JDNZ and Minister for Immigration and Border Protection
[2013] AATA 771
[2013] AATA 771
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4007
Re
JDNZ
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 30 October 2013 Place Melbourne 1. The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 24 July 2013 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside.
2. In substitution it is decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel the Applicant's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.
3. In accordance with section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) it is directed that:
(1) publication of the evidence given before the Tribunal in this application, other than the evidence disclosed in the reasons for decision dated 30 October 2013, is prohibited;
(2) publication of the information contained in the schedule to the reasons for decision is prohibited;
(3) publication of the information contained in the exhibits referred to in the reasons for decision which is not referred to in the reasons, is prohibited.
.......................[sgd].................................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – visa cancellation under s 501 Migration Act 1958 (Cth) – character test – Direction [no. 55] – substantial criminal record – protection of Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should the conduct be repeated – likelihood of engaging in further criminal or other serious conduct - strength, duration and nature of ties to Australia – best interests of minors in Australia affected by the decision – whether risk of future harm acceptable - decision under review set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
The Applicant entered Australia with her parents in 1994, when she was 12 years old. Since her arrival she has resided continuously in Australia. From July 1996 until 24 July 2013 she held a Class TY Subclass 444 Special Category (Temporary) visa.
In 2012 the Applicant was sentenced to a term of imprisonment of two years and ten months. In July 2013 the Minister for Immigration and Citizenship cancelled the Applicant's visa as he suspected that she did not pass the character test set out in section 501 of the Migration Act 1958 (Cth) and as she did not satisfy him that she did pass the test.
The Applicant has applied to the Tribunal to review the Minister’s decision.
For the reasons which follow, the decision of the Minister will be set aside.
FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of the Applicant.
The Applicant was born in New Zealand in 1981. She is a citizen of New Zealand.
The Applicant migrated to Australia with her parents in 1994 and has resided in Australia since that time. Other members of the family have migrated to Australia and several family members now reside in close proximity to the Applicant's home.
The Applicant attended school in Australia from year 7 until she left school early in year 11. She then commenced a traineeship in hospitality.
In 1999, when she was 18 years old, the Applicant began using illegal drugs. She attributes this to the influence of her social network, and particularly to colleagues at work who were older than she was. She continued to use illegal drugs (mainly heroin) until she fell pregnant in late 2000.
The Applicant's daughter was born in 2001 and is now 12 years old. From her birth her grandparents (the Applicant’s parents) provided her primary care. She has always lived with her grandparents; the Applicant has shared the home from time to time.
The Applicant recommenced using illegal drugs in early 2002. Between 8 July 2005 and 8 March 2013 the Applicant was convicted of numerous offences involving dishonest dealings with property and unlawful use of motor vehicles. As a result of these convictions she was sentenced to various terms of imprisonment.
A copy of the Applicant's National Police Record as at 22 May 2013[1] appears in schedule 1 to these reasons (not published). The Applicant has spent the following periods in custody awaiting sentence or in prison:
8 September 2004 – 8 July 2005
22 February 2007 – 2 October 2009
13 January 2010 – 18 April 2010
20 January 2012 -14 July 2013.
[1] Exhibit A1 p.170.
I am satisfied that almost all of the offences committed by the Applicant were committed to support her drug habit. At times the applicant was spending $400 - $500 per day on drugs.
On release from prison in July this year the Applicant returned to live with her parents and her daughter until she was placed in immigration detention in August 2013, following the cancellation of her visa.
I will refer to further findings of fact in considering particular issues in these reasons.
THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
The power of the Tribunal to review the decision to cancel the Applicant's visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction [55] which commenced on 1 September 2012.
THE CHARACTER TEST
As the Applicant was sentenced to detention for two years and ten months she has a “substantial criminal record” in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) she does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel her visa.
DIRECTION [55]
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part A where relevant, in order to determine whether the Applicant will forfeit the privilege of continuing to hold a visa. In so doing I am required to determine whether the risk of future harm by the Applicant is unacceptable.
Under the heading General Guidance, Direction [55] provides in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. The principles include the following:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[2] Primary considerations should generally be given greater weight than the other considerations.[3]
[2] Direction 55, paragraphs 6.2(3) and 8(1).
[3] Direction 55, paragraph 8(4).
Paragraph 9(1) provides:
In deciding whether to cancel a person’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia;
d)Whether Australia has international non-refoulement obligations to the person.
REASONING
A. PRIMARY CONSIDERATION (a) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
I note that I must have regard to matters set out in paragraph 9.1 being:
·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;
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engage in other serious conduct[4].
[4] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct which may not constitute a criminal offence.
A.1 The nature and seriousness of the Applicant's conduct to date
I regard the Applicant's conduct to date as very serious. As can be seen from her police record, the Applicant has committed numerous offences over a period of 11 years. Not only has she stolen large amounts of property, she has invaded the homes of others to do so, at times alone and at times in the company of others. On occasions she has acted as a look-out whilst an accomplice entered homes and removed property. In committing these offences she showed no consideration for those affected by having their homes invaded and by losing their property. It is in the Applicant's favour that none of the offences involved violence to the person, although some of the offences involving the use of motor vehicles involved the risk of serious harm to others.
In 2005 the Court described the offences which the Applicant had committed in 2004 as follows:
… you have pleaded guilty to two indictments in this Court. One of them is indictment 499 of 2004 which alleges three counts of receiving, two counts of fraud, three counts of unlawfully using a motor vehicle, one count of dangerous operation of a vehicle and one count of possessing things used in connection with unlawful entry. And the ex officio indictment presented today which has one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, two counts of unlawful use of a motor vehicle, three counts of fraud, three counts of stealing, a count of unlawful entry of a motor vehicle, a count of receiving, two counts of attempted fraud, one count of burglary and one count of dangerous operation of a motor vehicle with a circumstance of aggravation.
…the most serious aspects of the two periods of offending are the two offences of dangerous operation of a motor vehicle, the first of which occurred on 12 February, 2004 at the … area and the second of which occurred on the 23rd of September, 2004, in the … area.
Both of those were, in their own way, very serious. In respect of the second one, you admitted that you were affected by amphetamines. Both of them placed both yourself and importantly, other people and their property at very serious risk. The first one resulted in significant damage to the vehicle and as I say, significant risk to other people in a pursuit that went over a distance of four kilometres and reached speeds of greater than 100 kilometres per hour.[5]
The maximum term of imprisonment in respect of these offences was two years and six months.
[5] Exhibit A1 pp.71-72.
In February 2008 the Applicant pleaded guilty to the following, in addition to 17 summary matters:
·two counts of receiving;
·one count of wilful damage;
·seven counts of burglary;
·three counts of unlawful use of a motor vehicle;
·seven counts of entering premises and stealing;
·one count of fraud;
·one count of attempted fraud;
·one count of stealing;
·two counts of entry with intent.
Most of these offences were committed over a period of approximately one year in 2006/2007 and involved property in excess of $57,000.[6] The Applicant was sentenced to imprisonment for a period of three years in respect of each of the indictable counts, to be served concurrently.
[6] Exhibit A1 p.64.
When the Applicant was sentenced to imprisonment in August 2012 the charges included six indictable and five summary charges. The indictable charges were one count of stealing from a locked box, two counts of burglary and stealing, one count of burglary by breaking with property damage, one count of unlawful use of a motor vehicle and one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence.[7]
[7] Exhibit A1 p.56.
In March 2013 the Applicant pleaded guilty to a number of charges relating to offences committed between September 2011 and January 2012 that were not dealt with by the Court in August 2012. The charges were:
· one count of receiving stolen property with a circumstance of aggravation;
· two counts of entering premises and stealing;
· two counts of unlawfully using a motor vehicle;
· one count of fraud;
· two counts of stealing;
· two counts of burglary and stealing.[8]
[8] Exhibit A2.
Prison sentences were imposed in respect of these offences. As they were committed at the same time as those offences for which the Applicant had already been sentenced, the terms of imprisonment were not extended beyond that already being served.
I accept the evidence of the Applicant that each of the periods of criminal activity in which she has been involved has been associated with a worsening of her drug addiction. In the intervening periods she has been able to gain, and maintain, stable employment. I am satisfied that her times of greatest stability have been when she returned to live with her parents and daughter.
The cumulative effect of the Applicant's offending and time spent in custody is that should she offend again it is highly likely that she will be sentenced to another term of imprisonment.
I take into account also that by letter of 22 April 2008 the Applicant was warned by the Department that any further criminal convictions or any other conduct which came within the scope of subsection 501(6) of the Act,[9] could result in the consideration of the cancellation of her visa. The Applicant acknowledged having received this letter.[10] Despite this warning the Applicant committed a series of serious offences in 2011/2012.
A.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
[9] Section 501(6) sets out conduct which amounts to a failure to pass the character test.
[10] Exhibit A1, pp.78-80.
Paragraph 9.1.2(1) provides guidance in considering the risk to the Australian community and requires the Tribunal to have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
A.2.1 The nature of the harm to individuals or the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to the Australian community should the Applicant engage in further criminal and/or serious conduct of the nature of that in which she has engaged in the past, would be extremely serious. A repetition of offences such as burglary and stealing would cause feelings of insecurity in the communities in which offences were committed. Those the subject of burglary would feel the violation associated with home invasion. A repetition of the driving offences such as those dealt with by the Court in 2008 would involve risk of serious physical harm or death to members of the public.
A.2.2 The likelihood of the Applicant engaging in further criminal or other serious conduct
Report of Mr Perros, Forensic Psychologist
I do not have the benefit of evidence having been given before me as to the Applicant's likelihood of reoffending. However in giving its reasons for sentence in August 2012, the Court referred to a report of a psychologist, Mr Perros. A copy of the report is before me.[11]
[11] Exhibit A1 p.140-146.
Mr Perros reported, in part:
[Applicant] has an extensive criminal history, and historically copes with stress through substance abuse – which predicts a high risk of re-offending if she does not address the psychological issues that contribute to her offending behaviour listed above. I envisage that treatment will take years and there will likely be reversals (mini relapses) along the path to rehabilitation. Her supportive parents and her responsibilities to her daughter figure as factors that should hopefully assist with her rehabilitation.[12]
[12] Exhibit A1 p.146.
Rehabilitation in Prison
It is apparent from the numerous certificates contained in exhibit A1 that the Applicant completed many courses whilst in prison. Unfortunately little appears to have been offered to the Applicant to assist her to overcome her drug addiction.
The Applicant was able to access heroin when she was imprisoned in January 2012. However in or about April 2012 she commenced a methadone program which she said made “everything so much better.” [13]She later transferred to suboxone treatment. I accept the Applicant's evidence that, with the exception of one lapse in May 2013, she has been able to remain free of illegal drugs (both in and out of prison) since April 2012.
[13] Transcript 16.10.13.
During her last term of imprisonment the Applicant committed a number of violations of prison discipline, nine of which were classified as “major”.[14] Whilst these violations indicate that the Applicant continues to have difficulty in abiding by the law, there are many instances when her behaviour was commented on favourably.[15]
[14] Exhibit A1 pp.331-334.
[15] See Offender Case File, exhibit A1 pp.288-330.
The Applicant did complete the Stepping Up Program over a period of 12 days in May 2013.[16] The report of the Course Facilitator indicates that the Applicant engaged fully in the course. The report in part included the following comments:
[16] Exhibit A1 pp.233-235.
[The Applicant] Identified intervention needs include: learning to identify and avoid high risk situations such as associating with old crime and drug using friends, emotional management including reframing of negative thoughts and decision making and increasing capacity to seek assistance from recognised supports services/people.
…
[The Applicant] participated well in sessions and showed insight and willingness to engage with concepts and group as a whole. [The Applicant] asked clarifying questions when unsure and often took on a role in assisting others and participating extensively in discussion. [The Applicant] is able to relate and apply the concepts to her own situation and experiences and shows a great deal of insight in doing so.
[The Applicant’s] confidence has increased during the course and highly motivated to change her beliefs around substance use and has gained tools and strategies to support this change.
…
[The Applicant] has completed a thoughtful and detailed Relapse Prevention Plan which shows great insight into triggers and underlying issues around her drug use and criminal behaviours. She has identified a course of action post-relapse which includes focusing on building a relationship with her daughter and gaining employment. She intends to remove herself from high-risk situations likely to trigger use including avoiding old friends and crime associates and build a positive, drug and crime free support network. [The Applicant] is aware of the importance of developing emotional management skills to assist in her recovery and reduce the risk of relapse.
…
[The Applicant] has a strong desire to reconnect with existing community support and already in contact with Community support networks to help with employment and counselling upon release. Her accommodation and employment have been organised prior to release. [The Applicant] would benefit with emotional management course to help continue her confidence in changing negative thought patterns and behaviours.
[The Applicant] has made a strong commitment to her Relapse Prevention Plan and to pursing the goals stated to re-establish her life outside the prison system and reconnect with family and her daughter.[17]
[17] Exhibit A1 pp. 233-234.
Despite the positive steps towards rehabilitation which the Applicant has been able to take while in prison, it is of concern, particularly in view of her history of offending, that she was not offered more specific assistance in relation to her use of illegal drugs. In a Corrective Services report dated 16 April 2013[18] it is noted that the Applicant was “ineligible to be assessed for participation in programs aimed at addressing offending behaviour due to the short length of sentence.” It was noted also that she was “not currently eligible for assessment by way of Rehabilitation Needs Assessment to determine eligibility to engage in criminogenic programs/interventions, as her period of imprisonment does not exceed 12 months.” It is difficult to understand the logic in ignoring the Applicant's history when considering the period of her imprisonment.
[18] Exhibit A1 pp.197-202.
Parole
The Applicant was released on parole on 17 July 2013 in accordance with a Court Ordered Parole Order.[19] Unless otherwise determined by the Parole Board the order shall remain in force until 7 August 2015. The Applicant's release was subject to conditions which require her to remain under the supervision of, and obey lawful instructions of, Corrective Services and to give test samples and to report as required.
[19] Exhibit A1 p.389.
During the period between the Applicant's last release from prison and her being placed in immigration detention the Applicant attended three meetings with her Parole Officer. It was at the last of these meetings when she was preparing a plan for her future conduct, that she was detained.
The Applicant's evidence
Having heard and observed the Applicant give evidence I am satisfied that she genuinely wishes not to return to a life of illegal drug use and consequent criminal activity. I am satisfied that she intends to play a far more active and positive role in the life of her daughter and as part of her extended family. This is consistent with the reports of her rehabilitation efforts in prison, particularly her participation in the Stepping Up Program. The support available from her family and friends and the supervision of the Parole Board should she remain in Australia will assist her.
Whilst in prison the Applicant took steps designed to assist her upon her release. She contacted agencies which could help her in obtaining employment and provide general support. She recorded in detail her plans for the future in a statement provided to the Department in June 2013.[20] I am satisfied that the Applicant has given real consideration to how she can best help herself to integrate into the community again and that she does intend to do her best to realize her best intentions. I am satisfied that the Applicant does have an offer of permanent employment which she will be able to take up should her visa not be cancelled.[21]
[20] Exhibit A1 pp.243-250.
[21] Exhibit A8.
There is one aspect of the Applicant's evidence which concerns me. The Applicant gave evidence that when she committed the series of offences in 2004 she had formed a relationship with a particular person who influenced her in her returning to illegal drug use. She said that she has now recognized the undesirable consequences of her continued association with this person and others and had ceased such associations. In cross-examination the Applicant admitted that the particular person referred to had attended Court on the day of her sentencing in March 2013 and was referred to by her Counsel as someone who could provide her support in future.[22] The Applicant admitted that she knew the person would attend the hearing but that she did not invite him to do so. The Applicant's explanation of her relationship with this person was unsatisfactory.
[22] Exhibit A2 pp.1-20.
Family support
I am satisfied that, should the Applicant remain in Australia, she will have the support of her parents and extended family to assist her resisting returning to drug abuse and the likely consequence of further terms of imprisonment. I will refer to this evidence in detail later in these reasons.
Consideration
Notwithstanding the genuine plans expressed by the Applicant and the support which will be available to her, particularly from her family, I conclude that there is a reasonable likelihood that the Applicant will engage in further criminal or other serious conduct.
The possibility that the Applicant may resume relationships with a person or persons with whom she has previously been involved with in illegal drug use and criminal activity increases the risk to the community that she will reoffend. I have given weight also to the limited rehabilitative treatment undertaken by the Applicant while in prison to directly address her drug addiction. I do not criticise the Applicant for this.
B. PRIMARY CONSIDERATION (b) – THE STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA
Paragraph 9.2(1) of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant came to Australia when she was 12 years old and has lived here since. This is a factor which weighs slightly in her favour. She began offending approximately seven years after her arrival. This is a relatively short period and does not assist the Applicant's case.
Unfortunately the Applicant has spent a considerable part of her adult life involved in criminal activity and in prison. Whilst she has been in employment on occasions, the time spent by her making a positive contribution has been relatively limited. This is not to devalue those times when she has been drug-free and has been able to actively engage with her family and society in general.
Most of the Applicant's immediate family live in Australia and have an indefinite right to live here. Her immediate family in Australia include her daughter, her parents, all her siblings (four brothers and a sister) and their families, aunts and uncles. The majority of the family members live in close proximity to the Applicant's parents, with whom the Applicant intends to live if she is free to do so.
The Applicant's mother and sister gave evidence. Her parents are willing to have the Applicant live with them and her daughter. Both her mother and sister are anxious to provide emotional support to the Applicant and said that other family members are willing to do the same. I accept their evidence that the Applicant has shown a genuine desire to be more closely involved in family life since she was last released from prison.
I have taken into account a statement from the Applicant's sister-in-law which indicates that she and other family members will support the Applicant if she remains in Australia.[23] Statements from the Applicant's father [24] and a friend[25] also indicate that further support will be available to the Applicant should she be able to remain in Australia.
[23] Exhibit A5.
[24] Exhibit A6.
[25] Exhibit A7.
The Applicant maintained contact with her parents and daughter whilst she was in prison. Her mother and daughter visited her regularly; her father could not visit by reason of his poor health. The Applicant had frequent contact with her family by telephone.
I am satisfied that the Applicant has strong family ties to her family members in Australia, particularly her parents and her daughter. It is likely that if she remains in Australia and does not resume illegal drug use her relationship with her extended family in Australia will strengthen.
Although the Applicant does have an opportunity for employment if she remains here, she does not have established employment links to Australia.
C. PRIMARY CONSIDERATION (c) – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The Applicant's 12 year old daughter S. has lived with her grandparents for all of her life, with the exception of a period of six months when she was less than two years old. Her grandparents have provided her primary care. She attends a local school and is progressing very well. She has regular contact with extended family members and has an established group of friends.
S. gave evidence by telephone. Although I did not have the opportunity to meet her, she impressed me as a thoughtful, well-adjusted and articulate young person. She understands that her mother has had problems arising from her use of drugs. From about the age of ten she has understood that her mother has spent time in prison.
S. has a genuine love of her mother and wishes to remain in as close contact with her as possible, although she realises that if her mother was required to live in New Zealand she would remain with her grandparents and have only limited opportunities to see her mother.
S. visits her father during school holidays. He lives in Australia.
I am satisfied that it is in the best interests of S. that the Applicant continues to live in Australia. The Ministers agrees. S. would be able to have close contact with her mother and have the benefit of the care of her mother and her grandparents. I am satisfied that despite the problems the Applicant has experienced in the past, the Applicant will play a positive role in her daughter’s life. I note that the grandparents have a care order in respect of their granddaughter.
D. PRIMARY CONSIDERATION (d) – INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
This consideration is not relevant in this application.
E. OTHER CONSIDERATIONS AS SET OUT IN THE DIRECTIONS
Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant. I note that these considerations are generally to be given lesser weight than the relevant primary considerations.
The relevant other consideration listed in the Direction are:
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
…
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.[26]
[26] Direction 55, paragraph 10(1).
On the basis of the evidence I have referred to I am satisfied that the cancellation of the Applicant's visa would have an effect on her family members and would be particularly distressing for her parents. This would be exacerbated by the continued separation of the Applicant and her daughter. However, taking into account the fact that the Applicant has separated herself from her family for so much of her life by reason of her own conduct, I do not regard this as a consideration to be given significant weight.
The impact of a decision not to cancel the Applicant's visa on members of the Australian community is a relevant consideration but I do not have evidence available to enable me to make a finding in this regard.
I am satisfied that the Applicant would suffer greater impediments in re-establishing herself in New Zealand than she would face if free to remain in Australia. She has not lived in that country as an adult and does not have the prospect of the same degree of family support as she has in Australia. Nevertheless she does have some family remaining in New Zealand, although I am satisfied that the extent of support they are likely to provide would be very limited. The Applicant would be unlikely to have any social support outside that which could be provided by her family, including those family members living in Australia.
As a citizen of New Zealand the Applicant would be entitled to such support as is provided by the government.
Taking into account that there are no language or social barriers which the Applicant would experience if she was required to return to New Zealand, I do not regard the other considerations as being of significance in considering whether the Applicant’s visa should be cancelled.
F. THE BALANCING EXERCISE
In this application three considerations each have substantial weight – the need to protect the Australian community from criminal activity such as that engaged in by the Applicant in the past, the best interests of the Applicant's daughter S. and the strength of the Applicant's ties to Australia.
The offences committed by the Applicant are very serious, involving significant invasion of the property rights of Australian citizens including the invasion of their homes. In addition, at times the conduct of the Applicant has placed others at risk of physical harm. As I have already indicated I have decided that there is a reasonable likelihood that the Applicant will engage in similar activity in future. I have reached this conclusion on the basis that the Applicant’s criminal activity has been largely as a result of her drug addiction and that to date she has only received limited assistance in managing her addiction.
Notwithstanding the seriousness of the Applicant’s conduct and the risk of recurrence, I have determined that the risk of future harm by the Applicant is an acceptable one. I have reached this conclusion because the interests of her daughter S. and the Applicant's close family ties in Australia justify the risks involved being tolerated. I find support in this conclusion in finding that apart from family support there are organizations of which the Applicant is aware which will assist her in her rehabilitation. In addition she will be subject to supervision of the Parole Board. I am satisfied that the Applicant now has a better understanding of her situation than she has had previously and genuinely wishes to avoid further criminal conduct and thus be able to play a greater role in the care of her daughter.
CONCLUSION
Having decided that the risk of harm by the Applicant is an acceptable one and considering the Principles and Considerations set out in the Direction, I determine that based on the evidence before me, the Applicant should not forfeit the privilege of holding a visa entitling her to remain living in Australia.
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 24 July 2013 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa will be set aside.
In substitution it will be decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel the Applicant's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.
To protect the privacy of the Applicant's daughter I propose to make directions prohibiting the publication of any evidence given to the Tribunal other than that disclosed by these reasons for decision. The publication of information contained in the schedule to these reasons and in the exhibits referred to will be prohibited.
82. I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
......................[sgd].......................................
Associate
Dated 30 October 2013
Date of hearing 16 & 17 October 2013 Counsel for the Applicant Mr G Mukherji Solicitors for the Applicant Carina Ford Lawyers Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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