Irvine and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 59
•28 January 2021
Irvine and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 59 (28 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7584
Re:Ashley Elizabeth Irvine
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:28 January 2021
Place:Sydney
The Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 6 November 2020, and in substitution, decides to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.........................[sgd]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – mental illness – family breakdown – assault – applicant as victim of domestic violence – deceit and credibility – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to return – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
28 January 2021
INTRODUCTION
The applicant is a citizen of New Zealand. She arrived in Australia on 15 January 2003 as a 15 year old. She was granted a Class TY Subclass 444 – Special Category (Temporary) visa. She has lived in Australia continuously for the past 17 years.
On 10 March 2020, the applicant’s visa was mandatorily cancelled by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) under subparagraph 501(3A)(a)(i) of the Migration Act 1958 (Cth) (the ‘Migration Act’). A delegate of the Minister was satisfied that she did not pass the character test on the basis that she had a 'substantial criminal record' as a result of being sentenced to a term of imprisonment of 12 months or more.[1]
[1] G26, 279–285; Migration Act s 501(6)(a);(7)(c).
When a visa is mandatorily cancelled pursuant to subsection 501(3A), the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision.[2]
[2] Migration Act, s 501CA(3)(a)&(b).
The Minister may revoke the original decision if representations have been made in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is ‘another reason’ why the original decision should be revoked.[3]
[3] Migration Act, s 501CA(4).
On 6 November 2020, a delegate of the Minister refused to revoke the cancellation of the applicant's visa and the applicant was notified of the decision on 11 November 2020.[4]
[4] G4.
On 18 November 2020, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) to review the delegate’s decision.[5]
[5] G1.
THE HEARING
The matter was heard by the Tribunal over two days: 18-19 January 2021, and the Tribunal was required to finalise its decision by 3 February 2021.
The applicant was represented by Mr R. Turner at the hearing before the Tribunal. The respondent was represented by Ms C. Saunders of Minter Ellison.
Material before the Tribunal tendered by the applicant consisted of:
(a)The applicant's Statement of Facts, Issues and Contentions (‘ASFIC’), dated 16 December 2020;
(b)The applicant's Submissions dated 13 January 2021;
(c)Written Statements by:
(i)Ashley Irvine (Domestic Violence Related)
(ii)Ashley Irvine Paginated
(iii)Darcy Irvine (Brother)
(iv)Sophie Irvine (Sister-In-Law)
(v)Kristopher Kirby (Partner)
(d)Clinical evidence consisting of:
(i)Clinical Record
(ii)Medical Records
(iii)Kris Louise North Psychologist Report
(iv)Kris Louise North CV
(v)Bipolar Disorder and Addiction Article - Hader Clinic Queensland
(vi)Bipolar Disorder Article - National Institute of Mental Health
(vii)Borderline Personality Disorder - National Institute of Mental Health
(e)Some 37 vocational and self-improvement certificates completed by the applicant during detention – for details see Appendix A.
Materials before the Tribunal tendered by the respondent consisted of:
(a)Documents tendered under section 501G of the Migration Act (the ‘G docs’);
(b)Supplementary documents;
(c)A Statement of Facts, Issues and Contentions (‘RSFIC’), dated 11 January 2021;
The Tribunal heard oral evidence from the following individuals:
(a)The applicant,
(b)Mr Kristopher Kirby, the applicant’s partner;
(c)Ms Kris North, Forensic Psychologist.
It is not in dispute that the applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. The sole issue before the Tribunal is therefore whether pursuant to section 501CA(4)(b)(ii) there is ‘another reason’ why the original decision should be revoked.
BACKGROUND
There is uncontradicted medical evidence before the Tribunal that the applicant suffers from Bipolar I Disorder, Unspecified (DSM-5 296.7) and Borderline Personality Disorder (BPD)(DSM-5 301.83).[6] She has been diagnosed with a variety of conditions over the past 10 years including bipolar affective disorder, schizophrenia, anxiety and depression.[7]
[6] In 2016, the applicant’s General Practitioner referred her for contraceptive treatment. In the referral letter, she states that the applicant suffers various mental illnesses including bipolar affective disorder, schizophrenia, anxiety and depression: Letter dated 17 June 2016, Dr Rita Singh, MBBS FRACGP, Medical Records.
[7] The most recent report identified that she has suffered from schizophrenia as well as diagnoses of Bipolar I Disorder, Unspecified (DSM-5 296.7) and Borderline Personality Disorder (BPD)(DSM-5 301.83): Report dated 11 January 2021 by Ms Kris North, Forensic Psychologist. The diagnostic history is set out in paragraph 2 of the Report and commences in 2011 with a referral to a psychiatrist in 2011.
There was no challenge to the medical evidence. Both parties agree that the applicant suffers from serious mental health conditions.
The evidence before the Tribunal also supports a finding that prior to incarceration the applicant was a chronic abuser of alcohol, possibly associated with her mental health condition, and that during periods of intoxication her behaviour was impulsive, abusive and occasionally, violent.
Files notes prepared by NSW Police and the Department of Corrections indicate that the applicant has attempted self-harm on at least three occasions.[8]
[8] E.g. SD 28; SD 155.In relation to domestic abuse, there is evidence that on at least one occasion the applicant and her present partner, Mr Kirby, have struck each other, although no criminal charges were laid. There are however file notes to suggest that Mr Kirby has been violent towards the applicant on other occasions, although this is denied by both the applicant and Mr Kirby. The applicant admitted having made complaints against Mr Kirby, but she said that she made false complaints in order to obtain certain benefits available to victims of domestic abuse.
There is also an extensive file record relating to incidents of domestic violence with her previous partners.
In some respects, the applicant is a most unsatisfactory witness. She has admitted to lying to the police about her fiancé’s behaviour towards her, for financial gain. She told the Tribunal that she was desperate at the time to find secure crisis accommodation, and therefore posed as a victim of domestic violence, which she attributed to her present partner. While the reality of her need should not be doubted, the jeopardy into which she placed her partner was acute. She said simply that at the time her mind was ‘like mush’.
I guard against the implication that because she has admitted to this dreadful deception that she should be disbelieved in all that she says. I proceed on the basis that where possible her statements should be corroborated but otherwise treated with a healthy dose of realism.
It is commonly accepted that some victims of domestic violence lie to protect those who have abused them. In many cases complaints made in the heat of the moment are subsequently withdrawn. This is perhaps a less common case where the supposed ‘victim’ is not a victim at all, but has sought to victimise another for personal gain. I acknowledge that the applicant suffers from very debilitating mental health conditions. She has admitted that her thought processes were simply irrational.
On a positive note, the evidence before the Tribunal suggests that the applicant has insight into her mental health condition, and that her condition is controllable with medication.
In terms of education, the applicant did not complete Year 12 and has no work record to speak of. It appears that she has been supported for the most part by her mother, and for a period of time, by a male partner.
The Tribunal heard evidence of a dysfunctional relationship between the applicant and her mother.
The applicant said that both her mother and her maternal grandmother suffered from bipolar, and, in the case of her mother, “she thinks she does not have it”.
The applicant stated that her mother provided financial support for her, in the amount of $500 per fortnight, and that this continued until she went to prison.
The applicant’s mother was not a witness in the present proceedings.
The most serious offence committed by the applicant, arguably, arose within the context of a physical assault by the applicant on her mother, which resulted in the issuing of an apprehended violence order, as well as a period of imprisonment.
EXERCISING THE DISCRETION UNDER S 501CA(4)
The Tribunal is required to exercise the discretion under section 501CA(4) in accordance with any written directions given under section 499(1) of the Act: s 499(2A). The Minister has given such written directions in Direction No. 79 - Visa refusal and cancellation under s.501 and revocation of a mandatory cancellation of a visa under s501CA, (‘the Direction’) which commenced on 28 February 2019.
DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out certain principles which are said to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1).
These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1). The principles are said to provide a framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under section 501CA: paragraph 6.2(3).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3).
Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were 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 the visa: paragraph 6.3(4).
A principle that is especially pertinent in this case is that contained in paragraph 6.3(5) that:
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.
Paragraph 8 of the Direction explains how the relevant considerations should be taken into account. These may be summarised as follows:
(1)Considerations are divided into primary and other considerations: see paragraph 8(1);
(2)Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);
(3)Decision-makers must take into account the primary and other considerations relevant to the specific category of decision in question: see paragraph 8(1);
(4)Both primary and other considerations may weigh in favour of, or against…whether or not to revoke a mandatory cancellation of a visa : see paragraph 8(3);
(5)Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4).
(6)One or more of the primary considerations may outweigh other primary considerations: see paragraph 8(5).
Part C of the Direction governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
Paragraph 13(2) of the Direction provides:
In deciding whether to revoke the mandatory cancellation of 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.
Paragraph 14 of the Direction provides:
(1)In deciding whether to revoke the mandatory cancellation of 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.
PART A – PRIMARY CONSIDERATIONS
Primary Consideration 1 (PC1): Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) provides that when considering the protection of the Australian community, decision-makers must 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. Under 13.1(2) I 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.
The nature and seriousness of the applicant’s conduct
Paragraph 13.1.1 outlines a number of factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. Not all of these factors are relevant in any particular case.
In the present case, I note the following factors as relevant:
(a)Violent crimes are viewed very seriously: 13.1.1(1)(a);
(b)Crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed: 13.1.1(1)(b);
(c)Crimes committed against officials in the performance of their duties are serious: 13.1.1(1)(c);
(d)The sentence imposed: 13.1.1(1)(d);
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness: 9.1.1(1)e);
(f)The cumulative effect of repeated offending: 13.1.1(1)(f).
The RSFIC outlines the applicant’s offending record as follows:
[4] The applicant's criminal history commences from 2010 when she was convicted of assault occasioning actual bodily harm – T2 and since then she has also been convicted of destroy or damage property <=2000-T2, intimidate police officer in execution of duty w/o abh – T2, assault officer in execution of duty – T2, Driver never licensed (section 53(5)) first offence), Never licensed person drive vehicle on road - first offence, drive with middle range PCA – 1st off, common assault, larceny – T2 and enter enclosed land not presc premises w/o lawful excuse (G5, 29–33). The applicant has also had multiple charges discharged under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (S1, 2–3).
[5] On 10 February 2020, the applicant was convicted of (G5, 29–31):
(a) larceny – T2: the applicant stole a pot plant from the front a residence which was caught on CCTV (S13, 82);
(b) deposit litter not in receptacle provided: the applicant urinated in an elevator at a train station and then used tissue to wipe her genitals which she then dropped on the floor (S17, 91);
(c) stalk/intimidate intend fear physical etc. harm (personal) – T2 (2 counts): the applicant yelled abusive and racist comments at the victim and then stood in front of her and attempted to strike her in the face while continuing to yell abuse (S11, 76) and on a different date the applicant threatened to bash transport officers who asked to check her Opal card (S17, 91);
(d) Behave offensive manner in/on public passenger vehicle etc: this was in relation to the applicant urinating at the train station (S17, 91);
(e) assault occasioning actual bodily harm (DV) – T2: during an argument, the applicant grabbed her mother by the hair and punched her to the right side of her face. She also threw her mother on to the ground (S12, 79) ; and
(f) assault occasioning actual bodily harm – T2: the victim was staying at his friend's house and the applicant entered her residence and started yelling for the victim's friend. The applicant subsequently started yelling at the victim and punched him in the head, clawed him in the face, grabbed him around the neck with both of her hands, and head-butting him to the face and head (S18, 95).
[6] In relation to the offences at 3(a) and (b) the applicant received a section 10A conviction with no penalty and in relation to the remaining offences, the applicant was sentenced to an aggregate sentence of 18 months, with a non-parole period of six months (G6, 43–44).
Two of the offences committed by the applicant involved violence, and one of those involved violence directed against a woman, namely, her mother. I am required to consider the offences as serious and in the case of the latter, very serious.
I note that some of the offending was directed at police officers and in one case, an ambulance driver, and these are also treated as serious.
The offending history does not lend itself to a finding of increasing frequency or intensity. The correct analysis is perhaps that of the inherent unpredictability of the behaviour of those suffering from an un-medicated bipolar disorder.
The sentence imposed was that of 18 months imprisonment with a non-parole period of six months. This is a serious period of incarceration after previous attempts at diversion into the mental health system had been ineffective. Although, while the head sentence was significant, I note that the non-parole period was relatively short.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
I must have regard, cumulatively, to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal acts or other serious conduct; and the likelihood of this occurring, taking into account available information and evidence on the risk of re-offending: paragraph 13.1.2. Should the applicant engage in further acts of an antisocial or violent nature, especially while intoxicated, it is possible that members of the community may suffer emotional or physical trauma.
The risk of further offending is not trivial, as evidenced by the report by Ms North, in which the applicant’s LSR-I score was put at a medium to high prospect of recidivism.
My overall conclusion in respect of PC1 is that it weighs moderately in favour of non-revocation of the mandatory cancellation of the applicant’s visa.
Primary Consideration 2 (PC2): The best interests of minor children in Australia
Paragraph 13.2 states that decision-makers must make a determination about whether revocation is in the best interests of a minor child. Among the factors that must be considered, are the nature and duration of the relationship between the child and the non-citizen and whether there are other persons who already fulfil a parental role in relation to the child: paragraph 13.2(4).
The Tribunal heard that the applicant’s fiancé, Mr Kirby, has children in foster care, boys aged 12 and 11. Mr Kirby said that the boys were autistic. As required by the Direction, I note that the children are in the care of foster parents who attend to their daily needs. The youngest child had recently changed carers and the older child is now placed with his ex-girlfriend. Mr Kirby told the Tribunal that he hopes to recover the children as soon as he can.
I note that the applicant and Mr Kirby has each said that they plan to marry.
The applicant’s relationship with her fiancé’s children is highly contingent on the stability of the relationship with her fiancé, and despite strong statements of commitment by both parties, I am not able to find that this relationship is sufficiently stable to support a finding in relation to the children.
The Tribunal is not able to draw firm conclusions about the durability, integrity and quality of this relationship so as to underpin a finding in relation to the best interests of Mr Kirby’s children.
The applicant also claims a close relationship with her two year old nephew, being her brother’s son.
This boy is two years old. It is hard to see that he would be negatively affected were she to be removed from Australia, especially when considering that she does not occupy a parental role in relation to the child. I am not able to find that it would be in the best interests of the nephew that the applicant’s visa be reinstated.
On the basis of the material presently before the Tribunal, I cannot find that the interests of the three children would be best served by revocation of the mandatory cancellation.
Neither though can it be said that it would be in the interests of the children that the applicant be removed from Australia.
I find that PC2 is of neutral weight.
Primary Consideration 3 (PC3): The Expectations of the Australian community.
Paragraph 13.3(1) provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’), a case dealing with the equivalent clause applying to refusal of a visa application in Part B of Direction No. 65 (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Stewart J analysed the clause as follows, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial, which is an attractive feature given the heterogeneity of views in this area.
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
…
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”.[50] That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
The High Court declined to grant special leave to appeal from the majority decision.[9]
[9] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
However, the seriousness of the breach is not the only factor to be considered. PC3 is not stated in absolute terms. It provides:
Where the non-citizen has been convicted of offences in Australia……it may be appropriate…to not revoke.
As noted above, the principles contained in paragraph 6.3 guide the decision-maker in the exercise of the discretion to revoke under section 501CA(4).
Therefore, in assessing the weight to be assigned to PC3, the length of time the applicant has spent in Australia is a relevant factor: paragraph 6.3(1)(5). The applicant’s subjective characteristics are also relevant, and in this case, there is uncontradicted medical evidence of serious mental illness.
The net impact of these factors is such as to diminish the weight that might otherwise be assigned to this consideration. I find that PC3 weighs moderately in favour of non-revocation of the mandatory cancellation of the applicant’s visa.
PART B – OTHER CONSIDERATIONS
The other considerations are as follows:
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.
It is accepted by the parties that the following considerations are not raised in the evidence before the Tribunal: international non-refoulement obligations (OC1); Australian business interests (OC3) and impact on victims (OC4).
The parties accept that the following ‘other’ consideration are raised: the strength, nature and duration of ties (OC2); and extent of impediments if removed (OC5).
The strength, nature and duration of ties (OC2)
Decision-makers must have regard to the length of time a non-citizen has resided in Australia (with less weight being given where the non-citizen began offending soon after their arrival, and more weight being given to time the non-citizen has spent contributing positively to the Australian community), and the strength, duration and nature of any family or social links with Australian citizens or permanent residents: paragraph 14.2(1).
The applicant arrived in Australia in 2003, but her first offending was not recorded until seven years later. This is a substantial amount of time and it cannot be said that the applicant began offending ‘soon’ after arrival. However, given that the applicant has been substantially unemployed since leaving school, and does not appear to have engaged in voluntary or community activities, there is little basis for finding that she has contributed positively to the Australian community.
Given the length of time the applicant has been in Australia, and the substantial ties she has with her mother, her brother and her sister-in-law, and her fiancé and his two children and her nephew, I am unable to find that her ties are not substantial. The fact that some of these relationships have been strained to breaking point by her erratic behaviour does not detract from the importance of those relationships. Some healing in her relationship with her mother may lie in the future, but that is unlikely, if she is removed from Australia.
While her mother did not provide a statement to the Tribunal, the applicant’s brother and his wife (the applicant’s sister-in-law), each provided a statement in support. Their two year old child is also relevant in this context.
I also note that the applicant has a close personal relationship with Mr Kirby, and that they plan to marry. In evidence, each professed their love for the other, and despite the turbulence of their relationship, I am not able to say that those feelings were not genuinely expressed. Mr Kirby said that he would be devastated if she were to be removed from Australia.
The applicant has also professed a close relationship with Mr Kirby’s two children. Despite the findings made above in relation to PC2, the existence of this relationship forms part of the ties that bind the applicant to Australia.
The Tribunal is required to consider carefully the impact of a non-revocation decision upon those affected by the decision: JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293. In that case the Tribunal affirmed the decision of the Minister not to revoke the mandatory cancellation of the applicant’s visa. The Federal Court of Australia found that the Tribunal had failed to engage in a real consideration of the impact of the non-revocation decision upon the applicant’s immediate family, including the potential mental health impacts on the applicant’s fiancé. Perry J. found that the basis on which the Tribunal reached its decision did not show a genuine consideration of the human consequences of making a decision not to revoke the cancellation decision in relation to the applicant’s fiancé.
In the present case, I am satisfied that there is a degree of emotional dependence between the applicant and Mr Kirby, and that each will suffer emotional hardship if the mandatory cancellation is not revoked.
I am also satisfied, based on the evidence given by Mr Kirby at the hearing, that he perceives the continuation of his relationship with the applicant as very much in his interests, and the interests of his children, and that her removal will cause him intense emotional pain.
I am satisfied that because of his present circumstances, including the supervision of the Court in respect of his own offending, and the fact that his children are in foster care, that he would not be able to travel to New Zealand to be with the applicant, and their plans to marry would not eventuate.
I find that the strength, nature and duration of ties are substantial, and that they point heavily in favour of revocation of the mandatory cancellation of the applicant’s visa.
The extent of impediments if removed (OC5)
I note that the focus of this consideration is upon the transitional challenges that may be faced by a non-citizen, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country): paragraph 14.5(1). Those suffering from mental illness stand at a significant disadvantage when it comes to interacting with strangers or finding their way around bureaucratic processes.
I note that the applicant has not lived in New Zealand as an adult. Despite the assistance that might be expected from New Zealand authorities upon her arrival, and a social welfare system at least on par with that of Australia, she may be expected to have difficulties in establishing herself and maintaining basic living standards. Her emotional and psychological instability makes her especially vulnerable. The applicant expressed the fear that she would become homeless. Should she become a homeless woman, she would be especially at risk.
The evidence is that the applicant has no active familial ties in New Zealand, and that her natural father has not been a presence in her life.
Although she states that she is reconciled to not having a relationship with her Australian based mother in the future, it is likely that this complex relationship will continue to affect the applicant. It is hard to predict what psychological impact a permanent physical separation will have, should she be removed from Australia.
It appears that the therapeutic support available in Australia for the applicant, as a person with mental illness, has been very poor. The applicant appears to have experienced some difficulties accessing mental health services by reason of her status as a non-citizen. This has complicated the task of providing support services for the applicant. I note, however, that she has a Medicare card, but she appears to have experienced some difficulty accessing certain services available to those suffering from domestic violence or mental illness.
I have considered whether the applicant would be better served by mental health services in her home country. I would however be reluctant to draw such a conclusion based on the material before the Tribunal, or to rely on this lamentable fact (if it be a fact) as a ground favouring removal. Indeed, I note that after the hearing at my request the parties filed a joint bundle setting out the health services that are available in Australia to New Zealand citizens. It would appear that the applicant as a New Zealand citizen is entitled to such benefits. In any event, taking into account her mental health condition and her history of self-harm and attempted suicide, I am persuaded that the extent of impediments if removed weighs firmly in favour of revocation of the mandatory cancellation of the applicant’s visa.
CONCLUSION
The applicant has acted badly when under the influence of alcohol and when she has neglected to take her medication. She is responsible for this behaviour. She is acutely and rightly embarrassed by some of her behaviour.
However, the present administrative proceeding is not an occasion for the assigning of moral responsibility or culpability for her offending. The Tribunal is an administrative body and not concerned with imposing a punishment.
The Tribunal’s task is to make the correct or preferable administrative decision in respect of the revocation of the mandatory cancellation decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J. This involves primarily but not exclusively an assessment of the risk to the community posed by the applicant, in light of her criminal history and history of other misconduct, and whether the risk is an acceptable one for the Australian community.
In this context, I note the Report prepared by Ms North, Forensic Psychologist. She states:
With regard to Ms. Irvine’s risk for reoffending, as her main risk factors were assessed as directly related to her mental health and alcohol use issues, it was my opinion that her risk could be substantially lowered should she continue to engage in appropriate treatment as outlined above.
I note the 18 month aggregate sentence imposed, which resulted in her first time in prison. According to the evidence given by the applicant, that period of incarceration has saved her life. Her legal representative, Mr Turner, stated that this was a rare case where a major sentencing purpose, rehabilitation, had been served.
The Tribunal is also asked to weigh the expectations of the Australian community, on the basis that those expectations reflect government policy with regard to an overarching expectation that non-citizens should be law abiding.
In this context there are significant personal factors, including the applicant’s experience as a survivor of domestic violence, her non-compliance with various treatment regimes, and her heavy drinking. It is clear from the evidence before the Tribunal that the downward spiral of her mental health culminated in the events which led to a period of incarceration.
Two of the primary considerations (PC1, PC3) weigh moderately against revocation of the mandatory cancellation of the applicant’s visa.
Two of the other considerations (OC2, OC5) weigh heavily/firmly in favour of revocation of the mandatory cancellation. The remaining considerations are neutral; there are no relevant issues arising in relation to international non-refoulement obligations, or impact on Australian business interests, nor is there any relevant evidence as to the impact on victims.
I note explicitly that PC2, relating to the best interests of minor children affected by the decision, is neutral. Given the applicant’s history, and the nature and newness of the relationship with Mr Kirby, the father of two of the children, it cannot be safely said that revocation would not be in the children’s best interests. Occasional lapses of a controlled medication regime, with consequent manic or violent behaviour, could be very damaging to the development of the children. Likewise, any resumption of a pattern of heavy drinking would be catastrophic.
While primary considerations should generally be given greater weight than the other considerations (paragraph 8(4)), in this particular case, and given the mental health dimension, I am satisfied that the combined weight of the other considerations outweighs the primary considerations relating to public safety and community expectations. In making this judgment I have been heavily influenced by the steps at self-improvement the applicant has taken whilst in custody: see Appendix A. I note the applicant’s comment that gaol saved her life, and her counsel’s comment that this was a rare case where a prime purpose of punishment, namely rehabilitation, had been achieved.
The applicant has asked for a second chance and there is no doubt that the prospect of removal from Australia and especially losing her relationship with Mr Kirby, has terrified her. She indicated that she would be compliant with medication and that she would take an injection if necessary, so as to avoid the need to take daily tablets.
There is no doubt that the applicant has placed a burden on the Australian community by reason of her behaviour, some of which has resulted in criminal conduct. But the Australian community is on the whole a compassionate society, and this is especially so in relation to those who experience profound mental illness with resulting interpersonal and financial problems. This is a case where the applicant should be given a second chance.
Having considered the case in terms of the structured decision-making of Direction No. 79, I am well satisfied that the correct and preferable decision is to revoke the mandatory cancellation of the applicant’s visa.
DECISION
The Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 6 November 2020, and in substitution, decides to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.............................[sgd]...........................................
Associate
Dated: 28 January 2021
Dates of hearing: 18-19 January 2021 Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent: Ms C Saunders, Minter Ellison APPENDIX A
(a)Vocationally focussed certificates (27) completed by the applicant:
(i)Administrative Assistant 101
(ii)Call Center Customer Service
(iii)Call Center Management
(iv)Catering 101
(v)Concierge 101 How to Run a Personal Service
(vi)Conflict Resolution 101
(vii)Customer Relationship Management
(viii)Customer Service 101
(ix)Dealing with Difficult People
(x)Event Planning 101
(xi)General Receptionist
(xii)Home Business
(xiii)How to Start and Run an Online Business
(xiv)Lean Management
(xv)Management Essentials
(xvi)Managerial Accounting 101
(xvii)Mastering Sales Skills 101
(xviii)Operations Management 101
(xix)Party Planning 101
(xx)Purchasing and Vendor Management 101
(xxi)Pursuing Happiness Successful Strategies
(xxii)Retail Business 101
(xxiii)Small Business Guide
(xxiv)Stress Management
(xxv)Talent Management for Business
(xxvi)Virtual Assistant 101
(xxvii)Waiter and Waitress Training 101
(b)Certificates with a personal development focus:
(i)Anger Management 101
(ii)Anxiety Therapy 101
(iii)Building Self Esteem
(iv)Confidence Building
(v)Depression Management
(vi)Developing Great Social Skills
(vii)Domestic Violence 101
(viii)Drug and Alcohol Abuse 101
(ix)Emotional Healing 101
(x)Healthy Relationships
3 December 2013 trying to hang herself: SD55; 19 November 2013: SD 55.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Remedies
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Standing
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Statutory Construction
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