GWSC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 87
•30 January 2020
GWSC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 87 (30 January 2020)
Division:GENERAL DIVISION
File Number: 2018/5338
Re: GWSC
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:30 January 2020
Place:Melbourne
The Tribunal affirms the decision under review.
..................[sgd]......................................................
Senior Member A. Nikolic AM CSCMIGRATION – Mandatory visa cancellation – citizen of Thailand – Class BS Subclass 801 (Spouse) visa – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
CASES
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCAFC 185
GPO18 v Minister for Home Affairs [2019] FCA 1067
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CAExplanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Mayo Clinic, Pituitary Tumors (2 December 2019) < align="left">REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
30 January 2020
INTRODUCTION
The applicant seeks review of a decision, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of her Class BS Subclass 801 (Spouse) visa (“the visa”).
APPLICANT’S IDENTITY
An order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AATA”) was previously made, prohibiting the publication of any information tending to identify the applicant or members of her family. The anonym “GWSC” will continue to be used. Certain details will be redacted, including the identity of witnesses and the names and information of other persons who might identify GWSC. Consistent with the Federal Court’s decision in GPO18 v Minister for Home Affairs [2019] FCA 1067 (“GPO18”), the Tribunal will continue to refer to key persons in this matter using the following anonyms:
ANONYM PERSON REFERRED TO BW Thai father of the applicant’s child, with whom she had a relationship in the early 1990s. The applicant stated that BW died in 2001. CO Turkish-born Australian citizen who the applicant married in Australia in 2008. HN Applicant’s former partner and co-accused in the 2015 cannabis growing enterprise. NK Applicant’s now 21-year old son.
The hearing was held in Melbourne on 16 and 17 December 2019 with the assistance of an interpreter in the Thai language. The Applicant was represented by Mr Mathew Kenneally of counsel, instructed by Carina Ford Lawyers. The Minister was represented by Ms Siran Nyabally from the Australian Government Solicitor.
For the reasons that follow the Tribunal affirms the decision under review.
BACKGROUND
The background to this application is as follows:
(a)The applicant is a 42 year old citizen of Thailand who grew up in a province about four hours’ drive from Bangkok;
(b)At about 15 or 16 years of age the applicant moved to Bangkok. She had a short-lived relationship with Mr BW, which ended shortly before their son, NK, was born in 1998;[1]
[1] Exhibit R1, 97.
(c)The applicant states that her parents were imprisoned in 1999 for drug offences.[2] NK was raised by the applicant’s grandparents, because she had to work in Bangkok to support her family. While working in Bangkok she concurrently completed a Diploma of Accounting through part time study;[3]
[2] Ibid, 97.
[3] Ibid, 97; 678.
(d)The applicant first came to Australia for a holiday in 2006 at the age of 30, having previously undertaken international travel to Indonesia, China, and Korea.[4] She returned to Australia in 2007 on a student visa, claiming that she intended to learn English and study a Diploma of Business;[5]
[4] Ibid.
[5] Ibid.
(e)The applicant did not undertake any business studies but instead worked in a restaurant, factory and massage shop in Sydney.[6] The County Court of Victoria found that GWSC ‘soon turned to sex work’ after arriving in Australia, ‘in order to support herself and send money back to her family in Thailand and…continued to work as a sex worker for much of her time here’;[7]
[6] Ibid, 839 [2]; 840 [1].
[7] Ibid, 32-33 [19].
(f)In 2006 GWSC met Mr CO at the massage shop she worked at.[8] They subsequently moved in together[9] and married in March 2008, following which GWSC was granted a spouse visa;
[8] Ibid, 839 [6]; [27]; [32]-[40].
[9] Ibid, 840 [29].
(g)GWSC stated that CO initially worked as a taxi driver but incrementally reduced his working hours after deciding to attend university. Responsibility for paying the bills increasingly fell to GWSC,[10] on the understanding that when CO finished university he would find a better job and her son could then join them in Australia. GWSC said CO became increasingly demanding about money, forced her to remain in sex work, and threatened to withdraw his sponsorship of her visa;
[10] Ibid, 841 [25]-[39].
(h)GWSC stated that in 2012, after CO completed his university studies, they moved to Thailand where the costs of living were more affordable. In GPO18 His Honour referred to this period of GWSC’s life as follows:
‘On a date that is not clear from the applicant’s evidence, the applicant and CO returned to Thailand and lived with the applicant’s parents…CO then moved to Bangkok and took up with a new girlfriend. In the Statutory Declaration sworn on 16 October 2017, the applicant stated that she separated from CO when he moved to Thailand in 2012. It is difficult to piece together this aspect of the chronology.’[11]
[11] Ibid, 761 [13].
(i)GWSC said CO made her fly back to Australia frequently to work in the sex industry,[12] during which she worked for up to two months at a time. GWSC claimed drugs were offered to her by clients and ‘one of the other girls.’ She took the drugs but claimed to have ‘never paid for drugs or sought them out’;[13]
[12] Exhibit A1, [20].
[13] Ibid, [21].
(j)GWSC claimed that in 2013 she was diagnosed with a brain tumour and began regularly using drugs to cope with stress. She used methylamphetamine (ice) and cocaine, but denied using heroin. GWSC said she received a course of medication for her tumour, which was subsequently found to be benign;
(k)In or about October or November 2012, while working as a sex worker in Melbourne, GWSC said she met Mr HN as a client. They commenced a romantic relationship in 2013[14] and moved into an apartment in Southbank, which was leased in GWSC’s name. GWSC said she continued working in the sex trade for about a year after this relationship commenced;[15]
[14] Exhibit R1, 853 [4]-[19]; A7, p.4.
[15] Exhibit A1, 30.
(l)In April 2014 GWSC and HN travelled to Thailand to visit NK. GWSC said they brought NK to Australia later that year, because her elderly grandparents were no longer able to care for him. At about that time the applicant, HN and NK moved to a property in Truganina, Victoria;
(m)On 24 September 2014 Victoria Police executed a warrant on the Southbank apartment, seizing a large number of cannabis plants. On 30 September 2014, during the course of a police interview, GWSC admitted she was aware of HN’s hydroponic equipment located at the Southbank apartment, but was not charged with any offences;
(n)GWSC was stopped by police on 1 September 2015 while driving a vehicle. Police discovered: a cigarette containing cannabis; a bag containing one gram of the drug ice; and a further three bags of ice in her handbag. GWSC was arrested and charged with trafficking ice, possessing a controlled weapon (a meat cleaver) and dealing in property suspected of being the proceeds of crime. She was released on bail and directed to appear in court on 30 November 2015;
(o)On 30 September 2015 Victoria Police executed a warrant at the Truganina residence, at which GWSC, HN and NK were present. When police arrived GWSC was wearing a gardening glove with blackened tips and carrying gardening shears. Police discovered two bedrooms of the property set up as cannabis ‘grow rooms’ and 69 cannabis plants at various stages of maturity weighing approximately 31 kilograms. Police also found 476.6 grams of dried cannabis, 12 ecstasy tablets, 6.7 grams of the drug ice, an amount of cash, a handgun and a taser. GWSC, HN and NK were arrested, but NK was subsequently released without charge;
(p)On 15 July 2016 GWSC was convicted by the County Court of Victoria of cultivating a commercial quantity of cannabis, possession of a drug of dependence (6.7 grams of the drug ice and 4 grams of ecstasy) (two charges), possession of an unregistered general category handgun (a .38 Colt), and three summary charges including possession of ammunition, a prohibited weapon (taser) and dealing with suspected proceeds of crime. She was sentenced in July 2016 to three years and three months imprisonment.[16] Her appeal against the severity of that sentence was upheld by Victoria’s Court of Appeal and she was resentenced in November 2016 to two years and nine months imprisonment, with a non-parole period of one year and three months; [17]
(q)On 16 January 2017 GWSC’s visa was mandatorily cancelled, at which time she was serving a full time sentence of imprisonment. She was notified of the visa cancellation on 16 January 2017 and invited to make representations about revocation. She made representations within the period and in the manner specified under the Act;
(r)On 29 June 2018 GWSC was released from prison and taken into immigration detention where she presently remains;[18]
(s)On 31 August 2018 another delegate of the Minister decided under s 501CA(4) of the Act not to revoke the visa cancellation decision. GWSC was notified of the delegate’s decision on 3 September 2018;
(t)On 12 September 2018 GWSC asked the Tribunal to review the delegate’s non-revocation decision. A hearing was held in November 2018 and the Tribunal, differently constituted, affirmed the reviewable decision;
(u)GWSC sought judicial review in the Federal Court of Australia. On 12 July 2019 the Court quashed the Tribunal’s earlier decision, giving rise to these proceedings.
[16] Exhibit R1, 47 [81].
[17] Ibid, 84.
[18] Ibid, 240.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AATA and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character-related matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(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
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[19]
[19] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia; and
c. Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
a. International non-refoulement obligations;
b. Strength, nature and duration of ties;
c. Impact on Australian business interests;
d. Impact on victims;
e. Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES GWSC PASS THE CHARACTER TEST?
GWSC has been sentenced to a period of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act she does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the mandatory cancellation of her visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of GWSC’s visa should be revoked. What constitutes ‘another reason’ was considered by the Full Federal Court in Viane:[20]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[20] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
The following materials were taken into evidence:
(a)Documents lodged by the respondent numbering 946 pages (“G-Documents”);[21]
[21] Exhibit R1.
(b)Applicant’s statement dated 12 November 2019;[22]
[22] Exhibit A1.
(c)Applicant’s supplementary witness statement dated 11 December 2019;[23]
[23] Exhibit A2.
(d)Statutory Declaration dated 11 December 2019 from GWSC’s friend;[24]
[24] Exhibit A3.
(e)Four medical records from the International Health and Medical Services, which provides primary and mental health services within the Australian immigration detention network;[25]
[25] Exhibit A4.
(f)Jointly signed letter dated 25 October 2019 from the present and former abbots of a Buddhist temple in Melbourne;[26]
[26] Exhibit A5.
(g)Statutory Declaration dated 22 October 2019 from the former abbot of a Buddhist temple in Melbourne;[27]
(h)Report of forensic psychologist Ms Elizabeth Warren dated 7 November 2019, with accompanying letter of instruction from Carina Ford Immigration Lawyers dated 29 October 2019;[28]
(i)Statutory Declaration dated 11 December 2019 from GWSC’s friend;[29]
(j)Statutory Declaration dated 7 November 2019 from GWSC’s son;[30]
(k)Statutory Declaration dated 31 October 2019 from a woman purporting to offer GWSC a job as a full time cleaner or on the production line at her factory;[31]
(l)Statutory Declaration dated 29 October 2019 from a person claiming to have known GWSC for a year and offering her accommodation and financial support;[32]
(m)A certificate dated 3 October 2019 stating that GWSC has attended five one-hour sessions of ‘Self Applied Reiki – Level 1,’ and a certificate dated 30 August 2019 stating that GWSC has attended eight weeks of ‘All About Chakras’;[33]
(n)Certificate from Lloyds International College dated 17 July 2007, stating that GWSC had been assessed as having ‘elementary’ speaking, listening, reading and writing skills in English;[34]
(o)A letter from the Australian Taxation Office dated 11 April 2014 stating that GWSC had failed to lodge a tax return for the period 1 July 2011 to 30 June 2012, attracting a financial penalty;[35] and
(p)Medical records requested by the Tribunal regarding GWSC’s consultation with an endocrinologist, provided by the respondent on 20 January 2020.[36]
[27] Exhibit A6.
[28] Exhibit A7.
[29] Exhibit A8.
[30] Exhibit A9.
[31] Exhibit A10.
[32] Exhibit A11.
[33] Exhibit A12.
[34] Exhibit T1.
[35] Exhibit T2.
[36] Exhibit T3.
The following witnesses gave oral evidence at the hearing:
(a)GWSC;
(b)GWSC’s son;
(c)Two of GWSC’s friends;
(d)A former Abbot of a Buddhist Monastery; and
(e)Consultant psychologist Ms Elizabeth Warren.
Sentencing Remarks
Hampel J noted during sentencing that GWSC had no prior convictions,[37] but at the time of her arrest for the cannabis crop was on conditional liberty after being charged with other offences a month earlier. Plea discussions commenced at committal mention but the matter did not resolve at that stage. Ultimately a contested committal hearing was scheduled for GWSC and HN. By the time of the committal hearing admissions were made by GWSC and HN resulting in their convictions.[38]
[37] Exhibit R1, 42 [57].
[38] Ibid [9].
Her Honour noted that:
(a)GWSC initially denied involvement in cultivating the cannabis, claimed the plants belonged to HN, and she was forbidden from entering the grow rooms.[39] At the sentencing hearing, however, GWSC said the cannabis crop was hers and she cultivated it to support her ice habit.[40] She also claimed the ice and ecstasy, although of traffickable quantities, were for her own use. Her counsel stated she was ‘keeping the gun for someone’;[41]
[39] Ibid, 30 [7].
[40] Ibid, 32 [17].
[41] Ibid,
(b)HN claimed the cannabis crop belonged to GWSC, that he did not stand to gain any benefit from it, and his involvement was limited to allowing GWSC to continue cultivating the crop at his house after he became aware of it.[42] Her Honour noted HN had received a community corrections order arising from his cultivation of a previous cannabis crop at the Southbank apartment, and for possessing methylamphetamine and a prohibited weapon.[43] HN had also been convicted of trafficking heroin in 2007, knowingly dealing with proceeds of crime, and possessing a drug of dependence, for which he received a suspended sentence of two years and nine months imprisonment;[44]
[42] Ibid, 33 [21].
[43] Ibid, 31 [14].
[44] Ibid, 32 [15].
(c)There was ‘an air of artificiality or unreality about what was put on behalf of both defendants about their involvement’ in the cannabis enterprise.[45] Doubts arose that the crop was solely GWSC’s or that she was solely in possession of the firearm, ammunition and taser, based on HN’s ownership of the house, the way the cannabis growing operation had been set up, and the presence of both GWSC and HN when the search warrant was executed. Her Honour expressed unease that GWSC was ‘taking sole responsibility for what was, at the very least, a shared venture.’[46]
[45] Ibid, 35 [30].
[46] Ibid, 36 [32].
(d)GWSC’s lawyer was asked by Her Honour if GWSC’s ‘pleas were entered in the exercise of free choice and were fully informed.’[47] GWSC’s lawyer responded that:
[47] Ibid, 39 [44].
‘The charges…were the result of negotiations conducted over a number of months, where the ground shifted a number of times and which were ultimately resolved…He told me that [GWSC] was represented at all times and that, as far as he was concerned, and he had been counsel throughout, [GWSC] was fully informed, aware of the case against her and her options…[and]…he was unaware of any pressure being brought to bear on [GWSC] by anyone.’[48]
[48] Ibid.
(e)Her Honour accepted this and proceeded to sentence GWSC ‘on the basis that she had 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.’[49] Her Honour also made the following observations (at [60]-[64]):
[49] Ibid [45].
60. According to what you told the psychologist,…who assessed you for the purposes of the plea, you have had, in Thailand, before you came to Australia, what you described as a happy, normal childhood in relatively comfortable circumstances. You reported being shocked to discover that your parents were charged with and subsequently imprisoned for 14 years for drug trafficking when you were aged 20.
61. You told Ms Cidoni that you came here on a student visa, but despite that, seemed to have worked for much of your time here as a sex worker. You married after your arrival in Australia, but told her that it was an unhappy and abusive relationship and that you were forced to remain in sex work, not only to send money home to your family in Thailand, but to also to (sic) assuage the demands of your estranged husband, who was threatening to imperil your resident status. Apparently a divorce is pending but not finalised.
62. You reported that you met [HN], who was initially a customer at the brothel where you were working, and that the two of you formed a relationship which was marred and marked by the mutual use of methamphetamine. You reported being subjected to violence and paranoid and jealous behaviour. The relationship broke up, then resumed in the months leading up to your arrest. According to you, it is now over.
63. Based on what you told Ms Cidoni, you came to drug use only recently and your use of ice escalated when you met [HN]. She reported the relationship as tumultuous and she considered your judgement was seriously impaired when you began offending. According to Ms Cidoni, you present as naïve, gullible and easily led. Although Ms Cidoni notes that ice use is associated with increased autonomic activity, perceptual disturbances such as delusions, hallucinations and bizarre mentation and behaviour and psychological changes, such as agitation and affective blunting and impaired judgement, as they are the result of your ice use, they are not mitigating factors.
64. Ms Cidoni’s assessments of you were limited by poor language, despite the assistance of an interpreter. On the limited testing that she was able to do, she concluded that there was evidence of emotional disturbance with chronic depression, anxiety and interpersonal sensitivity, signs of thought disorder and paranoid ideation, possibly linked with your history of abuse of methamphetamine and other substances. She considered your cognitive function to be at borderline level. It is difficult to work out from her report whether that was due to language difficulties or your depression, anxiety and acute distress at the time of the conducting of the assessment. There did not seem to be, on my reading of her report, a finding of impaired intellectual capacity. Ms Cidoni did note that your acute distress related to the circumstances you now found yourself in.
(f)In considering the applicant’s culpability and prospects of rehabilitation, Her Honour concluded (at [68]-[69]):
68. I consider your culpability to be at the lower end of the scale and this instance of cultivation, although of a commercial quantity, is 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.
69. I consider the consequences already visited on you already (sic) 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 that 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.
(g)In GPO18 at [24]-[25], His Honour reflected on GWSC’s subsequent convictions in December 2016 and the motivation expressed for her plea at trial:
24. On 23 December 2016, the applicant also appeared before the Heidelberg Magistrates Court and was convicted of several offences (arising from the 1 September 2015 charges): possession of a traffickable quantity of the drug ice; possession of a controlled weapon without excuse; and dealing with property suspected of being the proceeds of crime. The sentence for these convictions was fixed at an aggregate 42 days’ imprisonment, which was to be served concurrently with the sentence given in the County Court proceeding.
25. In the applicant’s statutory declaration dated 16 October 2017, the applicant stated that she pleaded guilty to the “Truganina” charges because HN told her that, if she admitted guilt, he and his family would take care of her son while she was in prison. She also stated that she was told by her lawyer that if she pleaded guilty she would not go to jail for long and would be back with her son in less than 1 year. In her written statement prepared for the Tribunal hearing, the applicant repeated the statements that HN’s family came to see her in prison and told her that if she admitted the charges they would look after her son.
Medical Evidence
The Tribunal notes the references to medical evidence in the sentencing remarks, and the following expert evidence:
(a)Report by consultant psychologist Ms Elizabeth Warren;[50] and
(b)Three letters supporting GWSC and addressed ‘To whom it may concern’ by psychologist Dr Julie Kruss dated 7 June 2017,[51] 17 May 2018,[52] and 11 November 2019.
[50] Exhibit A7.
[51] Exhibit R1, 101-103.
[52] Ibid, 104-105
Ms Warren’s report includes references to GWSC:
(a)being drug free for the past four years with strategies in place should she feel the urge to resume drug use;
(b)satisfying the diagnostic criteria for Post-Traumatic Stress Disorder (PTSD), primarily from her work in the sex industry;
(c)offending by association in circumstances where she felt helpless to change her situation and allowed herself to be embroiled in drug manufacturing;
(d)reflecting on her substantial period of incarceration as shameful and burdensome for her son, and for which she had continuously apologised;
(e)being determined not to reoffend, and impressing as having made profound cultural and personality changes;
(f)receiving offers of stable accommodation, work, and continuing support from her son; and
(g)presenting a ‘low risk to relapse or reoffend but cannot be considered zero risk given the historical factors.’
Ms Warren gave oral evidence at the hearing and was cross-examined. Her oral evidence can be summarised as follows:
(a)GWSC’s risk of relapse and recidivism had been assessed following a three-hour interview, application of three assessment instruments, and after reviewing the documentary materials listed in the letter of instruction;
(b)The reason for the assessed ‘low’ risk of recidivism, is because GWSC had previously offended and used drugs leading to offending;
(c)GWSC has ‘had sufficient punishment to act as an incentive to change her behaviour’;
(d)GWSC previously felt trapped and helpless, but was now confident she had learned strategies and skills to develop a different lifestyle. When asked what these strategies were, Ms Warren referred to ‘alternative healthy activities’ learned from Dr Kruss, which were ‘helpful but not foolproof for every individual’;
(e)If GWSC did relapse into drug use there was an increased danger of reoffending, which may cause her to return to sex work, and lead to stressors causing relapse. However, Ms Warren considered a return to such work would be ‘devastating and repugnant’ to GWSC;
(f)GWSC had ‘scoffed’ at the prospect of a future romantic relationship, which was the ‘last thing she is thinking of at the moment.’ When asked by the respondent if GWSC remained gullible to controlling relationships, Ms Warren said she did not think so because GWSC had ‘woken up’ to those presenting themselves as able to solve all her problems. Ms Warren opined the same strategies GWSC learned to avoid drug use could help her avoid adverse ‘lifestyle situations.’ Ms Warren agreed with the proposition put to her by Ms Nyabally, that ‘a lot rests on the strategies [GWSC] has in place’. When asked if there was a difference between remaining abstinent in controlled environments like prison, compared to at liberty in the community, Ms Warren said it was easier to sustain abstinence in controlled environments. When asked what sort of stressors might increase GWSC’s risk of relapse, Ms Warren said these included homelessness, an inability to find employment, or a lack of support from friends. In GWSC’s case, Ms Warren considered the potentially dire criminal and immigration consequences of any relapse or recidivism would help deter GWSC from returning to her former lifestyle;
(g)Ms Nyabally asked Ms Warren to explain the following reference on page 5 of her report: ‘GWSC acknowledged the incident where she was drug affected when taking her son to school but she thought she was still functioning adequately…it does appear she had not used enough of the substance to substantially impair her driving capacity.’ Ms Warren erroneously stated there had been a single instance of driving while drug affected, and opined that because this conduct ‘didn’t attract any further charges such as dangerous or impaired driving, it was not sufficient to impair [GWSC’s] capacity.’ When it was put to Ms Warren that GWSC had admitted to driving her son to school on multiple occasions when affected by ice, and there was no evidence she had ever been intercepted or charged while driving, she responded: ‘I apologise, I misread the material’;
(h)When asked whether she had any expertise on the relative effects of drugs like ice on a person, Ms Warren said she did not; and
(i)When asked by Ms Nyabally about the basis of her opinion on page 6 of the report that there was not the same level of coercion in GWSC’s involvement in the cannabis crop, and ‘monetary profit…does not impress as the prime suspect’, Ms Warren said this was based on GWSC’s instructions that she was not ‘instrumental in buying the plants.’
At the Tribunal’s request during the hearing, the respondent lodged medical records on
20 January 2020[53] comprising:(a)Letter from an endocrinologist dated 4 November 2019 following a consultation with GWSC about a benign tumor (adenoma) of her pituitary gland. The only reported symptom was galactorrhoea (excessive production of milk) around the time of menses and medication for which had ceased at the time of consultation. The endocrinologist noted: ‘Her periods are now regular and occurring on a monthly basis. The galactorrhoea has resolved…There is no indication for dopamine-agonist therapy at this stage.’ A review was recommended in August 2020 preceded by a repeat MRI; and
(b)Letter from Northern Health Specialist Clinic informing GWSC that her referral for the August 2020 appointment had expired and asking her to source and fax an updated referral form to the clinic.
[53] Exhibit T3.
GWSC’s evidence
The Tribunal has had regard to the applicant’s previous written evidence in the
G-documents and two statements she adopted at the hearing:(a)10 page statement dated 12 November 2019; and
(b)One page statement dated 11 December 2019;
GWSC’s oral evidence can be summarised as follows:
(a)After arriving in Australia GWSC lived with a female friend from Bangkok and undertook some English study, but did not enrol in a Diploma of Business as planned. She tendered a certificate showing enrolment in an English course in Sydney from 13 November 2006 to 15 April 2007,[54] which assessed her as achieving an ‘Elementary’ understanding of English;
[54] Exhibit T1.
(b)GWSC said she did not choose to engage in sex work after arriving in Australia, but did so after CO asked her ‘to earn more money.’ She claimed that CO ‘organised the job’ through a friend at Sydney’s Kings Cross.[55] GWSC claimed she initially thought massage would be the only service provided, but soon realised she would also be required to provide sexual services. She said CO convinced her to do this work by invoking her family’s financial needs in Thailand and that her involvement in sex work would only be for a ‘short time.’ GWSC said her income from this work was used to pay for their living expenses in Australia and to support her son and grandmother in Thailand;
[55] Exhibit A1, [7].
(c)GWSC was asked by the Tribunal if there was an inconsistency in her evidence about CO introducing her to sex work, given the 2016 County Court judgement stated she: ‘began studying English, but soon turned to sex work in order to support herself and send money back to her family in Thailand and…continued to work as a sex worker for much of her time here.’[56] GWSC responded: ‘I can’t explain this. I’d stopped using drugs I was confused. There was an interpreter but I wasn’t sure how to answer.’ GWSC insisted the first time she ‘worked in the sex shop’ was when CO asked her to. She distinguished, however, between the sexual services she provided in brothels and the masturbation service provided during her earlier work in the massage shop prior to meeting CO,[57] which she said was at the discretion of each worker;
[56] Exhibit R1, 32-33 [19].
[57] Ibid 839 [42] – 840 [1].
(d)GWSC was asked whether there was an inconsistency between her evidence about CO’s controlling nature and in restricting her ability to ‘go anywhere’,[58] compared to other evidence about CO allowing her to book travel and fly independently interstate and between Thailand and Australia.[59] GWSC said she flew interstate because CO didn’t want any of his family to know about her job, which is why he sent her to other states, but ‘not Sydney.’ GWSC was asked about references in her statement to working in Sydney, both while living in Australia and when commuting between Thailand and Australia,[60] but did not directly respond to the question asked;
[58] Ibid [11]-[12].
[59] Ibid [15].
[60] Ibid, [14]; [20].
(e)GWSC stated that she and CO moved back to Thailand in 2012, in part because it was cheaper to live there, and in part because she ‘started getting sick.’ That was a reference to pituitary adenoma,[61] which she had first been diagnosed with while living in Thailand. The condition had been reviewed while GWSC was in custody and she had asked relatives in Thailand to send her the MRI scans on which the diagnosis had originally been based.[62] GWSC had also been referred to an endocrinologist while in immigration detention and had been told the condition was not affecting her and no treatment was required. She had not previously declared this condition while living in Australia,[63] because CO told her it may cause problems if she applied for citizenship. When asked why she believed more treatment may be required for the adenoma in future, GWSC said periodic reviews could detect any changes. She submitted that medical care was expensive in Thailand and in the public system ‘you have to wait on a list…for a long time…they don’t have equipment.’ When asked about the basis of that claim given her condition was previously diagnosed in Thailand, GWSC said she and CO were then able to pay for private hospital services, but she could not afford it now;
[61] Exhibit A4. The Tribunal notes from the Mayo Clinic website that most pituitary adenomas are slow-growing and benign, which means they are not cancer and do not spread to other parts of the body. They are known to cause symptoms such as headaches. See, for example: Mayo Clinic, Pituitary Tumors (2 December 2019) < Exhibit R1, 308.
[63] Ibid, 310.
(f)After returning to Thailand, GWSC said she commuted to and from Australia to undertake sex work, but after CO left her for a new girlfriend in Bangkok, she returned permanently to Australia and began a relationship with HN. She continued working in the sex industry for about a year after returning to Australia. GWSC said she did not like working in the sex industry, which hurt her body. She referred to seeking medical attention on one occasion that prevented her from working ‘for a month or two.’ She claimed the work affected her psychologically and caused nightmares. As a result of this work she did not think she could trust any man in her life again. When asked by Mr Kenneally how she felt about working in the sex industry now, GWSC said the job was ‘worthless, against morals’, and caused her to experience a loss of self-respect and a sense of shame;
(g)GWSC recalled that CO visited her once after her imprisonment, accompanied by her son. CO provided some financial support to her son for a few months. She said the police came to talk to her once about CO’s alleged involvement in criminal activity, but she told them nothing.[64] When asked why she feared CO would still try to contact her, given he had a new girlfriend in Thailand and they had not been in contact for several years, GWSC submitted: ‘Because if he comes back he can still control me and force me to do things.’ When asked what she would say to CO if he approached her now, GWSC said she would reject him and go to the police. When asked if her response would also be to reject him if she lived in Thailand, GWSC said it would be, but claimed: ‘I can’t just go to police – the law in Thailand is not able to help me or protect me.’ She was also concerned her family may try to pressure her to resume the relationship with CO, because they thought he was a good man who had done a lot for her;
[64] Ibid, 276.
(h)GWSC said she regretted taking drugs while working in the sex industry and also for becoming involved in the cannabis growing enterprise with HN. At the height of her addiction she was using 30 points of ice a day, or one to one-and-a-half grams a week, normally costing up to $500 a gram. She was able to source the drug from HN more cheaply at a discounted rate of $300 a gram. She contextualised her ice addiction as arising from long hours in the sex industry. She submitted that using ice ‘makes you crazy’ and a danger to the community when driving or using machines. She had used ice on a number of occasions before driving her son to school, which she now realised was wrong and had put her son’s life at risk;
(i)GWSC said she and HN travelled to Thailand together in April 2014 to see her son, hoping he would join them Australia. Her son agreed to relocate, but GWSC said if he had not, she would have stayed in Thailand to ‘spend time with my kid’;
(j)GWSC attributed her involvement in the cannabis growing enterprise with HN to her addiction, debts, no friends to rely upon, and a lack of understanding about how to get help under the ‘Australian system.’ When asked to elaborate on the latter, she said this included how to access alternate accommodation and treatment for her addiction. She also feared cancellation of her visa, which made her cautious about contacting any government agency;
(k)GWSC said she did not like the life she led with HN but could not break free from her addiction and had nowhere else to go. She described her use of ice as ‘very bad’, causing her to ‘never think properly to do the…right thing.’ She said that while living in Werribee she discovered HN was using the Southbank unit leased in her name to grow drugs. The unit had two bedrooms and she had ‘noticed some soil’ while cleaning, but claimed to have never previously seen marijuana. On discovering what HN was doing, she claimed to have become very angry and remonstrated with him. That is because she believed he was sub-letting the apartment to a friend. When asked why she helped HN grow another cannabis crop at the Truganina house if she was angry about the Southbank crop, GWSC said she had stopped working in the sex industry by this time, couldn’t go back to that sort of work, and HN gave her ‘spending money’;
(l)GWSC agreed that 20 of the plants in the Truganina cannabis enterprise were hers, but she tended the entire crop. HN initially told her she would get the money from the sale of her 20 plants, but during arguments equivocated about this. GWSC said she intended to leave the property and live elsewhere with her son because she ‘was feeling scared and under a lot of pressure’, but they were arrested before she could act on that intention. GWSC agreed that HN was staying at the property, which he owned, on the morning they were arrested;
(m)When asked if she stood by her evidence at the previous hearing that she never sold drugs,[65] GWSC agreed that was the case. When pressed, GWSC stated: ‘In the past I used drugs and sometimes I shared with my friends and if they wanted to pay, I would take their money.’ When it was put to GWSC that this constituted selling drugs, she conceded it was. When asked about text messages recorded in a Police report,[66] GWSC agreed a number of the messages related to her buying and selling drugs;
[65] Ibid, 862 [33].
[66] Ibid, 409-418.
(n)When asked about her first arrest in 2015 on charges of ‘Traffick methylamphetamine’, ‘Possess controlled weapon without excuse’ and ‘Deal with property suspected of being proceeds of crime’, GWSC said she felt ‘very scared’. When asked about the meat cleaver found in her possession, she said it was for cooking. When asked why she had not disclosed the existence of the Truganina cannabis crop to police at this time, she said: ‘Because I was very scared – I didn’t have an interpreter.’ When asked why she had pleaded guilty to possessing the handgun and taser found at the Truganina house if they belonged to HN, GWSC said it was because the handgun was found in her house and she felt it was her responsibility. When it was put to GWSC that the house was owned by HN, who was present at the time of the police raid, GWSC’s responses did not address this contradiction;
(o)GWSC gave evidence that after her arrest, she only ever had three telephone calls with HN and never applied for an inter-prison visit with him. She was asked about the references in the prison records to having weekly telephone conversations with HN,[67] his family members visiting her,[68] receiving a letter from him,[69] submitting applications for inter-prison visits,[70] having an inter-prison visit approved,[71] encouraging HN to apply for an inter-prison visit,[72] and expressing an intention to stay in Australia with HN if released.[73] GWSC could not understand why these references were in the prison records and insisted she had never applied for an inter-prison visit with HN and had only ever had three telephone conversations with him after their arrest. When asked why prison authorities had noted GWSC telling them her son was in ‘good hands’[74] with HN’s family, was studying at TAFE,[75] and she considered he was ‘well and being looked after’,[76] GWSC’s claimed these had not been her responses:
[67] Ibid, 266; 275; 276; 289 308.
[68] Ibid, 220.
[69] Ibid, 232.
[70] Ibid, 266.
[71] Ibid, 231.
[72] Ibid, 232.
[73] Ibid, 227.
[74] Ibid, 308.
[75] Ibid, 218.
[76] Ibid, 230.
‘That’s not true…when I was talking to the supervisor or whoever they would ask me how’s your son, I say well. They say where is he, I say my partner’s house. They say is he studying, I say yes. There was no elaboration as such. My partner’s sister came and visit me once and look what he’s written.’
(p)It was put to GWSC that she had given three different stories about her involvement in the Truganina drug crop during the 2015 police interview, 2016 County Court trial, and the 2018 Tribunal hearing. She was asked why her most recent story should be believed. GWSC responded: ‘because I want to tell the truth….I want to tell everything what happened…today I just want to tell the truth.’ When pressed about the different stories, GWSC claimed: ‘those three stories are one story.’ She explained that during the 2015 police interview she was using drugs and didn’t know whether to plead guilty or not. In the 2016 County Court she admitted guilt because the cannabis plants and gun were ‘in my house.’ When it was again pointed out the house was HN’s and not hers, GWSC stated: ‘but I was the one looking after it’ and HN ‘convinced me to plead guilty.’ She submitted, however, that her current story was the complete truth. When asked why it had taken four years to arrive at the ‘complete truth’, GWSC said she had ‘learned the laws of this country now…today I just want to tell the truth’;
(q)When asked about a reference in the prison records to her not having a Tax File Number,[77] GWSC confirmed she did have one. When asked if she submitted tax returns in Australia, GWSC thought she had for a while but conceded she did not declare income from her work in the sex industry while frequently commuting between Thailand and Australia. She claimed to have stopped paying taxes after returning to Australia in 2013. At the Tribunal’s request, GWSC tendered a letter from the Australian Tax Office dated 11 April 2014, notifying her that she had been penalised for failing to lodge a tax return for the 2011/2012 tax year;[78]
[77] Ibid, 248.
[78] Exhibit T2.
(r)GWSC gave evidence that she was determined not to use drugs again. If she thought there was any risk of relapse, she would seek assistance, including from Dr Kruss, who had taught her ‘how to be strong and calm.’ She aspired to return to work and claimed to have prospects of doing so, including as a cleaner in a factory;
(s)GWSC said she had met a woman in jail with whom she became friends. The woman introduced her to Buddhism, regular exercise, and taught her how to knit. GWSC now practiced meditation each day, allowing her to reflect upon the way she had previously lived her life. She said adhering to the tenets of Buddhism meant ‘not lying, cheating, stealing or using drugs’;
(t)When asked how her offending had affected her son, GWSC said she felt guilty he was left to fend for himself following the police raid. Her son had no food, money, or electricity, and she had repeatedly apologised to her son who had forgiven her. GWSC expressed pride in her son’s achievements in Australia, referring to his work and the money he regularly sent to Thailand to support GWSC’s grandmother. She said even though her son was now an adult, she wanted to look after him by cooking, cleaning, washing, ‘take him everywhere…be there for him…be a good mum’;
(u)When asked if she recalled telling a psychologist who assessed her for her plea ahead of the 2016 trial that she had led a ‘happy, normal childhood in relatively comfortable circumstances’[79] in Thailand, which was inconsistent with her current evidence about her mother being violent, abusive, and having tried to poison her,[80] GWSC stated: ‘I cannot remember that, I was still getting out of drugs’;
[79] Exhibit R1, 43 [60].
[80] Exhibit A1, [73]-[74].
(v)GWSC said her parents live four hours’ drive from Bangkok and her younger brother lives close to them with his wife and son. She also had an aunt in Bangkok. When asked about contact with her mother, GWSC stated it was ‘not much – about two times a month and we talk 10-15 minutes.’ She said her mother constantly asked her for money and thought CO was a good man. GWSC said her brother’s youngest child had passed away earlier this year and his wife had ‘problems with her blood.’ She had talked to her brother weekly around the time his daughter passed away, but less frequently since;
(w)When asked what would happen if she returned to Thailand, GWSC referred to six concerns:
(i)It would be very difficult to be separated from her son and both would be saddened if she could not remain in Australia;
(ii)She may not be able to access healthcare for her pituitary adenoma, because medical treatment was very expensive in Thailand;
(iii)Thailand did not ‘have the same level of welfare’ as in Australia;
(iv)Wages in Thailand were very low in comparison to Australia;
(v)It would be difficult to find a psychologist to treat her mental health issues like Dr Kruss. When asked about the possibility of accessing support services in Bangkok, such as the ‘Association for the Promotion of the Status of Women – Emergency Home’,[81] which offered social workers and a psychologist, GWSC said this facility in Bangkok was ‘over 400km from my house.’ She also didn’t know how long it would take to book a psychologist in Thailand, ‘but in Australia it’s easy to do.’ When asked if it was correct she had lived independently in Bangkok between the ages of 15 and 30, GWSC said she had with the exception of the relatively brief period she lived with BW; and
(vi)She may feel pressure from her family to reunite with CO. When asked why she could not say ‘no’ to him as she had been taught by Dr Kruss, GWSC said if she lived with her parents, they may pressure her to resume her relationship with CO. She would have to live with her parents because she had no ‘money to start over.’
(x)When asked if her son could visit her in Thailand, GWSC said he could, but it might not be often because of the cost;
(y)When asked if she could work again in Thailand as a tailor or in an office or factory, as she had done in the past,[82] GWSC stated: ‘After you’re 35 the factory will not accept you – in Thailand that’s just the way it is…after 35 it’s very hard to get a job.’ When asked what sort of work people over 35 do in Thailand GWSC stated: ‘farming or construction,’ which may be possible for her, but would be difficult because it was ‘labour intensive’;
(z)When asked about the basis of her claims regarding comparative levels of welfare, healthcare and other support in Thailand, GWSC stated: ‘I did my own research’;
(aa)When asked if she could live with her grandmother if repatriated to Thailand, GWSC said she could not because her grandmother was 90 years old and lived with GWSC’s aunt, her aunt’s three children and a grandchild. The house had insufficient room for another person. When asked if she could live with her brother, GWSC said ‘only if I had to’, but her brother’s wife was sick, he was the only one working, and he could not support her; and
(bb)When asked about any fears she held about CO who lived in Thailand with another woman, GWSC said she last spoke to him by telephone in March 2017. She said her aunt in Bangkok told her CO had visited and asked about GWSC, claiming he still loved her and wanted to reunite.
[81] Exhibit R1, 708-709.
[82] Ibid, 836 [14]-[45].
Evidence of NK
NK adopted his statutory declaration[83] and was assisted in his oral evidence by an interpreter in the Thai language. His current job is ‘waterproofing’ and he intends to complete his TAFE qualification in about two years. He also hoped to be accepted as an Australian citizen and was scheduled to sit his citizenship test in January 2020. NK’s oral evidence can be summarised as follows:
[83] Exhibit A9.
(a)He did not attend school after arriving in Australia in 2014, but recalled undertaking some language training;
(b)He did not know anything about drugs at the Truganina house until being arrested. While he did wonder what the lights were whenever doors to the bedrooms were opened, he did not enter the crop rooms;
(c)NK said he was due to travel to Thailand at the time of the arrests, but was unable to do so after that. When asked why he was returning to Thailand he said: ‘for a holiday to have a rest.’ He said his mother paid for the travel and he speculated ‘money from drugs’ was the funding source. When it was put to him by Mr Kenneally that he didn’t know with certainty where the money came from, NK agreed. When asked why he suspected the money was from drugs, NK said the airfare was over $2000 and the ‘money from drugs would have been enormous’;
(d)NK said he was scared when police executed the search warrant. After being released he returned to the house to wait for his mother, but she did not return. He stayed at the house alone for about two weeks until members of HN’s family collected him. He lived with them for a time, then with another man, before moving in with a friend and his friend’s family, where he presently resides;
(e)NK recalled CO taking him to visit his mother in prison, but could not remember the last time they spoke. He and CO sometimes exchanged messages on social media, but he could not recall the last occasion;
(f)In relation to his mother’s relationship with HN, he said it was not good and they had fights. The cause of the fights was because HN did not like his mother going anywhere or leaving the house. He recalled being woken on one occasion by a noise which sounded like someone hitting the wall and saw ‘my mum and dad’ having an argument, because HN had hurt his mother’s dogs. In his written evidence NK submitted that HN once told him about hitting one of the dogs, which had died. When asked if he could recall when that occurred, NK responded ‘I can’t remember, but it was before my mum got sent to jail. It was at the old house in Truganina.’ NK said HN would sometimes stay away for up to three days after an argument with his mother, but then came back to live with them;
(g)NK said the people he currently lived with borrowed money from him because his friend wanted to buy things or go to Thailand, and his friend’s mother ‘uses pokie machines.’ He said they paid him back but sometimes not the whole amount. When asked why he loaned them money under such circumstances, he said: ‘Because I live at their house’;
(h)NK said he earns about $1000 per week after tax. He pays $200 per month to his friend’s mother for rent and $50 for food weekly. He also sends about $200 monthly to his great grandmother in Thailand, and more if she needed it;
(i)He was saving in anticipation of being able to live with his mother if she remains in Australia. His mother told him about a woman she knew [“K”], who was willing to rent them a room at her house. He said that if they lived together, his mother could also work as a traditional Thai masseuse. When asked if he knew K, NK said he met her during his mother’s court case, but had never spoken to her since. When asked why he didn’t take advantage of the room offered by K now, NK said his mother told him the area ‘may be dangerous’. He would continue living with his friend until his mother was released, then hoped they could move in together; and
(j)If his mother was repatriated to Thailand, NK said he would visit her and support her financially, but had chosen to make his life in Australia. That’s because he had only finished school to year 7 in Thailand, did not think he could get a good job there, and also had to provide money for his great grandmother.
Evidence of K
K adopted her statement[84] and said she spoke to GWSC once a week on average. She knew GWSC though her own daughter, who was currently incarcerated and was likely to remain imprisoned for ‘another couple of years.’ K said she had a spare bedroom to offer GWSC until she got on her feet and found a job. K’s written evidence was that her ‘boss’ owns restaurants and ‘can likely offer’ GWSC ‘a position in waitressing or in the kitchen.’ She said GWSC had previously mixed with the wrong people and been in controlling relationships. K considered that GWSC had changed her life since serving her sentence, had ‘been clean for a couple of years,’ and ‘won’t go down that path again.’
[84] Exhibit A3.
Evidence of former Buddhist Abbot
The witness appeared at the hearing by telephone and was cross-examined. He adopted his statements[85] and submitted that GWSC was reformed. He said she could report to his temple upon release, listen to their counselling, and he could be a support for her.
[85] Exhibit A5; A6
Evidence of GWSC’s friend
The witness adopted her statement and gave oral evidence at the hearing.[86] She recalled first meeting GWSC about four years ago while they were both serving sentences of imprisonment and became close friends. The witness was released from prison three-and-a-half years ago and volunteers at a Buddhist temple, where she undertakes tasks like cooking, gardening, and driving others to appointments. When asked by Mr Kenneally how often she visited GWSC, the witness said she had only visited her for the ‘first time last week,’ but they spoke on the telephone weekly.
[86] Exhibit A8.
Tribunal consideration of the evidence
The Tribunal is concerned about the extent to which GWSC has been entirely forthright and truthful in aspects of her evidence, most notably involvement in the Truganina cannabis crop. Key differences are summarised below:
DATE
EVIDENCE
September 2015
GWSC told police she had no knowledge of the cannabis crop,[87] never tended the plants in a locked area that HN forbade her from entering, [88] and had never smelt cannabis.[89] She claimed she didn’t know if there was amphetamine in the house,[90] had not seen a gun in her room,[91] and had ‘never’ smoked marijuana.[92]
2016 Plea – County Court
It was submitted by GWSC’s lawyer that the cannabis crop was hers, she cultivated it to support her ice habit, and kept the handgun, taser and ammunition for an unnamed person.[93]
October 2017 Statutory Declaration[94]
GWSC stated she ‘didn’t really know everything’ HN did, and he told her if she admitted guilt for the charges, his family would take care of NK while GWSC was in prison. GWSC claims she ‘admitted guilt to many charges…some I didn’t agree with… When I went to court there wasn’t an interpreter for me, I didn’t understand a lot that was happening. My lawyer say if I plead guilty I won’t go to jail for long…’ GWSC claimed in her Statutory Declaration that her lawyer ‘never sent anything’, left her unaware of allegations she was facing, told her to admit guilt so ‘the case will end quickly’, and she consequently ‘admitted guilt without knowing what the guilt was for.’ 2018 Statement[95]
In a 2018 statement translated by the Royal Thai Consulate General in Melbourne prior to the first Tribunal hearing, GWSC claimed to have helped grow the cannabis crop and, contrary to her 2015 claims about ‘never’ smoking marijuana, said she did smoke it. 2018 and 2019 AAT Hearings
At the previous Tribunal hearing, GWSC stated she owned and was responsible for growing twenty of the cannabis plants in one room, while HN owned and tended the other plants in a separate area.[96] In a statement for the present hearing, however, she submitted HN ‘bought the plants, set everything up and it was my job to stay home and look after them.’ She also claimed the pistol, ammunition and taser were HN’s. [87] Exhibit R1, 593 [63] – 595 [69].
[88] Ibid, 590 [33]-[36].
[89] Ibid 594 [66].
[90] Ibid, 589 [32].
[91] Ibid, 589 [38].
[92] Ibid, 598 [91]-[93].
[93] Ibid, 32 [17].
[94] Ibid, 716.
[95] Ibid, 715 [1].
[96] Ibid, 894 [30]-[45]; 895 [1]-[20].
The shifting nature of GWSC’s evidence about involvement in the cannabis crop gives rise to concerns about her reliability as a witness. If her most recent evidence is to be believed about owning 20 cannabis plants from the outset of the drug growing venture, but tending the entire crop, then it is clear she lied to police and aspects of her testimony before the County Court are similarly questionable. There are other aspects of GWSC’s evidence that did not ring true, including:
(a)GWSC’s previous attempts to impugn her conviction for trafficking drugs[97] gives rise to concerns about the extent of her insight and remorse. At the 2018 Tribunal hearing she claimed to have never sold drugs, but conceded at the present hearing that she did. GWSC’s evidence at the previous Tribunal hearing was that she could not recall what was meant in numerous text messages[98] sent and received on her mobile phone.[99] At the current hearing she conceded some of the messages related to her buying and selling illicit drugs;
(b)GWSC’s evidence at the present hearing about her relationship with HN, was that she only ever contacted him three times by telephone and never applied for an inter-prison visit. Prison records convey a different picture. GWSC is recorded as telling prison authorities that she ‘wants to stay in Australia and be with her only child…and [HN].’[100] In other prison records, GWSC reportedly maintained regular (weekly) contact with HN by telephone, applied for inter-prison visits to see him, advised him to apply for inter-prison visits, and received approval for an inter-prison visit. GWSC is also reported to have told her interviewers that NK was in ‘good hands’,[101] studying at TAFE, and was ‘well and being looked after’[102] by HN’s family.[103] The Tribunal also notes reference to a letter received by GWSC from HN in November 2017, in which he advised her he had been paroled and could no longer contact her as a condition of his parole. GWSC was recorded as stating she was upset about his inability to contact her but was ‘happy for him.’[104] The contemporaneous prison records are preferred to GWSC’s current recollections, which the Tribunal found did not ring true; and
(c)GWSC has previously given evidence that she had a troubled relationship with her mother, who was violent and had tried to poison her.[105] In the County Court of Victoria criminal proceedings, however, evidence was received to the effect that GWSC told the court-appointed psychologist she enjoyed a happy, normal childhood in relatively comfortable circumstances. The Tribunal found this aspect of GWSC’s evidence unpersuasive. That is particularly so given the multiple references in her prison file about regular contact with her family, speaking to ‘other family and friends on the phone,’ and asking her family in Thailand to access old medical records and send them to her Australia, which they did.[106]
[97] Ibid, 863 [17]-[23].
[98] Ibid, 889-892.
[99] Ibid, 409-418.
[100] Ibid, 227.
[101] Ibid, 220; 227; 232; 266; 275; 289; 308; 309.
[102] Ibid, 230, entry dated 24 October 2017.
[103] Ibid, 218.
[104] Ibid, 232.
[105] Ibid, 835 [20].
[106] Ibid, 234; 252; 256; 306; 308.
The Tribunal found significant elements of GWSC’s evidence to be evasive and an attempt to minimise her own culpability. She has previously blamed interpreter issues, her lawyer, and made uncorroborated claims about being threatened and coerced by police.[107] Despite the incrementally changing nature of her evidence, it is now clear GWSC played a more substantial role in the Truganina cannabis enterprise than previously willing to accept since 2015. In light of the inconsistencies in her evidence, the Tribunal has treated her overall evidence with caution.
[107] Ibid, 715 [2]-[3].
PRIMARY CONSIDERATIONS
Neither GWSC nor her legal representative made any claims regarding the ‘Best interests of minor children in Australia’, which the Tribunal finds is not a relevant consideration. The other two primary considerations: ‘Protection of the Australian community from criminal or other serious conduct’ and ‘Expectations of the Australian community’ must be applied to the specific circumstances of GWSC’s case.
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed 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 subparagraph (b) above, the sentence imposed by the courts 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.
Tribunal consideration: The nature and seriousness of the conduct
The Tribunal acknowledges GWSC had no previous convictions prior to 2016. But at the time of her arrest for the cannabis crop, she was on bail after being arrested a month earlier for trafficking in methamphetamine, possessing a controlled weapon, and dealing with property suspected of being the proceeds of crime. Moreover, GWSC’s then minor child, NK, who had only arrived in Australia in 2014, was housed at a drug growing property and GWSC admits driving him to school on multiple occasions after taking ice. Her child was left at the house for two weeks without any support or adult supervision,[108] which arose from the absence of any arrangement for the child’s care after her arrest.
[108] Ibid, 881 [35].
In relation to GWSC’s involvement in the cannabis crop, Her Honour stated during sentencing that ‘cultivation is a serious offence and commercial quantity cultivation more so.’[109] Her Honor nevertheless found GWSC’s offending to be at the ‘lower end of the scale for offences of cultivation of a commercial quantity.’[110] Her Honour proceeded to sentence GWSC on the basis that ‘both defendants were involved in the cultivation of the crop’[111] but made no findings as to their respective roles.[112] In relation to the weapons charge, Her Honour stated:
‘possessing a 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.’[113]
[109] Ibid, 45 [67.
[110] Ibid, 46 [71].
[111] Ibid, 41 [52].
[112] Ibid, 42 [54].
[113] Ibid, 45-46 [70].
The Tribunal acknowledges the submissions by GWSC’s legal representatives in the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 12 November 2019, including:
(a)This consideration should be given limited weight because GWSC: was ‘vulnerable and isolated’ at the time of her offending; had limited English; was a victim of family violence and was pressured to tend the crop; had no awareness of services to assist victims of family violence; was unsure of where she would live if she left the property; and received a limited benefit from the crop; and
(b)GWSC does not have a criminal history outside of her offending in September 2015, nor does her offending involve violence or exploitation of others.
The Tribunal acknowledges the submissions in the Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 29 November 2019 regarding this primary consideration, including:
(a)The applicant’s offending is objectively serious, particularly when viewed in the context of the serious problem of organised crime related cannabis production in Victoria and Australia;
(b)The fact the applicant received an immediate term of imprisonment for her first conviction demonstrates the seriousness of the offending;
(c)GWSC’s exposure of her (then) minor child to illicit drugs, and the neglect he experienced following her arrest when left alone at the property;
(d)GWSC’s explanation for her offending, namely consumption of illicit substances and traumatic events in her life, was not considered to justify her conduct as evidenced by the County Court’s sentencing remarks:
‘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.’
(e)GWSC’s contention that she obtained ‘limited benefit’ and did not ‘receive profit’ from the crop should be rejected, because she was knowingly involved in an organised drug cultivation enterprise to support her ice habit. Despite now asserting she pleaded guilty because of pressure placed on her, GWSC’s evidence is that 20 of the 69 cannabis plants grown at the property were hers. Further, she was in possession of a handgun and a prohibited weapon, both of which could cause significant injury to members of the community;
(f)GWSC seeks to downplay her role by stating that her then partner’s family pressured her into accepting responsibility for the handgun and taser, which is at odds with the sentencing remarks of both the County Court and the Supreme Court, with one judge stating at [44]-[45]) that:
[The applicant’s counsel] 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 [HN] would be pleading guilty to a charge of cultivate simpliciter.
…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], [her counsel], his instructing solicitor and a Thai interpreter were present, [GWSC] had raised no such concerns with him or his solicitor.
… I proceed 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.
(g)The respondent submits in this regard that when considering the offending behaviour for the purposes of the decision under review, the Tribunal must take the conviction and sentence as its starting point. In circumstances where the County Court accepted that the applicant had entered her pleas ‘in the exercise of a free and informed choice’, the applicant’s claim to have been coerced into entering a plea of guilty ought to be afforded little weight.
Tribunal findings: The nature and seriousness of the conduct
GWSC has very limited ties to Australia and this is not a case where higher tolerance of her criminal conduct or other misconduct arises because she has lived in Australia for most of her life or arrived here at a young age. While this consideration weighs in favour of revoking the cancellation of her visa it does so only moderately at best.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
GWSC lived in Thailand until the age of 30 and has spent the last 12 years in Australia. Her legal representative submits she has ‘limited support’ in Thailand compared to Australia, and would face impediments ‘due to her age, her lack of family connections, and her mental health’, for which ‘equivalent services are not likely to be available in Thailand.’ It is contended her ‘only connection is with her parents who live in a small town’, and this is the only place she has available accommodation. It is further submitted her relationship with her mother is ‘strained’ and that her mother may put pressure on GWSC to resume her relationship with CO. GWSC also claimed she ‘would struggle to obtain employment in Thailand due to her age and lack of social connections’ having ‘not worked in Thailand since 2006.’
GWSC submitted she has established a strong therapeutic relationship with Dr Kruss, the loss of which would be a significant impediment, and that she does not have a comparable therapeutic relationship in Thailand.
The medical evidence before the Tribunal about her pituitary adenoma is that it does not currently require any treatment.
The respondent submits that:
(a)It is accepted GWSC would face some initial hardship readjusting to life in Thailand. However, the Tribunal should have regard to the fact that she speaks Thai, is educated, and is eligible to access free counselling and support services offered to female victims of rape and domestic violence in the Bangkok region;
(b)In addition to the courses completed whilst incarcerated, GWSC completed a Diploma of Accounting in Thailand and was employed in sales and marketing prior to travelling to Australia. There is therefore no reason to believe she would face any language or employment barriers to return;
(c)Whilst GWSC states that she fears returning to Thailand as CO may try and contact her, she has provided no evidence to demonstrate that he has contacted her since he visited her in prison in 2017. In addition, the applicant’s claim to fear harm from her mother, with whom she will be forced to live, conflicts with previous statements, in which she reported having ‘good support’ from her parents who she contacts once a month;
(d)In regard to the comments of GWSC’s treating psychologist concerning her past trauma and its ongoing effects, it is submitted GWSC could access support and assistance from safe houses or shelters in the Bangkok region, which provide security for residents as well as in-house food, clothing and counselling services. Further, GWSC herself acknowledges being able to obtain treatment for her medical condition, noting that the Tribunal’s assessment in this regard is to be considered in the context of what is generally available to other citizens of Thailand; and
(e)GWSC will not be deprived of basic living standards if removed to Thailand, and this consideration is insufficient to outweigh the seriousness of the applicant’s offending and the likelihood that she will commit further offences.
Tribunal findings: Extent of impediments if removed
GWSC was born in Thailand, lived, studied and worked there until the age of 30. She speaks the Thai language and there is no discernible language or cultural barrier to her repatriation.
At 42 years of age and with the English language skills and other educational qualifications she has completed in Thailand and Australia,[149] the Tribunal considers GWSC’s contention that she is too old to find work, is unpersuasive. Her qualifications include certificate-level courses in Cleaning Operations, Horticulture, Spoken and Written English, Information, Digital Media and Technology, Kitchen Operations, and Retail Services. GWSC is recorded as telling corrections staff on 31 May 2018 that she aspired to use her work experience in the prison bakery[150] to open her own bakery in Thailand.[151] The Tribunal considers she has realistic claims to fulfil her aspiration of returning to remunerative work and avoiding further involvement in the sex trade. The Tribunal notes GWSC lived in Bangkok between the ages of 16 and 30, where she worked as a tailor, in sales and marketing roles,[152] and completed a Diploma of Accounting.[153] She also returned to Thailand and lived there for a time in 2012.
[149] Exhibit R1, 106-137.
[150] Ibid, 250.
[151] Ibid, 251.
[152] Ibid, 837.
[153] Ibid [17].
The Tribunal found GWSC’s submissions about accessing services in Thailand to be general and speculative. GWSC did not make submissions about the nature of the research she claimed to have conducted about comparative levels of healthcare, counselling and income support. The Tribunal is unpersuaded she could not access psychological support for her PTSD or periodic reviews of her adenoma. There is evidence before the Tribunal that GWSC may be eligible to access free counselling and support services offered to female victims of rape and domestic violence in the Bangkok region. That being said, the Tribunal accepts there is potential that GWSC’s continuing rehabilitation may be affected if she is deprived of her existing counselling association with Dr Kruss, and as she attempts to transition to other support services in Thailand. That has the potential to cause her psychological health to worsen. But the Direction does not require an assessment of whether services in Thailand are ‘equivalent’ to those available in Australia. The Direction instead refers to ‘what is generally available to other citizens of that country, taking into account:...Any social, medical and/or economic support available to them in that country.’ While it can be accepted GWSC has developed a close therapeutic network in Australia, particularly with Dr Kruss, which is likely to be superior to that available in Thailand, the Tribunal does not accept on the available evidence that PTSD arising from sex work is a ‘unique condition’ for which treatment is unavailable in Thailand, or that GWSC’s ability to access services would be any different to other Thai citizens.
The Tribunal notes NK’s intention to permanently remain in Australia,[154] but he stated he would return to Thailand to visit his mother.[155] He also intends to support his mother financially, just as he currently supports his great grandmother (GWSC’s grandmother) financially each month. The Tribunal was impressed with NK’s evidence and the hurdles he has overcome to live a rewarding life in Australia. The Tribunal found him to be an impressive witness who is committed and genuine in his intention to continue supporting his mother, irrespective of the outcome of her application.
[154] Ibid, 884.
[155] Ibid, 883 [40]; 886 [34]-[46]
The Tribunal does not accept the contention that GWSC’s ‘only connection in Thailand ‘is with her parents.’ Moreover, the Tribunal considers that notwithstanding any strain in family relationships, GWSC has been in regular contact with her mother, brother and other family members and friends in Thailand since arriving in Australia.[156] The Tribunal is satisfied she could draw on the support of some family and friends in Thailand, and her son in Australia if necessary, for practical and emotional support in re-establishing herself. The Tribunal does not consider that GWSC’s evidence about her family’s constant demands for money constitutes a persuasive impediment. It is for her to decide if she provides any money to family members.
[156] Ibid, 234; 252; 265; 306; 308.
It is ultimately GWSC’s choice whether she lives with her parents, or brother, or lives independently in Bangkok as she did between the ages of 16 and 30, or elsewhere in Thailand. The Tribunal accepts that whichever option GWSC chooses, her transition will not be without challenges, particularly after a 12-year residence in Australia. But any impediments do not weigh more than moderately in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and no ‘other considerations’ have been identified that are relevant to the specific circumstances of GWSC’s case as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, GWSC does not pass the character test. Her offending is objectively serious. She has shown poor judgement in becoming involved in drug manufacturing and committing drug and weapons offences on more than one occasion, including while under judicial orders. Her conduct cannot be regarded as isolated or impulsive. In terms of other misconduct, she housed her then minor child in a drug-growing property, exposing him to unnecessary risks. She also drove her child on a number of occasions after using ice, endangering her child and other road users. If GWSC was again to cultivate a commercial quantity of cannabis, or traffick methylamphetamine, or possess illegal weapons, or drive while under the influence of ice, the nature of harm to individuals or the Australian community is potentially very serious.
GWSC has previously failed to tell the truth, or the complete truth, about her involvement in the cannabis growing enterprise. On her own evidence it has taken four years to purportedly arrive at a point, in the context of the current hearing, where she has resolved to be completely truthful. That it has taken her so long to fully disclose her involvement, despite opportunities to do so when interviewed by the police in 2015, during her 2016 trial, and at the 2018 Tribunal hearing, is not to her credit. It gives rise to concerns about the extent of her insight and reliability as a witness.
While the Tribunal accepts GWSC has remained abstinent from drugs since her arrest, has taken some rehabilitative steps, and connected spiritually to Buddhist teachings, any rehabilitative progress has not been tested in the community. It is while at liberty in the community and subject to stressors like finding work and providing for living and other expenses, that GWSC succumbed to addiction and committed offences. Given the unreliable nature of some of her evidence, the Tribunal has concerns about the veracity of GWSC’s undertakings to remain abstinent from drugs and live a law-abiding life.
The Tribunal accepts GWSC presents a ‘low risk to relapse or reoffend’, but on the available evidence considers this to be a real risk that the Australian community should not have to tolerate. Given the specific circumstances of this case, there would be little tolerance of GWSC’s criminal offending and other misconduct, which the community would consider is starkly at odds with the privilege granted to visa holders to remain in Australia. The community would expect GWSC’s visa to remain cancelled.
In terms of the other relevant considerations, the Tribunal found GWSC’s claims about fearing harm from CO to be overly speculative and general. Her claims do not enliven Australia’s ‘International non-refoulement obligations’ in the context of ‘another reason’ to revoke the mandatory cancellation of her visa.
GWSC has limited ties to Australia and while on balance ‘The Strength, nature and duration of ties’ weighs in favour of revocation, it does so moderately at best. In terms of ‘Extent of impediments if removed’, there is no discernible language or cultural barrier to GWSC’s repatriation. The Tribunal finds her contention about being too old to find work in Thailand to be unpersuasive. That is particularly so given GWSC lived in Bangkok between the ages of 16 and 30, worked in several roles and completed a Diploma of Accounting. She also lived in Thailand during 2012. Since then, she has acquired English language and other vocational skills in Australia. Moreover, her son’s evidence is that he would financially support GWSC and visit her if she returns to Thailand.
The Tribunal found GWSC’s submissions about accessing services in Thailand to be general and speculative. That being said, it is accepted there is potential for her psychological health and rehabilitation to be affected if she is deprived of her current counselling and support framework in Australia. But the Direction does not require equivalency between services in Australia and an applicant’s country of citizenship, but instead refers to ‘what is generally available to other citizens of that country...’ There is no evidence that GWSC would have any lesser entitlement to such services compared to other Thai citizens.
The Tribunal is satisfied that GWSC has remained in regular contact with her mother, brother and other family members and friends in Thailand since arriving in Australia, from whom she may be able to access some practical and emotional support if repatriated. She can also draw on support from her son in Australia to help re-establish herself. But GWSC’s resettlement in Thailand would not be without challenges, particularly after a 12-year residence in Australia.
Having weighed all of the considerations individually and cumulatively, there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of GWSC’s visa. That is because the primary consideration ‘Protection of the Australian community’ weighs moderately against revocation, and the primary consideration ‘Expectations of the Australian community’ weighs substantially against revocation. These outweigh the other relevant considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which both weigh moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
119.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
……[sgd]……………………….
Dated: 30 January 2020
Date of hearing: 16 & 17 December 2019 Counsel for the Applicant: Mr Mathew Kenneally
Solicitors for the Applicant:
Advocate for the Respondent:
Carina Ford Lawyers
Ms Siran Nyabally
Solicitors for the Respondent:
Australian Government Solicitor
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