HQQT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2397
•15 July 2022
HQQT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2397 (15 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3394
Re:HQQT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member R Bellamy
Date of Decision: 15 July 2022
Date of Written Reasons 22 July 2022
Place:Brisbane
The decision under review is affirmed
............................[SGD]...........................................
Senior Member R BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class WC Subclass 030 Bridging Visa C visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – serious – claimed to be victim of domestic violence in receiving country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151.
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
22 July 2022
The Applicant is a citizen of Tanzania who came to Australia in 2017 when she was 36 years old. She has asked the Tribunal to review a decision by a delegate of the Minister (“the Respondent”) not to revoke the cancellation of her Class WC Subclass 030 Bridging Visa C visa (“visa”).
The hearing of this matter took place on 21 and 22 June 2022. The Applicant, her cousin and the leader of her church gave evidence in person. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
BACKGROUND
The Applicant was born in Tanzania in 1980. According to her, in 2008 she commenced a relationship with “Mr H”. They had a child together in 2010 and another in 2012. They commenced cohabiting in 2013. She and her mother claim that Mr H was abusive to the Applicant. In 2017, the Applicant’s aunt sponsored her to come to Australia on a student visa. Her children remain in Tanzania.
In around February 2018, the Applicant started working as a carer for a “Ms V” who was a quadriplegic. The Applicant was employed directly by a business called Spinal Life Australia (“SLA”). It deployed her to care for Ms V and it paid her wages for doing so.
Ms V’s provider changed in early November 2018. From that time onwards, the Applicant submitted invoices to National Disability Support Partners Pty Ltd (“NDSP”) and she was paid directly by the National Disability Insurance Scheme (“NDIS”). The NDIS is funded by the federal government to provide funding for people with disabilities to access the services and supports they need in accordance with the level and type of care that has been approved under the scheme. Participants are able to choose their services and supports from the marketplace of providers.
In December 2018, Ms V moved to Melbourne. On 31 December 2018, the Applicant flew to Melbourne to assist Ms V. That night, while the Applicant and Ms V were at Crown Casino, Ms V had an accident. Ms V did not wish to go to hospital, and she instructed the Applicant to book a room in that establishment at Crown Towers, which she did. The Applicant paid for the room with her own credit card. An ambulance did attend and, as a result, Ms V was admitted to hospital and placed in an induced coma. Ms V remained in a coma for 19 days.
On that date $1,515.99 was transferred from Ms V’s Mastercard account to the Applicant’s “World Remit” account. This was an account that the Applicant used to transfer money overseas. In the days that followed, the Applicant did the following things:
· on 1 January 2019, she transferred $654.99 from Ms V’s Mastercard account to the Applicant’s World Remit account;
· also on that day, she spoke with Crown Towers about obtaining a refund for the room payment, she asked another of Ms V’s carers, “Ms R”, for $1,200 as reimbursement, and Ms R paid her the amount;
· on 4 January 2019, the room payment was refunded, although the Applicant never repaid Ms R;
· on 4 January 2019, the Applicant transferred $1,918.99 from Ms V’s Mastercard account to the Applicant’s World Remit account;
· on 5 January 2019, the Applicant transferred $1,906.99 from Ms V’s Mastercard account to the Applicant’s World Remit account;
· also on that day, the Applicant transferred $10,000 from Ms V’s Access account to the Applicant’s bank account;
· on 7 January 2019 the Applicant transferred $18,000 from Ms V’s Access account to the Applicant’s bank account;
· on 10 January 2019, the Applicant submitted an invoice for services she claimed to have provided to Ms V in the period 31 December 2018 to 10 January 2019. As a result, the NDIS paid her $11,132.30 on 18 January 2019;
· on the 20 January 2019 the Applicant submitted an invoice for services she claimed to have provided to Ms V in the period 14 to 20 January 2019. As a result, the NDIS paid her $6,625.14 on 29 January 2019;
· she did the same on 3 February 2019 regarding the period 20 January 2019 to 3 February 2019, and she was paid $13,233.75 on 7 February 2019; and
· she did the same on 19 February 2019 regarding the period 11 to 23 February 2019, and was paid $12,391.20 on 1 March 2019.
When Ms V came out of the coma, she was placed in a high care ward of the hospital where she continued to receive hospital treatment until 27 February 2019. From this date she was transferred to Caulfield Rehabilitation Hospital. She remained there, in the care of that hospital, until she returned to Queensland on 18 April 2019. Accordingly, the Applicant had not provided any care to Ms V during the periods covered by the four invoices (referred to collectively as the “NDIS invoices”). Nor did the Applicant provide any care to Ms V after that, and they lost contact.
In March 2019, the Applicant’s student visa expired, and she applied for a new one. On 30 March 2019, she departed Australia. She said she returned to Tanzania because her daughter was involved in a car accident. She returned to Australia on 1 May 2019.
The facts that I have recited so far are not disputed. However, there are some important matters that are in dispute. Chiefly, the Applicant denied that she had been dishonest in relation to the transfers from Ms V’s accounts and the NDIS invoices.
According to contemporaneous police records, Ms V told them that she had not given anyone authority to access her accounts, and that she never paid the Applicant from her personal accounts. On 16 June 2019, the Applicant was interviewed by the police. She indicated that she had made the transfers with Ms V’s prior approval. She said:
· the World Remit payments were payment for $6,000 that the Applicant had lent to Ms V to pay for air travel and hotel accommodation;
· the payment of $10,000 was owed to her for “money worked” (the word “money” appears to be an error) from the period 31 December 2018 to 10 January 2019 and other expenses related to the trip to Melbourne; and
· the payment of $18,000 was arrears for previous hours worked.
On 3 July 2019, the police arrested the Applicant for fraud in relation to the transfers from Ms V’s accounts. She was granted bail. The police facts sheet notes that the evidence included “Receipt from Flight Centre”, however the facts sheet still alleged fraud in relation to the transfers that the Applicant claimed were reimbursement for travel and accommodation. This is not explained in the police facts sheet – there is no indication of whether the receipt supported the Applicant’s account or not.
When I raised with the lawyer for the Respondent the narrow terms of the summons that had been issued to the Queensland Police Service for the purpose of this proceeding, and the fact some relevant evidence would not come within its scope, he indicated that over the years police services in Australia have raised objections to summonses which has sometimes resulted in failure to produce any material by the date of the hearing. (Where an application to the Tribunal must be determined within 84 days of the Applicant being notified of the decision, there is very limited scope for postponing the hearing). The wording in summonses to the police has been refined based on those objections to maximise the chances of the police producing documents in time for these expedited hearings. This seems very unsatisfactory where there may be cogent evidence in existence that is not before the Tribunal because the Minister, understandably, did not want to risk having no records produced at all.
The charges relating to the money transfers were never determined. There is no information before me about why or when the charges were discontinued. The Applicant’s representative informed the Tribunal that Ms V passed away in January 2020. The Applicant claimed that when the charges were dropped, she believed Ms V was still alive. However, she had previously stated she had lost contact with Ms V and did not know when she died. It is not known whether Ms V ever recovered enough to be able to give evidence in court. The Applicant said the charges did not proceed because a witness was not able to be cross examined at trial. It seems likely that the charges were dropped because the alleged victim, Ms V, could not give evidence.
The police allegation in relation to the payment for the hotel room was that the Applicant had called Ms R several times on 1 and 2 January 2019 asking for $1,200, saying she had no money to pay for the room and that Crown Towers were contacting her in relation to payment that was owing. Further, the police alleged that Ms R did not give her permission to use the money for her own benefit, and the Applicant made no attempt to repay Ms R after the hotel refunded the room payment.
In November 2019 the Applicant was charged with dishonestly obtaining a financial advantage and dealing in the proceeds of crime (x 4) in relation to the NDIS invoices, and she was charged with fraud in relation to the money she obtained from Ms R.
At this time, the Applicant met “Mr K” via internet dating. In March 2020 they began a de facto relationship.
In November 2020, the Applicant and Ms R participated in a restorative justice process. The Applicant had not repaid the $1,200 at that time. The process resulted in the Applicant undertaking to pay Ms R the $1,200 plus another amount of $800 that was described as “advance payment on work fees”. According to the Applicant, she has now paid the full amount. The Applicant mentioned in her evidence that Ms V had “requested for me to be given I think $800 or something like that for my travel” and that she “said that she can take it out of my payment”.[1] While the Applicant did not expressly link that $800 to the $800 she had to repay Ms R, putting the evidence together, it looks like the Applicant was lent money by Ms R at Ms V’s request and that she did not repay it.
[1] Transcript, page 42, lines 37 to 43.
In the hearing, the Applicant admitted that she had paid $1,100 for the hotel room, then subsequently asked the hotel for a refund. She said she believed at that time that at least some of the money would be refunded. She then approached Ms R for reimbursement. She said Ms R had cash funds from Ms V and she had asked Ms R to reimburse her so she could continue to be able to pay for other things. She told Ms R she was trying to get a refund and if she did, she would tell her. Ms R agreed to provide the money while the Applicant waited for a refund. The Applicant admitted that she knew she had received a full refund of the $1,100. She gave no explanation for failing to return the money Ms R had provided, merely saying that they did not speak about it afterwards. Nor did she explain why she obtained $1,200 when the room cost was $1,100. Based on her own evidence, the Applicant asked Ms R for $1,200 knowing she had not paid that amount and expecting to get some of what she had paid refunded. I find that the Applicant dishonestly obtained and kept the $1,200.
In March 2021, the Applicant’s student visa application was refused due to the fact that she was not enrolled in a course of study. In an appeal to the Migration and Refugee Division of this Tribunal, her representative indicated that due to her criminal charges the Office of the Health Ombudsman has issued an interim prohibition order to the Applicant that restricted her from practising or undertaking any further study in the health industry. In April 2021 the visa refusal was affirmed.[2]
[2] Exhibit 7, Migration and Refugee Division (Case Number 2103939) Decision Record dated 26 April 2021.
In June 2021 the Applicant and Mr K applied for a partner visa and in July 2021 the Applicant was granted a Class WC Subclass 030 Bridging Visa C.
In August 2021, the Applicant pleaded guilty to four charges of dishonestly causing a loss to a Commonwealth entity, and she was sentenced to 21 months imprisonment to serve two months. At that time, the Applicant had not repaid any of the total of $43,382.29 that she had obtained from the NDIS. The learned Judge’s remarks on sentence included:
“The conduct occurred over a seven-week period on four occasions. Although not sophisticated fraud, you caused significant financial loss. The amount of money has not been recovered. Despite your initial denial of the events to police, your pleas of guilty today reflect cooperation in the administration of justice to the extent identified by the Prosecution.
…
There is nothing to indicate that your prospects of rehabilitation are other than good…I have reached the conclusion that a sentence of imprisonment is the only appropriate sentence.”[3]
[3] Exhibit 1, G5 page 34.
While the Applicant was serving the sentence of imprisonment, the Respondent mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act on because she did not pass the character test and she was serving a full-time custodial sentence.[4]
[4] Exhibit 1, G38 pages 103 to 107.
Under s 501(6)(a) of the Migration Act a person will not pass the character test if they have “a substantial criminal record”. Under s 501(7)(c) of the Act, a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In September 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of her visa.[5] Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
[5] Exhibit 1, G7 to G10.
In April 2022, the Respondent decided not to revoke the cancellation.[6] The Applicant subsequently lodged an application in this Tribunal for review of that decision.[7] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit 1, G3 page 15.
[7] Exhibit 1, G2 pages 3 to 9.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act, and it is not in dispute that she does not pass the character test. The only issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should revoke the cancellation.[8]
[8] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
My determination of whether or not there is another reason is guided by Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”). Section 499(2A) of the Act effectively provides that I must follow the Direction.
For the purposes of deciding whether or not to revoke the mandatory cancellation of the Applicant’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S ACCOUNT
As the offences against the NDIS, and the resultant sentence, are what enlivened the decision-making power (i.e. triggered the mandatory cancellation of the visa which led to the revocation request which led to the non-revocation decision), I am not permitted to make findings that are inconsistent with the findings of guilt or the essential facts of the offending that were accepted by the court.[9] Dishonesty was an essential element of the NDIS offences. There are different degrees of dishonesty and I think it would be helpful to determine the degree of the Applicant’s dishonesty to properly apply the Direction. I must also determine whether I accept that the applicant had Ms V’s permission to transfer money from her account. The Applicant’s explanation of the NDIS claims is interwoven with her explanation for the money transfers, although I have tried to address her evidence in relation to each separately where possible in the interests of clarity.
[9] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
The Applicant provided a statement to the Tribunal, dated in May 2022, in which she gave an explanation of the NDIS invoices. It seems she did not think she needed to address the money transfers as the charges had been discontinued. It is hard to make sense of some of the evidence in this statement. This is an abridged version:
“I worked for [Ms V] for over a year. I believe she trusted my care and she even attended family functions with me.
After working with [Ms V] for one year, she requested me to start working extra hours. I understand that [Ms V] moved from SLA as her service provide due to a great deterioration of her condition and needing more hours into her care. I believe that her move from [SLA] to NDIS was completed in November 2019 and my working arrangement with her changed as she requested for me to start working with her personally, meant that I worked directly for her. This caused me work with her longer hours, especially this time that she was no longer with SLA.
My client decided to move to Melbourne…She asked me to accompany her there for 30 days so I could assist with [various things]…I was there with her providing 24-hour care…I went to Melbourne late in December.
Around mid-November I believe [Ms V] had stopped all her shifts from [SLA] and started working with NDIS and I was working privately with her…I believe my last shift with [SLA] was around 2 November.
Initially my client explained that she would pay me directly and claim the amounts back from NDIS, then when she was waiting for payments, she said she would pay me part of my payment and the rest I need to claim. She called it "claim as you go." But I understood it to be just keep claiming until the backlog is paid up.
…
[Ms V] was living an active busy life, and due to her deteriorating stage, she needed more support to keep up with all the demands of the quality of life she wanted for herself.
…
I was owed money for work I had done but partly paid, directed to claim the rest of this amount that I was owed plus the time I was working to claim it via NDIS I claimed as I usually did…I did not claim beyond the date of the last invoice because it was all paid. I believed at the time that I was doing the right thing. I thought my client would recover and agree that this was her direction.”[10]
(Errors in original, emphasis added)
[10] Exhibit 3, Attachment 2.
There are five things to note about this account that will become important later on in these reasons. First, “November 2019” appears to be a typographical error: it should be “November 2018”. Second, in terms of timing, the passage indicates that after one year, Ms V asked the Applicant to work extra hours and that the move from SLA in November was connected to a great deterioration in Ms V’s condition that meant she needed more care. Third, the words “especially this time that she was no longer with SLA” could suggest that the Applicant was already working longer hours before Ms V moved away from SLA but not as much as after Ms V made that move. Fourth, according to this account, the plan was that the Applicant would assist Ms V for 30 days in Melbourne, starting in late December. Lastly, the Applicant claimed to have stopped submitting claims after 23 February 2019 because she considered the money was all paid. Another thing that happened in later February 2019 was that Ms V’s condition improved sufficiently to be transferred from the high care ward of the Alfred Hospital to a rehabilitation hospital. Accordingly, the possibility of Ms V becoming well enough to communicate with her provider could offer an alternative explanation for why the Applicant stopped submitting invoices.
The Applicant was cross examined extensively in the hearing and both the Respondent and the Tribunal asked a lot of questions attempting to clarify her evidence. She said Ms V asked her to work extra hours due to “the declining of her condition”. Ms V had first asked her service provider for additional hours but there was not enough funding. The Applicant said there was a personal agreement between her and Ms V for her to work additional hours and those additional hours were recorded in a timesheet that she and Ms V created on Ms V’s laptop.[11]
[11] Transcript, page 7, lines 12 to 17.
She said when Ms V changed providers, she told the Applicant she now worked for Ms V. Ms V gave her invoices and told her how to complete them.[12] Ms V instructed her to claim “all my back-pay” (emphasis added) on invoices to the NDSP.[13] Later in her evidence, the Applicant said that when Ms V changed providers, she told her she would pay some of what was owed “but the rest of your payment, especially for the backpays, NDIS will pay”.[14]
[12] Transcript, page 7, lines 30 to 38.
[13] Transcript, page 11, lines 35 to 40.
[14] Transcript, page 13, lines 35 to 43.
The Applicant said the plan was to claim for “backpays” in periods when she was “not physically at work with her”.[15] I put to the Applicant that Ms V could not have known that she was going to have an accident and that there would be periods where the Applicant would not work for her. She responded that Ms V knew the Applicant was only going to be in Melbourne for 30 days so there would be a time when she would not be working for her. When I reviewed the transcript of the Applicant’s evidence, I saw that later in her evidence, she said that on 31 December “…we discussed that I was leaving like maybe a couple of days later…”. There is a significant difference between 30 days and a couple of days. It is inconsistencies like these in the Applicant’s evidence, not all of which were immediately apparent, that give the impression the Applicant was, to some extent, making her evidence up as she went along.
[15] Transcript, page 14, lines 25 to 30.
The Applicant said that on 10 January 2019, when she issued the first of the NDIS invoices, she was owed a total $45,000.[16] Prior to that date, she had transferred a total of $34,000 from Ms V’s accounts to her own. This means that the Applicant had considered herself entitled to a total of $79,000.
[16] Transcript, page 18, line 44.
With respect to the transfers, the Applicant said that on 24 December, Ms V called her from a travel agent and asked her to “support her” because she could not pay for travel she wanted to do the following day. She claimed that Ms V had consented to her transferring $6,000 to herself as reimbursement for the travel payment. The $6,000 was broken into smaller amounts because of transaction limits attached to the World Remit account. The Applicant initially claimed that the first transfer, on 31 December 2018, had been done by Ms V. Her words, spoken quite firmly, were “I did not transfer this amount, [Ms V] transferred this amount”.[17] She later said she had done the transfer on Ms V’s instructions and in her presence.[18]
[17] Transcript, page 21, lines 34 to 36.
[18] Transcript, page 22, lines 40 to 46.
In relation to the $10,000 transfer on 5 January 2019, the Applicant agreed that she told the police it related to a period that she worked between 31 December and 10 January. She said that was the work period and she was not referring to future work but to hours worked up to 5 January 2019. She also said the sum also covered expenses “from the time that [Ms V] went into coma”, for example transport, and “there is one that I paid for a hotel from my account”.[19] She then said most of that sum was reimbursement for expenses.[20]
[19] Transcript, page 28, lines 29 to 35.
[20] Transcript, page 30, lines 1 to 8.
The Applicant later said she would like to believe the work component was for arrears. When it was put to her that she had told the police the money was for work in the period 31 December to 10 January, she said that was correct because “there were times where I worked but it attracted things like receipt – like different types of receipts, different type of payments. So, all this payments are including together with this arrears”. She said she meant arrears plus receipts, with $4,500 relating to receipts and around $5,000 relating to arrears.[21] This is markedly different to what she told the police, which was that the $10,000 was for work done in the period and for expenses.
[21] Transcript, page 31.
When the Applicant was asked about her evidence that some of the payment was for a hotel, she said the $4,500 related to expenses incurred by Ms V, such as alcohol, in the first hotel she stayed in. She said when the hotel required the bill to be paid, Ms V could not remember the password for her card so the Applicant paid.[22] Later on, I asked the Applicant about the timeline on 31 December 2018. She indicated that she had arrived in Melbourne that day and she and Ms V spoke about Ms V paying her what she was owed and other matters. Ms V gave her instructions about how she was to be paid. When they finished their meeting, Ms V transferred $1,515.99 to her. They then “went for food and buying all the stuff”. They were in the hotel restaurant when the Applicant paid the hotel bill. Ms V did not pre-emptively reimburse the Applicant for the hotel bill before the Applicant paid it and she did not reimburse her after. They stayed at the restaurant for a couple of hours then they went to the casino where Ms V had the accident.[23]
[22] Transcript, page 45.
[23] Transcript, page 58.
If this evidence is to be accepted then, logically, the amounts that Ms V authorised the Applicant to withdraw from her account could not have included reimbursement for the hotel bill because the Applicant had not yet incurred that expense. It is relevant to then consider the following evidence. The Applicant indicated that on 31 December Ms V gave authorization for all the payments and that all the transfers, except for the first one, were to be done on 1 January 2019.[24] After claiming that the final transfer of $18,000 was less than she was owed, the Applicant was asked why she chose that amount if it was not the whole amount she was owed. She said that is what Ms V authorised, that she “would not take one dollar extra” and that “the rest of the amounts need to be claimed via NDIS”.[25]
[24] Transcript, page 32, lines 37 to 47.
[25] Transcript, page 44, lines 32 to 39.
Her evidence as a whole indicates that in a meeting on 31 December 2018, Ms V authorised her to appropriate specific dollar amounts and that these did not take into account the hotel bill that was yet to be paid. The Applicant claimed she did not feel at liberty to take more than the authorised amounts. Therefore, according to her evidence, she could not have included the hotel bill in the amounts she subsequently withdrew. Her explanation for the transfers into her bank account is inherently contradictory. Further her shifting evidence about whether part of the $10,000 related to arrears or work done in the period also undermines the credibility of her explanation.
A question that arises from the Applicant’s evidence that Ms V authorised her to withdraw all of the amounts, and to do it on 1 January 2019, is why the Applicant appropriated the money in the way she did – spread out over several days and deposited into two different accounts. Why not transfer the total amount owing into her bank account on 1 January 2019, then move some of the money into her World Remit account if she needed to? The Applicant was not asked about this. What I find significant though is that no explanation was apparent or implicit in all the evidence she gave about the money transfers. It is curiosities like this that work against the Applicant’s account forming a coherent, plausible narrative.
When the Applicant was asked if she was owed all of the money she had obtained for two months’ work, she indicated that she was owed the money for extra work she had done for Ms V since February 2018.[26] She claimed that she told the police she was owed money for the previous 10 months and that there was proof on the laptop.[27] The Applicant had previously said she gave Ms V’s laptop and all the records to Ms V’s sister after Ms V’s accident. I asked her:
“You were owed tens of thousands of dollars. You just handed the records to her sister. But you didn’t keep copies for yourself of any of it, tens of thousands of dollars that you were planning to take out of [Ms V’s] bank account. You kept no records for yourself that you were entitled to that money?”
[26] Transcript, page 33, lines 25 to 26.
[27] Transcript, page 34.
The Applicant said it did not cross her mind to keep records.[28] Given her claim to have been working extra hours since February 2018, the following passage from the Applicant’s statement was put to her after she confirmed that she had written that statement:
“After working with [Ms V] for one year, she requested me to start working extra hours.”
[28] Transcript, page 36, line 45 to page 37, line 6
The Applicant claimed that “one year” should have been “one month” and that it could have been a typing error.[29] I find that rather hard to accept. The word “year” is nothing like the word “month”. It is not like typing 2019 instead of 2018. The passage that followed the above passage was then put to the Applicant. That is:
“…moved from SLA as a service provide due to a great deterioration in her condition and needing more hours into her care. I believe that her move from Spinal Life to NDIS was completed in November 2019 and my working arrangement with her changed. As she requested for me to start working with her personally meant that I worked directly for her and this caused me to work with her longer hours, especially this time as she was no longer with SLA.”
[29] Transcript, page 39, lines 4 to 10.
The Applicant adhered to her evidence that “one year” was an error. She said when she started working the extra hours, she and Ms V agreed that she would be paid by Ms V for those hours at the end of the year.[30] I also find this hard to accept given how far away the end of the year was in February or March 2018 and the other options that may have been available before the end of the year such as Ms V changing providers or the Applicant changing clients to one whose plan covered all the care they wanted.
[30] Transcript, page 40, lines 39 to 48.
The Applicant was asked if she ever asked Ms V to pay her before the end of the year. It was at this point that she gave the evidence about the $800 she was given for travel that was going to be deducted from her pay. I found this to be a misleading response because that money was clearly an advance, not back-pay. The Applicant was asked the question a couple more times before she said she had many conversations with Ms V about being paid but she never demanded to be paid immediately.
The Applicant did not produce a single document or witness to corroborate her account. She claimed that she did not keep any records (or copies) herself and that she gave Ms V’s laptop and all the hard copy records she had, such as receipts, to Ms V’s sister after the accident.[31] She also said Ms V’s sister was present when she transferred the $10,000 and $18,000.[32] Yet she also claimed that it was Ms V’s sister who brought charges against her – presumably the fraud charges,[33] which seems inconsistent with Ms V’s sister having allowed her to make the transfers and having possession of records justifying them.
[31] Transcript, page 25, lines 4 to 5.
[32] Transcript, page 44, lines 14 to 18.
[33] Transcript, pages 28 to 33.
According to the Applicant’s account, she was owed a total of $79,000 which included a total of around $10,500 for expenses she had incurred for Ms V, leaving around $68,500 in back-pay. It sees incredible that she could have done additional work worth that amount even if it was spread out over 10 months. It also seems incredible that the Applicant allowed such a huge debt to accumulate with only Ms V’s word that it would be paid.
I find it implausible that the Applicant did not keep her own contemporaneous records given the obvious importance of doing so if she was doing that much extra work, and that she did not make copies of receipts and the records on Ms V’s computer before giving it to Ms V’s sister in circumstances where she was transferring large amounts of Ms V’s money to herself.
The Applicant presented as polite and mild mannered throughout the proceedings. She seemed perplexed by the allegations made against her and said the NDIS offences would not have occurred if only she had been given training on the new system when Ms V moved from SLA. She was likeable. Her cousin, who was an impressive witness, had genuine affection for her, held her in high regard and spoke of her devoted care of one of their aunts when that aunt was terminally ill. There are letters from people who know her, speaking about her kindness and community spirit. None of that evidence was challenged and I accept it. One’s inclination is to take a person like that at their word.
However, I have mentioned several aspects of the Applicant’s evidence that I find implausible, and some aspects were not coherent. Something that is hard to believe can nevertheless be true. Evidence can shift and evolve and seem inconsistent because of poor memory or poor communications skills. However, so much of the Applicant’s account seemed questionable, and, as the Respondent submitted, it is fanciful that Ms V gave the Applicant permission to appropriate large amounts of money, never having done that before, mere hours before she had an accident and was put into a coma. The Applicant’s insistence that she was honest and that she scrupulously made sure she did not take any more money than what Ms V had authorized and what she was owed, is undermined by her dishonest appropriation of money from Ms R around that time.
If there are too many problems with the Applicant’s account in totality, can I accept any of it? I have thought long and hard about this and at best, I can accept that because there is undisputed evidence that she paid for a hotel room, she may have paid other bills for Ms V. Due to the nature of her work, where a shift may go overtime because of a client’s needs (e.g. an accident) she may have worked some additional time and hoped or expected to be paid for those. However, I do not accept that Ms V gave the Applicant permission to appropriate any of her money, or that Ms V’s sister tacitly allowed it. Nor do I accept that the Applicant had done tens of thousands of dollars’ worth of additional, unpaid work for Ms V. I do not accept that the Applicant believed that she was entitled to payment from NDIS for any additional hours she had worked prior to the periods covered by the NDIS invoices. I do not accept that she believed she was entitled to any of the money she received as a result of submitting the NDIS invoices.
It is noteworthy that even if the Applicant had been owed payment for additional work, if that extra care had not been approved by NDIS, payment should not have come from NDIS. The Applicant initially gave evidence that suggested she knew the additional hours were not covered by NDIS. She was later pressed on this, and she denied such knowledge. However, when she was asked:
“Why was it if you were constantly working longer hours than was on your timesheet, or what was on your schedule, why wasn’t there an adjustment made for that? Why didn’t you simply get more scheduled time? Why wasn’t the scheduled time increased to reflect the reality that you say existed?”
the Applicant said:
“So, she did not - when she applied, I think I speak to this earlier on, when she applied with Spinal Life, she was not - these hours were not given to her and that’s why she took it, I think upon herself, to request that I work those hours and she will do the agreement and the payment herself”[34]
[34] Transcript, page 37, lines 15 to 24.
She later said SLA paid her “for the hours that was allocated to [Ms V]”.[35] I take these statements, together, to indicate that the Applicant understood that funding had only been approved for a limited number of hours and did not cover all the hours she claims she worked. It follows from this that she knew that payment for any additional hours worked should come from Ms V and not the NDIS.
[35] Transcript, page 40, line 26.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In allocating weight to this Primary Consideration, I am required to give consideration to:
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.
The Nature and Seriousness of the Applicant’s conduct
The Applicant engaged in dishonest conduct with respect to the NDIS (resulting in convictions for offences), Ms V and Ms R.
Her offending against the NDIS involved a substantial amount of money. The learned sentencing Judge, when discussing the need for a sentence that would act as a deterrent to others, observed that this type of fraud is difficult to detect. The NDIS, like the social security system, relies to an extent on the honesty of those who participate. That appears to be how the Applicant managed to defraud some $43,000. She took that money from public revenue and she has not repaid it.
Depletion of public revenue is not the only adverse impact the Applicant’s conduct had on the Australian community. Systems like the NDIS seek to strike a balance between delivering timely assistance to those with a genuine entitlement and protecting the system from fraud. Generally, fraud prevention measures tend to make it harder and slower for honest participants to obtain their entitlements. Fraudulent claims on the NDIS increase the need for measures that would disadvantage honest participants, whether those participants are disabled people needing care or care workers needing to be paid their wages. Fraudulent claims also divert resources from the delivery of services to fraud detection and investigation.
The term of imprisonment imposed by the court, being 22 months with a period to serve, reflects the seriousness with which the court regarded the offending.
The Applicant appropriated a total of $34,000 from Ms V. While she was not found guilty of a crime, this is still serious conduct and therefore it is relevant to this Primary Consideration. I will refer to her conduct as fraudulent in a general, rather than legal, sense. I will do the same with respect to her dishonesty towards Ms R which did not result in a finding of guilt in a court. Ms V was a vulnerable person given her physical disability and the fact that she was then in a coma. The Applicant’s conduct breached Ms V’s trust. As the Applicant did not repay the money, Ms V did not have the use of that money while she remained alive.
The Applicant engaged in all of the dishonest conduct in the space of two months when Ms V was incapacitated either fully or to a large extent. The offending was frequent. The cumulative impact is that the public purse and Ms V were deprived of money, and Ms R waited nearly two years to get hers back. This breathtakingly opportunistic spree of dishonest conduct is, in totality, very serious.
There is no evidence that she has engaged in violent conduct, conduct that tends to cause a risk of physical harm to people in the Australian community or that she has breached bail undertakings or court orders.
Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In accordance with paragraph 8.1.2(2), I must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct;
(b)the likelihood of the Applicant doing so; and
(c)whether the risk of harm may be affected by the duration and purpose of the Applicant’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa
While the visa in question in a bridging visa, it is connected to the Applicant’s application for a partner visa which is not a short stay visa.
The nature of harm should the Applicant engage in further criminal or other serious conduct is informed by the type of behaviour she previously engaged in, being the dishonest appropriation of money, and by the nature of harm that resulted from her previous conduct. That includes financial loss to the community in general and to individuals in the community. The victims may include vulnerable people, or people or organisations that rely on the Applicant to be honest. This type of dishonest conduct has tangible impacts on individuals and the community.
The Applicant was living in the community until August 2021. She did not commit any offences between March 2019 and August 2021. Nor is there any evidence that she has offended since then. The learned sentencing Judge thought the Applicant had good prospects of rehabilitation. However, it does not appear that information about the transfers from Ms V’s accounts or the Applicant’s dishonesty with respect to Ms R were before the court. Nor was any expert risk assessment before the court. The limited and incomplete information Her Honour had when she made that assessment undermines its reliability.
Referring to the NDIS fraud, the Applicant assured the Tribunal that she has learned from her “mistake” and that she would never do anything like that again. The Applicant very much wants to remain in Australia and use the opportunity she was given for a fresh start here. There are several letters before me from people who speak positively about the Applicant’s character, however none display detailed knowledge of her offending or knowledge of her other dishonest conduct. The Applicant’s partner, Mr K provided a letter in which he undertook to support her in every possible way “to grant her visa”. He said he will provide lodging and financial support until she can get on her feet.
The Applicant’s cousin, “Ms Y”, became aware of the NDIS offences when the police searched their home. Ms Y spoke positively about the Applicant and said she would provide emotional support to the Applicant if she is allowed to stay in Australia. Ms Y also did the discipleship course mentioned further below and she is a member of the Applicant’s church. She said she and the Applicant have a spiritual connection as they share the same Christian values. She did not display detailed knowledge of the offences or awareness of the other dishonest conduct.
According to the Applicant, she had previously been in the Catholic church and attended frequently since her arrival in Australia. She had subsequently joined a Prophetic Church in May 2019 and been “born again”. She attends weekly online bible study groups and church services from detention. The leader of that Church, “Mr P”, provided two letters of support and he travelled from Sydney to Brisbane to give evidence. In his letters he described the Applicant as a very active member who was reliable and trustworthy. He expressed the “strongest of convictions” that the Applicant is a transformed person, and he undertook, on his ministry’s behalf, to provide the utmost support to her to ensure her continued growth as a Christian. The church’s Brisbane campus has around 50 members.
The Applicant completed a “Foundational Discipleship Course Level 1” between May and September 2020. It appears that she was born again after that. Mr P explained that to be born again is the highest version of repentance, and it allows a person “to get God’s forgiveness and start walking in a new walk with Christ”. He also spoke about repentance and positive change when describing the discipleship course. He said he led the Applicant in a confession prayer along the lines of "Lord, I have done something wrong, forgive me, I will never do it again".[36]
[36] Transcript page 21 lines 30 to 31.
However, when Mr P was probed about the details of the repentance process with the Applicant, he indicated that she had not ever expressed that she had done anything wrong. Rather, she told Mr P that she had made a mistake, that there was a question about money she had claimed from NDIS and that there was a court case coming up. He characterized it as something having gone wrong, rather than the Applicant having done something wrong. He struck to that characterization when cross examined about it. Mr P had performed a confession prayer for the Applicant based on rather limited knowledge of what she had done. I mean no criticism of Mr P when I say that. His role, as he explained it, was not to make judgments about whether or not she was guilty of an offence, but to help her seek forgiveness for whatever had gone wrong and commit to never doing wrong again. Mr P did not disclose any knowledge of, or discussions with the Applicant about, her having kept the money she got from Ms R (which she had still not repaid at that stage) or the transfers from Ms V’s accounts. It does not appear that she honestly or fully engaged in the confession and repentance process despite the earnest efforts of Mr P.
The Applicant has not shown genuine remorse for what she did. She acknowledged that the NDIS offences had an impact on the community, but that acknowledgement seemed superficial given her lack of effort to arrange with the NDIS to repay the money.
The Applicant has consistently characterized the NDIS offences as an honest mistake with respect to dates, and she emphasized that she was following her client’s instructions. For example, she said:
“I have learned that what happened was great lesson and how to deal with situation where I am not sure of things. I know I would check policies and procedures by calling the organization I worked for and researching online.”
She indicated that she pleaded guilty “to the mistake” after her barrister explained that she had used the wrong dates.[37]
[37] Transcript, page 7, lines 40 to 47.
Her evidence indicates that she is of the belief that it is not dishonest to make a claim for payment from NDIS for work that was not approved by NDIS. She maintains her claim that she had permission to appropriate Ms V’s money. She seemed to gloss over her dishonestly with respect to Ms R.
The Applicant has not shown insight into her offending, and she evidently has difficulty recognizing the difference between honesty and dishonesty and what is legal and what is illegal. I think this will impair her ability to ensure she acts lawfully in the future especially with respect to money. I am cognisant that the Applicant was assigned a low security classification in prison and moved to residential accommodation, and that there is no suggestion that she has not been of good behaviour while in immigration detention. To my mind this indicates that she has not engaged in violent or disruptive behaviour in custody, but it is not necessarily indicative of honesty. It does not alleviate my concerns. Accordingly, despite her recent good behaviour and the support she has around her, I think there remains a substantial risk that she will offend in the future.
For the reasons I have given, this Primary Consideration weighs heavily against revoking the cancellation of the visa.
FAMILY VIOLENCE
This Primary Consideration does not apply.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction provides that I must consider the best interests of a minor child, that is a child under the age of 18, in Australia.
The Direction sets out a number of factors to take into consideration with respect to any minor children whose best interests would be affected by the decision, including:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child
The Applicant’s cousin, Ms Y, has a son, “Child A”, who is nearly five years old. She and Child A lived overseas until they moved to Australia in March 2019. For a period, they lived in the same home as the Applicant before the Applicant moved out to live with her partner. According to the Applicant she has a close, loving relationship with Child A, and she occasionally assisted her cousin to parent Child A in the sense that she would gently speak with Child A when he had misbehaved and encourage and guide him. Ms Y corroborated this. She also said Child A was very clingy to her when they first arrived in Australia but Child A’s growing relationship with the Applicant helped him to detach a bit from her. Ms Y said the Applicant has occasionally minded Child A for the Applicant. I accept that Child A loves the Applicant and she loves him. It does not appear that the Applicant spent a great deal of time with Child A when she was in the community, although the involvement she did have in his life was positive.
Ms Y is a single parent. She and Child A live with her aunt and uncle. She described her aunt and uncle in very positive terms. Child A appears to be quite attached to Ms Y’s aunt, for example, becoming upset if she is not home when he arrives home. A male cousin also lives there although he has a mental health problem, so he does not provide any care to Child A. His three year old son also lives there. Ms Y said if the Applicant is deported, Child A would be upset, and he would cry.
Child A has a parent fulfilling the parental role. He also has a great-uncle and great-aunt in his home. The Applicant is not Child A’s parent and there is no suggestion that she would ever be called upon to fulfil that role. The Applicant was physically present in Child A’s life for two and a half years, and for the last 11 months she has communicated with him via video chats around two times per week. It is reasonable to infer that she could continue to do that if she is removed to Tanzania, and she did not claim otherwise, although I think she would make a bigger positive contribution to Child A’s life if she were living close by. Given Child A’s young age, she would have many years to make a positive contribution. Child A is not reliant on the Applicant financially or in any other way.
The best interests of Child A weighs in favour of revoking the cancellation of the visa but, for the reasons I have given, only to a limited extent.
The Applicant’s partner has children from a previous relationship. Little information was provided about them, but it appears they are not minors and she did not raise them in relation to this consideration. The Applicant claimed to have many extended family members, including cousins, in Australia. There is insufficient information about those people to support a finding that they include any minor children whose best interests would be affected by the decision. There is a three-year-old child who lives in the same household as Child A. I was not provided with any information about what, if any, relationship he has with the Applicant, so I am unable to allocate any weight with respect to his best interests.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that she may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In my application of this Primary Consideration, I have had regard to the following matters. The Applicant came to Australia as an adult, and some two years after arriving here, she engaged in serious offending against the Australian community and in dishonest behaviour against two individuals in the Australian community including a vulnerable person. The nature of the Applicant’s conduct is such that the Australian community would expect that she should not hold a visa.
The seriousness of the breaches of trust perpetrated by the Applicant is amplified by her failure to repay the money she defrauded from the NDIS and that she stole from Ms V, and her failure to repay the money she owed to Ms R for nearly two years.
While the evidence does not support a finding that the Applicant poses a measurable risk of physical harm to the Australian community, there is a substantial risk that she will commit further dishonesty offences, thereby causing financial loss and the various consequences that flow from that, to individual members of the community or the community as a whole.
This Primary Consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
International non-refoulement obligations
This matter proceeded on the basis that the Applicant is a citizen of Tanzania. She did not declare her citizenship status on her Personal Circumstances form, however that is not meaningful as she left many questions blank. The information provided by her and her family members indicates that she was born and grew up in Tanzania. I find that the receiving country is Tanzania.
Paragraph 9.1(1) of the Direction provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm, and it refers to Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (“Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (“ICCPR”).
The Direction goes on to say that the Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
Subsections 36(2)(a) and 36(2)(aa) of the Act provide the tests for protection on the basis of refugee status and complementary protection respectively.
The Applicant claimed to fear harm from her abusive ex-partner, Mr H, if she returned to Tanzania. She also claimed that living as a single or divorced woman in Tanzania would expose her to danger and to retribution from Mr H. She also mentioned retribution from Mr H’s family without giving any details. She did not identify any other person or group that she might be in danger from in Tanzania.
According to the Applicant, Mr H was physically and sexually abusive to her in Tanzania, and her aunt sponsored her to come to Australia to escape Mr H. A letter purportedly from the Applicant’s mother indicates that Mr H was physically abusive, and she referred to Mr H having broken into her home twice looking for the Applicant. There is country information before me that indicates that domestic violence is prevalent in Tanzania although in recent years there have been significant efforts by the police to assist female victims of domestic violence. Ms Y was not aware of any domestic violence, saying she only knew that the Applicant was unhappy in her relationship with Mr H. The Applicant’s mother did not give evidence. Nor did the aunt who the Applicant said brought her to Australia to escape Mr H.
The Applicant claimed Mr H tried to force her to marry him when she returned to Tanzania in 2019, however he was already married and had not divorced his wife. About that trip, she said “I hired a private security to support me to see my children”.[38] However, when she was asked if she had any receipts for that, she said “So that is – it’s just a retired army general. A close friend to my family. And willing to offer the time of protection due to this reason of safety…”[39]. She claimed that if she returned to Tanzania Mr H would force her to live with him and that the police and community would not help her. She said she would have to live in Dar es Salaam and as Mr H lives there, he would find out she was there. She said she could not live anywhere else because that is where her family home is. However, the reasons given suggests that she merely has a preference for Dar es Salaam. She did not claim that she would be unable to live in another part of Tanzania or that Mr H would find out where she was and follow her to another part of Tanzania.
[38] Exhibit 1, G14 pages 70 to 72.
[39] Transcript, page 61, lines 17 to 25.
Dar es Salaam is known to be a large capital city. I asked the Applicant how Mr H would know she had returned. She said it had not taken him long to figure out she was there when she returned before. When I pointed out that she had gone there to see their daughter on that occasion, so of course he would have found out she was there, she merely agreed without offering another means by which Mr H would know if she were to return.
It is difficult to assess the Applicant’s claims based solely on the information she and her mother provided. There seemed to be some exaggeration in her claims and some aspects of her evidence that required better explanation. She did not put forward sufficient detail and reliable supporting evidence for me to meaningfully assess what danger, if any, Mr H presents to her if she is removed to Tanzania and what preventative measures she could take. However, if her visa is not returned to her, she may apply for a protection visa and her claims can be articulated and considered more fully in that application process.
The Applicant’s material includes statistics that purport to show that of the non-citizens who visas were cancelled pursuant to s501 between 2015 and 25 May 2021 none were able to obtain protection visas. There are eligibility criteria that a person must satisfy to qualify for a protection visa and there are specific matters that will disqualify a person. The fact that a person has had their visa cancelled under s501 of the Act does not disqualify or prevent them from meeting the eligibility criteria. Certain factors, like violent offending, might result in a person’s visa being cancelled and, separately, disqualification from getting a protection visa. The Applicant in this case has not committed any violent offending and no submission has been made that she would be disqualified for any other reason. In these circumstances, the statistics are not informative of the Applicant’s prospects of getting a protection visa.
The Applicant has not claimed that she would face any other sort of harm or hardship in Tanzania.
I do not allocate any weight with respect to this Other Consideration.
Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is an able-bodied woman in her early forties. She has expressed some concern about her mental health and she reported that she was briefly admitted to the mental health unit of a hospital in 2019 after returning from Tanzania. There is a file note dated in October 2021 by an International Health and Medical Service (“IHMS”) psychiatrist that records an impression, rather than a formal diagnosis, of Post Traumatic Stress Disorder without any current mood or psychotic symptoms. This appears to be based the Applicant’s reports of Mr H’s abuse and the ongoing effects of that. The file note records that the Applicant did not want medication at that time. A more recent record, dated in March 2022, noted that the Applicant presented as unhappy but not depressed. The Applicant attended some counselling sessions while in immigration detention between November 2021 and February 2022. I accept that the Applicant has needed support for her mental health in the past and could well need support at times in the future.
In the Applicant’s revocation request form, she said she was receiving treatment from a cardiologist, a gynaecologist and she mentioned “mental health support”. The Applicant also claimed that while she has been in detention, she has suffered from a “gut condition” that is currently being treated. She did not say what the condition is and what her treatment needs are. Nor did she express any concerns that she might not have her physical and mental health treatment needs met in Tanzania. However, I accept that she would probably not have access to the same standard of care that she has in Australia.
The Applicant grew up in Tanzania and lived there until five years ago. I do not accept that she would experience any substantial language or cultural barriers if she were to return there.
The Applicant has completed some nursing studies in Australia and is capable of earning a living. She did not express any concerns about her ability to support herself in Tanzania.
The Applicant has family in Tanzania including her mother, sister, grandparents and children. If it is the case that she is not safe from Mr H in Dar es Salaam but could live safely elsewhere in Tanzania, then she would face the challenge of settling into a new community and establishing a social support network.
If the Applicant is removed to Tanzania there may be some initial challenges, however I do not think she would have much difficulty establishing herself and maintaining basic living standards in the context of what is generally available to other citizens of Tanzania.
This Other Consideration (b) weighs to a very limited extent in favour of revocation of the mandatory cancellation.
Impact on victims
I have already taken into account the impact on the Australian community of the NDIS fraud, and I will not allocate additional weight under this Other Consideration. There is no information about the impact, if any, of the decision on any other person’s affected by the Applicant’s offending.
Links to the Australian Community
In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia when she was in her mid to late thirties and she lived in the wider Australian community for four years before she was taken into custody. She commenced offending only two years after moving here.
The Applicant was initially a student before gaining employment. Before her dishonest conduct started, she contributed to the Australian community through her employment. With respect to other ways that she has contributed to the community, she listed “stroke foundation, black dogs, elderly support” in her Personal Circumstances form. I take that to refer to two charities she helped in some way and also to her job. Mr K’s letter mentions the Applicant helping a neighbour and there is another letter from a person whom the Applicant helped by giving him empty bottles and cans that he could donate to charity (I am aware that they can be exchanged for money in Queensland). It is not clear whether this was linked to the “stroke foundation” or “black dogs”. Nor is it apparent how much support she gave to those causes. However, I accept that she did make some level of voluntary contribution to the community.
The Applicant has social ties to the Tanzanian and Liberian community in Australia (Mr K is Liberian) and through her church. She claimed to have many extended family members in Australia. Those who were mentioned were Ms Y, the aunt and uncle that Ms Y and Child A live with, that uncle’s son and grandson, and another uncle. The Applicant lived with her aunt and uncle for a while, and she helped her other uncle to take care of his wife (her aunt) when she was terminally ill.
Ms Y said she considers the Applicant to be a sister and a dear friend, and she would be devastated if she were removed to Tanzania. In additional to the emotional connection the Applicant has with Ms Y, she has assisted her with Child A. I accept that there will be an emotional and practical impact on Ms Y if the Applicant is deported, although she and the Applicant have only lived in the same country since 2019 so their friendship is relatively short-term. I do not accept that the Applicant’s removal would be devastating to Ms Y. Ms Y thought the Applicant’s aunt and both uncles would be very sad if the Applicant were deported. I accept that. There is no evidence about how the Applicant’s removal would impact any other family members in Australia.
In her request for revocation the Applicant stated the impact of a non-revocation decision would be very hard on Mr K and his children as she became a mother and a wife to Mr K and they share responsibilities and have started a life together. Mr K did not give oral evidence and his written evidence did not corroborate any of that. He did not specifically refer to any impact on him or his children if the Applicant is removed to Tanzania. Nor is there any evidence from Mr K’s children. Mr K described the Applicant and himself as “boyfriend and girlfriend living together”. He said the Applicant “has been very nice to me and my kids. She has attended many occasions with me and my children in the community”. The Applicant’s relationship with Mr K is of relatively short duration. His children do not appear to be minors. I do not accept that the Applicant was like a mother and wife to Mr K’s family. I do accept that the Applicant and Mr K had started a life together and I note that Mr K sponsored her for a partner visa. I accept that he will be adversely impacted if she is deported, however I am not satisfied that he would suffer significant hardship.
Impact on Australian business interests
The Applicant does not claim that her removal from Australia would adversely impact on Australian business interests.
Conclusion: Other Consideration (d)
I allocate moderate weight in favour of revocation under this Other Consideration.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. For the reasons given above, Primary Considerations 1 and 4 weigh heavily against revocation of the cancellation of the Applicant’s visa. The considerations that weigh in favour of revocation, being Primary Consideration 3 and Other Considerations (b) and (d) do not, even combined outweigh Primary Considerations 1 and 4 combined. Application of the Direction therefore favours non-revocation of the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
............................[SGD]...........................................
Associate
Dated: 22 July 2022
Date of hearing: 21 and 22 June 2022 Advocate for the Applicant:
Ms Marianne van Galen Dickie
Sisters Inside
Solicitor for the Respondent Mr Ashley Burgess
Sparke Helmore
ANNEXURE A – EXHIBIT LIST
Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
Section 501 G Documents (G1-G46, paged 1-149)
R
-
10 May 2022
2
Respondent’s Tender Bundle (R1-R5, paged 1 – 46)
R
-
9 June 2022
3
Applicant’s Statement of Facts, Issues and Contentions and Attachments 1 to 9.
A
Various
26 May 2022
4
Respondent’s Statement of Facts, Issues and Contentions & Attachments dated 9 June 2022 (paged 1-15)
R
9 June 2022
9 June 2022
5
Applicant’s Reply to Respondent’s SFIC dated 16 June 2022 & Attachments (paged 1-9)
A
16 June 2022
16 June 2022
6
International Health Medical Service (IHMS Records)
R
-
21 June 2022
7
Migration and Refugee Division (Case Number 2103939) Decision Record dated 26 April 2021.
T
26 April 2021
-
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
2
1