HJHC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 2958

HJHC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2958 (17 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3277

Re:HJHC

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:17 August 2020

Place:Sydney

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – character test – substantial criminal record – primary considerations – other considerations – protection of the Australian community – risk of reoffending – best interests of minor children – expectations of the Australian community – strength nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

17 August 2020

Introduction

1. The Applicant has applied to the Tribunal to revoke the mandatory cancellation of her  visa which occurred on 23 May 2018 because she had a substantial criminal record, having been sentenced to imprisonment for 12 months or more, and was serving that sentence on a full-time basis in a prison for an offence against a law of the Commonwealth or a State.[1] The Migration Act 1958 (Cth) (the Act) is the relevant statute.

   [1] Migration Act 1958 (Cth) s 501(3A)(a)(i) and (b).

2. She represented herself throughout the process of seeking revocation of that decision, first, by applying to a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) and then applying to this Tribunal after the delegate of the Minister decided not to revoke the mandatory cancellation of her visa on 25 May 2020.  The delegate’s decision is the “reviewable decision”.

3. The Applicant is a 33-year old citizen of Country 2.  She arrived in Australia for the first time in November 1998 when she was 11 years old. Apart from a few return trips to Country 2, the last of which was a week-long trip in 2013, she has resided in Australia since 1998.

   Issues

4. Section 501CA of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under sub-s 501(3A) of the Act. Relevantly, they are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)the applicant passes the character test (as defined in s 501(6));[2]

   and

   (ii)if not, whether there is another reason why the cancellation decision should be revoked.[3]

   [2] Migration Act 1958 (Cth) s 501CA(4)(b)(i).

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

   Does the Applicant pass the character test?

5. The Applicant does not pass the character test because she has a substantial criminal record, that is, she had been sentenced to a term of imprisonment of 12 months or more.[4]  Attached at Annexure A is a summary of her criminal record in Australia. On 27 April 2018, the Applicant was convicted of 12 offences. The most serious were three convictions for aggravated robbery for which she was sentenced to 15 months each to be served cumulatively, that is a sentence of three years and nine months. The Applicant was sentenced to a total of 34 months imprisonment to be served concurrently for the other nine convictions.

   [4] Migration Act 1958 (Cth) s 501(6)(a) and (7)(c).

6. The Applicant committed the 12 offences between 2 June 2017 and 1 September 2017. 

7. As she does not pass the character test, it is necessary to consider whether there is another reason why the cancellation decision should be revoked.[5]

   [5] Section 501CA(4)(b)(ii) of the Act.

   Is there another reason why the cancellation decision should be revoked?

8. A decision under s 501CA(4) of the Act involves an assessment and evaluation of the

   factors for and against revoking the cancellation.[6]

   [6] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.

9. A determination under s 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act.[7]  On 20 December 2018, the Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79). Direction 79 commenced on 28 February 2019.

   [7] Migration Act 1958 (Cth) s 499(2A).

10. Part C of Direction 79 prescribes three “Primary considerations” and five “Other considerations” that are to be taken into account when considering a person’s submission seeking revocation of a mandatory decision to cancel a visa. Each relevant consideration will be addressed.

    Protection of the Australian community

11. Protection of the Australian community from criminal or other serious conduct is a primary consideration.[8] 

    
    
    

    [8] Direction 79, para 13(2)(a).

12. Paragraph 13.1(1) of Direction 79 provides:

    When considering protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

13. There are two factors to be considered: (a) the nature and seriousness of the Applicant’s conduct to date, and (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.[9]

    The nature and seriousness of the applicant’s conduct to date

    [9] Direction 79, para 13.1(2).

14. The Applicant grew up in an environment of domestic violence, alcohol abuse and disrupted schooling. She was sexually abused when she was nine years old. She left school in year 11.

15. The Applicant has had two partners who will be referred to as Partner 1 and Partner 2. She had a child with Partner 1 in May 2005 (Child 1). She had two children with Partner 2. They were born in June 2010 (Child 2) and February 2012 (Child 3).

16. The Applicant’s offending began with a very serious offence of maliciously inflict grievous bodily harm for which she was convicted on 9 November 2005 and sentenced to 20 months imprisonment suspended on entering into a good behaviour bond.  The police facts state that on 11 August 2005, the Applicant stabbed Partner 1 in the upper torso, resulting in a punctured lung.[10]  The Applicant and Partner 1 had a long history of domestic violence.  The offence occurred after the Applicant had consumed alcohol over a prolonged period.

    [10] Tender Bundle (TB) 1/33, 2/49-50.

17. On 11 July 2014, the Applicant committed the offence of intentionally or recklessly destroy/damage property. She damaged the wind guard of Partner 2’s vehicle after an argument and caused damage to the interior of the vehicle.[11] She was convicted and sentenced to a 12 month good behaviour bond on 5 September 2014. The Applicant said that she was using methylamphetamine intravenously from the end of 2013.

    [11] TB1/19-20, TB3/86-109.

18. The offending which resulted in the 12 convictions on 27 April 2018 occurred over a period of three months:[12]

    (a)On 2 June 2017, the Applicant attempted to leave a supermarket with a shopping trolley containing approximately 341 items without paying. When an employee challenged the Applicant, the Applicant struck the female employee in the eye, causing the employee’s glasses to break and superficially lacerate her eyebrow.

    (b)On 18 July 2017, the Applicant, while in the company of another person, attempted to leave a supermarket without paying for items that were placed in plastic grocery bags. When challenged by a female security officer, the Applicant swung a grocery bag in the officer’s face which struck her on the face. While the Applicant was being detained by the security officer, she struck the guard on the face with her hand, kneed her on the chin and then said “I’ll come back and bash you”, which caused the security officer to release the Applicant.

    (c)On 2 August 2017, the Applicant, while in the company of another person, was found to have a debit card belonging to another person, that was reasonably suspected to be unlawfully obtained as the Applicant did not know the person. The card was used to purchase grocery items to the value of approximately $246.99.

    (d)On 24 August 2017, the Applicant was in the company of two co-offenders at a service station, one of whom filled up a car with fuel to the value of $66.37. Without paying for the fuel, the Applicant and her co-offenders got into the vehicle and departed the service station.

    (e)On the same day, the Applicant attempted to steal a drill set from a hardware store while in company. When a female employee asked her for proof of purchase upon leaving the store, the Applicant swung the drill set at the employee, striking her on the arm. Later when another female staff member attempted to retrieve the drill set, the Applicant punched the staff member in the face.

    (f)Later the same day, the Applicant, while in company, again attempted to leave a supermarket without paying for items that were placed in a trolley and were to the value of approximately $1,717. The Applicant and the co-offender were chased into the car park by staff members who retrieved the trolley load of stolen items with the exception of one drone to the value of $99.

    (g)On 31 August 2017, the Applicant stole a gas hot water system and a pressure cleaner from a local hardware store while in company of two persons. On 1 September 2017, the Applicant was arrested at her home address and the hot water system was found at the property.

    (h)On 1 September 2017, the Applicant attempted to steal baby monitors from a baby store while in company. When a female staff member asked the Applicant to return the stock, the Applicant pushed past the employee before turning around and pushing the employee, causing the employee to stumble back.

    [12] G-documents (G)15/73-80, TB4/130-136.

19. The Applicant pleaded guilty to all charges.  The judge’s sentencing remarks included:[13]

    [13] G6/33-45.

    ·At the time, the Applicant’s Centrelink payment was used to fund her methylamphetamine addiction leaving her with little money for the necessities of life including food.

    ·She told the psychologist that at the time she had been spending $400 to $500 a day on methylamphetamine and drinking around 2 litres of wine.

    ·She (and those she was with) were stealing on a daily basis to fund her habit.

    ·She was on methylamphetamine and alcohol intoxication at the time of the offending “that may well have led” her responses “to be somewhat more aggravating. And whilst that may go some way towards explaining” her behaviour, “it’s in no way mitigating of it”.

    ·Two of the three serious stealing offences were in company with another which was a specific circumstance of aggravation. 

    ·Virtually all of her offending was committed in company with other people which generally increased the serious of the offending.

    ·In relation to the three serious counts of stealing with violence, her “instinctive reaction to being challenged was to resort to violence to try and escape”.  That it happened on more than one occasion means that she “must have appreciated there was a real risk, potentially an inevitability that each time (she) stole in this manner that there would be violence”.

    ·The overall extent of her offending over three months and involving multiple businesses and victims made her offending very serious.

    ·Mitigating factors included her plea of guilty at the first reasonable opportunity, that her “childhood was marred by domestic violence, alcohol abuse, parental neglect, parental abuse and sexual abuse”, her high level of remorse for her conduct, her desire to undertake a comprehensive rehabilitation program and the commitment to rehabilitation she had shown in prison.

    ·The seriousness of her offending was such “that only a term of imprisonment can be justified as a sentence”.

    ·The protection of the community required her to serve a significant term of imprisonment.

    ·The length of the term of imprisonment must reflect a significant element of general deterrence.   “In particular people working in retail are entitled to go to work and be safe at work and not be threatened by people who are on methylamphetamine and doing very brazen acts of theft and acts of theft with a high potential for physical violence and indeed in this case physical violence on three occasions.”

    ·The offending as a whole “justifies a significant measure of cumulation… you have got multiple incidents over a three months period with multiple victims”.

    ·Given the extent and seriousness of offending, his Honour was “positively of the view that it is not appropriate to suspend the term I have imposed”.

    ·The Applicant was eligible for parole after serving half the term, that is on 16 July 2019.

20. The Applicant’s offences have included violent offences which are viewed very seriously.[14] She has committed violent offences against three women which are viewed very seriously, regardless of the sentence imposed.[15] As the sentencing judge made clear on 27 April 2018, some cumulative sentences of imprisonment were appropriate because of the nature of the offending described.[16] The frequency of the Applicant’s offending and the seriousness of it increased dramatically in the three month period from June to September 2017.[17] The Applicant said during the hearing that she was using methylamphetamine intravenously.  The cumulative effect of repeated offending, particularly in 2017, is notable. It is also relevant that the Applicant’s first offence in 2005, Maliciously inflict grievous bodily harm was her most violent offence but the pattern of offending thereafter included violence.

    [14] Direction 79, 13.1.1(1)(a).

    [15] Direction 79, 13.1.1(1)(b).

    [16] Direction 79, 13.1.1(1)(d).

    [17] Direction 79, 13.1.1(1)(e).

21. The Applicant’s offending is very serious and weighs heavily against revocation of the mandatory cancellation decision.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

22. The nature of the harm to individuals if the Applicant engaged in further criminal conduct is serious.  The sentencing judge’s remarks about people in retail being entitled to go to work and be safe demonstrates the risk of violence to people in the wider community if the Applicant reoffends. Her future partners are at risk of violence if she reoffends.  The nature of the harm if the Applicant reoffends could involve physical, psychological and economic harm to members of the Australian community.

23. The Applicant acknowledged during the hearing that her offending is strongly related to her abuse of alcohol and drugs. That is borne out by her criminal offending. She is a repeat offender. Her offending escalated in frequency and seriousness resulting in her being sentenced to imprisonment for three years and nine months in 2018. 

24. The Minister pointed to the police records in State 1 that show between 2002 and 2008  (Partner 1) and between 2012 to 2015 (Partner 2), the Applicant and her then partner were “well known to police” for domestic violence related incidents, including in front of young children, and involving intoxication, including in public.[18]  Many involved the Applicant consuming alcohol. From about 2014 other drug taking was also reported.[19] Sometimes the Applicant was the victim and sometimes she was the perpetrator of the domestic violence.  They were not events that resulted in charges being laid.  Various Apprehended Violence Orders were issued, including against the Applicant.

    [18] TB1/3-42.

    [19] For example on 5 October 2014, TB1/18; 23 December 2014, TB3/113-117.

25. Child 1 was at the premises when the Applicant stabbed her partner in August 2005.  She was three months old.  Child 1 was in the care of her maternal aunt and uncle for a period from about the date of that offence pursuant to a Department of Community Services (DoCs) Case plan dated 12 August 2005 which required the Applicant to work with DoCs and accept all appropriate referrals in relation to issues of domestic violence and alcohol abuse and current child protection issues “Till deemed necessary by the Department”.[20]  She had started on a Personal Support Program with Work Directions since March 2005.[21]  Her case co-ordinator advised in a letter to the magistrate’s court dated 15 August 2005 that a Centerlink (sic) psychologist identified her main barriers to be drugs/alcohol dependence and self-esteem issues and the Applicant had asked for a drug and alcohol counsellor contact “on her own accord.  Her goal for the future is to either study or work when she is ready”.[22]  The Applicant was referred to the Salvation Army FYRST program but failed to attend appointments. DoCs was undertaking to refer her to a similar service, as well as to have her undergo regular urinalysis and anger management.[23]

    [20] TB2/61.

    [21] TB2/62.

    [22] Ibid.

    [23]  TB2/64-65.

26. The Applicant undertook rehabilitation at a facility in State 1 in 2009.  There is evidence that it was for six months or 12 months. She met Partner 2 at that facility and decided to leave with him.  Subsequently she reoffended.

27. In about May 2015, the applicant moved to State 2 in an attempt to remove herself from her environment of alcohol and drug abuse and rehabilitate herself.  She sent Child 2 and Child 3 there to be cared for by her sister until the Applicant travelled there about three weeks later.  She stayed with her sister for about six months and left with her children because of differences with her sister but remained in State 2.  In about May 2017 the Applicant returned Child 2 and 3 to her sister’s care as her drug and alcohol abuse increased. She reoffended.

28. The psychological report provided to the court in State 2 dated 18 February 2018 stated that the Applicant denied coming to the attention of police or courts in State 1 or Country 2.[24] The report considered that the Applicant had a low level of risk of future offending.[25]  Little weight is given to that assessment because it did not take into account the Applicant’s offending in State 1, which included her most serious single offence.

    [24] G15/77.

    [25] G15/78.

29. While in a women’s prison in State 2, the Applicant completed a Choice Change and Consequences program over a period of four months.[26]  The program was specifically for female offenders who have been assessed as a medium to high risk of re-offending.  The program completion report dated 3 May 2019 stated that the applicant had received loss of privileges on four occasions:  for being verbally aggressive towards an officer, for fighting, and for smoking in her cell on two occasions.  It concluded:

    Although (the Applicant) developed an adequate risk management plan, her treatment gains have yet to be implemented in a community setting. As such in the event that (the Applicant) is released to a period of supervised Parole, it is recommended that she is supported to utilise her support network, including external drug and alcohol counselling to assist her to consolidate and implement the strategies she has learned, particularly when encountering stress saws and/or more challenging emotional experiences.[27]

    [26] TB6/190.

    [27] TB6/197.

1. The Applicant was transferred to a rehabilitation prison on 21 February 2019 for the remainder of her sentence. A Parole Assessment was dated 17 September 2019.  The Applicant had been interviewed on 26 August 2019. A Parole Review Report was finalised on 17 September 2019.[28] The Applicant had advised that she would be residing with her sister in State 2 while on parole, had not secured employment, would utilise Centrelink, had completed a Certificate III in Health and Fitness during her term of imprisonment and was keen to gain employment in that industry. Requirements of parole included:[29]

   ·to attend programs and counselling as directed (if not detained in Immigration Detention);

   ·not to consume illicit substances;

   ·to submit to random urinalysis testing as directed and provide a valid sample (if not detained in Immigration Detention);

   ·not to enter licensed premises with the exception of cafés, restaurants and sporting venues;

   ·not to change address without prior approval (if not detained in Immigration Detention).

   [28] TB6/203-210.

   [29] TB6/202, 209.

2. The Applicant had ten random samples taken while in prison from 12 November 2017 to 21 May 2019.[30]  All tests were negative. In addition to the incidents resulting in a loss of privileges, the Parole Review Report noted one incident of verbal abuse towards another resident, a warning issued for suspected alcoholic brew, and disobeying an order and threatening and abusing another prisoner with no further action being taken.[31]

   [30] TB6 at 206.

   [31] TB6 at 206.

3. The Applicant completed the following accredited education/training while in prison, in addition to the Certificate III in Fitness:[32]

   ·Certificate 1 in Entry to General Education - Introduction to Workplace Health and Safety;

   ·Food Handler Training Program – Foodstars level I;

   ·Certificate 1 in Gaining Access to Training and Employment – Further Study Skills;

   ·Certificate 1 in Hospitality – Use Hygienic Practices for Food Safety; and

   ·Prepare and Serve Espresso Coffee.

   [32] TB6 at 207.

4. The Applicant voluntarily commenced the Therapeutic Community Program (TC) on 26 February 2019 and finished it on 25 September 2019.[33]  TC takes 28 weeks to complete. 

   (It) is an intensive treatment program designed to address the behaviours, attitudes, and beliefs that perpetuate substance abuse and criminal offending.[34]

   [33] TB6/211.

   [34] TB6/211.

5. The TC Completion Report dated 16 October 2019, included the following under the heading “Exit Planning”: [35]

   ·The Applicant’s exit plan is contingent on her resident status, however the ongoing support will be available in Country 2.

   ·The Applicant identified a number of concerns about reintegrating into society, finding employment, old associations, internal triggers around self-doubt, and family celebrations that could lead to relapse.

   ·She intended to attend Narcotics Anonymous meetings regularly, get a sponsor, join a local church and arrange individual counselling.

   ·Reuniting with her children was a primary motivator moving forward in her life. She did not want to disrupt their lives but would like to have more of a presence and connection with them.

   [35] TB6/215.

6. The Applicant has been detained in immigration detention since being released on parole on 17 October 2019. While in detention in State 2, she was involved in one “minor assault” with another detainee.  They struck each other with “open and clenched hands and had grappled to the floor”.[36] The Applicant was transferred to a detention centre in State 1 on 22 November 2019.[37]  A Client Incident Report from that detention centre described the Applicant’s involvement on 23 January 2020 in a “minor assault” with another detainee.[38]  She suffered scratches and what appeared to be a bite mark and was escorted for medical assessment.[39] 

   [36] G29/119.

   [37] TB6/228.

   [38] G29/116-117.

   [39] G29 at 117.

7. The Applicant advised the Department in April 2020, and repeated at the hearing, that her sister who lives near the detention centre has offered her post release accommodation and care.[40]  Her sister is the subject of an incident report at the detention centre on 1 March 2020 where she tested positive for the banned substance Butrylfentanyl and was refused entry.[41] The incident was described as “minor”. The Applicant explained this incident as being caused by her sister picking up traces of the drug from the medication of her autistic twins or from the community during her travel to visit the Applicant.[42]  She wrote that her sister does not take drugs and is a diabetic.

   [40] G28/114.

   [41] G29/115.

   [42] G11/66.

8. The Applicant has served her first sentence of imprisonment. She has been in immigration detention since October 2019. Both are controlled and structured environments.  The Minister’s case emphasised the incidents in prison and detention to argue that the Applicant continues to have issues with conflict and anger management, that her previous attempts at rehabilitation have failed, and what she has learned from the courses she has undertaken is untested in the community. 

9. Overall, the Applicant’s conduct in prison and detention was quite good.  However, she was not drinking alcohol or abusing drugs, which are the drivers of her offending and anti-social behaviour.  After rehabilitation in 2009 and relocating states in 2015, she returned to abusing alcohol and drugs and consequently reoffended. As she said at the hearing, and which is referred to in various documents, she began drinking alcohol and using marijuana when she was 12 or 13 years old and it got worse after her mother died in 2002. She has a long history of substance abuse which results in anti-social and violent behaviour. She said that drugs were available in immigration detention.

10. The Applicant has had the support of various family members in the past, particularly her sister in State 2 and a sister in State 1 who was caring for Child 1 for a period from 2005, based on the DoCs case plan and police records. The Applicant has letters and statements of support from several family members in both states. Having that support in the past did not prevent her substance abuse and criminal offending.

11. Similarly, she had the motivation in the past of maintaining care of her children.  Child 1 was in the premises when the Applicant stabbed her partner in 2005 and was then cared for by members of the Applicant’s family. Child 1 is currently in the care of her paternal grandparents and has been for at least 10 years.  The Applicant recounted how she tried to regain care of Child 1 in 2010 but was unable to because she failed a urinanalysis. She returned Child 2 and Child 3 to her sister’s care in State 2 in May 2017 when her substance abuse spiralled out of control. The desire to care for her children has not motivated her in the past to refrain from substance abuse and offending.

12. The Applicant’s past attempts to rehabilitate have failed. If the cancellation decision were revoked, she proposes to live in State 1. The Minister also submits that it is likely she will be released in State 1. When she was released on parole in State 2, she was immediately detained by immigration authorities. Her sentence ends on 31 May 2021.[43]   No evidence was available as to what her parole arrangements might be if she were released in State 1. She did express her willingness to co-operate with the parole authority.

    [43] G6/30, 44-45; TB4/151-155.

13. Given the Applicant’s history of offending and abusing alcohol and drugs, and that her current resolve to work in the fitness industry, have more of a presence and connection with her children, and not reoffend, is untested, I conclude that there is a real and continuing risk that the Applicant will reoffend. Given the nature of the harm that would result if she did reoffend, the risk of reoffending is very concerning and weighs heavily against revocation. 

    Best interests of minor children in Australia affected by the decision

14. Direction 79 specifies eight factors that must be considered when considering whether revocation is in the best interests of the child.[44]  The interests of each child should be given individual consideration to the extent their interests differ.[45] The Applicant has three minor children in Australia, as set out at [14] above.

    [44] Direction 79, 13.2(4)(a) to (h).

    [45] Direction 79, 13.2(3).

15. The Applicant claims that her removal from Australia would “negatively impact (her) children emotionally and mentally”.[46] Her uncle in State 2 wrote in his letter of support that she asked to be transferred from detention in State 2 to detention in State 1 in order to be closer to her children.[47]  The 2019 Parole Review Report finalised on 17 September 2019 stated that the Applicant “makes multiple phone calls to her children who reside in [State 1]”.[48]

    [46] G8/55.

    [47] G19/84-85.

    [48] TB6/208.

16. Child 1 lives with her paternal grandparents in State 1.  The Applicant claims that she has a “strong mother-daughter relationship” with Child 1, through mail, Skype and social media but accepts that she does not play a major parental role in the life of Child 1.[49]  Her impression was that Partner 1 does not have a role in the life of Child 1. Child 1 has visited the Applicant once since she has transferred to detention in State 1. The Applicant said that the current COVID-19 pandemic has impacted Child 1’s ability to visit.

    [49] G8/55; Applicant’s statement dated 10 July 2020.

17. Child 1 provided a typed, undated and unsigned letter, in which she wrote the following:

    I have a very close relationship with my mother and would not like to think that my sister and brother and I can’t have a relationship with her if she was to return to (Country 2). Since my mother has been in jail I have found it hard to have a proper relationship with her so I would like to be able to have a good loving relationship with my mother because it is at this time in my life that I really need her. At this time in my life I am struggling with school and acting out in certain ways in my behaviour because I really need my mum. [50]

    [50] G16/81.

18. Child 1’s paternal grandmother also provided a typed unsigned letter dated 22 November 2019 and an undated handwritten letter.[51] In the typed letter, she said that “Over the past couple of years (Child 1 and her mother) have been talking over the phone and regular skype” and “have developed a close relationship during this time”.  She requested that the Applicant be able to stay in Australia “to continue a more stable relationship with (Child 1) and help us to solve some behaviour issues that (Child 1) has which started around April last year with her turning 13 and hormones changing then finding out her mother may be deported were a few triggers to her behaviour”.  She explained that they were trying to get help for Child 1, and after talking to organisations “they say she has had a lot of trauma during her life and we are hoping that with treatment and having her mother close by to help her through all this then it is possible we will have a breakthrough in her behaviour”.

    [51] G17 and G18.

19. In the undated handwritten letter, Child 1’s paternal grandmother said the following.[52]  She had been looking after Child 1 for ten years and will continue to do so until she turns 18.  The Applicant had told her that she wants to come back to State 1 to establish a closer relationship with Child 1. She understood that the Applicant’s visa has been cancelled.  The Applicant acknowledged that there was a court order in favour of the paternal grandmother.

    [52] G18.

20. Child 1’s wishes to have an ongoing relationship with her mother, and the possibility that that might help her overcome behavioural issues weigh in favour of revocation.[53] Apart from one recent visit, they maintain contact by mail, Skype, social media and telephone calls and could continue to do so if the Applicant returned to Country 2.[54] 

    [53] Direction 79,13.2(4)(d) and (f).

    [54] Direction 79,13.2(4)(d).

21. The Applicant has played a very small parental role in the life of Child 1.[55]  The Applicant claimed to have cared for Child 1 until she was four years of age, that is until 2009. However, the police records of State 1 cast doubt on that claim.  Child 1 was present during the 2005 stabbing offence. Police thought it an unsuitable environment for the young child due to the Applicant’s unstable state, the large consumption of alcohol between the parents and the escalating violence at the premises that led to the stabbing.[56] There was a DoCs case plan which placed Child 1 in the care of an aunt and uncle, as discussed at [24] above. Child 1 was in the custody of the Applicant’s family as of 7 October 2005.[57]  On 4 March 2006, there was an incident at a railway where the Applicant and her partner had a “tug-a-war” with the child, causing transit police to intervene and police being called.[58] Child 1 was described as “(CHILD AT RISK)”.  The Applicant and Partner 1 were told that Child 1 would be reported to DoCs.

    [55] Direction 79,13.2(4)(a).

    [56] TB1 at 33.

    [57] TB1 at 31.

    [58] TB1 at 31.

22. On 17 January 2008 police were informed by an aunt of Child 1 that:

    (Child 1) normally resides with the inf. The mother and father are separated and according to the inf have no fixed place of abode and both are drug dependant hence the child residing with the inf.  There are no custody orders in place however after this incident the inf is applying for custody immediately.  The mother had regular contact with the child and a few days ago made arrangement with the father for him to have access.  The father has taken (Child 1) and has not returned the child yet.[59]

    [59] TB1 at 23.

23. The Applicant said that in 2010 she tried to get Child 1 back. It was a very difficult time for her.  She was with Partner 2 and Child 2 was born in 2010.  She said that there was a problem with getting Child 1 back because she failed a DoCS urinalysis test.

24. The Applicant’s conduct resulted in Child 1 being present at the stabbing in 2005 and the incident at the railway station in 2006, both violent domestic incidents.[60]  Her conduct resulted in Child 1 being cared for by an aunt and finally by her paternal grandmother.

    [60] Direction 79, 13.2(4)(c).

25. It seems unlikely that the Applicant would be able to rehabilitate herself and gain care of Child 1 from her paternal grandmother who has cared for Child 1 for so long before Child 1 turns 18.  If she remains in Australia, the Applicant may be able to spend time with Child 1.

26. The above evidence suggests that the Applicant played a very limited parental role in the life of Child 1 from August 2005 onwards. There was regular contact until 2008, but thereafter there is little evidence of contact with Child 1 until the last few years.  I infer that Child 1 and the Applicant have developed a closer relationship in the period of about three years following her incarceration. 

27. The extent to which the Applicant is likely to play a positive parental role in the life of Child 1 has to be viewed in the context of the risk that she will reoffend when released into the community and exposed to the temptation of drugs and alcohol.[61]

    [61] Direction 79, 13.2(4)(b).

28. The consideration of the best interests of Child 1 is finely balanced.  It favours revocation slightly. Therefore, little weight is to be given to this consideration.

29. Child 2 and Child 3 live in State 1 with their paternal grandmother some distance away from where the Applicant is currently detained in that state. They have not visited her since she returned to State 1.  The Applicant told the Tribunal that she has “no relationship” with their paternal grandmother.  There is a court order in force which provided for Child 2 and Child 3 to live with their paternal grandmother and that she and her son, Partner 2, are to have equal shared parental responsibility for both children. The final order was not in evidence, but the Applicant provided an undated document detailing proposed consent orders which she said “will give you a fair idea”.[62]  The time the Applicant spends with the children was to be agreed between the three parties and could be supervised “at the discretion of the paternal grandmother”.  The children would Skype the Applicant each week, as agreed or at a specified time “and lasting as long as the children’s interest is maintained”. 

    [62] G14/71-72.

30. The Applicant wrote that both children reside in State 1 because she decided “due to my incarceration” that they “needed to be close to their father whom has a parental role in their lives”.[63]  She had cared for Child 2 and Child 3 until May 2017 when she put them in the care of her sister when her drug and alcohol abuse took over her life.  She told the Tribunal that Child 2 would not speak to her at that time. She claimed that she had regular weekly visits from Child 2 and 3 while she was incarcerated and regular contact via phone and mail.[64]  The last time she saw them was in December 2018 when they visited her in prison in State 2.

    [63] G8/55.

    [64] G9/ 62.

31. The terms of the court order are clear.  The Applicant has no parental role in the lives of Child 2 and Child 3.  She is only entitled to one weekly Skype meeting. Any additional communication or time spent with the children has to be agreed with the paternal grandmother and Partner 2 and the paternal grandmother can require that the time spent with the children is supervised.

32. The Applicant acknowledged that she has a long path to tread before she can play a parental role in the lives of Child 2 and Child 3.  However, it is eight years and 10 years respectively before those children turn 18.  There is a possibility that she may rehabilitate and resume a parental role in their lives.

33. There is no evidence of the wishes of Child 2 and Child 3.  She is in contact with them.  She can continue the same contact if she returns to Country 2.  She did care for them from birth until May 2017, now more than three years ago. At the time the Applicant committed the property offence in 2014, Child 2 and Child 3 were staying with her sister for two days and so were not present.[65]

    [65] TB3/97.

34. To the extent that they may wish to have a relationship with the Applicant, the best interests of Child 2 and Child 3 would be served by having the possible opportunity to spend time with the Applicant, that is, that she remains in Australia. However, once again, that is subject to the risk that she will reoffend or resume her abuse of alcohol and/or drugs.

35. The best interests of Child 2 and Child 3 weigh in favour of revocation of the mandatory cancellation decision but less weight is given to this consideration in each case because of the terms of the existing court order and the risk that the Applicant will reoffend or resume abusing alcohol and drugs.

    Expectations of the Australian Community  

36. Paragraph 13.3(1) of Direction 79 sets out the expectations of the Australian community:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa.

37. Paragraph 13.3(1) of Direction 79 is analogous to paragraph 11.3(1) of Direction 65 which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[66] The majority (Charlesworth and Stewart JJ) concluded that:

    Paragraph 11.3 (and 13.3) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[67] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[68]

    [66] [2019] FCAFC 185 (FYBR); the High Court dismissed FYBR’s application for special leave on 24 April 2020.

    [67] Ibid at [66] (Charlesworth J); [91] (Stewart J).

    [68] Ibid at [67] (Charlesworth J); [104] Stewart J).

1. Adopting the language of Stewart J, the content of the expectations of the Australian community expressed in paragraph 13.3 is:

   If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.[69]

   [69] FYBR at [101]; see to similar effect [75] (Charlesworth J).

2. The weight to be attached to this consideration is a matter for the decision-maker to decide. Taking into account paragraphs 6.2(2) and (3) in Direction 79, the Australian community would expect that the Applicant should not hold a visa because of the number of violent and other serious offences she has committed from 2005 to 2017.  The Australian community may afford a higher level of tolerance because the Applicant has resided in Australia for most of her life.[70] However, her repeated offending, the seriousness of the offending, its escalation in 2017 and the risk of her reoffending when released into the community with access to drugs and alcohol which were drivers of her offending, lead to significant weight being given to this consideration which is against revoking the cancellation.

   [70] Direction 79, 6.3(5).

   Strength, nature and duration of ties

3. Of the Other considerations to be taken into account set out at paragraph 14 of Direction 79, only two arise for consideration on the evidence in this case.  The first is strength, nature and duration of ties and the second is extent of impediments if removed.[71]

   [71] Direction 79. 14(b) and (e) respectively.

4. Applying paragraph 14.2 of Direction 79 which relates to the first of the relevant other considerations, the Applicant has resided in Australia since she was 11 years old, from 1998. Her first offence was in 2005 when she was 18.[72]  She claimed to have worked in warehousing (2015-2016), printing (2012-2015), as a cook in a rehabilitation centre (2006-2010), and as a book-keeper (2003-2005). There is negligible corroborative evidence of that history. Given her history of alcohol abuse and domestic violence in the police reports from State 1, as well as her offending in that state, and her offending in State 2, and that she cared for Child 2 and 3, little weight is given to her work history. The Applicant has undertaken various courses since her incarceration and has been a mentor for a period of time in the rehabilitation prison. There is limited evidence that the Applicant has contributed positively to the Australian community.[73]

   [72] Direction 79, 14.2(1(a)(i). 

   [73] Direction 79, 14.2(1)(a)(ii).

5. The Applicant has had strong links over her life in Australia with some of her family members, particularly her sister or sisters who have cared for her children at various times. Her children are in Australia. She has letters of support from various family members. She has provided letters of support from friends and the paternal grandmother of Child 1. I am prepared to assume that they are Australian citizens, permanent residents or have an indefinite right to remain in Australia.  None of those people is dependent on the Applicant financially. They may be adversely impacted emotionally to an extent, however, that has to be considered in the context of the Applicant’s long history of drug and alcohol abuse and, more recently, her incarceration and detention.

6. This consideration weighs in favour of revocation but is given limited weight.

   Extent of impediments if removed

7. The Applicant is 30 years old. She suffers from type 2 diabetes which is being managed by medication and was taking anti-depressant medication at the time of the hearing which had been recently prescribe.[74]  There are no substantial language or cultural barriers if the Applicant is removed to Country 2.[75]

   [74] Direction 79, \14.5(1)(a); G15/76-77.

   [75] Direction 79, 14.5(1)(b).

8. The Applicant and some people who wrote in her support claimed that she had no support from an extended family in Country 2.  During the hearing, the Applicant conceded that she has family members there, some of whom she had met when she returned there on a couple of occasions, and a niece who has returned there.  Clearly, she is not as close to those family members as she is to those who are here in Australia. Nevertheless, she has some family support available to her if she is removed to Country 2.

9. She may face greater difficulty re-establishing herself in Country 2 if she is removed there rather than if she is released into the Australian community given that she has spent the last 22 years in Australia.  However, it seems that she will face difficulty in either location because of her lengthy history of drug and alcohol abuse and limited work experience. As a Country 2 citizen she will have access to the same social, medical and economic supports available to all Country 2 citizens.[76]

   [76] Direction 79, 14.5(1)(c).

10. The Applicant will suffer no significant impediments if she is removed to Country 2.  This consideration favours revocation but is given little weight.

    CONCLUSION

11. For the reasons given above, the considerations favouring revocation are strongly outweighed by the considerations against exercising the discretion in s 501CA(4) of the Act to revoke the mandatory visa cancellation. There is not another reason why the original decision should be revoked.

    DECISION

12. The reviewable decision is affirmed.

79.      

80.      

81.     I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 17 August 2020

Date(s) of hearing:	3 and 4 August 2020
Date final submissions received:	12 August 2020
Applicant:	By video
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers

ANNEXURE A

Court date	Offence date	Offence	Penalty
9 November 2005 Magistrate’s Court (State 1)	11 August 2005	Maliciously inflict grievous bodily harm	20 months imprisonment, suspended on entering into a good behaviour bond
5 September 2014 Magistrate’s Court (State 1)	11 July 2014	Destroy or damage property (DV)	$500 fine, 12 month good behaviour bond
18 May 2015 Magistrate’s Court (State 1)	23 December 2014	Drive vehicle, illicit drug present in blood etc – 1st offence	$800 fine; 3 months disqualification
17 July 2015 Magistrates Court (State 2)	26 June 2015	Stealing Fail to obey order given by an officer	$500 fine Conditional release order: 6 months imprisonment, $250 undertaking, concurrent
27 April 2018	2 June 2017	Assault Occasioning Bodily Harm	5 months imprisonment, concurrent
District Court (State 2)
2 June 2017	Stealing	2 months imprisonment, concurrent
18 July 2017	Aggravated Robbery	15 months imprisonment, cumulative
18 July 2017	Assault with intent to resist/prevent arrest/detention	5 months imprisonment, concurrent
18 July 2017	Threats to injure, endanger or harm any person	4 months imprisonment, concurrent
2 August 2017	Gains Benefit by Fraud	2 months imprisonment, concurrent
2 August 2017	Possession of stolen or unlawfully obtained property	6 months imprisonment, concurrent
24 August 2017	Aggravated Robbery	15 months imprisonment, cumulative
24 August 2017	Stealing	2 months imprisonment, concurrent
24 August 2017	Stealing	5 months imprisonment, concurrent
31 August 2017	Stealing	3 months imprisonment, concurrent
1 September 2017	Aggravated Robbery	15 months imprisonment, cumulative
8 October 2018	4 August 2017	Stealing	$200 fine
Magistrates Court
(State 2)	12 August 2017	Stealing	$200 fine
12 August 2017	Stealing	$200 fine