Hamm and Minister for Home Affairs (Migration)

[2018] AATA 3975

Hamm and Minister for Home Affairs (Migration) [2018] AATA 3975 (24 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4505

Re:Jenna Louise Hamm

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:24 October 2018 

Place:Sydney

The reviewable decision made 1 August 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection, not to revoke the decision made 2 February 2017 to cancel Ms Hamm’s Class TY Subclass 444 Special Category (Temporary) visa, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

MIGRATION - mandatory cancellation of visa - failure to pass character test - substantial criminal record - whether the discretion to revoke the cancellation should be exercised - Ministerial Direction No. 65 - primary considerations - protection of the Australian community from criminal or other serious conduct - nature and seriousness of conduct - assault - weapons offences - failure to obey directions or orders - break and enter - receiving stolen goods - shoplifting - larceny - destruction of property - driving offences possession of prohibited drug - offensive language and behaviour in public - stalking -accessory to a serious indictable offence - nature of future harm - likelihood of engaging in further criminal or other serious conduct - expectations of the Australian community - risk to the Australian community - impediments if removed from Australia - decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

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

SECONDARY MATERIALS

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

REASONS FOR DECISION

J W Constance
Deputy President

Introduction	[1]
Background	[6]
Relevant Legislation	[16]
Direction No. 65	[21]
The Issue for Determination	[30]
Reasoning	[33]
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct	[33]
Primary Consideration 2: Best interests of minor children in Australia affected by the decision	[54]
Primary Consideration 3: Expectations of the Australian community	[55]
Other considerations	[58]
The Balancing Exercise	[68]
Conclusion	[75]

PART A: INTRODUCTION

1. Ms Hamm is a 33-year-old citizen of New Zealand. She was aged eight in 1993 when she migrated to Australia with her mother. Immediately prior to 2 February 2017 she held a Class TY Subclass 444 Special Category (Temporary) visa.[1]

   [1] Exhibit R1 at 13.

2. On 3 November 2016 Ms Hamm appeared in the Local Court of New South Wales and pleaded guilty to several charges, including a charge of receiving stolen goods.[2] She was sentenced to imprisonment for a fixed term of six months, commencing on 19 October 2016.[3] On 2 February 2017 Ms Hamm was being held in prison in accordance with this sentence.

   [2] Exhibit R1 at 44.

   [3] Exhibit R1 at 46.

3. On 2 February 2017 a delegate of the Minister for Immigration and Border Protection cancelled Ms Hamm’s visa (“the original decision”).[4] This decision was made on the basis that the delegate was satisfied that Ms Hamm did not pass the character test set out in the Migration Act 1958 (Cth) and that she was serving a term of imprisonment on a full-time basis in a custodial institution.[5]

   [4] Exhibit R1 at 211.

   [5] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.

4. In accordance with the procedure set out in the Act, Ms Hamm made representations to the Minister seeking to have the original decision revoked. On 1 August 2018 a delegate of the Minister for Home Affairs and the Minister for Immigration and Border Protection decided not to revoke that decision.[6] The decision of 1 August 2018, referred to as “the reviewable decision”, is the subject of this application for review.

   [6] Exhibit R1 at 13.

5. For the reasons which follow, the reviewable decision will be affirmed.

   PART B: BACKGROUND

6. Unless otherwise stated, the following findings of fact are based on the evidence of Ms Hamm.

7. Ms Hamm has lived in Australia since her arrival in 1993. She left school at the end of Year 9 and then enrolled at TAFE.

   Ms Hamm’s criminal record

8. A National Police Certificate issued in respect of Ms Hamm[7] shows that she has been convicted of 81 offences in Australia between 28 January 2000 and 20 October 2017.

   [7] Exhibit R1 at 27-34.

9. The following summary of those offences was prepared on behalf of the Minister and is not in dispute:

   Convictions for a range of assault offences, encompassing:

   Assault with intent to rob in 2000 and assault with intent to rob armed with an offensive weapon in 2017;

   Common assault in 2001 (2 counts), 2004, 2015 and 2017;

   Assaulting an officer in the execution of their duty in 2008; and

   Assault occasioning actual bodily harm in 2015.

   Convictions for weapons offences, including:

   Being armed with intent to commit an indictable offence in 2017; and

   2 convictions relating to knives in public places in 2001.

   Convictions relating to failures to obey directions or orders, including:

   3 convictions for resisting police in 2005, 2007 and 2010;

   2 counts of contravening an AVO;

   Breaching bail requirements;

   Breaching probation requirements;

   Refusing to comply with a direction.

   Convictions relating to stealing, including:

   2 counts of receiving property/theft of property with a value of equal to or less than $5,000;

   An aggravated breaking and entering conviction;

   21 convictions relating to larceny, stealing, shoplifting and related offences (all with values of less than $2,000);

   3 convictions relating to having goods in custody suspected of being stolen; and

   2 counts of dishonestly obtaining advantage by fraud or deception.

   Convictions relating to the destruction of property, comprising:

   8 counts of destroying or damaging property; and

   2 counts of wilfully marking property with paint or chalk.

   Serious driving offences, including:

   4 counts of driving while disqualified or never licenced;

   1 count of negligent driving.

   4 convictions relating to drugs or drug instruments.

   4 convictions relating to offensive language or behaviour in public places.

   Convictions for offences involving entering land illegally, stalking and being an accessory after the fact or [sic] a serious indictable offence.[8]

   [8] Respondent’s Statement of Facts, Issues and Contentions filed 3 October 2018 at [8.1]-[8.9].

   Current term of imprisonment

10. At present Ms Hamm is serving terms of imprisonment imposed by the District Court of New South Wales in respect of offences which were committed on 18 October 2016:

    ·assault with intent to rob while armed with an offensive weapon;

    ·being armed with intent to commit an indictable offence;

    ·robbery while armed with an offensive weapon;

    ·common assault.

    The aggregate sentence imposed was three years six months imprisonment with a non-parole period of two years. The non-parole period expires on 17 January 2019.[9]

    [9] Exhibit R1 at 43.

11. The circumstances of these offences are set out in the Sentencing Remarks of Judge Sweeney made 20 October 2017:

    The matter has proceeded by way of agreed facts. They indicate that on 18 October 2016 between 6 and 6:30pm Ms Hamm was noticed at the Woolworths supermarket on Rangers Road in Neutral Bay. She was noticed because she had a black scarf partly covering her face as she went into the supermarket. So a witness who had just finished work at Woolworths kept watch on Ms Hamm. She went into the Woolworths store to the service area of the store and unlocked the waist high door which gives access to the service desk where only staff members are allowed. She began opening drawers within the area where they sell cigarettes, picking up packets of cigarettes. She had her face covered and was wearing gloves.

    [Mr X] who is the named victim in the armed robbery charge saw Ms Hamm there and asked her to leave. When he tried to pull her away from the service desk area she resisted and asked where the money was, while he was calling for a manager and another staff member were trying to push Ms Hamm out of the service desk area. The door was locked and then Ms Hamm produced the machete and said to [Mr X], as she approached him and pointed the machete at him, “do you want to get stabbed” and he moved away from her. She then went back to the service desk and broke the lock to force her way in. She went to the cash registers but was unable to gain access to the cash register draws [sic]. She took nine packets of cigarettes and put them in her backpack and that is the property which was taken in the robbery offence.

    She then left the service desk area and walked over to the register 10 where a young boy, [Mr Y] was working. He was 15 and he had only been working at Woolworths for three weeks. She pointed the machete at him and said,

    
    

    open the drawer. Get me the money.” She held the machete close to his shoulder and chest area while he tried to open the register. He was in a panic as he could not open a cash draw [sic] and he said, “I’m new here I don’t really know how to.” Ms Hamm said, “I’m not going to hurt you.”

    [Mr Z] began filming the incident on his mobile phone and that footage has been played in Court today. She then turned to him and said, “Drop the phone or I’ll cut your arm off” and began to chase him while holding the machete, and having seen the footage today, the phone was dropped after Ms Hamm said to [Mr Z] “drop the phone”.

    Ms Hamm went back to the register. [Mr Y] had left. She tried to open the register herself but was not able to do so. She walked out of the supermarket and was walking along the street towards the next supermarket on Military Road when she was wrested to the ground by members of the public who effected a citizen’s arrest. Then the police arrived. They took Ms Hamm to the police station and interviewed her and she said that she had taken “her scarf and her sunnies, emptied a bag and wrapped the handle and the machete in a longneck paper bag”. She said she went to the supermarket and she was then going to go to the next supermarket and try the same thing. That is the basis of the offence of being armed with intent to commit an indictable offence, based on that admission.

    She told the police she had schizophrenia, she had taken a lot of medication and she had also smoked ice that morning.

    She said she knew “leading up to these court cases”, which was a reference to some Local Court matters, she was going to gaol, she had some money to get some ice and she wanted to smoke some ice and say goodbye to her friends before she went to gaol.

    She said she “could have got deported, she had her mum’s ashes to lose, she had kittens that were going to be rehomed and it all got too much for her.”[10]

    [10] Exhibit R1 at 36-38.

    Conduct in custody

12. Ms Hamm was first imprisoned in July 2014.

13. Records produced by the NSW Department of Justice[11] show that Ms Hamm has been involved in a number of disciplinary incidents since October 2016. These have been accurately summarized on behalf of the Minister:

    [11] Exhibit R2 at 1-256.

    On 25 November 2016, the applicant is recorded as fighting with her cell mate [Exhibit R2 at 125].

    On 9 December 2016, the applicant is recorded as becoming very abusive at a staff member behind a roller shutter. The staff member attempted to roll down the shutter and the applicant thrust her hand through and attempted to grab the staff member. After the roller shutter was shut, the applicant began to punch the roller shutter [Exhibit R2 at 9].

    On 18 January 2017, the applicant was reportedly in an altercation with another inmate [Exhibit R2 at 126].

    The applicant was reportedly abusive towards corrections officers on 24 January 2017 [Exhibit R2 at 15].

    On 4 April 2017, the applicant reportedly ripped a fridge door and broke a pedestal fan and was placed on a 14 day segregation order [Exhibit R2 at 22, 128].

    On 24 April 2017, the applicant was reported breaking a lock on a gate and aiming a fire hose at correction staff and hosed them down and was subject to a 14 day segregation order [Exhibit R2 at 25, 129].

    On 26 April 2017, the applicant reportedly became aggressive and destroyed her health files [Exhibit R2 at 26].

    On 20 June 2017, the applicant was reported to have destroyed a significant amount of property in her unit when some of her pencils were stolen [Exhibit R2 at 37, 133].

    On 28 July 2017, the applicant became verbally aggressive toward a member of the Justice Health nursing staff [Exhibit R2 at 47].

    On 5 August 2017, the applicant is reported to have insulted two other inmates, and was then locked in her cell, causing her to tell a corrections officer she was going to cut his head off, kicking the doors and covering the security camera [Exhibit R2 at 50].The applicant was then put on a 12.9 management order [Exhibit R2 at 51].

    On 6 August 2017, the applicant threatened a custodial officer’s children and threatened to cut his head off [Exhibit R2 at 51]. The applicant was sentenced to 7 days ‘good behaviour’ for the offence of intimidating [Exhibit R2 at 120].

    On 6 September 2017, the applicant is reported to have threatened to kill another inmate [Exhibit R2 at 62].

    On 10 September 2017, the applicant was engaged in a fight with another inmate [Exhibit R2 at 132]. The applicant was sentenced to 3 days in cells for fighting for this [Exhibit R2 at 120].

    On 23 November 2017, the applicant threatened to kill a corrections officer [Exhibit R2 at 88].

    On 22 December 2017 the applicant threatened a corrections officer using offensive language [Exhibit R2 at 95].

    On 15 February 2018, the applicant was sentenced to 3 days in cells for possessing a drug implement [Exhibit R2 at 120, 136].

    On 12 April 2018, the applicant was directed to spend 7 days in cells for stealing [Exhibit R2 at 126].[12]

    Ms Hamm does not dispute these incidents occurred. She describes them as being the result of “outbursts” on her part.[13]

    [12] Respondent’s Statement of Facts, Issues and Contentions filed 3 October 2018 at [10.1]-[10.17].

    [13] Transcript 15/10/18.

14. Ms Hamm was interviewed by a Community Corrections Staff Member in May 2018. Ms Hamm said that she had a long history of ice and cannabis use and was using daily from the time she was thirty until her arrest in October 2016. She started injecting ice while in prison and admitted to using methadone and ice in custody until May 2018. Ms Hamm denied any illegal drug use at the time of the interview. She had commenced the Intensive Drug and Alcohol Treatment Program program but had been discharged by reason of her poor behaviour.[14]

    [14] Exhibit R2 at 107.

    Failure to pass the character test

15. It is not in dispute that, by reason of her criminal record, Ms Hamm does not pass the “character test” set out in the Migration Act 1958 (Cth).

    PART C: RELEVANT LEGISLATION

16. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

    (3A)The Minister must cancel a visa that has been granted to a person if:

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

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

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

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

    This mandatory cancellation decision is referred to later in the Act as “the original decision”.

17. Subsection 501(7)(c) provides:

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

    …

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

18. Subsection 501CA(3) provides:

    (3)  As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

19. Subsection 501CA(4) provides:

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

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

    (b)the Minister is satisfied:

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

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

20. The power of the Tribunal to review the decision to refuse to revoke the cancellation of Ms Hamm’s visa is provided by section 500 of the Act.

    PART D: DIRECTION NO. 65

21. Under subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.

22. Subparagraph 6.1(3) of the Direction provides, in part:

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

23. Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”

24. Under the heading General Guidance, subparagraph (1) provides:

    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.

25. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of Ms Hamm’s visa will be revoked.

26. In paragraph 6.3 the Minister sets out the principles that provide the framework with which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:

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

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

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

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

1. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[15] Primary considerations should generally be given greater weight than the other considerations.[16]

   [15] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [6.2(3)], [8(1)].

   [16] Ibid at [8(4)].

2. Paragraph 13(2) provides:

   In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

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

   b)The best interests of minor children in Australia;

   c)Expectations of the Australian community.

3. Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:

   In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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.

   PART E: THE ISSUE FOR DETERMINATION

4. I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 19). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.

5. It is not in dispute that Ms Hamm has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that she does not pass the character test in subparagraph (b)(i) of the subsection. It is, therefore, necessary to decide whether “there is another reason [i.e. other than Ms Hamm passing the character test] why the original decision should be revoked.”[17]

   [17] Migration Act 1958 (Cth) s 501CA(4)(b)(ii).

6. If I am satisfied of all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[18]

   [18] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].

   PART F: REASONING

   F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

7. I must have regard to matters set out in paragraph 13.1, which include:

   ·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;

   ·[t]he nature and seriousness of the non-citizen’s conduct to date;

   ·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[19]

   [19] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

   F1.1: The nature and seriousness of Ms Hamm’s conduct to date

8. Ms Hamm’s conduct includes violent offending (including robbery, assaulting an officer in the execution of duty, and assault occasioning actual bodily harm) and property, drug and driving offences. In addition, she engaged in violence and drug use while in prison which included:

   ·11/01/2015 – intimidation, 3 days cells

   ·12/01/2015 – disobey direction, fight or other physical combat, 6 days cells

   ·25/11/2016 – fight or other physical combat, 5 days cells.[20]

   [20] Exhibit R1 at 87.

9. Ms Hamm’s conduct must be regarded as extremely serious.

   F1.2: The risk to the Australian community should Ms Hamm commit further offences or engage in other serious conduct

10. Direction No. 65 states that I “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.”[21]

    [21] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [13.1.2(1)].

11. There are also considerations to which regard must be had cumulatively:

    (a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[22]

    [22] Ibid at [13.1.2(2)].

    The nature of future harm

12. In view of the seriousness of Ms Hamm’s conduct and in line with the principle stated above, the Australian community’s tolerance for the risk of any harm which may come of future misconduct by Ms Hamm is low. Should Ms Hamm further engage in such conduct, there would be a significant risk of serious physical harm to members of the community and loss of property arising from offences such as burglary. The offences would cause uncertainty and concern in the community in which they were committed.

13. I conclude that the nature of future harm should Ms Hamm continue to engage in conduct such as that in which she has already engaged, is serious.

    The likelihood of Ms Hamm engaging in further criminal or other serious conduct

    Ms Hamm’s evidence

14. When she gave evidence at the hearing Ms Hamm confirmed the representations she made to the Minister when she sought to have the cancellation of her visa revoked.

15. In the Personal Circumstances Form signed by Ms Hamm on 15 February 2017,[23] she stated:

    [23] Exhibit R1 at 64.

    What do you think is the likelihood that you may re-offend now? Please give reasons for your answer

    I would never re-offend again, knowing now that this is what happens. I just wished my mum was more involved with the laws and becoming an Australian or told me what my visa was and what it meant? If given the opportunity to remain in Australia I’d stay away from people who steal, do drugs and commit crime.

    Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates

    Whilst in prison I’ve completed the OH&S course and the Hygiene Operations Course. I also did the 2016 Offender Services & Programs – Painting & Drawing Competition. I’m in the Care Navigation Support Program for Health. I study with the Emmaus School I’ve done the Stop C program. I’m waiting for reply from the IDAPT program. WDO order WIPAN and Prisoner Fellowship.

    …

    Risks of Re-Offending

    Things that were causing me to offend are:

    -    Friends

    -    Family

    -    Alcohol

    -    Drugs

    -    Money

    -    Mental Health

    I have only two good friends whom I will keep company with as they do not take drugs or alcohol or commit crime, my friends are aware of my mental illness and support me mentally, emotionally and socially.

    I receive government payments and will no longer due to drugs and anti-social behaviour need to steal or take things without paying. Also I will have adequate housing upon release from Housing NSW.

    My mental health has been stable however I am taking a new anti-psychotic medication by injection that seems to keeping my mood and anxiety at bay.

    I suffer from depression and find it hard to break-free of my depressing thoughts however I still feel hopeful and try to be confident as much as I can by doing good things like helping others, going to the library and doing education.[24]

    [24] Exhibit R1 at 72 and 85.

16. Since submitting this form Ms Hamm has completed the following courses while in prison:

    ·Theory in Hygiene Operations;[25] and

    ·Courses in English and Mathematics.

    [25] Exhibit R1 at 100.

17. At the time of the hearing Ms Hamm was waiting to begin the Intensive Drug and Alcohol Treatment Program and the EQUIP course, which deals with addiction and aggression.

18. Ms Hamm expressed remorse for her past conduct. On several occasions she referred to the benefit of courses she has been able to undertake and the support of her friends and family as factors which will assist her not to re-offend.

    Report of Dr Furst, Consultant Forensic Psychiatrist, 19 October 2017[26]

    [26] Exhibit R1 at 161.

19. Dr Furst assessed Ms Hamm in the latter half of 2017, prior to her being sentenced in respect of the robbery and other offences committed in October 2016.

20. Dr Furst reported, in part:

    DIAGNOSIS (DSM-5)

    Ms Hamm meets criteria for the following diagnoses:

    oSchizophrenia

    oSubstance Use Disorder (methyl-amphetamines)

    …

    Ms Hamm also has a history of abusing ‘ice’, previous heavy alcohol and cannabis abuse in her teens and drug-related offending consistent with a substance use disorder.

    …

    She has continued to struggle with intermittent symptoms of psychosis, homelessness, impaired psychosocial function, addiction to drugs of abuse, especially ‘ice’, and declining intellectual/cognitive function over recent years.

    …

    She was anxious and took ‘ice’ and Xanax earlier [on the day of the robbery offences] to alleviate her anxiety, suggesting that she was intoxicated to some degree at the time of the offending.

    …

    In my opinion, Ms Hamm’s actions were purposeful and goal directed and it was evident that she was aware of her actions and their wrongfulness, notwithstanding her schizophrenic illness and any level of intoxication she may have been experiencing at the time.

    …

    In my opinion, the most likely explanation for her robbery and related offences was for financial gain and to support her addiction to the drug ‘ice’. There were no indications that she was under instructions for her hallucinations or that she was delusional about the victim.

    …

    PROGNOSIS

    Ms Hamm has evidence of a serious mental illness in the form of schizophrenia, a condition that is chronic in nature. She also has a history of substance abuse, especially methyl-amphetamine dependence. She will require ongoing assertive psychiatric treatment when released from custody over the medium to longer term to address her treatment needs.

    She would benefit from the assertive psychiatric follow-up and counselling recommendations outlined above, as she is at the risk of having further relapses of her illness if not adequately treated. Such measures would also reduce her risk of re-offending.[27]

    [27] Exhibit R1 at 171-174.

21. Dr Furst also reported:

    Her more recent relapse into using drugs around two years ago took place in the context of meeting up with friends through ‘Facebook’ who were using ‘ice’, which Ms Hamm also used. She was incarcerated for a period and was managed in the Mental Health Screening Unit (MHSU) at Silverwater Women’s Correctional Centre, being released from custody in April 2015 and having follow-up through the Queenscliff Community Mental Health Service.

    …

    She had a further relapse of using ‘ice’ from either December 2015 or January 2016, again in the context of ‘seeing old friends’. Ms Hamm said her use of ‘ice’ in 2016 was irregular at first, using relatively small amounts of 0.1g every 1-2 weeks. Her use then increased to around 0.5g every fortnight or so.[28]

    [28] Exhibit R1 at 163-164.

    Sentencing remarks as to prospects of rehabilitation

22. In October 2017, when sentencing Ms Hamm for robbery and related offences, Judge Sweeney observed, in part:

    I find special circumstances to reduce the non-parole period from the statutory ratio in Ms Hamm’s need for intensive supervision when she is released from custody, in terms of helping her to rehabilitate herself in terms of her drug addiction, to manage her mental health and in terms of life skills and accommodation.[29]

    [29] Exhibit R1 at 42.

    Discussion

23. Taking all the above factors into account, I have reached the conclusion that there is a significant risk that Ms Hamm will continue to engage in criminal or other serious conduct of the type she has engaged in previously should she return to live in the Australian community.

24. By reason of the seriousness of the potential harm to the community should Ms Hamm re-offend, the community’s tolerance of the risk of such harm is low.

25. I am satisfied that it is likely Ms Hamm will have some professional assistance should she be able to return to the Australian community. The extent of support from family and friends is uncertain. Ms Hamm said that she was now unsure of the support being offered by friends. I provided her the opportunity to submit further statements of support from family and friends, but at the time of publication of these reasons no statements had been received by the Tribunal.

26. I take into account the observation of the Court in October 2017 that Ms Hamm will need “intensive supervision” on her release from custody. I am not satisfied that such support will be available to her. Although she has had the benefit of some courses aimed at rehabilitation whilst in custody, I have no evidence as to the effectiveness of these courses. There is a risk that Ms Hamm will again resort to the abuse of drugs when she is faced with the stresses of returning to live in the community. The effectiveness of the support likely to be available and Ms Hamm’s resolve not to re-offend are yet to be tested in the Australian community.

27. In these circumstances I am satisfied that the need to protect the Australian community from the effects of serious misconduct such as that in which Ms Hamm has engaged, weighs heavily in favour of not revoking the cancellation of Ms Hamm’s visa.

    F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

28. When asked as to any minor children in Australia who may be affected by a decision as to her visa, Ms Hamm referred to two nieces aged about ten and four and two teenage nephews. She has regular contact with their parents but she did not believe they would be affected should she return to live in New Zealand.

    F3: Primary Consideration 3: Expectations of the Australian community

29. Clause 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

30. In YNQY v Minister for Immigration and Border Protection[30] the Federal Court said, in part:

    In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[31]

    [30] [2017] FCA 1466.

    [31] Ibid at [76].

31. I have no evidence to enable me to determine the expectations of the Australian community in this matter. Nevertheless, for the reasons set out by the Court, I find that these expectations weigh against the revocation of the cancellation decision.

    F4: Other considerations

32. Clause 14 of the Direction provides:

    (1)  In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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.

    International non-refoulement obligations

33. There is no evidence to suggest that Australia has any non-refoulement obligations which are relevant to this application.

    Strength, nature and duration of ties to Australia

34. Clause 14.2 of the Direction provides:

    (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

35. Ms Hamm has lived in Australia for most of her life. She undertook most of her schooling here. I am satisfied that she regards Australia as her home and has done so for a long time. However, she began offending as a minor and her first appearance in an adult court took place when she was only 19 years old.

36. Ms Hamm has worked in various occupations when she was not in prison. In her Personal Circumstances Form dated 15 February 2017,[32] she disclosed that at various times between 1998 and 2014 she worked as a kitchen hand, an assistant nurse, a packer and store assistant. When working she did make a positive contribution to the Australian community by way of the services she provided and the tax she paid on her income. She has also had some employment while in prison.

    [32] Exhibit R1 at 64.

37. Ms Hamm has two aunts, four nieces and nephews and two cousins who are permanent residents of Australia. I accept her evidence that she has regular contact with her family members. However, on the evidence before me I am not satisfied that Ms Hamm has a close relationship with any of these family members. In February 2017 she wrote that “we all haven’t really kept much contact but with thanks to Facebook it has been easier making contact and talking more often.”[33]

    [33] Exhibit R1 at 87.

    Impact on Australian business interests

38. I am satisfied that a decision not to revoke the cancellation of Ms Hamm's visa will not have a relevant impact on Australian business interests.

    Impact on victims

39. I do not have sufficient evidence to assess the extent of the impact of Ms Hamm’s behaviour on the victims of her criminal conduct, other than that I am satisfied that the victims of her crimes variously suffered physical injury, emotional distress, and financial loss.

    Extent of impediments Ms Hamm may face if she is removed from Australia

    Health

1. Based on the evidence of Ms Hamm and the report of Dr Furst, I am satisfied that Ms Hamm suffers from chronic schizophrenia for which she is receiving treatment by way of medication. She also has a history of drug abuse for which she has received some counselling. I cannot be satisfied as to the effectiveness of this treatment.

   Employment and Housing

2. Ms Hamm confirmed the following in her Personal Circumstances Form:

   Do you have any concerns or fear’s about what would happen to you on return to your country of citizenship?

   If yes, please describe your concerns and what you think will happen to you if you return.

   Being able to find a job with my lack of qualifications, support from my family. The culture and community. Housing and Welfare.

   Are there any other problems you would face if you have to return to your country of citizenship?

   No – I don’t think so, however financially I have no money or job. I’ll need to apply for housing or temp accomadation [sic], I’d need to live close to my doctor for my injections. I’ll need to get my drivers liscence [sic] and I’ll need to save money so I can get my mums ashes urn sent from: Aus-NZ.[34]

   [34] Exhibit R1 at 74-75.

   PART G: THE BALANCING EXERCISE

3. The nature and seriousness of Ms Hamm’s conduct and the seriousness of the harm which would be caused to members of the community should she re-offend are factors which weigh very heavily against revoking the cancellation of her visa. The weight of these considerations is increased by the fact that I am satisfied that there is a significant risk of her repeating her criminal conduct.

4. No doubt many of the offences committed by Ms Hamm were in part a result of her problems with drugs and alcohol. I take into account that she has received some counselling in prison; the extent and effectiveness of this counselling is unknown.

5. The considerations which do weigh in favour of revoking the cancellation of Ms Hamm’s visa are her residency in Australia from a young age, the impediments she will face if she returns to New Zealand, and the effect on her family members.

6. There is no doubt that Ms Hamm will face some difficulties in adjusting to life in New Zealand, particularly in finding accommodation and employment. However, she would face similar issues should she return to live in the Australian community on her release from prison. Although the support Ms Hamm may receive from family members (an aunt, an uncle and three cousins) in New Zealand is uncertain,[35] she does have family there which she will be able to contact.

   [35] Exhibit R1 at 71.

7. There is no evidence to suggest that Ms Hamm will face any substantial language or cultural barriers in New Zealand. Government supports for its citizens are similar to those in Australia.

8. Having considered all of the evidence, I have concluded that the need to protect the Australian community from criminal or other serious conduct such as that in which Ms Hamm has engaged outweighs the considerations in favour of revoking the cancellation of his visa. The risk that she may re-offend is such that it is unacceptable.

9. There is no other reason why the cancellation of Ms Hamm’s visa should be revoked.

   PART H: CONCLUSION

10. The reviewable decision made 1 August 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection, not to revoke the decision made 2 February 2017 to cancel Ms Hamm’s Class TY Subclass 444 Special Category (Temporary) visa, will be affirmed.

I certify that the preceding 75 (seventy–five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 24 October 2018

Date(s) of hearing:	15 October 2018
Applicant:	In person
Solicitors for the Respondent:	Australian Government Solicitor