will adversely affect her, and Mr NK.  Balancing that is the fact that Mr NK holds permanent residency and would be able to visit his mother, as he stated in evidence, subject of course to financial constraints.  This ability to travel would continue if he is granted citizenship by conferral.

6. GWSC has friends who showed significant support for her, especially Ms KD and Ms AM, who made statements and gave evidence. The Tribunal commends them for their written and reiterated spoken offers to assist her if she is allowed to stay in Australia.  The Tribunal also notes that GWSC has been law-abiding for roughly half of her time in Australia, which illustrates that she did not come to this country intending to embark on criminal activity.

7. On balance, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of GWSC’s visa.

   Other consideration: Impact on Australian business interests (paragraph 14.3)

8. Parties did not make submissions on this consideration.  GWSC is not currently employed (she is in Immigration detention) and the Direction states that any employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or an important service in Australia, which is not relevant in this matter.  The Tribunal did not address this consideration further.

   Other consideration: Impact on victims (paragraph 14.4)

9. Parties did not make any submission or provide any information on the impact on victims of GWSC’s crimes.  The Tribunal did not address this consideration further.

   Other consideration: Extent of impediments if removed (paragraph 14.5)

10. The Direction requires a decision-maker to address the extent of any impediments GWSC may face if removed from Australia to her home country, in establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account her age and health; any substantial language or cultural barriers and any social, medical or economic support available in that country.

11. GWSC argued that because of her age (41), she would have difficulty obtaining employment in Thailand.  In terms of non-protection visa harm to which she may be exposed if repatriated, GWSC stated that she would have to live back with her parents and this would increase the possibility of her ex-husband, Mr CO, requiring her to engage in some employment against her will.  She said she is “scared to have to go back to do what I don’t want to do, and scared of having to again have a relationship with my ex-husband”.  Her claims in this regard were vague but when pressed by the Tribunal she said her parents would force her to do bar work and massage work to “pay their bills”.  As mentioned, the Tribunal particularly pressed her on why she could not establish herself in another part of Thailand, and the only plausible reason proffered was lack of funds.  GWSC said she thinks her family will pressure her “to go back to be with her ex-husband”.  She was asked whether Mr CO had threatened her since she last saw him in around 2016 in relation to instigating the divorce, and GWSC said he had not, but claimed he had “coerced her” during the process of Mr NK obtaining permanent residency in Australia. 

12. Balancing these general claims, apart from her Diploma of Accounting, there was ample evidence that GWSC has successfully completed several trade and skill courses through TAFE while in custody (G5, p 110-134).  She has also acquired a good command of English, as shown during the hearing.  The Tribunal considers that her employability would be enhanced with these skills, but accepts her submissions that her age might have some impact. 

13. While GWSC stated that she came from a poor family, and this was reiterated on the basis of her advice by others, including Dr Kruss, this is somewhat at odds with the sentencing remarks of Judge Hampel, where Her Honour said (G5, p 43):

    “According to what you told the psychologist, Gina Cidoni, who assessed you for the purposes of the plea, you had had, in Thailand, before you came to Australia, what you described as a happy, normal childhood in relatively comfortable circumstances…”

14. Ms Nyabally questioned GWSC about other social services available in Thailand and referred the Tribunal to the Human Rights Centre, Berkeley Law, University of California document Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence – Case Study: Thailand May 2013.  That document provided some details about safe houses and shelters available for women in vulnerable circumstances.  GWSC responded that counselling on a one-on-one basis was not available and that there was a significant wait to avail of these services.

15. The Tribunal accepts that the services that may be available to GWSC may not be equivalent to those available in Australia, an example being services provided by the Western Centre Against Sexual Assault, the organisation for which Dr Kruss works.  However, I am required to consider these factors in the context of what is generally available to other citizens in Thailand, and I have no evidence before me that GWSC would be specially disadvantaged in this sense, if repatriated.  I do accept the Applicant’s contentions that these services available may not be equivalent, or even comparable, but that is not the appropriate yardstick against which I should measure them.

16. GWSC gave evidence that she had previously been diagnosed with a brain tumour and had had an MRI and blood tests indicating that it was present.  She gave evidence that she had been prescribed a course of medication for one year and had been told that the tumour was now benign.  There was no corroborative evidence before the Tribunal about this diagnosis.  However, the Tribunal accepts the Applicant’s evidence, and also that the headaches that she previously experienced from this condition have largely subsided.  The Tribunal therefore concludes that this condition does not, of itself, play strongly in this consideration.

17. The Tribunal considers that this consideration in the Direction weighs neutrally in terms of revoking the mandatory cancellation of the visa.

    Conclusion

18. The Tribunal has carefully considered all the considerations in the Direction.  The Tribunal is not bound only to these considerations, and may consider other factors relevant to the general circumstances of GWSC, in the context of whether there is another reason to set aside the mandatory cancellation of her visa.  The Tribunal finds that the considerations which weigh against revoking the mandatory cancellation of the visa outweigh the considerations which weigh in the opposite direction. 

19. The fact remains that GWSC has admitted to, and been convicted of, serious crimes and it is the Tribunal’s conclusion that the decision not to revoke the mandatory cancellation of her visa, taking into account all the evidence and the written and oral submissions made before the Tribunal, was the correct decision.  The Tribunal does not find that there is another reason why the mandatory cancellation of the visa should be revoked.

    DECISION

20. The Tribunal affirms the decision under review.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 22 November 2018

Date(s) of hearing:	12 and 13 November 2018
Applicant:	In person
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor

Appendix 1

List of Exhibits

Exhibit A1 – Statement from Applicant undated; translation certified by Honorary Vice Consul, Royal That Consulate, Melbourne

Exhibit A2 – Letter from Mr NK, dated 29 October 2018

Exhibit A3 – Letter from Ms KD, dated 26 October 2018

Exhibit A4 – Statement from Dr Julie Kruss, psychologist, Western Region Centre Against Sexual Assault, dated 25 October 2018

Exhibit A5 – Statutory Declaration of Ms KKH, declared on 3 November 2018

Exhibit A6 – Statutory Declaration of Mr SN, declared on 31 October 2018