Heathcote and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 131
•31 January 2025
Heathcote and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 131 (31 January 2025)
Applicant/s: Yvonne Jean Heathcote
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9182
Tribunal:Deputy President Burford
Place:Perth
Date of Decision: 31 January 2025
Date of Written Reasons: 14 February 2025
Decision:The decision of the delegate of the Respondent dated 7 November 2024 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa under s 501CA(4) is set aside and substituted with the decision that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked under s 501CA(4).
..............................[sgd].........................
Deputy President Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of 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 children – expectations of the Australian community – extent of impediments if removed – Applicant is a 57-year-old citizen of the United Kingdom – Non-Revocation Decision is set aside
LEGISLATION
Migration Act 1958 (Cth) ss 15, 34(2), 46(1)(d), 189, 197C, 198, 499, 499(1), 500(6B), 500(6L), 501, 501F, 501E, 501E(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(b), 501(7)(c), 501(7)(d), 501CA, 501CA(3), 501CA(4), 501CA(4)(a), 503, 5001, 5001(c)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)
Migration Regulations 1994 (Cth) ss 2.12AA, 2.52(2)(b)
Crimes Act 1914 (Cth) ss 85ZR, 85ZR(2), 85ZR(2)(b), 85ZS(1)(d)(ii)
Australian Citizenship Amendment Act 1984 (Cth)
CASES
Khalil and Respondent for Home Affairs [2019] FCAFC 151Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (2024) 94 ALJR 594
Minister for Immigration, Citizenship, Migrant Services v Thornton [2023] HCA 17; (2023) 276 CLR 136
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305
AJL20 v Commonwealth of Australia [2020] FCA 1305
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 1273
Webb v Minister for Home Affairs [2020] FCA 831
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 570
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 5.1, 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 5.2(6), 6, 7, 7(2), 8, 8(1) 8.1, ,8.1(2), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(a)(i), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(2)(a), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f). 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2(f), 8.5(3), 9, 9(1), 9.1, 9.1(1), 9.1(3), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c)
Statement of Reasons
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 31 JANUARY 2025 WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
BACKGROUND
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].
The Applicant is a 57-year-old citizen of the United Kingdom who first arrived in Australia with her parents and siblings in 1970 at the age of three.[2] Another sibling was born in Australia in 1971. She has not left Australia since her arrival[3] and has never applied for Australian citizenship.
[2] R1, G52, page 416.
[3] ASFIC, [3].
From 1 September 1994 the Applicant held a Class BF Transitional (Permanent) visa (the visa).[4] This is a visa that permits a person to remain in Australia indefinitely.[5]
[4] By operation of law, under the Migration Reform (Transitional Provisions) Regulations 1994; R1, G53, page 417.
[5] Migration Reform (Transitional Provisions) Regulations 1994.
The Applicant’s family lived in New South Wales and then in Queensland where she attended High School. She married Harold Heathcote, an Indigenous Australian of the Yuarra tribe, in 1992.[6] Together they have eight children and 31 grandchildren, who are all of Indigenous heritage.[7] They remain married and her husband, children and grandchildren remain living in Queensland.
[6] R1, G23, page 164; G28, page 183.
[7] ASFIC, [2.4], [2.4].
On 8 October 2009, the Applicant was convicted of murder in the Supreme Court of Queensland in Brisbane following a trial by jury and sentenced to life imprisonment. She was made eligible for parole after serving 15 years. On the same date, she was also convicted of ‘enter dwelling with intent at night uses/threatens violence whilst armed in company’ and sentenced to five years imprisonment to be served concurrently.[8] Although she was not physically present during the commission of the crimes, she was found to have shared a common unlawful purpose with her co-accused of beating the son of the murder victim, who was killed when he intervened.[9] Her eldest son was convicted of murder and a range of other offences at the same time and was also sentenced to life imprisonment.
[8] R1, G6, page 46; G7, page 49.
[9] R1, G7, page 57; G8 page 66.
The Applicant appealed her conviction and an application for special leave to appeal to the High Court of Australia was heard on 12 August 2011 and refused.[10]
[10] R1, G8, pages 63 – 76. The Tribunal infers from the High Court transcript that the convictions were upheld by the Queensland Court of Appeal prior to the special leave application being lodged. However, no details of those proceedings were before the Tribunal.
On 30 June 2020, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act1958 (Cth) (Migration Act) due to the October 2009 sentence of imprisonment for life and the fact she was serving a sentence of imprisonment on a full-time basis (the Cancellation Decision).[11] She was notified of the cancellation decision on the same day and invited to make representations to the Minister requesting revocation of the decision to cancel her visa.[12]
[11] R1, G53, page 417.
[12] R1, G53, page 417-421.
The Applicant made representations to the Minister requesting revocation on 17 July 2020.[13] Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) provides that any such representations must be made within 28 days after the person is given the invitation under s 501CA(3) of the Migration Act. The Applicant made representations seeking revocation within the prescribed period and using the Department’s template revocation request and personal circumstances forms. Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
[13] R1, G5, page 27; G10, page 80 (signed 6 June 2020); ASFIC at [5].
The Applicant was granted lifetime parole on 3 September 2024 and was taken into immigration detention where she remained.
On 7 November 2024, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa under s501CA(4) of the Act (the Reviewable Decision).[14] The Applicant was notified of that decision via email to her then representative on 8 November 2024.[15] This is the reviewable decision before the Tribunal.
[14] R1 G3.
[15] R1, G2.
On 11 November 2024, the Applicant applied to the Tribunal for review of the decision not to revoke the visa cancellation.[16]
[16] R1, G1.
As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Migration Act.
The Tribunal was required by s 500(6L) of the Migration Act to make a decision in relation to this application by no later than 31 January 2025.
In considering the application for review, the issues for 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.[17]
[17] See s 501CA(4) of the Migration Act.
The Applicant’s case is a complex one. As discussed further below, murder is an offence of the most serious kind presenting a risk of serious harm to the community and the community would expect the Applicant’s visa to remain cancelled. However, she presents a low risk of reoffending and has lived in Australia since she was an infant. She has very close ties to the community through her large Indigenous family. Balancing the considerations in such matters is not an easy task.
For the reasons outlined below, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters raised in Direction no.110, the Tribunal has decided that the decision under review should be set aside and the cancellation of the Applicant’s visa should be revoked.
VISA CANCELLATION ON CHARACTER GROUNDS
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review.
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 a visa should be revoked.
The question for determination by the Tribunal is whether the Reviewable Decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[18]
[18] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
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 incarcerated 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), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[19] 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.[20]
[19] Migration Act s 501CA(3).
[20] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by section 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
THE HEARING AND THE EVIDENCE
The Applicant appeared before the Tribunal at a hearing on 8 and 9 January 2025. The hearing was conducted in person at the Sydney Registry of the Tribunal. At the time of the hearing, the Applicant was in immigration detention at Villawood Hill Detention Centre.
The Applicant was represented by Mr Michael Jones of Michael Jones Solicitor who appeared in person. The Minister was represented by Ms Vanessa Barros Goncalves of Counsel, instructed by Ms Carly Warren of Sparke Helmore. The Minister’s Representatives also appeared in person.
The Tribunal admitted the following documents into evidence:
·Applicant's Updated Bundle of Evidence (filed by the Applicant on 19 December 2024) (Exhibit A1);
·G-Documents G1 - G54, pages 1 – 424 (filed by the Respondent on 25 November 2024) (Exhibit R1);
·Tender Bundle TB1 – TB2, pages 1 – 83 (filed by the Respondent on 3 December 2024) (Exhibit R2).
·G
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from the following witnesses:
·Ms Sue Whitehouse, the Applicant’s sister;
·Ms Jodie Heathcote, the Applicant’s daughter;
·Dr Luke Hatzipetrou, Clinical Psychologist;
·Ms Kiara Heathcote, the Applicant’s granddaughter;
·Ms Alarna Heathcote, the Applicant’s daughter;
·Ms Erin Cameron, Sisters Inside;
·Ms Rachel Bates, a friend of the applicant and prospective employer.
With the exception of the Applicant all witnesses gave evidence via telephone.
At the conclusion of the hearing the parties were invited to make post-hearing submissions on the issue of the legal consequences of the decision and extent of impediments if removed. This invitation was issued following submissions from the Applicant that a legal consequence of the decision would be that due to the operation of Special Return Criterion 5001, the Applicant would not be permitted to return to Australia and that this should weigh in favour of revoking the visa cancellation. Submissions from the Minister were received on 16 January 2025 (Respondent’s supplementary submissions). On 22 January 2025 the Applicant provided brief written submissions in reply (Applicant’s reply).
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 8 May 2020.[21]
[21] R1, G6, pages 46 – 47.
As noted above, on 8 October 2009, the Applicant was convicted of murder in the Brisbane Supreme Court following a jury trial. She was sentenced to life imprisonment and made eligible for parole after serving 15 years.
On the same day, she was also convicted of ‘enter dwelling with intent at night uses/threatens violence whilst armed in company’ and sentenced to a concurrent term of 5 years’ imprisonment.
The circumstances of these offences are considered further below.
She has only one prior recorded conviction, on 6 June 2007 when she was convicted of ‘SOA commit public nuisance’ at the Brisbane Magistrates Court and fined $350 (and sentenced to an indicative term of 7 days’ imprisonment).
Other matters listed in the records
There are other matters listed in the ‘Check Results Report’ for which no conviction was recorded. The report reveals that on 14 June 2005, in the Dalby Magistrate’s Court, the Applicant received a fine for ‘possession of weapons (two charges)’, ‘commit public nuisance’ and ‘receiving stolen property (firearm)’, for which no conviction was recorded.[22]
[22] R1, G6, page 47.
The Minister submitted that the Tribunal should not have any regard to those offences, following the High Court’s decisions in Minister for Immigration, Citizenship, Migrant Services vThornton [2023] HCA 17; (2023) 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475 (Lesianawai). The Applicant’s representative agreed with this submission and the Tribunal accepts it.
Sub-section 85ZR(2)(b) of the Crimes Act 1914 (Cth) (the Crimes Act) provides that:
[d]espite any other Commonwealth law … where, under a State law … a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State …: (b) the person shall be taken, in any State …, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State …, never to have been convicted of that offence.
A “Commonwealth authority” includes the Tribunal.[23]
[23] Crimes Act s 85ZL.
Sub-section 85ZS(1)(d)(ii) of the Crimes Act further provides that:
[s]ubject to Division 6, but despite any other Commonwealth law …, where, under s 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence: … (d) anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … (ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
In Lesianawai, the High Court explained that the effect of s 85ZR of the Crimes Act is that full force and effect is to be given by the Tribunal to a law of a state under which a person is ‘for any purpose’ to be taken never to have been convicted for an offence. The ‘corresponding purpose’ as referred to in s 85ZR(2) is therefore ‘any purpose’ and this includes the purpose of this Tribunal making a decision on review of a decision made under s 501CA(4) of the Migration Act. While the Court in both Thornton and Lesianawai were considering the treatment of juvenile offences, the High Court’s reasoning is applicable to any offending for which an Applicant received a finding of guilt but with respect to which no conviction was recorded.
For the above reasons, the Tribunal has not had regard to any of the matters listed in the ‘Check Results Report’ for which no conviction was recorded in considering the Applicant’s conduct and offending, including with respect to determining whether the Applicant passes the character test and whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
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 imprisonment for life’.[24] Failure to pass the character test arises as a matter of law.[25][24] Migration Act s 501(7)(b).
[25] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As noted above, on 8 October 2009, the Applicant was convicted of murder in the Supreme Court of Queensland and sentenced to life imprisonment.
As the Applicant has been sentenced to imprisonment for life, she does not pass the character test by operation of s 501(7)(d) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[26]
[26] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether 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.[27]
[27] Migration Act s 501CA(4)(b)(ii).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[28] 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 s 499(1) of the Migration Act. [29]
[28] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[29] Migration Act s 499(2A).
Direction no. 110
On 7 June 2024, the Minister made ‘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) under s 499 of the Migration Act. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[30]
[30] Direction no. 110 para 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[31] In considering the exercise of the power under s 501CA(4), informed by the principles set out in para 5.2 of Direction no. 110, the Tribunal must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[32]
[31] Direction no. 110 para 5.1(4).
[32] Direction no. 110 para 6 referring to paras 8 and 9 see also para 6.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[33]
·the protection of the Australian community from criminal or other serious conduct;
·family violence engaged by the Applicant (if any);
·the strength, nature and duration of the Applicant’s ties to Australia;
·the best interests of minor children in Australia affected by the decision; and
·the expectations of the Australian community.
[33] Direction no. 110 para 8.
The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[34]
·the legal consequences of the decision;
·the extent of impediments if removed; and
·the impact on Australian business interests.
[34] Direction no. 110 para 9.
The Tribunal must also take into account any other considerations or representations made by the Applicant in support of her request that the cancellation of her visa be revoked.
The principles set out in para 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Relevant to the Applicant’s circumstances, while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
While noting that primary and other considerations relevant to the individual case must be taken into account the Direction no. 110 notes that, in some circumstances, the nature of the 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 revoking a mandatory cancellation of a visa including in circumstances where 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.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, which provides that:·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations.
·One or more primary considerations may outweigh other primary considerations.
The Applicant submitted that there were several reasons why the cancellation of the visa should be revoked.
In oral and written submissions made by her representative before the Tribunal and in written submissions to the delegate prepared by her then-representative, Sisters Inside, the Applicant detailed why she considered there was another reason why the cancellation decision should be revoked.[35] In summary, the Applicant’s key representations were that:[36]
·The Applicant represents a low risk to the community, supported by the report of Dr Hatzipetrou, her assessed Risk of Reoffending Scores in prison assessments, her demonstrated work ethic and history as a model prisoner and her demonstrated remorse. Her lifetime parole conditions will act as a further protective factor against reoffending and she has demonstrated the capacity to live in the community with restrictions while on bail for more than two years prior to her conviction;
·She has strong ties to the community having been in Australia since she was an infant, and having particular regard to her strong ties to the Australian Indigenous community;
·The burden on those members of the community if she were removed would be significant, including because of the implications of forced removal for those of Indigenous heritage;
·The best interests of her more than 30 grandchildren weigh strongly in favour of revocation, in particular the best interests of her grandson Mstr B who suffers from level 3 Autism. The Applicant’s role with respect to the children in an Indigenous kinship system makes the impact on the children’s best interests carry greater significance;
·The expectations of the Australian community should carry minimal weight having regard to the length of time the Applicant has lived in Australia, her Indigenous ties, her remorse, her efforts at rehabilitation and strong family support, her low risk of recidivism;
·The Applicant came to Australia as an infant and the fact she did not appreciate she needed to apply for citizenship does not mean she would not be considered a member of the Australian community;
·Revocation would demonstrate to her family the benefits of rehabilitation and provide positive messages to two generations of her family.
[35] Applicant’s Statement of Facts, Issues and Contentions (ASFIC); Applicant’s Reply; R1, G15, pages 128-146. The Tribunal notes that across the several years the matter was under consideration by the Minister several versions of the submissions were made to the delegate. The most recent, dated 21 June 2024 were relied on before the Tribunal and addressed the current Direction, Direction no. 110.
[36] ASFIC; Applicant’s Reply.
The Minister submitted, in summary, that:[37]
·The Applicant’s offending must be viewed very seriously having regard to her conviction of murder. Further the facts of the offending demonstrate very serious violent conduct. While the Applicant did not shoot the victim, a jury was satisfied she had a common intention with her co-accused to seriously injury the victim’s son and that the victim was killed in the execution of that plan. Further, her sentence of life imprisonment demonstrates the very serious nature of the offence;
·While the risk of reoffending may be low, the nature of the Applicant’s offending is such that any risk of reoffending is unacceptable given the very serious harm which would be caused were she to reoffend. Further, there remains a risk of reoffending having regard to a lack of evidence that the causes of the Applicant’s offending have been addressed and the limited insight shown by the Applicant;
·While the Applicant has strong ties to the community this should not outweigh other considerations noting the harm she caused to the community through her offending and breach of community expectations;
·While the best interests of the Applicant’s grandchildren would be served by her remaining in Australia limited weight should be given to that consideration noting the children’s parents fulfil a parental role, they have been separated from the Applicant for a significant period and they could maintain the relationship by electronic means;
·The Applicant’s offending is so serious that the Australian community would expect she would not continue to hold a visa and heavy weight should be afforded this consideration;
·While the Applicant would face some hardship if removed there are no insurmountable impediments to her being removed to the United Kingdom.[38]
[37] Respondent’s Statement of Facts, Issues and Contentions (RSFIC); Respondent’s supplementary submissions.
[38] RSFIC.
Protection of the Australian Community
The first primary consideration, para 8(1) of Direction no. 110, requires the Tribunal to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by para 8.1(1) to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and that the Tribunal should 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’.
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[39]
[39] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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.[40] In doing so, para 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be ‘serious’. The Tribunal notes that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[41]
[40] Direction no. 110 para 8.1(1).
[41] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the Tribunal must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant 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 Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this paragraph that the Tribunal consider the impact of the offending on any victims and their family, where information regarding this 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 as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[42]
[42] Direction no. 110 para 8.1.1(1)(d).
The Applicant’s offending history was outlined above.
The details of the offences of ‘murder’ and ‘enter dwelling with intent at night uses/threatens violence whilst armed in company’ for which the Applicant was sentenced to life imprisonment and to a concurrent term of five years respectively are provided in the sentencing remarks in the Queensland Supreme Court and in the transcript of the High Court’s consideration of the application for special leave to appeal.[43]
[43] R1, G7, pages 49-52.
The Applicant was tried and convicted of the offences along with 3 co-accused: her eldest son, David Heathcote, and two acquaintances, Rogers and Crothers, who the Applicant said rented accommodation on the same property as her home. The sentencing remarks record that Crothers and Rogers had serious criminal histories including for violent offences.[44]
[44] R1, G7, pages 53-54.
According to the sentencing remarks, at the time the offences occurred, the Applicant’s then-teenage daughter, Sarah, was pregnant and the relationship between her and her ex-boyfriend, Matthew Hoghes (also a teenager), had ‘ended with considerable enmity between the Hoghes family and Heathcote family’. [45]
[45] R1, G7, pages 49-52.
With respect to the events leading to the victim, Mr John Frank Hoghes’, murder, the sentencing judge summarised the circumstances as follows:[46]
[46] R1, G7, pages 50-53.
On 3 May 2007 there were a number of phone calls between the Hoghes and Heathcote homes. In one of those calls Yvonne Heathcote said to John Hoghes (the brother of Matthew – known as Little John), "Tell Matthew we are coming down to get Sarah's stuff and he'll get what he wants. David and Nathan are going to beat his head in."
Later that day two vehicles set out from Gatton headed for Tara. The first to leave was driven by Bradley Heathcote; also in the vehicle were Mrs Yvonne Heathcote, Sarah, David, and Nathan Wells (Sarah's new boyfriend). The car stopped at Jondaryan where the occupants alighted and spent a couple of hours.
The second vehicle, a utility containing Crothers and Rogers, also stopped at Jondaryan, but only for a short time. David Heathcote left Jondaryan in the utility with Crothers and Rogers. Those in the utility proceeded to [the address in Tara] where the murder and other offences were committed, and then to [the murder victim’s home address] where further offences were committed.
Meanwhile, the other vehicle arrived in Tara. Sarah got out in town. The other occupants proceeded to [the address in Tara where the murder was committed] where they collected Sarah's things from where they had been left by the Hoghes at the entrance to the property.
….
Returning to what happened. As the utility approached the house at 16 Males Drive, the boys rang their father for assistance. He lived nearby at [the murder victim’s address]. Crothers got out of the utility. The car driven by the boys' father, John Frank Hoghes, was heard approaching. Crothers armed himself with a gun he had brought with him from Tara and pointed it at the approaching vehicle. John Frank Hoghes arrived and got out of his car bearing an iron bar.
The defence case was that in the ensuing incident, Crothers shot John Frank Hoghes in self-defence. By their verdict the jury were satisfied that this possibility had been excluded beyond reasonable doubt.
The three male defendants entered Matthew's home. David Heathcote beat him with a metal pole while Crothers stood over him with the gun. Rogers was present throughout. The brother, Little John, was also terrorised. David Heathcote smashed the contents of the house. The boys were handcuffed.
They were taken outside and told to use a shovel to cover the pool of blood from their father's body. They were then made to put their father's body in the boot of the car. The car was driven by David Heathcote to [the murder victim’s address]. The boys were in the back seat.
The Crown case was always that the defendants did not go to Tara just to collect Sarah's things. Rather, they had a common intention to seriously injure Matthew and it was a probable consequence of the carrying out of that unlawful purpose that John Frank Hoghes would be murdered. By their verdict, the jury was satisfied beyond reasonable doubt that the defendants did have such a plan, that Mr Hoghes was murdered in the execution of the plan, and that his murder was an objectively likely consequence of the execution of the plan.
The utility also proceeded to [the murder victim’s home]. It contained Crothers and Rogers. At number [the murder victim’s home] there was a second home invasion. Michelle Wood, Mr Hoghes' partner and the mother of three young children, was terrorised. The two boys were further detained and Matthew was further threatened.
David Heathcote left [the murder victim’s address] shortly after arriving.
He did not enter the house. He took the car containing the body in the boot and dumped it at the entrance to a nearby property occupied by Thelma Baker.
While the others were at [the murder victim’s home], Michelle Wood received a telephone call from Yvonne Heathcote in which she said, "Surprise, surprise, Michelle." Eventually the three men left [the murder victim’s home]. The four defendants fled Tara. They were separately apprehended.
The Applicant told the Tribunal at the hearing that she received a call from her son to collect him from a nearby weir which she did. She claimed not to have known anything about the fact Mr Hodges had been murdered until after she picked up her son. She also denied parts of the account recorded by the sentencing judge, including with respect to phone calls made by her. This included denying she had said they were on their way to the property to beat in Mathew Hodges’ head. According to the sentencing remarks and the transcript of the discussion before the High Court, that phone call was part of the evidence relied on to establish that the Applicant was a party to the common unlawful purpose of going to the property to harm Mathew, during the commission of which his father was shot. As such, it is a factual finding on which a finding of guilt was reached by the jury.
The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[47]
[47] Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [41].
The overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or sentence.[48]
[48] Ali at [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP); (2019) 273 FCR 121 at [63], [68], [71], [76]-[79] per McKerracher J, with whom Colvin J agreed at [179]; see also [181]-[196] per Colvin J.
The Tribunal considers itself bound by the conviction which led to the mandatory cancellation of the visa, and to the extent that the Tribunal has any discretion to go behind the specific factual findings made on sentencing, the Tribunal does not consider there is any basis to do so on the evidence before it.[49] In any event, the Applicant did not invite the Tribunal do so saying she accepted responsibility for her part in the offending.
[49] See HZCP v Minister for Immigration and Borer Protection [2018] FCA 1803 at [78] and HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Minister submitted that the Applicant’s offending should be viewed very seriously. The Tribunal accepts this submission.
In the Tribunal’s view there can be no doubt that the offence of murder is objectively very serious. The Minister submitted, and the Tribunal accepts, that it is arguably the most serious violent offence that can be committed.[50]
[50] Direction no. 110, paragraph 8.1.1(a)(i).
It was submitted that while the Applicant did not pull the trigger, the prosecution’s case was that she and her co-offenders had a common intention to seriously injure Matthew Hoghes and that John Hoghes was murdered in the execution of that plan. The jury was satisfied beyond reasonable doubt that they did have such a plan and the father was murdered in the execution of the plan.[51] Further, while she was not present when her co-offenders entered the first property and threatened and ‘ferociously attacked’ Matthew Hoghes and his brother, the judge found she remained a party to the plan as evidenced by the calls she made.[52]
[51] R1, G7, page 56.
[52] R1, G7, page 56.
The Tribunal accepts this submission. While it is accepted that the Applicant did not shoot Mr Hoghes, the jury accepted she was guilty of murder for her role in the events leading to his death. She received a sentence of life imprisonment along with her co-accused. She was not the subject of a ‘serious violence offence declaration’ for the burglary conviction though her co-accessed were. This, it was submitted, reflected the fact she did not engage in the violent acts herself and meant she remained eligible for parole with respect to that offence. With respect to the burglary offence the Tribunal accepts that the Applicant’s involvement was recognised as differing from her co-offenders as she did not physically participate in the burglary or the violent assaults which took place at that time. However, the Tribunal does not accept that this lessens the seriousness of the murder conviction or of her conviction for ‘enter dwelling with intent at night uses/threatens violence whilst armed in company’ where the jury found her guilty and sentencing remarks record that she ‘remained a party to the plan… as evidence by phone calls she had made’.[53]
[53] R1, G7, page 56.
The seriousness of the murder offence was reflected in the sentence of life imprisonment imposed on the Applicant. This is among the most serious of sentences which can be imposed by the Courts. The sentencing judge concluded that life imprisonment was the only sentence that could be imposed having regard to the jury’s finding of guilt. While the Applicant was made eligible for, and ultimately obtained, parole, the Tribunal considers the imposition of a life sentence with or without eligibility for parole to be very serious.[54]
[54] Direction no.110 para 8.1.1(1)(c).
The impact on the victims of the Applicant’s crimes also contributes to the overall assessment of the offending as very serious. One of those victims was killed. As observed by the sentencing judge, the impact on the victim’s family was significant, requiring ongoing treatment for mental health issues.[55] One of the Applicant’s grandchildren lost the opportunity to have a relationship with her grandfather and on the Applicant’s own evidence has suffered instability and trauma through her life as a result of the offences which occurred prior to her birth.[56]
[55] R1, G7, page 55.
[56] Direction no.110 para 8.1.1(1)(d).
While there was no information to suggest that the Applicant was physically present when the victim was murdered, she was found guilty of murder by the jury and in the Tribunal’s view this cannot be seen to render the offending less serious than other forms of murder. To do so would, in the Tribunal’s view minimise the very serious nature of the offence and the gravity of the finding of guilt made against the Applicant. The Tribunal can see no basis on the evidence before it to warrant doing so.
There was one additional recorded offence for the Applicant, a conviction for ‘commit public nuisance’ in June 2007 for which she was fined $350.[57] There was no evidence to suggest that matter was serious, and the Tribunal does not consider it contributed to the overall assessment of the seriousness of her offending. Indeed, the Tribunal considers the Applicant’s offending could not be said to have been frequent or that there was any significant increase in seriousness – the Applicant’s only significant offending was very serious, nor was there an impact of cumulative offending.[58]
[57] R1, G6, page 47.
[58] Direction no. 110 para 8.1.1(1)(e)-(f).
There can be little doubt the offence and the conduct recorded in the sentencing remarks was extremely violent and disturbing. The consequences for the murder victim and his family members (which include one of the Applicant’s granddaughters who was born following her grandfather’s murder) were devastating. The impacts on the surviving victims were also significant. As noted in the sentencing remarks, victim impact statements recorded that the impact on the victims’ family had been ‘devastating’ including ongoing need for mental health treatment.[59]
[59] R1, G7, page 55.
The Tribunal finds the nature and seriousness of the Applicant’s conduct is very serious and weighs against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[60] 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.[61]
[60] Direction no. 110 para 8.1.2(2)(a) and (b).
[61] 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.
The Applicant maintained that, while it was accepted the harm that would be caused if she were to reoffend would be serious, there is a low likelihood she will reoffend.[62] Accordingly, she does not represent an unacceptable risk to the community.
[62] ASFIC.
The Minister accepted that that there was a low likelihood of the Applicant reoffending but contented that any risk of reoffending was unacceptable given the very serious nature of the harm which would be caused if she did reoffend in a similar manner to her past offences, including loss of life.
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.[63]
[63] Direction no. 110 para 8.1.2(2)(a).
Should the Applicant’s offending be repeated, there can be no doubt that the nature of the harm is very serious. Such harms would include serious physical harm (including death) and psychological harm to victims and their families. As noted above, the sentencing judge observed that the impact on the victim’s family had been significant, requiring ongoing treatment for mental health issues.[64] The harm caused by violent offending which results in the loss of life of members of the community is very significant.
[64] R1, G7, page 55.
The Tribunal considers the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The other element of the determination of risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, also is a consideration of the likelihood of the Applicant reoffending if she were permitted to remain in the Australian community.[65]
[65] Direction no. 110 para 8.1.2(2)(b).
In the Tribunal’s view, having considered the evidence before it, that likelihood is low. The Minister accepted the risk of reoffending was low but contended there remained a risk of reoffending.
In written statements and in oral evidence before the Tribunal, the Applicant expressed her remorse for the part she played in Mr Hoghes’ death and in particular the profound impact this had on her own family and on that of Mr Hoghes’ family. The Applicant acknowledged her own granddaughter had been denied a relationship with Mr Hoghes (also her grandfather) and that her granddaughter had suffered the impacts of the offences in her life including the impact on her mother, Sarah, the Applicant’s daughter.
The Applicant stressed she recognised that she will be subject to parole conditions for the rest of her life and that she is determined not to go back to prison.[66] This is in part the reason for her planning initially to live separately from family members who she fears may not be a pro social support for her given their own issues (including because of their own histories of drug and alcohol use). She recognised that in order to reintegrate in the community she would need to work on her own needs first and then work to re-establish relationships with family members, including her husband (who suffers from depression and has a history of alcohol abuse).
[66] A1, pages 1 – 2.
In support of a finding that there was a low likelihood of the Applicant re-offending, the Applicant relied on risk assessments conducted in the prison context which assessed her risk of reoffending to be low.[67] While those assessments are conducted for the purposes of access to rehabilitation programs in custody and management of offenders post-release, the Tribunal accepts they record an assessment or the risk of recidivism and places weight on them in this context.
[67] R1, G15, page 6.
The Applicant also relied on the report and evidence of Dr Luke Hatzipetrou who assesses that the Applicant’s risk of violent recidivism is likely to be low.[68] Dr Hatzipetrou assessed the Applicant ‘described a cluster of symptoms reflecting an adjustment disorder with depression in direct response to her current predicament’ and residual trauma as a result of reported childhood sexual abuse. [69] With respect to the offences, Dr Hetzipetrou noted the findings of guilt and recorded the Applicant’s account of the offences noting that she acknowledged her recollection had been affected by the passage of time. The inference in the report was that her account differed from the findings but that Dr Hetzipetrou assessed her to be remorseful and to accept responsibility for the offending.[70] Dr Hetzipetrou described the Applicant’s future plans as ‘reasonable and achievable’ which was relevant to her risk of recidivism. He also assessed that she was able to articulate coping mechanisms and was committed to complying with the conditions of her parole. In Dr Hazipretrou’s assessment:[71]
[T]he current findings reveal Ms Heathcote has established social supports in the community, actively completed rehabilitation and vocational programs. Her custodial behaviour was considered to be exceptional. She reportedly completed Year Ten studies and maintained full-time employment throughout the course of her detention.
During the period of incarceration, she maintained contact with her family members, as well as friends. Furthermore, she has demonstrated empathy toward the victim and his family. Ms Heathcote does express genuine remorse for these actions and understands the gravity of her actions.
She has established reasonable and achievable plans for the future. Importantly, Ms Heathcote does present with insight into her actions, the severity of her conduct, as well as the effects on others, including the community. Ms Heathcote has developed effective coping mechanisms and demonstrated a resilience in dealing with serious health conditions during the course of her incarceration, whilst being separated from her family and husband, respectively. On the balance of the findings, Ms Heathcote's risk of violent recidivism is likely to be low.
[68] A1.
[69] A1, report at page 7.
[70] A1, page 8 - 9.
[71] A1, report page 11.
He went on to conclude that the Applicant does not present with ‘antisocial personality disorder’ or ‘psychopathic personality traits’.[72] Dr Hetzipetrou concludes that:
.. Ms Heathcote presents with a raft of protective factors that are likely to assist with future integration of the community and establishment of strong and stable connections with her family and friends.
Within the available reports, the charge of murder is very serious yet low prevalence offence. There had been limited evidence of violent or homicidal ideation. Likewise, there had been no further violent conduct in custody, and she did not align with antisocial peers who endorsed violence.
Considering the findings, Ms Heathcote is confronted with visa cancellation as a result of this conviction. Given her progress in prison, the extent of her family network and their identity as First Nations’ people, Ms Heathcote's current threat of deportation is a conundrum.
Ms Heathcote was three years of age at the time of entering Australia. Moreover, Ms Heathcote's childhood and formative stage of adolescence occurred in Australia. She maintains social connections in Australia. Importantly, Ms Heathcote's husband and children were reared in Australia. By own account, Ms Heathcote confirms her conviction was not consistent with expected behaviours by an Australian citizen. Moreover, she did not condone or justify the previous involvement in this offending.
Whilst living in Australia, she had been exposed to childhood sexual abuse, perpetrated by a notorious convicted sexual offender, Mr Ferguson, which was also confirmed by her older sister. At the age of fourteen years, she was subject to another sexual assault perpetrated by an older man whilst camping with her boyfriend and his mother.
With this in mind, Ms Heathcote did not seek treatment, rather focused on gaining employment and supporting a family, yet soon after, forged a relationship with her husband. Prior to the offending, Ms Heathcote and her husband had been rearing their eight children.
As a result of the conviction, Ms Heathcote has been incarcerated in excess of fifteen years, and now, confronted with the challenge of reintegrating into the community. However, Ms Heathcote presents with a series of protective factors, such as emotional coping skills, resilience, established connections with family and friends. Likewise, she has developed work skills and offered of employment and stable accommodation. She did not present with a serious personality disorder or serious mental health disorder. Moreover, she presents with a history of working collaboratively with health professionals and correctional staff.
[72] A1, report page 14.
The Applicant also submitted that the fact the Applicant was the subject of a lifetime parole order would act a as significant protective factor against reoffending.[73] The Applicant was paroled on 3 September 2024.[74] The terms of the order include substance testing, prohibition on consumption of alcohol, prohibitions on contacting the victims or their family members, reporting requirements and counselling and program requirements, medical assessment and reporting requirements. She must not commit an offence and is subject to a curfew.
[73] ASFIC.
[74] R1, G49, pages 409 – 410.
Having regard to the terms of the parole order and in particular its lifetime nature, the Tribunal agrees this is a protective factor against reoffending. The Tribunal considered the Applicant’s evidence regarding her plans for release demonstrated both an insight into the potential recidivism risks she faces in reconnecting with family outside the controlled environment of prison and the very significant risk she runs in breaching the terms of her parole by engaging with anti-social peers, including family members struggling with substance use. For example, she explained her decision to live apart from her family as a way of both allowing her to find her feet independently in the community and to avoid the potential exposure of her daughter’s drug use and any risk of alcohol use by her husband. When asked if her daughter (Sarah) had undergone treatment for her methamphetamine use she explained she wasn’t sure but she had told her daughter that if she used drugs she would be unable to see her or she would be sent back to prison.
There was evidence that Mr Heathcote and several of the Applicant’s daughters suffered from mental health and substance abuse issues. Alarna acknowledged in evidence she has past issues with drug use and criminal convictions related to drug use. This has included periods in prison. Mr Heathcote noted in his statements he has issues with depression and the Applicant testified he has a history of alcohol use. Sarah also has a history of drug use and her current state of rehabilitation was unknown. These present antisocial risks for the Applicant. The Tribunal considers that while these relationships do present risks for the Applicant maintaining the conditions of her parole and her commitment to not reoffend, she demonstrated insight into those risks and a commitment to managing them. This is a protective factor with respect to those risks.
The Tribunal considered the salutary effect of the Applicant’s time in prison was significant impact in this regard. While some questions might be reasonably raised about her acceptance of responsibility for her role in the offending, it was clear she rejected having put herself in a position where she was convicted and sentenced to a lengthy prison term which had separated her from her children and grandchildren. The Tribunal considered her desire to stay out of prison was genuine and strong and that this will act as a protective factor against any offending as any offending would place her parole in jeopardy. That is a constraint she must live with for life.
The Minister contended the Applicant had identified that her daughter’s relationship breakdown, maternal instinct,[75] the death of her mother[76] and intoxication[77] were contributing factors to her offending and that there was insufficient evidence that she has addressed any of these factors sufficiently to remove the associated risk of reoffending. This included that there was no evidence of an anger management plan or any therapy to address the Applicant’s use of alcohol.
[75] R1, G11, page 96.
[76] R1, G16, page 150.
[77] R1, G43, page 359.
There are no easy answers in the Applicant’s case. The considerations are finely balanced. Her offending, for which she received a life sentence of imprisonment, is of the most serious kind. The Australian community would expect her visa would remain cancelled. Balanced against this she has very strong ties to this country having arrived as an infant and as an active and valued member of a large family of Indigenous heritage. She is subject to lifetime parole and presents a low risk offending and has committed herself to reconnecting with her community and supporting her family.
Having considered all the circumstances, the Tribunal is satisfied that the factors weighing in favour of revoking the cancellation of the Applicant’s visa including the primary considerations of the strength, nature and duration of her ties to Australia and the best interests of her minor grandchildren, outweigh those weighing against revocation in the Applicant’s case.
Having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is satisfied that in the Applicant’s case there is ‘another reason’ why the cancellation decision should be revoked. That is not a decision which the Tribunal comes to lightly, but it is satisfied that it is the correct decision in this case.
DECISION
The decision of the delegate of the Respondent dated 7 November 2024 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa under s 501CA(4) is set aside and substituted with the decision that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked under s 501CA(4).
I certify that the preceding 221 (two hundred and twenty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford
............................[sgd].........................................
Associate
Dated: 14 February 2025
Date of hearing: 8 and 9 January 2025 Solicitors for the Applicant: Mr Michael Jones of Michael Jones Solicitor Counsel for the Respondent Ms Vanessa Barros Goncalves of Counsel Solicitors for the Respondent: Sparke Helmore Lawyers
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