Jackson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 518
•23 February 2023
Jackson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 518 (23 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10288
Re:Barbara Jackson
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal: Mr S Evans, Member
Dates of hearing: 23 and 24 February 2023
Date of written reasons: 28 March 2023
Place:Sydney
The Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 13 December 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
.............[Sgd].....................................................
Mr S Evans, Member
Catchwords
MIGRATION – visa refused under subsection 501(1) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds – where the Applicant is not Indigenous but has close ties with the Aboriginal community - where children are recognised as Indigenous - Direction no. 99 considered – reviewable decision set aside and remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 161Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
28 March 2023
INTRODUCTION
Barbara Jackson (the Applicant) is a 46 year-old citizen of New Zealand who immigrated to Australia on 2 July 1987 when she was 10 years old.[1] On 7 December 2021 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) following two criminal convictions for which she was sentenced to more than 12 months imprisonment.[2] The Applicant seeks review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent or the Minister) not to revoke the mandatory cancellation of her Special Category (Temporary) (Class TY, Subclass 444) visa (the visa) under subsection 501CA(4) of the Act.[3]
[1] G3/26
[2] G2/9
[3] G2/8
For the reasons which follow, I found there was another reason to revoke the cancellation of the visa and the reviewable decision was set aside and substituted 6 March 2023.
BACKGROUND
On 25 October 2021 the Applicant pled guilty to offending including robbery with actual violence armed/in company/wounded/used personal violence and enter dwelling with intent,[4] for which she was sentenced to 4 years and 6 months and 3 years imprisonment respectively.[5]
[4] G4/43
[5] G4/33
The Applicant’s visa was cancelled under subsection 501(3A) of the Act on 7 December 2021 on the basis of the Applicant having a ‘substantial criminal record’ as she had been sentenced to a term of imprisonment of more than 12 months (the mandatory cancellation decision).[6] The Applicant sought revocation of the mandatory cancellation decision on 12 December 2021 making representations in accordance with an invitation sent by the Respondent.[7]
[6] G3/9
[7] G4/53
On 13 December 2022 a delegate of the Respondent decided under subsection 501CA(4) if the Act not to revoke the mandatory cancellation of the visa (the non-revocation decision). The Applicant was informed of the decision on the same day,[8] and on 16 December 2022 she sought review of the non-revocation decision by the Tribunal.[9]
[8] G1/5
[9] G1/1
Relevant law and ministerial direction 99
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7) and is serving a sentence of imprisonment on a full-time basis in a custodial institution.
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) 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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). As the date of this decision falls after 3 March 2023, the relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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 measureable 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(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 measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[10]
[10]Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal and other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
issue to be determined
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
As the Applicant was sentenced to a term of imprisonment greater than 12 months on 25 October 2021, I am satisfied that she does not pass the character test for the purpose of subparagraph 501CA(4)(b)(i) of the Act.
As she does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
EVIDENCE
Evidence of the Applicant
The Applicant provided oral evidence at the hearing in addition to written submissions. In a statement dated 23 January 2023 the Applicant writes that her mother told her they came to Australia to escape from gangs in New Zealand who had made death threats against them.[11] Prior to leaving New Zealand the Applicant’s older brother had been imprisoned, and he died in prison six months after their arrival in Australia.[12] The Applicant recalls returning to New Zealand for her brother’s funeral and believes his death may have been gang related, though an inquest found her brother had committed suicide.[13]
[11] Statement of Applicant dated 23 January 2023 (Applicant’s Statement), [10]
[12] Applicant’s Statement, [11]
[13] Applicant’s Statement, [10]
When she was a child the Applicant began dating a man who was 4 years older than her and became pregnant at 14.[14] Though terrified, the Applicant chose not to terminate the pregnancy as she felt the child was her responsibility. She stopped smoking and drinking during the pregnancy and left school. She stated that felt a lot of shame and isolated herself. With the support of her own mother, the Applicant gave birth to her son Damion Jackson when she was 15 years old.
[14] Applicant’s Statement, [16]
The Applicant gave evidence that when Damion was 18 months old she returned to school as an adult student.[15] The Applicant began a new relationship with a man who introduced her to heroin and methamphetamines. Her new boyfriend was very controlling of all aspects of her life, including her drug use. At age 17 she began using heroin. When she was 19 they moved in together and she became a daily drug user.
[15] Applicant’s Statement, [17]
Regarding her offending, the Applicant gave evidence that her first offence was shoplifting at age 12. She said that her shoplifting offence was driven by her attendance at a school with privileged students, where she was teased about her clothes and shoes. In July 1991 the Applicant appeared in the Holland Park Children’s Court and sentenced to 6 months supervision for three charges of assault occasioning bodily harm whilst in company. In her evidence she characterised those offences as arising out of a schoolyard fight.
The Applicant gave evidence that her adult offending was not for financial gain. She submits that it was generally ‘low level’[16] and overwhelmingly and consistently linked with her polysubstance dependency disorder.[17]
[16] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [41]
[17] ASFIC, 45
Having considered the police records and incident reports during the process of appealing the mandatory cancellation of her visa, the Applicant claims to be ‘deeply ashamed’ of her offending behaviour.[18] She acknowledges that she has been afforded opportunities to reform in the past and that she did not recognise those opportunities at the time.[19]
[18] Applicant’s Statement, [18]
[19] Applicant’s Statement, [19]
Dr Luke Hatzipetrou, psychologist
Dr Luke Hatzipetrou interviewed the Applicant on 16 January 2023 and provided a detailed psychological assessment dated 24 January 2023 which is in evidence. He gave evidence that the Applicant’s offending behaviour was largely related to her use of illicit drugs.[20]
[20] Report of Dr Hatzipetrou dated 24 January 2023 (Doctor’s Report), 16
Dr Hatzipetrou also gave evidence that the Applicant has a history of trauma beginning when she was a child, which has been left largely untreated.[21] From age 17 she was exposed to ‘significant and severe episodes of domestic violence’ for which she has not received psychological treatment.[22] Dr Hatzipetrou opines that the Applicant has an awareness of her offending[23] and is able to reflect and identify factors that have previously been intentionally blocked and avoided.[24]
[21] Doctor’s Report, 14
[22] Doctor’s Report, 11
[23] Doctor’s Report, 13
[24] Doctor’s Report, 12, 15
Considering her history, Dr Hatzipetrou’s opinion is that the Applicant has a polysubstance dependency disorder which has been established over a long period of time.[25] He opines that the condition can be lifelong, but can be overcome. It is Dr Hatzipetrou’s opinion that individuals such as the Applicant can remain sober for the rest of their lives if they engage in appropriate treatment.
[25] Doctor’s Report, 14
Dr Hatzipetrou understands that the Applicant is motivated to succeed in her recovery, but it is his opinion she will need professional assistance to do so. To maintain recovery, Dr Hatzipetrou suggests ongoing psychological support and counselling and regular drug testing. Individuals in the Applicant’s situation also require community connections, healthy relationships and to disconnect from other drug users.[26]
[26] Doctor’s Report, 17
Regarding her offending, Dr Hatzipetrou does not consider the Applicant has a predilection towards violence.[27] It was his evidence that violent offending is not part of her personality traits and that the Applicant has a capacity for empathy and the ability to understand.
[27] Doctor’s Report, 14
Damion Jackson, the Applicant’s eldest child
Damion Jackson is the Applicant’s eldest child. He and the Applicant are close and they spoke regularly throughout the Applicant’s time in prison and detention.[28] Mr Jackson is married and the Applicant and his mother-in-law share a close relationship.
[28] Undated Statement of Damion Jackson (Damion Jackson’s Statement), [14]
Mr Jackson gave evidence that the Applicant was a good mother when she was present. Mr Jackson concedes that there have been periods during which he and the Applicant have been estranged. He states that following the death of his grandmother – the Applicant’s mother - in 2018 the Applicant ‘shut down’ and consequently Mr Jackson had to take on the responsibility of arranging his grandmother’s funeral. As Mr Jackson was unable to provide as much emotional support to the Applicant during this time, she became more isolated, and her use of illicit drugs increased.[29]
[29]Damion Jackson’s Statement, [15]
In an undated statement Mr Jackson writes that the Applicant’s most recent offending came as a shock to him as it was out of character.[30]
Barbara Jackson is my mum and I am her eldest child. I was born in Australia when she was only 15.
It is important that the tribunal understand how close we are. The fact that my mother is only fifteen years older than me means that. I have seen her live through the worst days of her life and I can with all honesty now see she is on the road to recovery and very much like the person I can love and respect.
I have experienced my mother struggles with substance abuse over the years and I know that her offending was linked to her addictions. I understand that her addiction to alcohol and drugs is a medical issue with social consequences. Her condition was made worse by grief over the loss of my Nana and the loss of her children from her care and her depression. Despite her problems my Mum has always been such a caring loving nurturing mother and friend and has been one of the biggest supporters in my life from sport to my education my mum has always wanted the best for me and has always encouraged me to follow my dreams. Without my mum I wouldn't be where I am today if it wasn't for my mums constant support, advice and guidance.[31]
[Errors in original]
[30]Damion Jackson’s Statement, [4]
[31] Damion Jackson’s Statement, [7] – [11]
Should the cancellation of the Applicant’s visa be revoked, the Applicant will reside with Mr Jackson and his wife. Mr Jackson is confident he can assist her by providing her a place to live and stability.[32] He is determined to help his mother in her recovery. Mr Jackson is able to take the Applicant to medical appointments so she can maintain her participation in the methadone program. When asked about his response should the Applicant experience a relapse, Mr Jackson gave evidence that he will work with the Applicant to put her back on the path of rehabilitation.
[32]Damion Jackson’s Statement, [18]
Phillip Dodds
Phillip Dodds is a youth and family support worker at Sisters Inside who has known the Applicant for 23 years. He has provided a statutory declaration dated 19 January 2023 and also gave oral evidence at the hearing.
Mr Dodds and his wife were close friends with the Applicant’s late mother and their children are also friends.[33] Mr Dodds knows the Applicant as a warm-caring person who loves her children deeply[34] and who is remorseful for her actions.[35]
[33] Statement of Phillip Dodds dated 19 January 2023 (Philip Dodd’s Statement), [3]
[34] Phillip Dodd’s Statement, [4]
[35] Phillip Dodd’s Statement, [5]
From April 2019 to December 2021 Mr Dodds and his wife were foster carers to two of the Applicant’s minor children CJ and LV.[36] Whilst caring for the Applicant’s children, he was unable to provide support to the Applicant due to the terms of the Child Protection Orders. However, following her incarceration Mr Dodds regularly took all three of the Applicant’s minor children to visit the Applicant in prison.[37] He gave evidence that the children each have a ‘warm, loving’ relationship with the Applicant.
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
[36] Phillip Dodd’s Statement, [3]
[37] G4/85
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard 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 to date
The Applicant has an extensive criminal history beginning in 1991 and continuing through to 2021, during which she committed more than 60 offences.[38] Her offending includes convictions for assault occasioning bodily harm, supplying dangerous drugs, drug possession, possession of utensils or pipes relating to use of drugs, having stolen/tainted property, stealing and unauthorised dealing with shop goods, fraud related offences, unlawful use of a motor vehicle and breach of bail, bonds or orders imposed.
[38] G4/32-36
Prior to her most recent offending, the Applicant had been sentenced terms of imprisonment on 4 occasions. In August 2001 she was sentenced to 3 months imprisonment for breach bail – contempt,[39] in March 2002 she was sentenced to 3 months imprisonment for breach of bail undertaking,[40] in April 2002 she was sentenced to a total of 9 months suspended after serving 3 months for unlawful use of motor vehicle and breach of bail for theft and drug possession charges which included obstruct (police).[41] In February 2010 she appeared in the Brisbane Supreme Court where she was sentenced to 18 months imprisonment for drug supply and possession charges.[42]
[39] G4/36
[40] G4/34
[41] G4/34
[42] G4/34
Previous warnings
The Applicant has been warned twice about the potential impact of her continuing to offend on her visa status. On June 2007 she was sent a formal counselling letter warning her that any other conduct that comes within the scope of section 501(6) could result in the cancellation or refusal of future visas and that the consequences may include her removal from Australia.[43]
[43] G4/247
On 8 December 2010 the Applicant was provided with a notice of intention to consider cancellation of her visa.[44] On 15 April 2011 the Applicant was notified that her visa would not be cancelled but was warned that visa cancellation may be reconsidered if she committed further offences.[45] In his report Dr Hatzipetrou states that the Applicant acknowledged having received the warning but ‘was confused as she was not incarcerated’ at the time. He reports that she accepted that she did not consider the seriousness of the warning, which she in part attributed to being focused on caring for her then newborn daughter.[46]
[44] G4/248-253
[45] G4/254-255
[46] Doctor’s Report, 3
Armed robbery offence
On 25 October 2021 the Applicant was convicted for offences of enter dwelling with intent (burglary), armed robbery in company with actual violence armed and robbery in company.[47] She received sentences of imprisonment of 3 years for the burglary offence, and 4 years and 6 months for the armed robbery offences. The sentencing remarks given on 25 October 2021 detail the offending:
The complainants were housemates and lived at an address at Darra. One of your co- offenders, Gibbards, had previously had a sexual relationship with one of the complainants who has the surname of Jones. He previously supplied him with methylamphetamine on three occasions.
On the 17th of January 2021, you and the two male co-offenders attended the complainants’ home. You did not previously know the complainants. Jones answered the door and you and your two co-offenders, Gibbards and an unknown male, barged into the home...
Gibbards pointed a gun at Jones as he entered the dwelling and said words to the effect, “I’m not going to hurt you; I just want your product and cash.” Jones replied, “No.” Gibbards approached the other complainant, Murdoch, and held a gun to his head and motioned to Gibbards to be quiet. The unknown male co-offender approached Jones with a knife. The blade was approximately 7 to 9 centimetres long. Jones grabbed hold of the blade causing a laceration to his hand. The unknown male started to punch Jones in the head. Jones fell to the ground and the unknown male, who was still holding the knife, continued to punch him in the head. At least 20 punches were thrown.
While this was happening, you moved around taking items and said, “Just tell us where it is.” Jones continued to say, “No” and the assault on him by the unknown male continued until Jones said, “Enough. Enough. It’s over there” and pointed towards the computer.
Your co-offenders retrieved a quantity of cannabis and the wallet of Jones, which contained $800 in cash. During the course of this offending, you went to the complainants’ kitchen and retrieved a 30 centimetre knife and held this in a threatening way towards Murdoch. Gibbards pointed the gun in the direction of Murdoch and demanded his money. Murdoch said, “You already have everything, just stop.”
Jones ran towards Gibbards to try and grab the gun from him. The clip of the gun fell out. Gibbards punched Jones in the head causing him to fall down onto the clip. Jones fell onto the clip; however, Gibbards managed to retrieve it after a struggle. You then demanded to know where Murdoch’s car keys were. Murdoch said that he would not hand over his keys and attempted to grab his personal items from the couch. You, ultimately, took possession of those items.[48]
[47] G4/33
[48] G4/38-39
When she was arrested for the armed robbery offence, the Applicant had in her possession a mobile phone that had been reported stolen, a quantity of cannabis and a set of digital scales.[49]
[49] G4/39
In sentencing the Applicant, Judge Holliday acknowledged her cooperation with the police and prosecution.[50] Her Honour said that whilst the Applicant had not inflicted ‘the actual violence’ during the armed robbery offences, she considered that the Applicant played ‘an important role.’[51]
[50] G4/42
[51] G4/39
The Direction requires that in considering the nature and seriousness of the Applicant’s offending I take into account the frequency of the offending and any trend of increasing seriousness. I find that the Applicant’s offending has been frequent and of increasing seriousness in recent years. Her conduct is made more serious by continuing to offend after having previously receiving custodial sentences and having been warned on two occasions that further offending may result in the cancellation of her visa.
Crimes of violence are viewed particularly seriously under the Direction and whilst she did not inflict actual violence, her involvement in the violent armed robbery adds weight to the seriousness of her conduct. Overall, the Applicant’s offending must be regarded as serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant commit further offences of a similar nature the offending may cause significant physical or psychological harm to individuals and potential property loss from fraud and stealing offences. Further offending related to her use of illicit drugs or driving offences may result in indirect but serious harm to members of the community.
Likelihood of reoffending
Regarding the risk of reoffending, Dr Hatzipetrou opines that the Applicant has a ‘low to moderate risk of violence’ and ‘has a moderate or high risk of general offending (including drug related offences).’[52] The Respondent does not cavil with Dr Hatzipetrou’s assessment regarding the risk of reoffending.[53] The Respondent also notes that the Applicant was assessed by the Queensland Corrective Services on 4 November 2021 as having a ‘Risk of Reoffending’ score of 9,[54] where 22 is the highest risk of re-offending and 9 is a higher score than ‘low risk’ in terms of the intervention required.[55]
[52] Doctor’s Report, 14
[53] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [39]
[54] RTB/92
[55] RTB/125
Illicit drug use and rehabilitation
The Applicant has a long history of illicit substance abuse which she acknowledges and understands to be a major factor in her offending. The Applicant’s drug use has included cannabis and methamphetamine but gave evidence her addiction to heroin has been the strongest.
Craig Holt assessed the Applicant whilst she was in prison.[56] In a psychological report dated 7 October 2021, Mr Holt diagnosed the Applicant with Opioid Use Disorder (in remission), Stimulant Use Disorder (in remission) and Cannabis Use Disorder (in remission).[57] He concluded that she would benefit from ongoing psychological treatment ‘for relapse prevention and further recovery’, and proposes that ongoing treatment would reduce the likelihood of her reoffending.[58]
[56] G4/170
[57] G4/169
[58] G4/170
The Applicant has been able to abstain from using illicit drugs in the past, often with the aid of methadone treatment. In her January 2023 statement she recounts being able to manage her addiction for 3 years until 2007 when her methadone treatment was altered. With her treatment less effective, the Applicant began using illicit drugs again which resulted in her reoffending in 2007 and 2008. When she began receiving appropriate methadone treatment again she was able to remain ‘drug free’ for 6 years.[59]
[59] Applicant’s Statement, [21]
Consistent with the Applicant’s submission, Judge Holliday noted the ‘lack’ of offending by the Applicant between 2010 and 2016 and observed her life had entered a ‘downward spiral’ in 2018.[60] The Applicant explained that in 2018 her mother, with whom she was extremely close, passed away causing her ‘extreme grief’.[61] In her January 2023 statement the Applicant writes in in relation to that time:
[My partner] lost his job, my mother died and I fell into a deep depression and during those years we both descended again into drug use and criminal activity. During an incident of domestic violence where he almost broke my jaw, Child Safety explained that I needed to press charges or the children would be removed. [my partner] went to jail and I was alone struggling with depression, and drug addiction.[62]
[60] G4/40
[61] G4/166
[62] Applicant’s Statement, [22]
It was the Applicant’s evidence that she last used drugs prior to her arrest in February 2021. She is currently participating in the methadone program which she claims has removed her need for opiates. Nonetheless, the Applicant believes she will ‘always …be a recovering addict.’ [63]
[63] Applicant’s Statement, [24]
As detailed, the Applicant’s participation in the methadone program has enabled her to maintain periods of sobriety. However, she relapsed and her drug use increased substantially from 2019 onwards.[64] The Applicant explained that before committing the armed robbery offence she had been prescribed a dose of methadone below that required to sustain her recovery. In contrast, she currently receives a higher dose of methadone which she believes is sufficient to ensure that ‘street heroin’ would have no effect on her. She also has arrangements in place so that she can maintain her participation in the methadone program uninterrupted should she return to the community.
[64] Applicant’s Statement, [23]
Despite a long history of drug use, and periods of abstinence followed by relapse, the Applicant submits that she will be able to maintain her sobriety should she return to the community. She is committed to continuing her rehabilitation and is prepared take alternative measures to prevent relapse. She has made enquiries to attend a residential rehabilitation facility, which she has not done previously, and is confident she will be well placed to participate in and complete residential rehabilitation if released from detention.[65]
[65] Applicant’s Statement, [40] – [41]
Whilst in immigration detention the Applicant has commenced weekly counselling sessions[66] and completed courses to assist in her recovery. In January 2023 she completed Understanding Addictions and claims to have learnt about triggers for drug use, treatment options for addiction and effective strategies should she experience a relapse.
[66] Applicant’s Statement, [42]
Should she be released into the community the Applicant plans to live with her eldest son and his wife. She gave evidence that she respects both Mr Jackson and his wife and would not use drugs in their house. Having lived with the Applicant for many years during which she had an active drug addiction, she believes Mr Jackson will know if she is using again. The Applicant believes that as her daughter-in-law works from home, it will be difficult for her to use drugs without their knowledge.[67] She has also made arrangements to ensure she continues to receive methadone uninterrupted. Both her son and daughter-in-law are aware of her strict parole conditions. The Applicant can also rely on the support of Mr Dodds and his wife.
[67] G4/95
The Applicant is committed to not letting Mr Jackson down. She views her continued recovery as an opportunity to demonstrate her remorse for her behaviour and to show her appreciation for his support. The Applicant has attributed her substance abuse in part to stressful experiences in her life. Asked what plans she had to ensure she did not relapse if faced with similar circumstances in the future, the Applicant stated she will seek counselling in addition to drug rehabilitation. She is also committed to undertaking grief counselling to process the grief she still experiences following the death of her mother.
Protection of the Australian community – conclusion
The Applicant’s offending began when she was a child and continued throughout her entire adult life. Her criminal record culminated in the particularly serious offending which resulted in her visa being cancelled. It is to her credit that she does not seek to downplay her offending and acknowledges the nexus between her drug use and offending behaviour.
Based on the reports of Dr Hatzipetrou and Mr Holt, the risk of further offending by the Applicant is moderate at best. The evidence before me suggests that much of her offending stems from her drug dependency and resisting drug use will be a key factor in preventing further offending in the future.
The Applicant has demonstrated significant insight into her offending and the impact it has had on others, most notably her children.[68] Should she be released into the community she will have the support of both Mr Jackson and Mr Dodds, as well as the benefit of learning from previous relapses. I am confident that having served a significant term of imprisonment and having her visa cancelled has had a salutary effect on the Applicant.
[68] Applicant’s Statement, [25], [35]
The Respondent rightly observes that the Applicant only recently began ongoing psychological treatment to reduce the risk of reoffending, despite it being recommended by Mr Holt in October 2021. I also take into account that as a long-term drug user with a diagnosis of chronic relapsing opiate dependency, maintaining sobriety will be challenging.[69]
[69] G4/47
Though residential rehabilitation will be a sound foundation for sustained recovery, it will only be a first step. That the Applicant has learnt from her past failures and is prepared to do more to sustain her recovery is reassuring. However, her efforts whilst in prison and detention appear insufficient given the extent of the challenges she can expect to face in the community.
In recognition of the seriousness of her offending and the real risk that she may reoffend, I give significant weight to this consideration against revocation of the mandatory cancellation decision.
PRIMARY CONSIDERATION 2 - Family violence
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Part 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As the Applicant has not committed any family violence this primary consideration is not engaged.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
I am required to consider the impact of the decision on Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely.
The Applicant has resided in Australia for 26 years.[70] In addition to her 3 minor children,[71] the Applicant’s eldest son and his wife and her daughter-in-law’s mother, who she has a close relationship with also reside in Australia.[72]
[70] G4/61
[71] G4/63
[72] G4/67
As her minor children are Indigenous, the Applicant has been involved with and formed a close connection to the Indigenous community.[73] She submits that her removal from the community will have a significant impact and writes:
My children are Aboriginal as is their father. This connection to Australia has played a role in my relationship with them and with the broader community. When I was well I was able to contribute to the community through school and sporting activities and by the support I have given the children as indigenous representatives.
I have been honoured to be considered a part of their community. I now grieve at the potential spiritual loss I will suffer if removed from my indigenous children, the community and their culture. This community is part of my family and understands and accepts the struggles I have been through.[74]
[73] For the significance of this factor see Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 161, [30]
[74] Applicant’s Statement, [38] – [39]
The Applicant and the minor children’s father were in a relationship for 20 years. She maintains that she has no intention of resuming that relationship but does maintain a strong connection with her mother-in-law, who is caring for her two youngest children.
In evidence is a letter from Joeline Neil-Lomaz dated 18 December 2022, who is an elder of the indigenous community in Inala. The letter attests to the close relationship the Applicant has with the Inala indigenous community and her contributions including through the local rugby club.[75]
[75] Letter of Support of Joeline Neil-Lomaz dated 18 December 2022, 2-3
Considerable weight is afforded to the fact that the Applicant spent her formative years in Australia. The Direction provides that less weight should be given to this consideration where the non-citizen began offending soon after her arriving in Australia, and the Respondent identifies that the Applicant’s first offences were committed in December 1990 having arrived in July 1987.[76] However, I make allowance for the fact that the offending occurred when the Applicant was a juvenile and her first recorded offence as an adult was in 1995.
[76] RSFIC, [44]
In terms of positive contributions to the Australian community, the Applicant worked in hospitality for 5 years. Whilst she identifies brief periods of employment beyond this, the evidence supports her not having been in paid employment for most of her adult life.[77]
[77] G4/69
In considering the totality of the evidence, I am satisfied that the Applicant has spent most of her life including her formative years in Australia, and has significant ties to the Australian community. These include her children, mother-in-law and friends including Mr Dodds. This consideration accordingly weighs strongly in favour of revocation.
PRIMARY CONSIDERATION 4 - BEST INTERESTS OF MINOR CHILDREN
Direction 99 requires the Tribunal to make a determination about whether revocation of the mandatory cancellation is in the best interests of any minor children in Australia affected by the decision. The Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant has 4 children, Damion (born 1992), NL (born 2006), CJ (born 2010) and LV (born 2013).[78] All four of her children are born in Australia and her three youngest children are minors.[79] NL, CJ and LV are born of an Indigenous father and identify and are recognised as Indigenous.[80]
[78] G4/63, 67
[79] G4/86-88
[80] G4/220; see also Letter from the Department of Children, Youth Justice and Multicultural Affairs (Qld) dated 16 December 2022
The Applicant claims to enjoy a close relationship with each of her minor children. They visited regularly whilst she was in prison and she currently speaks to them at least three times a week.
The Applicant acknowledges she was neglectful of her children, herself and their home in the past. In a written statement she discusses her regret for the time she and her children had spent apart and the harm caused by her offending and addiction to drugs:
I grieve for the time I have lost with my kids. I am ashamed of the damage and the impact my addiction and my offending has had on them. I understand the effect it is has had on them and especially on [NL]. I understand my past will have ongoing impact on all of the children. This is why I want to be here to show them that this can be overcome, and to ensure they don1t follow and begin to live a life I did.[81]
[81] Applicant’s Statement, [25]
NL is currently in a child safety residential centre. Child CJ and LV are currently in the care of their paternal grandmother.[82] At various times in the past the children had been cared for by others, notably the Applicant’s mother[83] and Mr Dodds.[84]
[82] G4/63
[83] G4/47
[84] Mr Dodds’ Statement, [3]
A July 2011 report from the Probation and Parole District Office raised concern that the 3 minor children were suffering neglect due to the Applicant’s use of illicit drugs,[85] and in November 2018 the children were removed from her care. Child protection orders are currently in place for each of the children until they reach 18 years of age.[86]
[85] RTB/77-79
[86] RSFIC, [51]
The minor children were removed from the Applicant’s care following a serious incident of domestic violence in which the Applicant was assaulted by her partner in front of the children. Following the assault, her partner was imprisoned. The Applicant writes that both she and her partner had ‘descended again into drug use and criminal activity’. After the assault, the Applicant was alone to manage her drug addiction and depression. Unable to cope, the children were initially given over to the care of Phillip Dodds and his wife.
In a letter dated 1 August 2022 NL writes of the Applicant:
…I would like to talk about how important Mum is to us kids and how much we need her to stay in Australia so we can all be together again. My mum has spoked to me about her charges of armed robbery and she has on numerous occasions told me how much she regrets what she has done and has said sorry..
Mum has also been brave about being in prison and not only told us that she not only deserved it but she needed it because she was seriously struggling. She has never stopped been [sic] our mother and she rungs us at least 2-3 times a week …
…
I am the second eldest of mum’s four children and I try to be a good role mod[el] for my younger sister and brother but I have struggled with mum being in prison. I have been very angry and find myself getting into trouble for fighting. I went to juvenile detention for six weeks this really upset mum as she blames herself, so I am trying to do better and I have started to go to school again.
….
My dads always in jail and we cannot reley on him. My younger siblings wife with my grandma but she is getting old now and i live in a home for youths as I’m waiting for mum to come home. If she doesn’t come home I don’t know where I will go in 2 years when I am too old to stay here. There isn’t enough room at Gra[n]dma’s and we don’t get along. I’m trying so hard to be brave for Mum…[87]
[Errors in original]
[87] G4/172-173
The Respondent acknowledges that this primary consideration weighs in favour of revoking the cancellation of the Applicant’s visa and accepts that the children may be particularly vulnerable as they are Indigenous Australians.[88] However, it is argued that all of the Applicant’s minor children have other people acting as primary carers and orders are currently in place preventing the Applicant from assuming such a role.[89]
[88] RSFIC, [53]
[89] RSFIC, [52.1]
Mr Dodds gave evidence that since the Applicant’s incarceration, NL has been exhibiting behavioural problems that led to assault charges and time spent in juvenile detention.[90] Mr Dodds believes that the Applicant’s continued presence will be particularly important for NL in curbing her behavioural issues.[91]
[90] G4/98
[91] Mr Dodds’ Statement, [8]
I accept that the Applicant has a very strong relationship with her children, maintains regular contact with each of them and her presence is important to their wellbeing. Whilst her ability to engage with her children will be limited whilst the orders are in place, for the reasons outlined this primary consideration weighs very heavily in favour of revoking the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[92] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 99.
[92][2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. The Respondent submits that the Australian community would expect a person convicted of such serious offences would not be permitted to remain in Australia.[93]
[93] RSFIC, [56]
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weight against revoking the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
The legal consequences of the decision under section 501 or 501CA
International non-refoulement obligations will generally not be relevant where the Applicant has not raised such obligations for consideration and the circumstances do not suggest a non-refoulement claim is enlivened.
Should the Applicant’s visa remain cancelled, she is liable for removal from Australia as soon as reasonably practicable. The Applicant has not made any particular protection claims, but has indicated that as she left New Zealand as a child with her mother to escape from gangs and she fears being recognised and targeted by these gangs should she be returned to New Zealand. These claims are considered in the context of impediments the Applicant may face in New Zealand.
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing herself and maintaining basic living standards in New Zealand in the context of what is generally available to other citizens of that country.
The Applicant’s father lives in New Zealand[94] and she gave evidence they maintain limited contact, speaking once a year.[95] As he is in poor health, she does not expect he will be able to provide practical support for her should she return to New Zealand. The Applicant also has a half-brother and half-sister in New Zealand. Whilst she has met them previously, they do not maintain contact.
[94] G4/67
[95] G4/54
The Applicant is of working age and with the exception of her polysubstance dependency disorder, she does not suffer from any other health conditions. The Respondent submits that free methadone treatment is available in New Zealand.[96] It is expected that she would be able to access treatment for her drug disorder in New Zealand.
[96] RSFIC, [62]
The Applicant holds a diploma of counselling and qualifications in childcare, hospitality, construction and retail. She can expect to be aided by her work experience as a cleaner, hospitality worker and childcare assistant in securing paid employment. However, she fears these will be of limited use to her in gaining employment in New Zealand, in part because her qualifications may not be recognised.[97]
[97] G4/54
Dr Hatzipetrou opines that the Applicant’s capacity to obtain regular employment in New Zealand is limited owing to age and history of drug dependency. He also considers that removal to New Zealand would be a significant stressor given her social supports largely consist of her four children. He considers that her adjustment to life in New Zealand is likely to be poor.[98]
[98] Doctor’s Report, 17
For her part, the Applicant reports that she does not know how to access professional supports in New Zealand for drug and alcohol abuse as well as for her mental health, and fears she would be alone and at risk of mental health decline if she were to return to New Zealand.[99] I accept the Applicant’s evidence that she lacks social supports in New Zealand and that she would have difficulty maintaining her mental health should she be returned to that country.
[99] Doctor’s Report, 2
The Applicant submits that she and her mother initially left New Zealand following threats, including death threats, made against them by gangs in New Zealand. The Applicant’s older brother was the victim of gang related violence and later died in prison. Whilst this was deemed a suicide, the Applicant believes he may have been the victim of violence.
Whilst not suggesting she was personally threatened by gangs, the Applicant submits that she would be fearful of telling people her name as it is known by gang members.[100] However, given that she was not personally targeted, the period of time which has since passed, and the fact that the Applicant has returned to New Zealand on three occasions, I am not satisfied she will experience significant threat of harm should she return to New Zealand.
[100] G4/54
Overall I find that should she be removed to New Zealand, the Applicant would face impediments relating to her mental health and lack of social support. It is appropriate that this consideration be given moderate weight in favour of revocation.
CONCLUSION
The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation of the Applicant’s visa cancellation. The primary consideration regarding the best interests of minor children weighs heavily in favour of the Applicant. The primary consideration of the strength, nature and duration of the Applicant’s ties to Australia is afforded significant weight, primarily on the basis of her relationship with her adult son, her daughter-in-law, her mother-in-law and Mr Dodds and his wife, in addition to the close relationship with the Inala Indigenous community. The extent of the impediments the Applicant would face in New Zealand also weighs in favour of revocation. In weighing the considerations set out in Direction 99, on balance I find that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 13 December 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of
.........[Sgd]...............................................................
Associate
Dated: 28 March 2023
Date(s) of hearing:
23 and 24 February 2023
Advocate for the Applicant:
Dr M Van Galen-Dickie, Sisters Inside
Solicitors for the Respondent:
Ms C Lewis, AGS
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