Hampton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] ARTA 35

Hampton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 35 (24 October 2024)
Applicant/s: Chloe Jane Hampton
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Tribunal Number: 2024/5461

Tribunal:General Member Gallagher
Place:Perth
Date:24 October 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision of the Delegate dated 1 August 2024 to exercise the discretion not to revoke the cancellation of the Applicant’s Five Year Resident Return (Class BB) (subclass 155) visa pursuant to subsection 501(2) of the Migration Act 1958 (Cth) is revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

................................[SGD]..............................
General Member

CATCHWORDS
MIGRATION – decision of delegate of Minister to cancel visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 32 year old citizen of the United Kingdom – extent of impediments if returned to United Kingdom – non-revocation decision is set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(6L), 500(1)(b), 500(6B), 501, 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 501G, 503
Misuse of Drugs Act 1981 (WA) ss 11(a)
CASES
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 450
FYBR v Minister for Home Affairs [2019] FCAFC 185
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
AJL20 v Commonwealth of Australia [2020] FCA 1305
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ss 5.1, 5.1(3), 5.1(4),5.2, 5.2(2), 5.2(3), 5.2(4), 5.2(6), 6, 8, 7.3, 8.1(1), 8.1(2), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.1.2(2)(c), 8.4(1), 8.4(2), 8.4(3), 8.4(4)(a)-(g), 8.4(4)(e), 8.5(1), 8.5(2), 8.5(2)(a)-(f), 8.5(3), 9, 9.2(a), 9.2(b), 9.2(c)
Austroads, Assessing Fitness to Drive for commercial and private vehicle drivers (2022)
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 1 August 2024, not to revoke the mandatory cancellation of her Five Year Resident Return (Class BB) (subclass 155) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) (the Reviewable Decision).[1]
[1] R2, G5.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal)[2] on 1 August 2024,[3] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
[2] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[3] R2, G2.
s 500(1)(b) of the Migration Act, which allows application to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 32-year-old citizen of United Kingdom.[4] The Applicant first arrived in Australia on 6 February 1999, at the age of six.[5]
[4] R2, G21, page 189.
[5] R2, G16, page 157.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, run on 25 September 2023[6] and a History for Court Report by the Western Australian Police Force complied on 22 August 2024.[7]
[6] R2, G7.
[7] R3, S1.
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s offending commenced in 2018 and continued until 2023. Notably:[8]
(a)On 26 February 2020, the Applicant was convicted of ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’ and sentenced to a term of imprisonment of two years.[9]
(b)On 31 August 2023, the Applicant was convicted of ‘Possession of a Prohibited Drug with Intent to Sell or Supply’ and sentenced to a term of imprisonment of two years.
[8] R2, G7, page 47.
[9] On the same date, the Applicant was also convicted of the further 14 remaining indictable offences resulting from police searches conducted in May and September 2018. The Applicant was sentenced to a total effective sentence of three years and six months’ imprisonment, backdated to 4 March 2019 (see R2, G11, p 78). On 2 December 2020 (A1, [30]), the Applicant was released from prison on parole after having served approximately 22 months of her sentence.
Present proceedings
On 16 June 2015, the Applicant was granted the visa.[10]
[10] R2, G12, page 81.
On 20 April 2020, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act.[11]
[11] R2, G12.
On the same day, the Applicant requested revocation of the mandatory visa cancellation.[12]
[12] R2, G14.
On 29 June 2020, the Applicant was notified that a delegate of the Minister had decided to revoke the cancellation of the visa.[13] The notification letter included a formal warning that further offending conduct could result in the Applicant’s removal from Australia.[14]
[13] R2, G13.
[14] R2, G13, page 87.
Following her conviction on 31 August 2023,[15] the Applicant was sentenced to a term of imprisonment of two years, concurrent from 4 September 2022.[16]
[15] See [6(b)] above.
[16] R2, G7, p 47.
On 8 September 2023, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was 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 of Territory (the Cancellation Decision).[17] The Applicant was notified of that decision by letter of the same date for delivery by hand at Melaleuca Women’s Prison.
[17] R2, G10.
On 10 September 2023, the Applicant made a request for revocation of the Cancellation Decision.[18]
[18] R2, G18.
On 22 September 2023, the Applicant made representations to the Delegate in support of her request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[19]
[19] R2, G45.
On 7 November 2023, the Applicant was released from prison and transferred to Perth Immigration Detention Centre.[20]
[20] A1, [46].
On 1 August 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[21]
[21] See [1] above.
On the same day, the Applicant was notified of the Reviewable Decision[22] and lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[23]
[22] R2, G4, page 24.
[23] R2, G2.
The Applicant is currently at Perth Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)If the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[24]
LEGISLATIVE FRAMEWORK
[24] See s 501CA(4) of the Migration Act.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(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; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[25] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[25] Section 501CA(3) of the Migration Act.
Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.
THE HEARING AND THE EVIDENCE
The hearing was held on 1 October and 2 October 2024 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person. The Applicant was represented by Mr Louis Martin of Estrin Saul Lawyers, who also appeared in person. The Respondent was represented by Ms Felicidade Lay of Minter Ellison, who appeared by Microsoft Teams.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from:
(a)Mr James Speck, the Applicant’s former partner;
(b)Ms Anne Te Nahu, Director, Alianna Nexus;
(c)Ms Mandy Hampton, the Applicant’s mother; and
(d)Mr Colin Hampton, the Applicant’s father.
The Tribunal admitted the following documents into evidence:
·     Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 18 September 2024 and filed 19 September 2024 (Exhibit A1);
·     Applicant’s Bundle of Evidence, filed 19 September 2024 (Exhibit A2);
·     Applicant’s Supplementary Bundle of Evidence, filed 26 September 2024 (Exhibit A3);
·     Respondent’s SFIC dated and filed 5 September 2024 (Exhibit R1);
·     Respondent’s G-Documents, being a set of documents numbered G1 to G52, filed 9 August 2024 (Exhibit R2);
·     Respondent’s Supplementary G-Documents, being a set of documents numbered S1 to S66, filed 5 September 2024 (Exhibit R3); and
·     Respondent’s Further Supplementary G documents, being a set of documents numbered S67 to S84 (Exhibit R4).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts. At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction No. 110), in their oral closing submissions.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[26] Failure to pass the character test arises as a matter of law.[27]
[26] Section 501(7)(c) of the Migration Act.
[27] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As noted above, on 31 August 2023, the Applicant was convicted of ‘Possession of Prohibited Drugs with Intent to Sell or Supply (Methylamphetamine)’ and received a sentence of two years’ imprisonment.[28]
[28] See [6(b)] above.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, she does not pass the character test by operation of s 501(7)(c) of the Migration Act.[29]
[29] The parties accept this is the case (A1 [50]; R1 [10] and transcript, page 6).
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[30]
[30] See s 501CA(4)(b)(i) of the Migration Act.
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[31]
[31] Section 501CA(4)(b)(ii) of the Migration Act.
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[32]
[32] See [38] to [44] below.
Direction No. 110
On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No. 99 and was in force at the time the Reviewable Decision was made.
An objective of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[33] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 110 where relevant to the decision.[34]
[33] Direction No. 110 para 5.1(4).
[34] Direction No. 110 section 6 referring to sections 8 and 9.
Paragraph 5.1 of Direction No. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

In making a decision under s 501CA(4) of the Migration Act, the ‘primary considerations’ to be taken into account by the Tribunal are:[35]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged in by the Applicant (if any);
(c)the strength, nature and duration of the Applicants ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[35] Direction No. 110 section 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[36]
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
[36] Direction No. 110 section 9.
Further guidance as to how a decision-maker is to apply the considerations in Direction No. 110 can be found in section 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In her application for review, the Applicant claimed that the Reviewable Decision is unjust, that her case has not been fairly considered and her circumstances have not been appropriately considered.[37]
[37] R2, G2, page 9.
The Applicant contended that the Cancellation Decision should be revoked for reason of:[38]
(a)the Applicant’s low risk of reoffending;
(b)the Applicant’s demonstrated commitment to rehabilitation and sobriety;
(c)the Applicant’s mental health diagnoses and compliance with her mental health plan;
(d)the Applicant’s family in Australia and the impact on these family members if she was to be removed, and in particular the impact on her Australian children;
(e)the length of time the Applicant has resided in Australia and her substantial ties to Australia;
(f)the best interests of the Applicant’s three minor Australian citizen children; and
(g)the significant impediments the Applicant would face in relocating to the United Kingdom.
[38] A1, [53].
The Respondent contended that the Tribunal should not be satisfied that there is another reason why the Cancellation Decision should be revoked.[39]
[39] R1, [15].
In the present matter, the parties agree on which considerations weigh in favour of revocation of the Cancellation Decision and which considerations weigh against. However, the parties differ as to the weight to be to be afforded to each of those considerations, in particular:
(a)Protection of the Australian community – The parties agree that the Applicant’s offences are very serious in nature.
(i)The Respondent contended that the Applicant poses an unacceptable risk of reoffending. The Respondent contended that weight should be given to the fact that the Applicant reoffended shortly after being released from prison and also after receiving a formal warning June 2020 that any further reoffending will put her visa status at risk in Australia.[40]
(ii)The Applicant contended that the Applicant’s conduct, while very serious, doesn’t fall within the category of offending where any risk of it being repeated in unacceptable. The Applicant contends that rather, given the Applicant’s extensive rehabilitation efforts and significant changes to her personal circumstances in the context of her mental health, she poses a low risk of reoffending and that low level of risk is acceptable.[41]
(b)Expectations of the Australian community - The parties agreed that the expectations of the Australian community weighs against revocation, however they disagree as to the weight to be afforded to this primary consideration.
(i)The Applicant contended that, in light of her low risk of reoffending and her targeted rehabilitation, less weight should be attributed to this consideration.[42]
(ii)The Respondent disagreed and contended that given the Applicant’s high number of offences, being a repeat offender, and also the negative impact the drug has on the community, that the Australian community would expect that her visa remains cancelled in these circumstances.[43]
(c)Strength, nature and duration of ties to Australia and best interests of minor children in Australia affected by the decision – The Applicant contended that these two primary considerations outweigh all other considerations that weigh against revocation of the Cancellation Decision.[44] The Respondent disagreed and submitted the Tribunal ought to give consideration to the negative impact and the trauma that the Applicant’s conduct has had on her children and the impact of any likely future conduct will have on them.[45]
[40] Transcript, page 7.
[41] See A1 [59].
[42] A1, [154].
[43] R1, [53].
[44] A1, [132] and [151].
[45] R1, [41] and [51].
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community.
Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[46]
[46] See also Direction No. 110 para 8(1).
Paragraph 8.1(2) of Direction No. 110 then provides that 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.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[47] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[48]
[47] For completeness, the Tribunal notes there is no ‘other conduct’ to date that falls for consideration in this matter.
[48] Direction No. 110 para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction No. 110 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i        violent and/or sexual crimes;
ii       crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii      acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i        causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii       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;
iii      any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv      where the non-citizen is in Australia, 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
e)the frequency of the non-citizen's offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In relation to the nature and seriousness of the Applicant’s conduct, the Applicant submitted that:[49]
(a)The nature of the Applicant’s offence for which she was convicted on 31 August 2023 and her prior offending do not fall within the specific forms of offending deemed very serious under para 8.1.1(a) of Direction No. 110.
(b)The Applicant nonetheless accepts that her offending is serious and that this is reflected in the term of imprisonment imposed and in the sentencing remarks.[50]
(c)The Applicant also accepts that:
(i)the seriousness of the Applicant’s offending is aggravated by the fact that she was on parole when she offended.
(ii)reoffending after receiving a formal warning from the Department is very serious and that this must weigh against revocation. Without excusing the Applicant’s conduct, the Applicant’s two offences committed following the decision in June 2020 to revoke her previous visa cancellation[51] represented temporary relapses in her sobriety, rather than a return to the same pattern of offending behaviour which led to the mandatory cancellation of the visa in April 2020.
[49] See A1, pages 7 and 8.
[50] See [60] and [61] below.
[51] See [10] above.
The Applicant also submitted that the seriousness of the Applicant offending is mitigated by a number of factors:
(a)The offence for which the Applicant was convicted on 31 August 2023, being ‘Possession of Prohibited Drugs with Intent to Sell or Supply’ carries a maximum penalty of 25 years’ imprisonment. The Applicant was sentenced to two years imprisonment for this offence, backdated and with eligibility for parole, representing less than 14% of the maximum penalty that could have been imposed and was therefore at the lower end of the spectrum for that offence. In sentencing the Applicant, it is also clear that the District Court put significant weight on general deterrence.[52]
(b)The offence for which the Applicant was convicted on 31 August 2023 does not indicate a trend of increasing seriousness, there is no trend of increasing seriousness of offending generally nor is there a frequency of offending. Following her release from prison on parole on 2 December 2020, the Applicant resided in the community without offending for over 12 months. This most recent offending occurred 18 months after she was released from prison and in the context of her prior offending history, should be viewed as an outlier.
(c)The charge of ‘Possession of Prohibited Drugs with Intent to Sell or Supply’ was proffered by police because the Applicant possessed a quantity of methylamphetamine that gave rise to a presumption of intent to sell or supply pursuant to a 11(a) of the Misuse of Drugs Act 1981 (WA). This offence did not involve an element of commerciality. The Applicant was acting as a courier, and this was identified as less serious than offences involving commerciality.
(d)In an eight-month period between February 2018 and September 2018, the Applicant committed a number of predominantly drug-related offences with charges arising after police searches of her phone and properties. This offending represents the high water-mark of the Applicant’s criminal history. The lower-level offending was dealt with summarily in the Perth Magistrates Court on 29 November 2019, with the Applicant penalised by way of fines. The remaining charges were dealt with on 26 February 2020 and 31 August 2023.[53] The Applicant accepts the seriousness of this offending noting that a term of imprisonment was imposed, and that the offences were committed while she was on bail for earlier offending. Judge Glancy noted that beyond the issue of offending on bail, there was nothing that further aggravated the Applicant’s offending.
[52] R2, G5, p 53.
[53] See [6] above.
In relation to the nature and seriousness of the Applicant’s conduct, the Respondent. submitted that:[54]
(a)The Applicant’s offending history, which mainly involves drug related offences, is objectively very serious, given the number of offences over a short period of time.
(b)The Applicant has been found guilty of 16 offences between 26 February 2020 and 31 August 2023,[55] which is a high frequency of offending, and clearly demonstrates a tendency for disregard of Australian laws.
(c)Adverse weight should be placed on the fact that the Applicant re-offended on 31 July 2018 and 4 September 2018 while she was on bail for earlier offences, after receiving an official warning on 29 June 2020, and after being released from prison.[56]
(d)The Applicant’s repeated conduct has resulted in a significant diversion of police and court resources, and has come at the cost to the wider Australian community, including the furthering of the illicit drugs trade.[57]
(e)The two year prison sentence imposed by the court for the offending of ‘Possession of a Prohibited Drug with Intent to Sell or Supply’ on 31 August 2023, and the total sentence of two years imprisonment for the various offences on 26 February 2020, are significant, and reflects the seriousness of the repeated offending, as terms of imprisonment are the last resort in the sentencing hierarchy.[58]
(f)The Tribunal should place no weight on offences where no conviction is recorded, namely those considered before the Rockingham, Armadale and Perth Magistrates Courts.[59]
(g)However, it is open for the Tribunal to consider the underlying conduct of these offences, as they demonstrate a clear disregard for Australian laws and the safety of the Australian community. The Tribunal should place adverse weight on the conduct underlying the Applicant’s findings in relation to a number of offences as they demonstrate that the Applicant continued to engage in conduct that places the safety of other road users at risk.[60] The two convictions for ‘driving with prescribed illicit drug’ occurred on 26 August 2021 and 16 March 2022, when the Applicant was stopped by the police when she was driving, and her blood and oral fluid tests showed positive for methylamphetamine.[61]
(h)The nature of the harm from a repeat of such conduct places the broader community at risk, as drivers driving under the influence of drugs are ‘more likely to behave in a manner incompatible with safe driving.’[62]
[54] R1 [17], [22] to [26].
[55] See R2, G7, p 47.
[56] Referring to Direction No. 110 para 8.1.1(1)(e) and (h).
[57] Referring to Direction No. 110 para 8.1.1(1)(f).
[58] Referring to Direction No. 110 para 8.1.1(1)(c).
[59] See Annexure A.
[60] Referring to the Applicant’s charges of ‘no authority to drives (fines suspended) on 10 July 2018 and two charges of ‘driving with prescribed illicit drug’ on 8 February 2022 and 13 June 2022.
[61] See R3, S3, pages 40 to 41 and transcript, pages 7 and 8.
[62] Citing Austroads, Assessing Fitness to Drive, page 191.
The Tribunal has considered the parties submissions in relation to the nature and serious of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction No. 110.
The Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed. In particular, on 26 February 2020, the Applicant was found guilty of 15 offences, which resulted in a total effective sentence of three years and six months’ imprisonment[63] and occurred between 3 February 2018 and 4 September 2018.[64]
[63] See Annexure A and [6] above.
[64] R3, S1, pp 1 to 4. The circumstances of the offending are detailed at R3, S1 to S4 and R2, G11.
Most recently in August 2023, the Applicant was given a term of two years imprisonment, having been found guilty of 'possession of prohibited drugs with intent to sell or supply', and was given a term of imprisonment of 2 years, concurrent from 4 September 2022.[65] The circumstances of this offending are:[66]
(a)On 9 June 2022, the police intercepted the Applicant while she was driving. During a search of the vehicle, a small black purse fell out from a jacket that the Applicant was carrying. The purse was searched and police located multiple empty clip seal bags within the purse, with two clip seal bags containing a white crystal substance.
(b)Analysis of the two bags gave a positive reading for methylamphetamine, weighing a total of 14.31 grams.
(c)The Applicant declined to participate in an electronic record of interview.
[65] See Annexure A; R2, G7, page 47.
[66] R3, S3, page 43.
In the Sentencing Remarks of the District Court of WA on 26 February 2020, his Honour Judge Glancy stated that:[67]
[67] R2, G11.
…[I]n summary, on 5 May 2018, police searched your home…your phone was examined and messages on it indicate that you had made numerous offers to sell methylamphetamine to others via text messages or Facebook…
During the search of your bedroom on 5 May, police also located numerous quantities of methylamphetamine which, in total, came to 19.19 grams…They also located clipseal bags and digital scales, glass smoking implements and tick lists.
…
…[A]ll offences involving drug dealing are serious. Offences involving methylamphetamine are particularly serious because methylamphetamine are particularly serious because methylamphetamine is, as you would be well aware, such a problem in our society.
…
So you were found in actual possession of 24.66 grams of methylamphetamine. So that’s a significant quantity when we add it all together, but it’s certainly not an exceptionally large quantity and in fact, the most that you had in any of the searches was 19.19 grams.
…
[I] need to look at aggravating factors and counts 11 to 15[68] were aggravated or made more serious by the fact that you were on bail for earlier offences.
…So with all of that in mind it’s the usual case that a term of imprisonment is the sentence which is imposed for this kind of offending. So even in the case of commerciality, and as you know, I found in your case that there was commerciality, and even where there was a small quantity of drugs involved.
[68] The details of which are summarised at R2, G11, pages 65 and 66.

In relation to the Applicant’s offence, ‘Possession of a Prohibited Drug with Intent to Sell or Supply’ for which she was convicted on 31 August 2023 his Honour Judge Troy remarked in sentencing that:[69]
I’m content to sentence you as a courier but the important and trust role of a courier within drug dealing generally has been well-known and acknowledged in a number of appellate cases. So whilst it perhaps is not as serious as a person who is simply dealing commercially in their own one-person operation, it nonetheless is a serious part of the drug-dealing world in general.
…
Clearly there was some potential gain that you saw in involving yourself as a courier in this enterprise.
…
I’m prepared to accept that you are generally remorseful. Your prior criminal record doesn’t aggravate your offending but it does mean that you don’t have the mitigation of good character and it underscores the need to give weight to the objectives of punishment, protection of the public and, in particular, personal deterrence. Importantly, you were on parole at the time and the fact that that is an aggravating factor is set out in a number of cases…
[69] R2, G9.
His Honour also noted that the Applicant was on parole when she offended, which was an aggravating factor in her sentencing, notwithstanding the Applicant’s time spent in custody, the seriousness of the offending warranted a term of imprisonment.[70]
[70] R2, G9, page 54.
The Tribunal has also considered the Applicant’s expressed views in writing and at the hearing regarding the circumstances of her offending conduct, including:
(a)On 9 June 2022, having had the realisation that she could not afford to pay her family lawyer to assist her application for custody of her eldest daughter and her son, the Applicant panicked and made the decision to seek a loan from a former acquaintance. The Applicant agreed to an arrangement whereby she would drop methamphetamines to a location and be permitted to keep the money from the sale to pay her family lawyer. On the same day, the Applicant was pulled over by police and found in possession of 14 grams of methamphetamine, for which she was charged with ‘Possession of a Prohibited Drug with Intent to Sell or Supply.’ [71]
(b)The Applicant felt that she could not ask her family for him in this situation given the shame she felt regarding her situation.[72]
(c)Following the police raid in May 2018, she owed money for drugs and felt as though she had no choice but to continue selling methamphetamine.[73] Given the threats made and the fact that her older brother is a police officer, the Applicant at no point felt that she could go to police.[74]
(d)The Applicant is ashamed and embarrassed of, and deeply disappointed in, the choices she made, deeply regrets all the drug related behaviours in which she engaged and now realises the harm, she caused to herself and to others, including her loved ones.[75]
[71] A1 [42] and [43]; see also A2, page 8 [72] and [73] and transcript, pages 12 and 18.
[72] Transcript, p 18.
[73] A2, page 3 [23].
[74] A2, page 3 [23].
[75] A2, page 3 [15] and [24] and page 8 [77].
In relation to para 8.1.1(1)(a) of Direction No. 110, the Tribunal finds that the Applicant’s offending is very serious. The parties’ consensus that the Applicant’s offending conduct should be viewed very seriously[76] is of sound basis, given their reliance on matters of the Applicant having reoffended after a formal warning, the high number of offences the Applicant committed over a short period of time and the fact her offending led to significant imprisonment sentence. The Tribunal notes in addition that the Applicant also reoffended after the earlier visa cancellation in 2020.
[76] See for example, transcript, pages 76, 77 and 78.
The Tribunal makes this finding irrespective of the fact that the Applicant’s criminal offending or other conduct does not fall squarely within the specific conduct referred to in paragraph 8.1.1 of Direction No. 110. It is not strictly required to. Indeed, paragraph 8.1.1(a) of Direction No. 110 makes clear that the range of conduct that may be considered ‘very serious,’ is not limited to the type of crimes or conduct expressly referred to in that paragraph.[77]
[77] Direction No. 110 para 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious,’ using the same prefix ‘without limiting the range of conduct that may be considered serious…’
The Tribunal has regard to the fact that the Applicant’s history of offending of several driving offences (including where she was driving with illicit drugs in her system, putting herself and other road users at risk)[78], which are serious crimes against other road users,[79] and numerous drug offences, which the Tribunal has also often cited as serious.[80] The repeated nature of the Applicant’s drug offences further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
[78] R1, G7, see offences on 13 June 2022 and 8 February 2022,
[79] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51] to [54].
[80] See for example Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753 at [75].
The Applicant’s offending involved conduct for which she was ultimately sentenced to terms of imprisonment each exceeding 12 months. This conduct forms the basis of the finding that the Applicant did not pass the character test,[81] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct.[82]
[81] Direction No. 110 para 8.1.1(1)(b)(iii).
[82] Direction No. 110 para 8.1.1(1)(c).
In considering para 8.1.1(1)(b) of Direction No. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage,[83] whether the crimes were committed against vulnerable members of the community or government representatives or officials[84] and any crime committed while in immigration detention.[85] None of the Applicant’s offending or other conduct falls within these categories, nor have the parties made claims in this regard.
[83] Direction No. 110 para 8.1.1(1)(b)(i).
[84] Direction No. 110 para 8.1.1(1)(b)(ii).
[85] Direction No. 110 para 8.1.1(1)(b)(iv).
The Applicant has been frequent in the Tribunal’s view, notwithstanding that the majority of it occurred in 2018,[86] and marked with a trend increasing seriousness in the sense that her most recent conviction attracted a second two year term of imprisonment because the nature of the offending was so serious that no other sentence in the circumstances would be justified.
[86] Direction No. 110 para 8.1.1(1)(e).
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent the Applicant committed a considerable number of offences) is a significant feature of the offending, culminating in part in a total effective sentence of three years and six months’ imprisonment^[87]
[87] Direction No. 110 para 8.1.1(1)(f). See fn 9 and [58].
The Applicant also reoffended since being formally warned about the consequences of further offending in terms of her migration status.[88]
[88] Direction No. 110 para 8.1.1(1)(h). See [10] above.
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(d), 8.1.1(1)(g) or 8.1.1(i) of Direction No. 110.
Overall, the Tribunal finds that, applying Direction No. 110, the Applicant has engaged in a range of drug and traffic offending. The Applicant has a substantial criminal record, involving considerable drug offending, which has escalated over time as evidenced by the terms of imprisonment ordered and the total effective sentences imposed.
Therefore, having regard to the evidence which paras 8.1.1 of Direction No. 110 are relevant and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No. 110 states, in part:[89]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[89] For completeness only, the Tribunal notes that Direction No. 110 para 8.1.2(2)(c) applies to matters involving a refusal to grant a visa to a non-citizen and does not apply to the present application.
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[90] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[91]
[90] Direction No. 110 para 8.1.2(2)(a).
[91] Direction No. 110 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[92]
[92] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[93]
[93] Direction No. 110 para 8.1.2(2)(a).
In relation to the nature of the harm to individuals or the Australian community should she reoffend, the Applicant submitted that:[94]
Overall, she accepts that the nature of the harm if she were to reoffend includes the availability and consumption of methamphetamine in the community, and consequential physical, mental and financial harm to members of the community as well as the other negative effects that flow from drug abuse in the Australian community.
While she accepts that the potential harm described above is serious, when viewed cumulatively, with the likelihood of reoffending, the risk posed to the Australian community is not unacceptable.
[94] A1 [75] and [76]; transcript, page 77.
The Respondent’s contentions in support of its position that any reoffending would have the potential to cause serious physical and/or psychological injury to members of the Australian community were:[95]
Further trafficking offences would expose the Australian community to harm arising from the commercialisation and consumption of illicit drugs.
In the sentencing remarks on 26 February 2020, Judge Glancy commented that methylamphetamine causes of materially contributed to a great deal of misery and a great deal of crime committed in the community, that there is a strong financial incentive to deal in prohibited drugs, and that a great deal of the public’s limited resources are spent on trying to detect and apprehend those who deal in prohibited drugs.[96]
[95] R1 [29]; transcript, pages 86 and 87.
[96] Referring to R2, G11, pages 75 to 76.
The Tribunal accepts that the Applicant has developed a level of insight that may be seen as remorse for her offending. Indeed, Judge Troy accepted she was genuinely remorseful.[97] The Tribunal also accepts that the Applicant understands the significant harm that would be caused to the Australian community should she engage in further offending.
[97] R2, G9, page 54.
However, the Applicant has a significant criminal history that involves considerable drug offending and traffic offending. In the Tribunal’s view, should the Applicant commit further similar offences, there is no doubt that this would clearly result in further very serious harm that may have a considerable and widespread physical, psychological and emotional impact on members of the Australian community, including the Applicant’s children and other family members.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if she were permitted to remain in the Australian community.[98]
[98] Direction No. 110 para 8.1.2(2)(b).
The Applicant maintains that she poses a low risk of reoffending for the following reasons:[99]
(a)she was able to live and work in the community for over 12 months before reoffending and over 18 months before committing the offence for which she was convicted on 31 August 2023;
(b)she has displayed genuine remorse for her offending conduct;
(c)she has made substantial efforts to rehabilitate and address the cause of her prior offending;
(d)she has received mental health diagnoses and is proactively managing her mental health;[100]
(e)she has extensive family and other support in the community; and
(f)she has the support of several community organisations to reintegrate and find employment if released.
[99] A1 [77].
[100] See also A1 [94].
Additionally, the Applicant submitted that:
(a)She has demonstrated genuine remorse for her offending behaviour, which was accepted by Judge Troy, noting that numerous Tribunal decisions have placed emphasis on a person’s expression of remorse as a way of demonstrating that an applicant has accepted responsibility.[101]
(b)Her guilty pleas indicate an acceptance of responsibility for her offending[102] and her statements demonstrate an insight into her offending.[103]
(c)The Applicant’s awareness of her precarious status in Australia should carry weight in assessing her risk of recidivism, this being the second time the visa has been mandatorily cancelled,[104] providing a level of deterrence additional to the impact already felt by the Applicant having served a second term of imprisonment, and having been detained for over 10 months in immigration detention.
(d)The Applicant has identified her struggles with illicit drug addiction, mental illness, financial instability and toxic relationships as contributing factors in her offending.[105] While detained in prison and immigration detention, the Applicant has used her time proactively and demonstrated she is extremely committed to addressing these issues.
(e)The Applicant has completed numerous courses, including in relation to addiction recovery and alcohol and drugs intervention, education courses to prepare for reintegration into the community and a number of other community programs and has sought support from a number of organisations who programs she is unable to access while in detention,[106] including Alianna Nexus.[107] Through the courses and counselling, the Applicant has developed techniques which enable her to walk away from unhealthy relationships in the future.[108]
(f)While detained, the Applicant has never relapsed, reoffended, or presented a character concern.[109] Whilst her rehabilitation has not been tested in the community since her last term of imprisonment, this does not mean her sobriety has been untested.[110]
(g)The Applicant’s family and friends have consistently supported her recovery since her first term of imprisonment and continue to do so,[111] including her father,[112] her mother,[113] Mr James Speck, her former partner[114] and Ms Anne Te Nahu, her friend.[115]
(h)The Applicant has viable employment options should she be released back into the Australian community,[116] having ran her own hair salon and having worked in various other positions following her release from her first term of imprisonment.[117] The Applicant’s friends, Ms Te Nahu and Ms Julia Sorensen, have offered to assist the Applicant in finding employment and her father has offered for her to reside with him.[118]
[101] A1, [78] to [80].
[102] A1 [81] referring to A2, page 8 [77].
[103] See A1 [82] to [84] and references to statements within.
[104] A1 [85].
[105] A1 [86], referring to A2, pages 8 to 11 at [78], [90] to [93] and [96] to [99].
[106] See A1 [87] to [90], [105], [106], and the courses listed within, along with A2 [85] to [87].
[107] A1 [106].
[108] A1 [95], referring to R2, G 20, p 182.
[109] A1 [96]; see also A2 [88].
[110] Referring to a newspaper article regarding the infiltration of illicit drugs and alcohol into immigration detention: A1 [97].
[111] A1 [100], referring to various letters of support within R2.
[112] A1 [101], referring to A2, pages 20 to 21.
[113] A1 [102] and [103], referring to A2, pages 25 to 27 and R2, G47, page 256.
[114] A1 [104], referring to A2, pp 23 to 24. Mr Speck is the Applicant’s former partner and the father of her youngest child. Mr Speck was also incarcerated following the police search of the Applicant’s and his home on 5 May 2018. Mr Speck was released from prison in December 2018.
[115] A1 [106], referring to A2, pages 29 – 30.
[116] Employment being a factor reported to tangibly reduce the risk of recidivism. See A1 [111] and studies referred to within.
[117] A1 [109].
[118] A1 [101], [106] and [109] and statements referred to within.
At hearing, the Applicant submitted in addition:[119]
The tribunal might have concerns that the protective and deterrent factors that were in place the last time the applicant was warned and released into the community didn’t have the desired effect on her. On that issue, our submission is that it would be incorrect to say that those factors had no effect on the applicant or that they wouldn’t be effective now.
The applicant’s offending throughout that period in 2018 was a high water mark of her criminal history. Following her formal warning and her release into the community in 2020, while she did ultimately reoffend, she didn’t reoffend in the same way. She didn’t reengage in that same level of, you know, commercial drug-related offending again, namely the sale and supply of methamphetamine. She found employment. She regained custody of her children. She tried hard to live a pro-social life. She did ultimately commit three further offences, and that offending, of course, shouldn’t be minimised, but when that offending, each of those offences, are looked at in turn, what they represent is lapses in judgement and poor decision-making, albeit serious lapses, rather than the applicant reverting back to that life that she was living in 2018, and it’s also worth noting that they occurred in a period in her life when she was being subjected to serious instances of domestic violence.
In terms of the applicant’s mental health treatment in prison and immigration detention in the last few years, it constitutes a critical change in her circumstances from when she was last in the community, and we submit that this goes a long way in reducing her likelihood of reoffending.
The applicant discussed her mental health and the treatment she’s been receiving for it at length yesterday. She’s working with her GP, with her psychiatrist, and other mental health practitioners. She’s exploring treatment options for a range of diagnosed mental illnesses, depression, type 2 borderline personality disorder, and complex post-traumatic stress disorder, diagnoses she didn’t have the last time she was in the community. She’s abiding by her regimen of prescribed medication.
She, in her evidence, outlined the progress that she’s been making and understanding why she thinks and behaves the way she does and how her childhood trauma and her abusive relationships play into that. She demonstrated a clear understanding that relationships are a trigger for her that leads to offending and talked about her ability to recognise and avoid those relationships in the future. We say that the evidence that she gave is reflective of someone who’s fully embraced the opportunities that she’s had in prison to continue to turn her life around.
[119] Transcript, page 78.

Overall, the Applicant submitted that these factors support a finding that the risk the Applicant poses to the Australian community is low.[120] The Applicant’s position is that whilst her offending was serious, her risk of reoffending is not an unacceptable risk and does not outweigh the other primary considerations of the best interests of minor children and the strength, nature and duration of ties to Australia.[121]
[120] A1 [113].
[121] See transcript, pages 6, 76, 77 and 79.
The Respondent acknowledged the matters raised by the Applicant regarding her genuine remorse, positive steps taken during custody, her generally positive prospects for rehabilitation, steps taken to undergo counselling and address her mental health issues, her claims to have family support and her having been proactive regarding contacting relevant programs she wishes to complete upon release and her employment prospects and plans.[122]
[122] R1 [30].
However, the Respondent submitted that here remains an unacceptable risk that the Applicant will reoffend, for the following reasons:[123]
(a)While the Respondent accepts the Applicant’s offending was partly due to her experiences of family violence in several of her past relationships, the protective features in her life (her minor children, the support of her family and paid employment), the formal warning she received in June 2020 that future offending would not be tolerated, and being on parole did not previously deter her from re-offending in June 2022.
(b)While the Respondent accepts the Applicant has undergone rehabilitation during her most recent period of imprisonment, this has not been tested in an unsupervised environment and the Tribunal can have no confidence that the Applicant will abstain from illicit drug use and/or entering into toxic relationships upon release into the community, nor that she will not repeat her offending if she does not continue treatment for her underlying mental health and substance abuse issues.
(c)Therefore, the Applicant poses an unacceptable risk of reoffending, especially when considering the potential consequences of further offending in light of the nature of her previous offences, and when having regard to the overall relevant considerations of the case and this primary consideration weighs extremely heavily in favour of cancellation of the Applicant’s visa.[124]
[123] R1 [31] to [33].
[124] The Tribunal understands the Respondent to mean that this primary consideration weighs extremely heavily against revocation of the Cancellation Decision. See transcript, page 8 in this regard.
At hearing, the Respondent added:[125]
[125] Transcript, pages 87 and 89.
As to the likelihood of reoffending, the applicant’s given evidence that she’s stopped using drugs, she’s had her mental health diagnoses, she knows how to identify red flags and, you know, undertaken rehabilitative efforts in jail and in immigration detention. The minister’s submission is that it’s still open on the evidence for the tribunal to accept that this is - remains untested. Her ability to deal with the stresses of life in the community and not resorting to old habits, given the financial incentives from selling drugs, her father gave evidence that he is able to - he did financially support her when she came out of jail in 2020. She did not accept that support, or it didn’t sound like she approached her family for support, despite it being available to her so, you know, she had those protective factors.
…
Even if the tribunal accepts that she’s at a low risk of reoffending, we accept - we submit that it’s still a significant and acceptable - unacceptable risk. The tribunal should have regard to the principle in paragraph 8.1.2 subclause (1) that:
The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and harm that would be caused if it were to be repaired is so serious that any risk that may be repeated may be unacceptable.
We submit that her offending is objectively serious and is of that kind, and so the tribunal should have a very low-risk tolerance of the sort of offending that she’s engaged in.
…
But, I guess, a difficulty here as well is there’s no report of risk of reoffending that we see in other matters - that I’ve seen in other matters. It is difficult. It’s based on what has happened previously and what the applicant says she will do next time in the community so the credibility of that.
The Applicant is asking the Tribunal to accept her claims of rehabilitation and low risk of reoffending given her genuine remorse, completion of rehabilitation courses, steps taken towards sobriety and to address her mental health issues, her family and community support and her claimed employment prospects should she be released.
The Respondent considers that even so, there is no expert report of risk of reoffending for the Tribunal consider leaving the Tribunal with the task of considering risk based on the lay evidence available to it.
The Applicant has emphasised throughout her written and oral evidence her circumstances of previously being in relationships involving abuse and domestic violence at various times and surrounding herself with anti-social social contacts and peers, including other drug users, and this no longer being the case.
The Applicant has also emphasised her state of panic and desperation in relation to her offending for which she was convicted on 31 August 2023, having lost her family through her drug use and feeling shame over asking her parents for help in that situation.[126]
[126] Transcript, page 18.
The Applicant gave evidence regarding the insight she has gained from her rehabilitation courses, including identifying high-risk situations and what she needs to avoid, including why in the past she has sought out the relationships that she did. As to having completed rehabilitation when she was previously formally warned and released back into the community (then continuing to re-offend) the Applicant said the difference now is that she has experience in what to expect when released[127] and she is undertaking treatment for her mental health.[128]
[127] Transcript, page 19.
[128] Transcript, pages 19 and 20.
The Applicant also maintains she has plans to continue her recovery and rehabilitation in the community, including a mental health plan.[129] The Tribunal accepts the Applicant’s claims of remorse and that she accepts responsibility for her offending. While the Applicants’ evidence regarding having gained insight into her offending are somewhat general, for example realising the potential for harm to her family and the community generally borne by her offending, the Tribunal also accepts that some gains have been made in this regard.
[129] Transcript, page 20.
The Tribunal notes the letters of support from the Applicant’s mother, father, former partner Mr Speck, friend Ms Te Nahu and other community contacts.[130] The Tribunal notes that the persons lending their support in this regard claim to be aware of the Applicant’s criminal history. The Tribunal also notes the evidence of Mr Speck, Ms Te Nahu, and the Applicant’s mother and father at hearing of the differences they see in the Applicant following her rehabilitation and their belief that she will not reoffend.[131]
[130] See R2, G25 to G30, G32 to G38, G47 and G48 and A2.
[131] Transcript, pages 51, 52, 56, 62 and 73.
The difficulty presented by this evidence (and the related submission that the Applicant’s risk of reoffending is low) is there is no expert opinion providing a future risk assessment and setting out how each of the factors relating to risk come to bear on that rating, particularly in circumstances where the Applicant previously attempted rehabilitation and had access to the family and community support following her formal warning and earlier cancellation of the visa, yet continued to reoffend. It is difficult for the Tribunal to place significant weight on lay evidence that the Applicant will not reoffend because the deponents of that evidence have noticed a positive change in her behaviour and it was not in her nature to have offended in the way that she did.
In addition, whilst the Tribunal accepts the Applicant has maintained sobriety during her second term of imprisonment and whilst in immigration detention, and accepts the Applicant’s evidence regarding the infiltration of illicit drugs and alcohol into immigration detention, the Tribunal cannot ignore the longstanding link between the Applicant’s drug use, her engaging in personal relationships, maintaining friendships with other drug users and resorting to drug use or drug offending at times of personal stress (for example, her convictions on 31 August 2023). Again, the Tribunal is without an expert opinion regarding the likelihood of the Applicant refraining from these associations in the future, when undoubtedly she will face stressful situations should he return to the open community.
Overall, having considered all of the evidence, the Tribunal accepts the Applicant’s submission that the risk that the Applicant will offend in a similar manner is low. However, given the significant risk of harm to the community posted by from drug related offending and driving offending, the Tribunal finds that even the low risk presented by the Applicant is unacceptable in the context of her request for revocation of the Cancellation Decision.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community consideration weighs heavily against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No. 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence.[132] Accordingly, the Tribunal considers that this consideration is not relevant to the Applicant’s case and weighs neutral.
[132] The parties agree: A1 [115] and R1 [35].
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction No. 110 provides that:
a.Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
b.Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen 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.
The Applicant submitted that the strength, nature and duration of the Applicant’s ties weighs heavily in favour of revocation of the Cancellation Decision,[133] for the following reasons:[134]
[133] A1 [125] and [132].
[134] A1 [116] to [132] and transcript, page 81.
The Applicant has significant familial ties to Australia, with her mother, her father, two older brothers, one younger sister, her three minor children and a number of nieces and nephews in Australia and each family members stands to be negatively impacted by a decision not to revoke the Cancellation Decision. The Applicant relies on the numerous supporting statements provided by her immediate family members speaking of the devastating impact her removal and permanent exclusion from Australia would have on them.
(b)The Applicant has had a close relationship with her mother since her first term of imprisonment, who stands to be greatly impacted should the Applicant be removed, considering her various health struggles and struggle with depression.[135]
(c)The Applicant has a close relationship with her father, who offers his support and accommodation to assist her transition into the Australian community if released.[136]
(d)The Applicant’s older brother Christian Moore has also supported through throughout her visa cancellation proceedings in 2020 and continues to do so while she is in immigration detention.[137]
(e)The Applicant also remains close to Mr Speck.[138]
(f)The Applicant arrived in Australia over 25 years ago, has lived almost 80% of her life here and [139] has completed her schooling and vocational training here. The Applicant became a qualified hairdresser at 18 years old and owned her own hairdressing business at 22 years old.[140]
(g)The Applicant had her first child at age 19 and worked hard to support her young daughter as a single mother.[141]
(h)For close to two decades, the Applicant resided in the community without offending, demonstrating that she is able to live pro-social life and weight ought to be given to this time spent contributing positively to the Australian community.[142]
(i)Unfortunately, the Applicant has been the victim of serious instances of domestic violence within her intimate relationships for a long time. In spite of challenging circumstances, the Applicant has played a significant role in caring for and raising her children. Following her release from prison in 2020, the Applicant also sought to re-establish herself in the community and worked hard to find employment and gain custody of her children again.
[135] A1 [120] and [121], referring to A2, pages 12 and 13 at [108] and page 25. The Applicant’ mother’s statements and evidence at hearing supports this.
[136] A1 [122], referring to A2, page 13 at [109]. See also A2, pages 20 to 22. The Applicant’ father’s statements and evidence at hearing supports this.
[137] A1 [123], referring to A2, page 17. Mr Moore’s statement support this (A2, pages 15 to 17).
[138] Transcript, page 80.
[139] A1 [128].
[140] A1 [130].
[141] A1 [130].
[142] A1 [129].
The Minister accepts that this consideration weighs in favour of revocation of the Cancellation Decision, however contends that the favourable weight should be tempered by the protection of the Australian community given the Applicant re-offended after receiving a formal warning in June 2020, and the expectations of the Australian community.[143]
[143] R1 [41] and transcript, page 89.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal is required to consider any impact of the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to remain in Australia.[144] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[145]
[144] Direction No. 110 para 8.3(1).
[145] Direction No. 110 para 8.3(2).
The Applicant has presented evidence regarding her extensive family ties to Australia and the importance of her being present to care for her three minor children.[146] Her immediate family members attest to the strength of these ties[147] and the Tribunal accepts this to be the case.
[146] See statements at A2 and R2 (various); transcript, pages 21 to 25.
[147] See statements at A2 and R2 (various); transcript, pages 50, 60 to 63 and 73.
The Tribunal does not seeks to, nor does it consider it necessary to summarise the entirety of this evidence in supporting its ultimate finding that this evidence supports the Applicant’s claims regarding her ties to Australia, and that the strength, nature and duration of ties to Australia consideration weighs very heavily in favour or revocation of the Cancellation Decision.
Rather, it emphasises and gives weight the following aspects of the evidence to sufficiently serve this purpose:
The Applicant came to Australia as a 6 year old, returning the United Kingdom once for a holiday as a 16 year old.[148]
[148] Transcript, page 10.
The Applicant completed her schooling (until year 10) in Australia.
The Applicant and has been ordinarily resident in Australia since 6 February 1999.[149]
The Applicant worked in Australia as a hairdresser from 2007 to 2014 and ran her own hairdressing business from 2014 to 2016.[150]
The Applicant's immediate family reside in Australia: her parents, siblings (one sister and two brothers), and three minor children.[151]
The Tribunal accepts that the Applicant's immediate family members, in particular her three minor age children are likely to be impacted by a decision not to revoke the cancellation decision,[152] namely, that they would experience significant emotional and practical hardship by a decision not to revoke the Cancellation Decision.
The Tribunal accepts that the Applicant has, where possible, been visited by family members while she has been in prison and immigration detention.
The Tribunal notes that the Applicant’s mother suffers various health conditions, such that the additional responsibilities of providing care to the Applicant’s two older children is proving challenging, where the Applicant’s ex-husband works on a two weeks on, two weeks off basis.[153]
The Tribunal notes Mr Speck continues to support the Applicant and his evidence regarding the difficulties he experiences as a first-time single dad and that some of their daughter’s needs, as a female, are better attended to by the Applicant.[154]
The Applicant was employed and contributed positively to the community prior to her offending. This offending conduct has necessitated significant resources and expenditure in law enforcement, including police and the justice system more broadly.
[149] R2, G16, pages 156 to 157.
[150] R2, G17, page 169; G45, page 251.
[151] The Tribunal notes the limited evidence available in relation to the Applicant’s additional family members, including her grandfather, sisters-in-law, cousins, aunty and nieces and nephews.
[152] R2, G14, pages 118 to 121; G26 and G47.
[153] R2, G47 and G48. The Applicant’s ex-husband, Mr Zak Maddison is the biological father of the Applicant’s minor age son (her second -born child). The Applicant’s eldest daughter knows Mr Maddison to be her biological father and has never known her biological father as her father in any respect.
[154] Transcript, page 51.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.[155] Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.[156] Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[157]
[155] Para 8.4(1) of Direction no. 110.
[156] Para 8.4(2) of Direction No. 110.
[157] Para 8.4(3) of Direction No. 110.

Regarding the impact of the Applicant’s prior conduct,[189] while the Tribunal accepts the Applicant’s argument that it was the separation of her children from their mother that had a negative impact, not her conduct itself as claimed by the Respondent,[190] that separation was indeed brought about as a consequence of the Applicant’s repeated offending conduct and has indeed had a negative impact, for example in the manner described in the Applicant’s oral evidence.[191] While the Tribunal has not gone so far as to accept that the Applicant’s son was exposed to methylamphetamine, it does find that the Applicant’s children were are risk of exposure to family violence, which is clearly not in their best interests going forward.[192] Further, the Tribunal notes the Respondent’s submissions regarding evidence of related trauma in this context.[193]
[189] Direction No. 110 para 8.4(4)(c).
[190] Accepting in turn that the Applicant’s son was observed by police to have had a chest infection suspected to be directly relation to methylamphetamine exposure, however evidence confirming this was not provided.
[191] See [121] above.
[192] Direction No. 110 para 8.4(4)(g).
[193] Direction No. 110 para 8.4(4)(h). In this context, see [125(b)] and [125(d)] above.
Should this separation continue indefinitely if the Applicant were removed, the negative impact would remain and indeed endure, despite the ability of the Applicant and her children to maintain contact electronically.[194]
[194] Direction No. 110 para 8.4(4)(d).
While the Tribunal accepts the Applicant’s minor children’s fathers, Mr Maddison and Mr Speck, play a positive parental role, along with the Applicant’s mother and there are no claims or evidence regarding any concerns with these arrangements, the Tribunal also considers it plausible that throughout their periods of separation, the children have maintained a strong parental bond with the Applicant and do seek out her input, advice and support in relation to specific matters.[195]
[195] Direction No. 110 para 8.4(4)(e).
The Applicant’s two older children have expressed their views regarding their worries regarding losing their mother and the need for her stay in Australia, and how much they love her.[196] The Tribunal has taken this evidence into consideration and finds it consistent with the accounts of other family members, such as the Applicant’s mother and Mr Speck.[197]
[196] A2, pages 31 and 32.
[197] Direction No. 110 para 8.4(4)(f).
Overall, the Tribunal finds that the best interests of the Applicant’s minor children weighs heavily in favour of revocation of the Cancellation Decision.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Direction No. 110 goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[198]
[198] Para 8.5(1) of Direction no. 110.
Paragraph 8.5(2) of Direction No. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction No. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction No. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of causing physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.[199]
[199] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 at [86] to [87].
This consideration will, in most cases, weigh in favour of exercising the power to cancel the visa if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 110.
·     Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government:
·     Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia.
·     Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
In relation to the expectations of the Australian community, the Applicant submitted that while it accepts that this consideration must weigh against revocation, minimal weight should be placed on it in light of the other considerations, in particular the strength, nature and duration of her ties to Australia, the impact on her Australian citizen children,[200] her low risk of reoffending and her targeted rehabilitation.[201] in addition, the Applicant submitted that in this case, the protection of the Australian community consideration shouldn’t necessarily be ascribed greater weight than the other primary considerations and that it’s open to the Tribunal to find that it doesn’t.[202]
[200] A1 [154].
[201] Transcript, page 6.
[202] Transcript, page 79.
Referring to the decisions of FYBR and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J,[203] the Respondent submitted that the Australian community would expect that the Applicant should not hold a visa and this factor should be given significant weight against revocation of the cancellation decision. At hearing, the Respondent noted in addition that given the Applicant’s high number of drug offences their negative impact on the community, along with her record of driving with illicit drugs and reoffending after receiving the formal warning in support of its position.[204]
[203] Namely, that the expectations of the Australian community consideration is in substance adverse to any applicant.
[204] Transcript, page 91.
While the Applicant has not engaged in the conduct expressly listed in para 8.5(2)(a) to (f) of Direction No. 110, the list is not exhaustive. The Tribunal notes it earlier finding and related reasons that it considers the Applicant’s offending to be very serious.[205]
[205] See [57] to [74] above.
While the Applicant has not engaged in conduct identified in paragraphs 8.5(2)(a)-(f), that list is not exhaustive. The Tribunal has found the Applicant has engaged in serious drug offending and has committed firearms offences. Noting this, the Tribunal finds the Australian community would expect that the visa would remain cancelled. Accordingly, in the Applicant’s circumstances the expectations of the Australian community consideration weighs heavily against revocation.
The Tribunal makes this finding notwithstanding the fact that the Applicant has been in Australia from a young age and for most of her life and that a higher tolerance level may be afforded to her.[206]
[206] Direction No. 110 para 5.2(6).
Other considerations
Paragraph 9 of Direction No. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[207]
[207] Direction No. 110 para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[208]
·Refusal of other visa applications and cancellation of other visas;[209]
·A prohibition on applying for other visas;[210] and
·Periods of exclusion and special return criteria may apply.[211]
[208] Migration Act ss 189, 196, 197C, 198.
[209] Migration Act s 501F.
[210] Migration Act s 501E.
[211] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[212] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[213]
[212] Migration Act s 15.
[213] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant submitted she is not covered by a protection finding and does not seek to engage Australia’s protection obligations.[214] Similarly, in the Tribunal’s view that the Applicant’s circumstances are not such that a non-refoulement claim would arise with respect to the Applicant’s return to the United Kingdom.
[214] A1 [155]. The Respondent made no submission in this regard.
The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501. The Tribunal acknowledges these legal consequences.[215]
[215] See [148] above.
As the effect of cancellation is considered under the third and fourth primary considerations and the ‘extent of impediments if removed’ consideration, the Tribunal considers this consideration carries neutral weight in the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110 are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant gave evidence that she suffers from depression, anxiety, PTSD and type-2 bipolar disorder,[216] and that she receives treatment for dysmenorrhea and menorrhagia.[217]
[216] A2, page 10 at [90].
[217] A1 [157] and [158].
The Applicant noted that she had formerly used illicit drugs, is currently in recovery and that a key component of her Recovery & Exit Plan to avoid relapse is her support network, being her family, Mr Speck, her treating practitioners and the organisations and programs she has previously accessed.[218]
[218] R2, G20, p 185.
The Applicant also noted that she has lived in Australia for over 25 years, all of her immediate family are in Australia and she has little to no family connections or in the United Kingdom who could provide her support to relocate.
The Applicant accepts that the United Kingdom has comparable standards of health care, social welfare and housing support to those in Australia, that she would face limited cultural or language barriers and that she would likely be eligible for the National Health Service.[219] The Applicant submitted it is unclear to her whether she would be able to access social security payments given that she has never lived or worked in the United Kingdom.
[219] A1 [160].
The Applicant submitted that in light of these matters, the extent of impediments consideration should weigh heavily in favour of revocation of the Cancellation Decision, also noting:[220]
If separated from her family and children and denied access to her support network, there is a real risk she will resume illicit drug use and doing so would constitute a significant impediment to establishing herself and maintaining basic living standards.
(b)If separated from her immediate family and children in Australia and returned to an unfamiliar country she has not resided in since she was a young child, she is likely to experience severe emotional and psychological hardship.
[220] A1 [158], [159] and [161].
The Respondent accepts the extent of impediments consideration weighs in the Applicant’s favour,[221] although does not strictly concede the Applicant’s position that it ought to be afforded heavy weight[222] or that it outweighs any of those considerations that weigh against revocation of the Cancellation Decision.[223] The Respondent relies on its contention that:
The Applicant will be able to establish herself and maintain basic living standards in the United Kingdom.
(b)There are no substantial language or cultural barriers given that the main language of the United Kingdom is English.
(c)The Applicant would be able to access the United Kingdom’s National Health Service for her healthcare and medical needs, as eligibility is based on a person proving that they have returned to the United Kingdom to live and meet the ordinary residence test.
(d)The Applicant will also have access to the same level of medical and economic support as generally available to other United Kingdom citizens.
[221] R1 [59]; transcript, page 9.
[222] R1 [56] to [59].
[223] Transcript, page 9.
As noted by the parties, the Applicant is 32 years old and suffers from a number of physical and mental health conditions.[224] This being so, the Tribunal considers there is no evidence before it that the Applicant would be unable to receive similar treatment for these conditions in the United Kingdom,[225] or that any language or cultural barriers exist in this regard, or more generally.[226]
[224] Direction No. 110 para 9.2(a).
[225] Direction No. 110 para 9.2(a).
[226] Direction No. 110 para 9.2(b).
The Tribunal accepts that the Applicant has virtually no relationship with any extended family in the United Kingdom and that her support network is entirely in Australia.[227] While the Applicant may encounter some difficulties establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of that country, if she were to return to the United Kingdom, the Tribunal regarding these difficulties as temporary.[228] The Tribunal notes the Applicant’s work experience in Australia has been as a hairdresser and she has also run her own business as a hairdresser.
[227] Direction No. 110 para 9.2(c).
[228] Direction No. 110 para 9.2(c).
The Tribunal also finds, however, that there is a real risk the Applicant’s removal, in particular her separation from her immediate family, including three minor children, would negatively impact the gains she has made regarding her sobriety and her mental health and see her face significant emotional and psychological hardship due to this separation.[229]
[229] Direction No. 110 para 9.2(c).
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that her removal from Australia would adversely impact Australian business interests.
The Minister relevantly noted there is no evidence the Applicant is involved in the delivery of a major project or important service in Australia.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION – THE WEIGHING EXERICSE
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No. 110.
Paragraph 7 of Direction No. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.[230]
[230] See [44] above.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No. 110).[231]
[231] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Relevantly, the Full Court of the Federal Court considered the operation if Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[232] While the Court was considering Direction No. 90, it’s observations would apply to Direction No. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[233]
[232] [2023] FCAFC 138.
[233] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.

The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation of the Cancellation Decision and affords the consideration heavy weight in the Applicant’s circumstances.
The primary consideration of family violence was not relevant in the Applicant’s case and hence weighs neutral.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds heavy weight should be afforded to that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision, being the Applicant’s three minor children, weigh in favour of revocation. Overall, the Tribunal considers heavy weight should be afforded to this consideration in the Applicant’s circumstances.
The expectations of the Australian community weigh against revocation and the Tribunal finds this consideration should be afforded heavy weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction No 110, the Tribunal finds that the legal consequences of the decision weighs neither for nor against revocation and should be afforded neutral weight in the Applicant’s case. The extent of impediments if removed weigh moderately in favour of revoking the Cancellation Decision. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
Having weighed the considerations, the Tribunal finds that:
(a)The first and fifth primary considerations weigh heavily against revocation of the Cancellation Decision.
(b)The third and fourth primary considerations weigh heavily in favour of revocation of the Cancellation Decision.
(c)The extent of impediments consideration weighs moderately in favour of revocation of the Cancellation Decision.
(d)The three remaining considerations weigh neutral.
Paragraph 7(2) of Direction No. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[234]
[234] Direction No. 110 para 7.3.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation, the Tribunal finds that the considerations weighing in favour of revocation of the Cancellation Decision outweigh those weighing against revocation.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No. 110, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Reviewable Decision and substitute it with a decision to revoke the Cancellation Decision.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 1 August 2024 to exercise the discretion not to revoke the cancellation of the Applicant’s Five Year Resident Return (Class BB) (subclass 155) visa pursuant to subsection 501(2) of the Migration Act 1958 (Cth) is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 188 (one-hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member Gallagher

.................[SGD]...............................
Associate
Dated: 24 October 2024

Date of hearing: 1 and 2 October 2024

Solicitors for the Applicant:
Mr Louis Martin of Estrin Saul

Solicitors for the Respondent: Ms Felicidade Lay of Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY

Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 25 September 2023.[235]

[235] R2, G7.

Conviction Date	Court	Offence	Court Result
1.	13 April 2018	Rockingham Magistrates Court	Possess a Prohibited Drug (Cannabis)	Fine $200
2.	10 July 2018	Armadale Magistrates Court	No authority to drive (fines suspended)	Fine $200
3.	29 November 2019	Perth Magistrates Court	Possess Drug Paraphernalia containing prohibited drug/plant	Fine $2,500
4.	29 November 2019	Perth Magistrates Court	Possess a Prohibited Drug (Methylamphetamine)	Fine $2,500
5.	29 November 2019	Perth Magistrates Court	Possess a prohibited drug	Fine $2,500
6.	29 November 2019	Perth Magistrates Court	Possess a prohibited drug	Fine $2,500
7.	29 November 2019	Perth Magistrates Court	Possess Drug Paraphernalia containing prohibited drug/plant	Fine $2,500
8.	29 November 2019	Perth Magistrates Court	Possess a Prohibited Drug (Cannabis)	Fine $2,500
9.	29 November 2019	Perth Magistrates Court	Breach of Bail (Fail to appear soon after)	Fine $300
10.	29 November 2019	Perth Magistrates Court	Possess a Prohibited Drug (Cannabis)	Fine $2,500
11.	29 November 2019	Perth Magistrates Court	Possessed a prohibited weapon	Fine $2,500
12.	29 November 2019	Perth Magistrates Court	Possess Drug Paraphernalia containing prohibited drug/plant	Fine $2,500
13.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (concurrent)
14.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	8 months imprisonment (concurrent)
15.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	8 months imprisonment (concurrent)
16.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (concurrent)
17.	26 February 2020	Perth District Court of Western Australia	Possession of stolen or unlawfully obtained property	1 month imprisonment (concurrent)
18.	26 February 2020	Perth District Court of Western Australia	Sold a prohibited drug namely Methylamphetamine	4 months imprisonment (concurrent)
19.	26 February 2020	Perth District Court of Western Australia	Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)	1 year imprisonment (cumulative)
20.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (cumulative)
21.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (concurrent)
22.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (concurrent)
23.	26 February 2020	Perth District Court of Western Australia	Possession of stolen or unlawfully obtained property	1 year imprisonment (concurrent)
24.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	8 months imprisonment (concurrent)
25.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	6 months imprisonment (concurrent)
26.	26 February 2020	Perth District Court of Western Australia	Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)	2 years imprisonment (concurrent)
27.	26 February 2020	Perth District Court of Western Australia	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	8 months imprisonment (concurrent)
28.	8 February 2022	Armadale Magistrates Court	Driving with prescribed illicit drug	Fine $400
29.	13 June 2022	Armadale Magistrates Court	Driving with prescribed illicit drug	Fine $1,500 Disqualified from driving for 6 months
30.	31 August 2023	Perth District Court of Western Australia	Possession of Prohibited Drugs with Intent to Sell or Supply	2 years imprisonment

Date of hearing:	1 and 2 October 2024
Solicitors for the Applicant:	Mr Louis Martin of Estrin Saul
Solicitors for the Respondent:	Ms Felicidade Lay of Minter Ellison