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

[2020] AATA 1123

Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1123 (4 May 2020)

Division:GENERAL DIVISION

File Number:          2020/0879

Re:Rebecca Hood

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:L M Gallagher, Member

Date:4 May 2020

Place:Perth

The Reviewable Decision to cancel the Applicant’s visa is affirmed.

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

L M Gallagher, Member

CATCHWORDS

MIGRATION – decision of delegate of Minister to cancel visa – character test – substantial criminal record – drug convictions – traffic convictions – Direction No. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to the United Kingdom – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)

Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 501, 501(1), 501(2), 501(6), 501(6)(a), 501(7), 501(7)(d), 501CA, 501CA(4), 501G(1), 501G(2), 501G(3)

Migration Regulations 1994 (Cth) – regs 2.55, 2.55(3)(a), 2.55(5)

CASES

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 (2015) 148 ALD 117

FYBR v Minister for Home Affairs (2019) 374 ALR 601

Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482

Nigro v Secretary to the Department of Justice (2013) 41 VR 359

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) – paras 6.1, 6.1(2), 6.1(4), 6.2, 6.3, 6.3(3), 7(1)(a), 8, 9(1), 9.1(1), 9.1(2), 9.1.1(1), 9.1.1(1)(a), 9.1.1(1)(b), 9.1.1(1)(c), 9.1.1(1)(d), 9.1.1(1)(e), 9.1.1(1)(f), 9.1.1(1)(g), 9.1.1(1)(h), 9.1.1(1)(i), 9.1.1(1)(j), 9.1.1(1)(k), 9.1.2(1), 9.1.2(2), 9.1.2(2)(a), 9.1.2(2)(b)(i), 9.1.2(2)(b)(ii), 9.2, 9.2(4), 9.3, 9.3(1), 10, 10(1), 10.1, 10.2(1), 10.3(1), 10.4(1), 10.5(1)

REASONS FOR DECISION

L M Gallagher, Member

4 May 2020

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Respondent

   
   

   (the Delegate) on 5 February 2020 to cancel the Applicant’s Class BQ Subclass 139 Skilled – Designated Area-Sponsored (permanent) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act). The Applicant was notified of the decision by hand on 10 February 2020.[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).

   [1] R5, G27, page 167.

   BACKGROUND

2. The Applicant is a citizen of the United Kingdom[2] who arrived in Australia on 3 March 2007[3] at the age of 16. The Applicant was granted the visa as a dependant of her father, on 18 September 2006.[4]

   [2] R1, G21, page 116.

   [3] R1, G8, page 38.

   [4] R1, G21, pages 117–119.

3. On 1 June 2019, the Department of Home Affairs (the Department) sent the Applicant a notice regarding possible visa cancellation under s 501(2) of the Migration Act

   
   

   (the Notice), inviting her to comment on: whether she passed the character test, as the information before the Department suggested that she may not pass the character test; and should the decision-maker reasonably suggest that she did not, on whether the decision-maker should exercise his or her discretion to cancel the Applicant’s visa.[5]

   
   

   The Notice enclosed information including:

   ·‘Nationally Coordinated Criminal History Check Results Report’ by the Australian Criminal Intelligence Commission released 16 August 2019;[6] and

   ·Sentencing remarks of Magistrate Benn in Proceedings in the Magistrates Court of Western Australia on 18 September 2018.[7]

   [5] R1, G7, pages 31­–35.

   [6] R1, G6.

   [7] R1, G9.

4. The Applicant acknowledged receipt of the Notice by email to the Department dated

   
   

   13 June 2019.[8]

   [8] R1, G7, pages 36 and 37.

5. On 20 September 2019, the Department sent the Applicant a further letter inviting her to comment on further information received, namely her National Criminal History Certificate released 12 August 2019.[9] In particular, the Applicant was invited to comment on the further charges for which she was convicted on 17 September 2019.

   [9] R1, G22, pages 123–125.

6. The Applicant acknowledged receipt of the further letter in a series of emails dated

   
   

   24 September 2019[10] and provided responsive material to the Department.[11]

   [10] R1, G23, pages 126–129.

   [11]Refer to R1, G10–G20 (inclusive), largely duplicated in A2.

7. On 5 February 2020, the Delegate cancelled the Applicant’s visa under

   
   

   s 501(2) of the Migration Act.[12] The Department notified the Applicant of the decision by hand on 10 February 2020 at the Magistrates Court of Western Australia in Perth.[13]

   
   

   The Applicant signed an acknowledgement of receipt of the notice of visa cancellation and accompanying documents on that date.

   [12] R1, G5, pages 18–27.

   [13] The Tribunal is satisfied that the Minister gave the Applicant written notice of its decision in accordance with ss 501G(1) and 501G(2) of the Migration Act in the prescribed manner, noting that: pursuant to reg 2.55(3) of the Migration Regulations 1994 (Cth) (the Regulations), the Minister can give a document by handing it to the person personally; and pursuant to reg 2.55(5) of the Regulations, the person is taken to have received the document when it is handed to the person (see paras [19]–[26] and [42]–[44] below).

8. The basis for the cancellation of the Applicant’s visa was that the Delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(a) of the Migration Act, as defined in s 501(7) of the Migration Act. This was because the Applicant had been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (s 501(7)(d) of the Migration Act) and hence, has a substantial criminal record.

9. The Delegate decided to exercise their discretion to cancel the Applicant’s visa giving weight to the:

   ·primary considerations

   of 1) the protection of the Australian community, taking into account the nature and seriousness of the Applicant’s conduct and the risk to the Australian community, 2) the best interests of minor children and

   
   

   3) expectations of the Australian community and;

   ·other considerations (as the Delegate saw relevant) of i) strength, nature and duration of ties and ii) extent of impediments if removed.

10. On 15 February 2020, the Applicant sought review of the Delegate’s decision dated

    
    

    5 February 2020 in the Tribunal.[14]

    [14] R1, G1.

    ISSUES FOR DETERMINATION

11. The issues for determination by this Tribunal are:

    ·whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and

    ·if the Applicant does not pass the character test, whether the Tribunal, standing in the shoes of the Delegate, should exercise discretion to cancel the Applicant’s visa having regard to the primary and other considerations in (Direction No. 79).[15]

    [15] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) (Direction No. 79).

    MATERIAL BEFORE THE TRIBUNAL

12. At the hearings, the Applicant made submissions, gave evidence and was cross-examined. The Applicant also called the following witnesses to give evidence in support of her application:

    ·Ms Michelle Filgate, the Applicant’s father’s partner;[16]

    ·Mr Rhys Vanmaris, the Applicant’s partner;[17]

    ·Ms Ruth Fawcett, the mother of a friend of the Applicant;[18] and

    ·Ms Kristy Treen, the Applicant’s previous employer.[19]

    [16] Witness statement located at R1, G19, page 104 (dated 27 June 2019) and A5 (dated 18 February 2020).

    [17] Witness statement located at R1, G19, pages 105–107 (undated).

    [18] Witness statement located at R1, G20, pages 111–112 (dated 22 June 2019) and A3 (dated 11 February 2020).

    [19] Witness statement located at R1, G20, page 109 (undated).

13. These witnesses gave evidence via telephone. Several unsuccessful attempts were made to contact a further witness, Ms Tiarah Taylor-Cooper (the Applicant’s friend),

    
    

    by telephone during the hearing. Ms Taylor-Cooper was unable to be contacted.

    
    

    The Respondent did not raise any objection to Ms Taylor-Cooper’s statement[20] being admitted into evidence and did not seek to challenge the character reference provided in the statement. The Tribunal accepted the statement on that basis.

    [20] Witness statement located at R1, G20, page 110 (dated 26 June 2019).

14. The Tribunal notes additional witness statements provided in support of the Applicant’s application, by witnesses who did not give evidence during the hearings:

    ·Mr Mark Hood, the Applicant’s father;[21]

    ·Mr Nathan Caine Howarth, the Applicant’s ex-partner;[22]

    ·Ms Sandy Yelland, the Applicant’s friend;[23]

    ·Mr Dean Farrant, the Applicant’s friend;[24] and

    ·Ms Jade Williams, the Applicant’s friend.[25]

    [21] Witness statement located at R1, G19, page 103 (dated 16 June 2019) and A4 (dated 18 February 2020).

    [22] Witness statement located at A6 (undated).

    [23] Witness statement located at R1, G20, page 108 (dated 18 June 2019).

    [24] Witness statement located at R1, G20, page 113 (undated).

    [25] Witness statement located at R1, G20, pages 114–115 (dated 3 July 2019).

15. The Tribunal admitted the following documents into evidence:

    ·Applicant’s Statement of Facts, Issues and Contentions dated 30 March 2020 (A1);

    ·Applicant’s bundle of documents provided on 18 February 2020 (A2);

    ·Statement of Ms Ruth Fawcett dated 11 February 2020 (A3);

    ·Statement of Mr Mark Hood dated 18 February 2020 (A4);

    ·Statement of Ms Michelle Filgate dated 18 February 2020 (A5);

    ·Statement of Mr Nathan Caine Howarth (undated) (A6);

    ·Applicant’s certificates of completion issued by alison.com,[26] for:

    [26] Alison (alison.com) provides free online courses. According to its website, Alison courses do not provide an externally accredited or recognised qualification ( Health Studies – Understanding Behaviour, Burnout and Depression – Revised, awarded 29 February 2020; and

    (ii)Psychology – Biology and Behaviour – Revised 2018,

    together (A7);

    ·Report by Ms Kerry Dalwood, Psychologist, dated 9 December 2019 (A8);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 18 March 2020 (R1);

    ·G documents (G1 to G27) (167 pages) submitted to the Tribunal by the Respondent on 3 March 2020 (R2);

    ·Supplementary relevant documents (SG1 to SG2) (462 pages) submitted to the Tribunal by the Respondent on 31 March 2020 (R3);

    ·Extract from the eCourts Portal of Western Australia regarding the Applicant’s extant criminal charges, as at 3 April 2020 (R4); and

    ·Extract from APCCA[27] Newsletter 44^th edition April 2018, pages 4 and 5 entitled ‘Offender Risk and Needs Assessment Tools’ contributed by Corrective Services WA (R5).

    LEGISLATIVE FRAMEWORK

    [27] Asian and Pacific Conference of Correctional Administrators.

    Character test

16. Sections 501(1) and (2) of the Migration Act provide:

    (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

    Note:      Character test is defined by subsection (6).

    (2)The Minister may cancel a visa that has been granted to a person if:

    (a)the Minister reasonably suspects that the person does not pass the character test; and

    (b)the person does not satisfy the Minister that the person passes the character test.

    (Original emphasis.)

17. Section 501(6) of the Migration Act 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)); or

    …

    (c)having regard to either or both of the following:

    (i)     the person’s past and present criminal conduct;

    (ii)    the person’s past and present general conduct;

    the person is not of good character; or

    (d)in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:

    (i)     engage in criminal conduct in Australia;….

    (Original emphasis.)

18. A ‘substantial criminal record’ is defined by s 501(7)[28] of the Migration Act as follows:

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

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

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

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;…

    (Emphasis added.)

    [28] Section 501(7) of the Migration Act is concerned with the term of the sentence that has been imposed on a person rather than the term of imprisonment actually served by the person: Seyfarth v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 142 FCR 580, 588 [27] (Sundberg, Jacobson and Bennett JJ);

    Jurisdiction provisions

19. Section 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application must be made ‘in writing’.

20. Section 500(1)(b) of the Migration Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501 to cancel a visa.

21. Section 500(6B) of the Migration Act provides that if a decision under s 501 of the Migration Act relates to a person in the migration zone, an application to the Tribunal for review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1).

22. Section 501G(1) of the Migration Act provides that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person written notice that:

    …

    (c)sets out the decision; and

    (d)specifies the provision under which the decision was made and sets out the effect of that provision; and

    (e)sets out the reasons (other than non-disclosable information) for the decision; and

    (f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

    (i)    states that the decision can be reviewed by the Tribunal; and

    (ii)   states the time in which the application for review may be made; and

    (iii)  states who can apply to have the decision reviewed; and

    (iv)  states where the application for review can be made; and

    (v)   in a case where the decision relates to a person in the migration zone–sets out the effect of subsections 500(6A) to (6L) (inclusive); and

    (vi)  sets out such additional information (if any) as is prescribed.

23. Section 501G(2) of the Migration Act provides that the notice referred to in section 501G(1) of the Migration Act must be accompanied by two copies of every document, or part of a document, that:

    …

    (d) is in the delegate's possession or under the delegate's control; and

    (e) was relevant to the making of the decision; and

    (f) does not contain non-disclosable information.

24. Section 501G(3) of the Migration Act provides that a notice given under s 501G(1) must be given in the prescribed manner. The giving of documents relating to cancellation decisions is governed by reg 2.55 of the Migration Regulations 1994 (Cth)

    
    

    (the Regulations).

25. Pursuant to reg 2.55(3)(a) of the Regulations, the Minister can give a document by handing it to the person personally.

26. Pursuant to reg 2.55(5) of the Regulations, ‘[i]f the Minister gives a document by handing it to the person, the person is taken to have received the document when it is handed to the person’.

    Two-day rule provisions

27. Section 500(6H) of the Migration Act provides that:

    If:

    (a)  an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

    (b)  the decision relates to a person in the migration zone;

    the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

    (Emphasis added.)

28. Section 500(6J) of the Migration Act provides that:

    If:

    (a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

    (b) the decision relates to a person in the migration zone;

    the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

    (Emphasis added.)

29. The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, 389–390. The Full Court explained:

    The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

    (Original emphasis.)

1. In applying the two-day rule, the Tribunal must be mindful not to fall into jurisdictional error by failing to consider a primary consideration. The two-day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s ‘review is conducted thoroughly and fairly’.[29] The High Court has strongly indicated that adjourning a hearing provides an opportunity for the requirements of the two-day rule to be complied with.[30] Further, information which is elicited under cross-examination which may support an applicant’s case is not excluded.[31] Submissions in reply to issues raised by the Respondent are also not excluded.[32] The Full Court of the Federal Court in Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, 502 [96] (Jagroop) stated:

   We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.

   (Emphasis added.)

   [29] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 223 (Uelese).

   [30] Uelese (above n 28) 223.

   [31] Uelese (above n 28) 223.

   [32] Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, 500 (Jagroop).

2. The High Court in Uelese v Minister for Immigration and Border Protection
   (2015) 256 CLR 203, 218 (Uelese) rejected the suggestion that the final part of the observation by the Full Court in Jagroop should be read as a qualification excluding information that could reasonably have been anticipated to be supportive of the applicant’s case two days prior to the commencement of the hearing. The High Court noted the Federal Court’s comments in this regard were ‘tentative observations’ and not a qualification.[33] In Uelese the High Court observed:[34]

   Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal’s understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding … is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.

   [33] Uelese (above n 28) 219–220.

   [34] Uelese (above n 28) 219–220.

   Direction No. 79

3. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

   (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

   (a)the performance of those functions; or

   (b)the exercise of those powers.

4. Further, s 499(2A) of the Migration Act states that ‘[a] person or body must comply with a direction under subsection (1)’.

5. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction No. 79.

6. Paragraph 6.1 of Direction No. 79 sets out the Objectives of the Migration Act, with paras 6.1(2) and (4) of Direction No. 79 being relevant to the Reviewable Decision which is currently before the Tribunal:

   (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

   …

   (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

7. Paragraph 6.2 of Direction No. 79 provides general guidance as follows:

   (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

   (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

8. Paragraph 6.3 of Direction No. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal:

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

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

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

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

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

9. Paragraph 7(1)(a) of Direction No. 79 outlines how a decision-maker is to exercise discretion:

   (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

   a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…

10. Informed by the principles set out in para 6.3 of Direction No. 79, the decision-maker
    (in this case the Tribunal) must take into account the primary considerations in Part A of Direction No. 79, with regard to the specific circumstances of the case, in deciding whether to cancel a person’s visa under s 501(2) of the Migration Act.[35] Specifically, para 9(1) in Part A of Direction No. 79 provides:

    (1)In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:

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

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

    [35] Direction No. 79 (above n 15) para 9(1).

11. Paragraph 10 in Part A of Direction No. 79 lists other considerations as follows:

    (1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

12. Further guidance as to how a decision-maker is to apply the considerations in Direction
    No. 79 can be found in para 8 of Direction No. 79 which provides:

    (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

    JURISDICTION

13. This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.

14. As noted at para [7] above, the Reviewable Decision of 5 February 2020 was communicated to the Applicant by hand on 10 February 2020. She lodged her application for review on 15 February 2020 and is in the migration zone. The Applicant therefore lodged her application for review within the nine day period after she received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.

15. Therefore, the Tribunal is satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.

    PROCEEDINGS BEFORE THE TRIBUNAL

16. The application was listed for hearing on 6 April 2020. Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020. The parties and witnesses appeared at the hearing via means of electronic communications, pursuant to the Tribunal’s orders in this regard made on 18 March 2020.

17. The hearing commenced on 6 April 2020 in Perth. The Applicant appeared via videoconference from immigration detention and the Respondent appeared by a combination of videoconference and telephone (when, at times, the videoconferencing connection was lost).

18. The Applicant was self-represented and the Respondent was represented by

    
    

    Mr Jon Papalia, from the Australian Government Solicitor.

19. At the commencement of the hearing, the Tribunal sought to admit the parties’ evidence in its entirety. During this process, however, it became apparent that a significant portion of the material previously filed with the Tribunal on behalf of the Applicant had not previously been made available to the Respondent, namely A3 to A8.

20. The hearing was adjourned briefly to give the Respondent an opportunity to review documents A3 to A8 and to give the Applicant the opportunity to consider whether she would be prepared to proceed with the hearing without the benefit of the evidence contained in A3 to A8, given that she had failed to comply with ss 500(6J) and 500(6H) of the Migration Act (the two-day rule).

21. As the issue of compliance with the two-day rule had been raised, the Tribunal provided an explanation of the rule to the Applicant, and was mindful of its obligation to afford procedural fairness to the parties and to consider all relevant issues arising on the review including those matters raised in Direction No. 79.

22. On return, it was agreed that the matter would be adjourned to 14 April 2020 to allow the Respondent the opportunity to consider the material. The Tribunal contacted the Applicant’s witnesses (listed at para [12] above) prior to adjourning the matter to confirm they would be available on the later date.

23. The hearing recommenced on 14 April 2020, at which time the Tribunal tendered the parties’ materials (A1 to A8 and R1 to R5) into evidence.[36] Again, the Applicant appeared by videoconference and the Respondent appeared via videoconference, and, at times, telephone. Evidence was taken from four witnesses who appeared by telephone.[37]

    [36] While the Tribunal had gone through this process on a provisional basis at the hearing on 6 April 2020, it was not captured by the recording system or the transcript. Therefore, as a matter of precaution, the Tribunal repeated the entire process on 14 April 2020 to ensure it would be recorded in both the audio recording and the transcript.

    [37] Refer to paras [12] and [13] above.

24. Of those witnesses whom provided statements on behalf of the Applicant, but did not provide oral evidence at hearing (listed at para [14] above), the Tribunal clearly outlined to the Applicant that it anticipated that the Respondent would likely make submissions as to the weight that could be attributed to that evidence given that the Respondent did not have the opportunity to cross-examine those witnesses.[38]

    [38] Transcript, page 101 [25].

    THE APPLICANT’S OFFENDING HISTORY

25. The Applicant’s offending history is set out in the ‘Nationally Coordinated Criminal History Check Results Report’ by the Australian Criminal Intelligence Commission released

    
    

    16 August 2019[39] and the Western Australian Police ‘History for Court – Criminal and Traffic’ report compiled on 26 March 2020.[40]

    [39] R1, G6.

    [40] R3, SG2, pages 373– 377.

26. The Applicant’s offending history is summarised in the following table:

Court	Court Date	Offence	Offence Date(s)	Court Result
Mandurah Magistrates Court	09/08/2019	Possess a Prohibited Drug (Methylamphetamine)	21/06/2019	Pending charge
		No authority to drive - suspended	21/06/2019	Pending charge
		Possessed any drug paraphernalia in or on which there was a prohibited drug or plant	21/06/2019	Pending charge
Midland Magistrate Court	18/09/2019	Drove or permitted vehicle with false plate to be driven	12/08/2017	[Counts 1] Fine: $400
		Possessed drug paraphernalia in or on which there was a prohibited drug or plant		[Counts 1] Fine: $200
		Possess a prohibited drug (Methylamphetamine)		[Counts 1] Fine: $800
		No authority to drive - suspended		[Counts 1] Motor driver’s licence disqualified: 9 months – cumulative; Imprisonment: 6 months 1 day concurrent from 18/09/2018
		Used an unlicensed vehicle		[Counts 1] Fine: $100
		Person who breaches CRO or community order without reasonable excuse	13/07/2017	[Counts 1] Fine: $100
Mandurah Magistrates Court	23/05/2017	Person who breaches CRO or community order without reasonable excuse	15/11/2016	[Counts 1] Fine: $200
	23/09/2016	Person who breaches CRO or community order without reasonable excuse	31/08/2015	[Counts 1] Fine: $600 (global)
		Breach of Bail Undertaking	05/07/2016	[Counts 1] Fine: $600 (global)
		No authority to drive – suspended	17/09/2015	[Counts 1] Imprisonment: 6 months 1 day concurrent from 18/09/2018
		No authority to drive – suspended	12/08/2017	[Counts 1] Imprisonment: 6 months 1 day concurrent from 18/09/2018; motor driver’s licence disqualified for 12 months, cumulative from 23/09/2016
	02/08/2016	Possessed drug paraphernalia in or on which there was a prohibited drug of plant	03/07/2016	[Counts 1] Fine: $1000 (global)
		Possess a prohibited weapon		[Counts 1] Fine: $1000 (global)
	01/07/2016	Possessed drug paraphernalia in or on which there was a prohibited drug of plant	02/06/2016	[Counts 1] Fine: $800 (global)
		Possess a prohibited drug (Methylamphetamine)		[Counts 1] Fine: $800 (global)
	15/12/2015	Possessed drug paraphernalia in or on which there was a prohibited drug of plant	20/11/2015	[Counts 1] Fine: $400
	04/08/2015	No Authority to Drive – Never held and Disqualified	13/03/2015	[Counts 1] Imprisonment: 6 months concurrent from 18/09/2018; motor driver’s licence disqualified for 9 months cumulative
	31/03/2015	Carried (possessed) an article with intent to cause fear that someone	05/03/2015	[Counts 1] Fine: $500
	09/10/2013	Driving with prescribed illicit drug	05/07/2013	[Counts 1] Fine: $300; Motor driver’s licence disqualified for 3 months mandatory concurrent
	07/08/2013	No Authority to Drive – Never held and Disqualified		[Counts 1] suspended imprisonment order 7 months concurrent suspended 12 months from 07/08/2013; Motor driver’s licence disqualified for 12 months – cumulative
		False Name and address (Suspect)		[Counts 1] Fine: $400
		Possessed drug paraphernalia in or on which there was a prohibited drug of plant		[Counts 1] Fine: $200
Perth Magistrates Court	21/05/2012	Fail to keep safe distance behind vehicle	28/05/2011	[Counts 1] Fine: $100
		No Authority to Drive - Cancelled		[Counts 1] Fine: $1500; Motor driver’s licence disqualified: 9 months – cumulative
Joondalup Magistrates Court	23/05/2011	Give False Personal Details to Police	24/02/2011	[Counts 1] Fine: $400
		Exceed speed limit in a speed; Between 10 and 19 km/h		[Counts 1] Fine: $150
		No Authority to Drive - Suspended		[Counts 1] Fine: $1000; Motor driver’s licence disqualified: 9 months – cumulative
Perth Magistrates Court	23/11/2010	No Authority to Drive - Suspended	15/08/2010	[Counts 1] Fine: $400; Motor driver’s licence disqualified: 9 months – cumulative
		False name and Address		[Counts 1] Fine: $200
		Drive Vehicle Contrary to Conditions of Permit		[Counts 1] Fine: $100

1. The Applicant’s criminal record spans from 2010 to 2019. The Applicant’s convictions primarily comprise traffic and illicit drug offences and breaches of community-based orders and other court obligations. In August 2019, when the Applicant’s ‘Nationally Coordinated Criminal History Check Results Report’ was most recently released, the Applicant had nine pending criminal charges before the Magistrates Court of Western Australia.[41] As at 3 April 2020, those charges were still pending and were listed for hearing on 23 April 2020.[42]

   [41] R1, G6, pages 28 and 29.

   [42] R4. All nine extant charges are returnable in the Drug Court, a specialist program run out of the Magistrates Court. As at 3 April 2020, the Applicant had entered three pleas of guilty in person before the Court, provided three written or endorsed pleas of guilty and was yet to enter pleas in respect of the other three charges.

2. Between 7 August 2013 and 18 September 2018, the Applicant was sentenced to various terms of imprisonment where the aggregate of those terms is 31 months and two days:[43]

   [43]The Tribunal notes, however, that for the purposes of s 501(7)(d) of the Migration Act, the relevant aggregation is 13 months and 1 day, being the aggregation of the total effective sentence imposed on 18 September 2018 and the head sentence of the suspended imprisonment order imposed on 7 August 2013. Refer to Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475 and Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450. In any event, the Applicant has been sentenced to two separate terms of imprisonment, which when aggregated together exceed 12 months.

Court	Court Date	Offence	Offence Date(s)	Court Result
Midland Magistrates Court	18/09/2018	No authority to drive - suspended	12/08/2017	[Count 1] Motor driver’s licence disqualified: 9 months – cumulative; Imprisonment: 6 months 1 day concurrent from 18/09/2018
Mandurah Magistrates Court	23/09/2016	No authority to drive - suspended	12/08/2017	[Count 1] Imprisonment: 6 months 1 days concurrent from 18/09/2018 – Concurrent
		No authority to drive - suspended	17/09/2015	[Count 1] Imprisonment: 6 months concurrent from 18/09/2018 – Concurrent
Mandurah Magistrates Court	04/08/2015	No Authority to Drive – Never Held and Disqualified	13/03/2015	[Counts 1] Imprisonment: 6 months concurrent from 18/09/2018 – Concurrent
Mandurah Magistrates Court	07/08/2013	No Authority to Drive – Never Held and Disqualified	05/07/2013	Suspended imprisonment order: 7 months concurrent suspended 12 months from 07/08/2013

DOES THE APPLICANT PASS THE CHARACTER TEST?

1. The character test is defined in s 501(6) of the Migration Act. A person does not pass the character test if the person has a substantial criminal record whereby the person has been sentenced to ‘2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[44]

   [44] Sections 501(6)(a) and 501(7)(d) of the Migration Act (set out at paras [17] and [18] above).

2. The Applicant’s convictions tabled at para [55] above resulted in sentences of two or more terms of imprisonment, where the total of those terms is 12 months or more.[45]

   
   

   The Applicant ultimately served a total of three months in prison,[46] however for the purposes of the character test, the relevant term is the term of the sentences imposed by the courts, rather than the term of imprisonment actually served.[47]

   [45] Refer also to fn 43.

   [46] From 18 September 2018 to 17 December 2018. The Applicant was sentenced in September 2018 to six months and one day imprisonment (R2, G9). The Parole Board heard the Applicant’s application on 29 November 2018 and granted her release on parole from 17 December 2018, such that her parole period expired at the end of the sentence, being 18 March 2019. The Applicant’s parole conditions included to attend for random urinalysis and participate in programs and counselling as directed. See for example, the Applicant’s Offender Summary provided in R3, SG2, pages 171 and 174. The Applicant was also in prison between 23 July 2016 and 24 July 2016, when she was arrested on a warrant for failing to appear in the Mandurah Magistrates Court on 5 July 2016. She was granted bail the following day.

   [47] Refer to fn 28 above.

3. Accordingly, the Tribunal finds that the Applicant has a substantial criminal record by virtue of s 501(7)(d) of the Migration Act and reasonably suspects that she does not pass the character test by virtue of s 501(6)(a) of the Migration Act.[48] The Applicant has not satisfied the Tribunal that she passes the character test.[49] On this basis the Tribunal is satisfied that the Applicant does not pass the character test.

   [48] Refer to para [17] above.

   [49] At the hearing, the Applicant conceded she did not pass the character test (transcript, page 32 [5]–[25]).

   IS THE TRIBUNAL SATISFIED THAT IT SHOULD EXERCISE DISCRETION TO CANCEL THE APPLICANT’S VISA?

4. The Applicant argued that the discretionary power to revoke her visa cancellation under 

   
   

   s 501(2) of the Migration Act should be exercised. Accordingly, the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise the discretionary power by considering the relevant primary and other considerations in Direction No. 79.

5. Following the notification of the intention to cancel her visa, the Applicant made representations to the Department requesting that her visa not be cancelled. This included a completed ‘Personal Circumstances Form’ from the Applicant, a number of written statements from the Applicant, a number of letters of support from family and friends, medical documentation, a copy of an application for a family violence restraining order from August 2017 and a description of her duties as a Dining Area Cleaner at Melaleuca Remand and Reintegration Facility in October 2018.[50]

   [50] Refer to R1, G10–G20 (inclusive), which is largely duplicated in A2.

6. Before the Tribunal, the Applicant’s online application,[51] Statement of Facts, Issues and Contentions[52] and oral submissions to the Tribunal outlined her central contentions as to why her visa cancellation should be revoked in similar terms to submissions made before the Department. The Applicant also tendered additional letters of support,[53] course certificates[54] and a psychology report[55] in support of her application.

   [51] R1, G1.

   [52] A1.

   [53] A3–A6.

   [54] A7.

   [55] A8.

7. At the hearing, the Applicant reiterated her contentions from her various written submissions[56] that she thought the Delegate’s decision was wrong because, while she accepts her offending behaviour was unacceptable, her offences were at the lower end of the scale. The Applicant contends that having had time to reflect on her offending behaviour, discontinue her drug use and her association with negative peers, and align herself with a positive support network, she does not pose a risk to the community at all. The Applicant contends that she would struggle in terms of her health, housing options and employment prospects if she were to be returned to the United Kingdom and that support from her partner and father in Australia is fundamental to her continuing to move forward in her life in a positive manner.

   [56] Contained within numerous documents referred to in paras [62] and [63] above.

8. The Respondent submitted that the Applicant had committed 15 traffic offences between 2010 and 2019, including whilst under the influence of illicit drugs. The Respondent noted that the Tribunal has repeatedly held that there is little to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle and that continued traffic offences of that kind clearly point to an incapacity to distinguish from right and wrong.[57] The Respondent submitted that, in having regard to Direction No. 79, the nature of the Applicant’s conduct is serious.

   [57] See, for example, R1, paras [23]–[27] and authorities cited within, namely Re Aporo and Minister for Immigration and Citizenship [2008] AATA 629 at [96] (DP Prof Walker); Re Metera and Minister for Immigration and Citizenship [2008] AATA 668 at [59] (DP Prof Walker); Re Passells and Minister for Immigration and Border Protection [2016] AATA 1033 at [42] (SM Walsh); Re Intesir and Minister for Immigration and Border Protection[2017] AATA 503 at [31] (DP Constance); Re QKJY and Minister for Immigration and Border Protection [2017] AATA 820 at [8] (SM Tavoularis); Re Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43] (SM Tavoularis); Re HMFZ and Minister for Home Affairs [2018] AATA 3861 at [33] (SM Puplick AM); Re Downing and Minister for Home Affairs [2018] AATA 4592 at [82] and [86] (Member Burford); Re Di Stefano and Minister for Home Affairs [2019] AATA 677 at [72] (SM Dr Evans); Re FTDN and Minister for Home Affairs [2019] AATA 1301 at [100] (Member Burford); Re Hadfield and Minister for Home Affairs [2020] AATA 94 at [40] (SM Dr Evans); Re Gage and Minister for Home Affairs [2020] AATA 326 at [75]-[76] (Member Burford); Re SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344 at [43] (SM Dr Evans-Bonner); Re Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 at [80]-[81] (DP Boyle); and Findlay v State of Western Australia [2007] WASC 61 at [23] (Martin CJ).

9. Further, the Respondent submitted that the nature of the harm to the community, should the Applicant commit similar offences, is such that the community should not be expected to tolerate any risk of reoffending. The Respondent submitted that the Applicant is not remorseful, downplays the seriousness of her offending and has not provided any evidence of rehabilitation, having continued her illicit drug use and offending behaviour following her release from prison in 2018. The Respondent submitted that this gives rise to a significant concern with respect to the risk of reoffending. The Respondent submitted that the expectations of the Australian community were that the Applicant’s visa would remain cancelled.

10. The Respondent submitted that while the Applicant had indicated she had special relationships with three minor children (the children of two of her friends), she had provided little evidence of this. The Respondent submitted that while it accepted that it will be in the best interests of those children that the discretion to cancel is exercised in the Applicant’s favour, less weight should be given to this consideration than would ordinarily be the case, given the nature of the relationship is non-parental. Further, the Respondent contended that while the strength, nature and duration of the Applicant’s ties to Australia and the impediments to her removal weigh slightly in her favour, they should be afforded less weight than other primary considerations.

11. The Respondent submitted that the Australian community would expect the Applicant’s visa to remain cancelled given the nature of her criminal offending and that this, and the protection of the Australian community, outweighed other considerations in the Applicant’s favour, including the best interests of minor children. The Respondent submitted on this basis that the Applicant’s visa should remain cancelled.

12. These submissions are considered further below.

    First primary consideration: Protection of the Australian Community (para 9.1)

13. Paragraph 9.1(1) of Direction No. 79 provides that when decision-makers are considering the protection of the Australian community they:

    (1)… 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.

14. Paragraph 9.1(2) of Direction No. 79 continues on to provide that:

    (2) Decision-makers should also give consideration to:

    a) The nature and seriousness of the non-citizen’s conduct to date; and

    b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct (para 9.1.1)

15. Paragraph 9.1.1(1) of Direction No. 79 further provides:

    (1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

    e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

    f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    h) The cumulative effect of repeated offending;

    i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    j) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the noncitizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (k)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia

16. The Applicant’s offending history is summarised above.[58] The summary of the Applicant’s offending indicates that her convictions are primarily comprised of traffic and illicit drug offences and breaches of community-based orders and other court obligations.

    [58] Refer to para [55] above.

17. In her Statement of Facts, Issues and Contentions dated 30 March 2020 (A1),

    
    

    the Applicant maintained that her offending was at the lower end of the scale,[59] and the

    
    

    ‘no authority to drive’ offence (for which she was convicted on numerous occasions) is not on the serious end of the scale of offences, in that it does not pose a major risk to the Australian community[60] and is relatively minor.[61] The Applicant stated that she attributed the majority of her offences to the extremely violent and abusive relationship with her ex-partner who, at that time, had a lot of control over her.[62]

    [59] A1, para [33].

    [60] A1, para [68].

    [61] A1, para [68].

    [62] A1, para [72].

18. The Applicant gave evidence that having been pulled over by police for driving without a licence seven times over a five year period,[63] and having been given a suspended prison sentence such that she had ‘prison hanging over her head’, she did not think it was serious to get in a car and drive without authorisation because drugs impacted her thinking and she was ‘always on … drugs’. [64]

    [63] Between 15 August 2010 and 17 September 2015. Refer to R3, SG2, pages 374 to 377.

    [64] Transcript, page 48 [15].

19. The Applicant stated at the hearing that she had been addicted to illicit substances probably since she was about 20 years old.[65] The Applicant said that it was fair to say that on more than one occasion, she failed to appear in court as required as she was under the influence of drugs, and as such ‘you forget time, you lose track of time’.[66]

    
    

    The Applicant also gave evidence that at the time of her motorbike accident on 12 August 2017, where she crashed while riding her motorcycle with false registration plates,

    
    

    at speeds approximating 120 kph in a 60 kph zone, she had taken methylamphetamine relatively recently to her driving that night.[67] The Applicant said that she did not think it was the right thing to drive with methylamphetamine in her system, but if she did not get back to her then partner, he would ‘cause [her] a lot of drama’, which he [subsequently] did.[68]

    [65] Transcript, page 51 [25].

    [66] Transcript, page 53 [5].

    [67] Transcript, page 54 [35].

    [68] Transcript, page 54 [40].

20. The Applicant gave evidence that it came as a ‘big shock’ to her when Magistrate Benn sentenced her to an immediate term of imprisonment on 18 September 2018, which she ‘wasn’t expecting’, because she was just more worried about ‘being on the drugs’.[69]

    [69] Transcript, page 55 [5]–[15].

21. The Applicant stated that while in prison, she had ample time to reflect on her behaviour,[70] reflect on her psychologist’s recommendations regarding her continued rehabilitation,[71] complete numerous courses and attend church on Sundays.[72]

    [70] A1, para [36], read with transcript, page 57 [25].

    [71] Ms Dalwood’s recommendations are listed at R2, G13, page 73.

    [72] The Applicant listed her courses completed in jail as 1) AA – Alcohol Awareness; 2) Brief Intervention – Springboard; 3) Deadly Thinking – Mental health workshop run by Rosalee Kickett; 4) Yellow brick road to recovery; 5) Grief recovery; and 6) AOD – Alcohol and Drug and general rehabilitation courses (A1, paragraph 38; refer also to R3, SG1, page 175).

22. The Respondent submitted that having regard to the factors set out in Direction No. 79, the Applicant’s offending should be viewed as very serious.[73] The Respondent submitted that in particular, the Tribunal should be concerned by the fact that the Applicant has not been deterred by court orders, including the threat of prison, or from reoffending in the same or similar manner. The Respondent submitted that moreover, the Applicant has had little regard for the law or the potential consequences of her actions, evident both from her criminal record and on her own evidence.[74]

    [73] R1, para [26].

    [74] Transcript, page 104 [45].

23. The Respondent submitted that to illustrate the points it raises (at para [79] above):[75]

    [75] Transcript, pages 105–108.

    COUNSEL: …the applicant has been to prison on two separate occasions. The first was between 23 July 2016 and 24 July 2016. That was one day when she was arrested on a warrant for failing to appear in the Mandurah Magistrates Court on 5 July 2016. She was granted bail the following day. The second and far more significant was between 18 September 2018 and 17 December 2018, when she was granted parole. Her parole details are at SG1, page 174. The parole period expired on 18 March 2019.

    As the tribunal has heard evidence today, the applicant was required, and did do so, to provide – well, give urinalysis samples. Whilst she was still on parole, that is on 5 March 2019, the applicant gave a void or diluted sample. Two days later she gave a valid sample which returned a positive result for amphetamine and methylamphetamine. The Minister submits that clearly the parole order with the specific condition to attend (indistinct) and to provide a valid sample, was no deterrent. The applicant was warned in writing by the Department on 1 June 2019 that considering is being given to the cancellation of her visa. She responded to that notice on 13 June 2019. That’s at G7, page 36.

    A little over a week later the applicant drove a Holden Commodore Sedan in Halls Head. She was pulled over by the police and acknowledged to the officers that she was aware that she did not have authorisation to drive. Her vehicle was searched and inside her handbag was a glass smoking implement, and a clip-seal bag with approximately 0.1 grams of methamphetamine inside. The Commodore was seized and the applicant charged. This incident comprises charges [charge number redacted] to [charge number redacted] of 2019, for which the applicant has provided the Magistrates Court with written pleas of guilty. The police incident report is at SG2, pages 408 to 409.

    Then on 17 September 2019, the applicant drove a Yamaha motorcycle, bearing false registration plates, in Halls Head. She drove it approximately –

    
    

    I withdraw that submission. On 17 September 2019, police officers in Mandurah observed a motorcycle driving on Mandurah Road near Old Coast Road. That motorcycle had crashed and police officers attended at the scene. Then they found a purse with numerous cards in the applicant’s name and some drug paraphernalia. That’s at SG2, page 403.

    The applicant gave evidence today that she was not the driver of the bike or the driver of the second bike that was also at the scene, but that it was her motorcycle. The applicant was interviewed by police on 16 November 2019 in respect of that incident and failed to identify the driver. Consequently, she was charged with the relevant road traffic (indistinct) offence. That is charge [charge number redacted] 2019, to which the applicant has entered a guilty plea to before the court, and it is at SG2, page (indistinct).

    The 16th was a busy day for the applicant. Some two hours prior to that interview, the applicant rode a Honda motorcycle in Erskine. She was pulled over by the police. The motorcycle registration plates had been fraudulently altered and – rather, it was identified that the plates had been fraudulently altered. That conduct is charges [charge number redacted] to [charge number redacted] of 2019, which the applicant has entered guilty pleas to before the court. The applicant was released on bail a short time later.

    As a condition of bail, the applicant attended for urinalysis in January and February 2020. She returned positive readings for amphetamine and methylamphetamine on eight occasions between 18 January 2020 and 7 February 2020. It should be noted that the delegate’s decision was on 5 February 2020, and that she was notified by hand on 10 February 2020 when she was taken to immigration detention.

    During that period on 26 January 2020, the Minister submits that the applicant was seen driving a Honda motorcycle on Leighton Place in Halls Head.

    
    

    She was observed by the traffic control group (indistinct) of the Mandurah Police Station who recognised her. They stopped their police car right in front of her and activated emergency lighting. The applicant drove behind the police vehicle and headed towards Old Coast Road. The police gave chase, however, they avoided the pursuit after seeing (indistinct) almost lose control.

    They went to her residence and spoke to her then boyfriend, Mr Howeth, [sic] who stated that she was not at home. They then went to the local IGA which had CCTV footage of her arriving at the store on the motorbike. The officers returned to her home address, that is the applicant’s home address, and issued a surrender notice in respect of the motorcycle. This conduct comprises magistrates court [sic] charges [charge number redacted] to [charge number redacted] of 2020. The applicant is yet to plead. The relevant passages of the SG bundle are pages 394 to 402, which includes photographs of the applicant on a motorcycle.

    I’ve already discussed the relevance – what the Minister says in respect of those charges and in respect of the applicant’s pleas. The Minister relies on the material in the bundle of supplementary documents, as so far as they relate to other serious conduct, and we say that the tribunal should be concerned that the applicant committed that conduct after her release from imprisonment and after she was warned in writing that the Minister was considering the cancellation of her visa. The applicant was aware of the grave nature of these matters, as she responded to the Minister’s Department within a matter of days of receipt. That response indicated her appreciation of the seriousness of that notice.

    As we noted in our statement of facts, issues and contentions, this tribunal has repeatedly held that there is little to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle, and that continued traffic offences of that kind clearly point to an incapacity to distinguish right from wrong. In respect of the extant charges that the applicant has before the court, the Member will be familiar with where she can find the maximum sentence for those offences, namely in the legislation in this State.

    However, I will briefly indicate what the Minister understands to be the maximum penalty in respect of each of those nine charges. In respect of [charge number redacted] of 2019, for a first offence that’s 24 penalty units, namely $1,200, and that’s set out in the Road Traffic and Administration Act 2008, section 34, subsection (3). In respect of [charge number redacted] of 2019, the maximum sentence is 50 penalty units, namely $2,500. In respect of [charge number redacted] of 2019, given that it is a subsequent offence, it’s a minimum of 20 penalty units or $1,000, to a maximum of 80 penalty units or $4,000, and 18 months imprisonment.

    It is the case that driving whilst not authorised carries a prison sentence,

    
    

    and the Minister submits that that speaks to the objective seriousness of the offence, and it is the case that the applicant has been sent to prison, and had been sentenced to – well, it is the case the applicant has been sentenced to three terms of imprisonment, two of which were suspended on separate occasions for that offence, and the applicant has been sentenced to an immediate term of imprisonment in respect of that offence.

    In respect of [charge number redacted] of 2019, the maximum sentence is $36,000 and/or three years’ imprisonment. In respect of [charge number redacted] of 2019, it’s 20 penalty units to 80 penalty units, and 18 months’ imprisonment, it being the charge of driving without authority, a subsequent offence. And in respect of [charge number redacted] of 2019, it’s $2,000 and/or two years’ imprisonment. In respect of the 2020 charges for [charge number redacted], the maximum sentence is 10 penalty units or $500, and six months’ imprisonment. For [charge number redacted] of 2020, it’s 20 to 80 penalty units and 18 months’ imprisonment. And for [charge number redacted] of 2020, it’s 50 penalty units or $2,500.

    I should say, for the record, in respect of the charge of driving whilst not authorised to do so, the first time offence is eight penalty units to 40 penalty units, and 12 months’ imprisonment. For a second or subsequent offences it is the 20 to 80 penalty units, being the minimum of 20 penalty units and 18 months’ imprisonment.

    The Minister says that this is a clear case where there is a repeated history of flagrant disregard for the safety of other users of the road. The applicant herself has suffered injuries arising from her driving on 14 August 2017, namely a closed fracture on her second vertebrae and a fractured left ankle. Yet she has continued to drive whilst not authorised to do so, and apparently under the influence of illicit substances. Moreover, she continues to drive in a dangerous manner, either to evade police or at reckless speeds.

1. Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No. 79, the Tribunal is of the view that the correct or preferable decision is to exercise the discretion to cancel the visa.

   DECISION

2. The Reviewable Decision dated 5 February 2020 to cancel the Applicant’s visa is affirmed. This means that the Applicant’s visa remains cancelled.

I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

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

Associate

Dated: 4 May 2020

Dates of hearing:	6 and 14 April 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr J Papalia
Solicitor for the Respondent:	The Australian Government Solicitor

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, 142 [114] (Nicholas J, Moore and Rares JJ).

[178]–[183].