KFMK and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 325
•4 April 2025
KFMK and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 325 (4 April 2025)
Applicant:KFMK
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0220
Tribunal:General Member K. Thornton
Place:Melbourne
Date:4 April 2025
Decision:The Tribunal affirms the decision under review.
..................................[SGD]..................................
General Member K. Thornton
Catchwords
MIGRATION – Visa refusal under s 501(1) of the Migration Act 1958 (Cth) – Protection (Class XA) visa – very serious drug offending – failure to pass character test – whether discretion to refuse to grant visa should be exercised – Ministerial Direction 110 applied – reviewable decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
Statement of Reasons
INTRODUCTION
The Applicant is a 38-year-old citizen of Mexico. She seeks review of the Respondent’s decision to refuse her application for a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (the Act). The visa was refused on the basis that the Applicant does not pass the character test according to s 501(6)(a) of the Act.
The Tribunal hearing was conducted by video on 27 March 2025. The Applicant was self-represented in the proceedings. The Respondent was represented by Mr Matthew Gauci, Partner, from Hunt & Hunt Lawyers.
For the reasons that follow, the Tribunal has decided to affirm the Respondent’s decision.
LEGISLATIVE FRAMEWORK
Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is defined by s 501(6). Section 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record.’ The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act. Relevantly to this case, a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Section 501(7)(c) of the Act.
If a person does not pass the character test, the Tribunal needs to determine whether to exercise the discretion under s 501(1) to refuse to grant the person a visa.
The Direction
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, being Ministerial Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Paragraph 5.1 of the Direction contains the Objectives. Paragraph 5.1(1) provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa or cancellation of their visa.
Annex A to the Direction deals with the application of the character test. Section 1 of Annex A contains an overview of the character test and deals with discretionary visa cancellation or refusal. It also provides that a person need only be found to not pass one ground under s 501(6) in order to not pass the character test.[2]
[2] Annex A, Section 1(3) of the Direction.
Paragraph 5.1(2) provides that where the discretion to refuse to grant or cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of the Direction contains principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501 or 501CA of the Act are identified in Part 2 of the Direction.
The principles as set out under paragraph 5.2 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the primary and other considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of the Direction deals with taking the relevant considerations into account. It provides as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction states that in making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) of the Direction states that in making a decision under s 501(1), 501(2) or 501CA(4), the following other considerations must also be taken into account, where relevant, in accordance with their provisions. Those other considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The Tribunal needs to determine:
(a)Whether the Applicant passes the character test as defined by s 501(6) of the Act; and
(b)If the Tribunal is satisfied that the Applicant does not pass the character test, whether the discretion under s 501(1) should be exercised to refuse to grant the Applicant’s visa, after applying the Direction to the facts and circumstances of the Applicant’s case.
The Tribunal will now set out the relevant chronology that led to the refusal of the Applicant’s visa, and then will proceed to address these issues.
CHRONOLOGY
Arrival in Australia
The Applicant first arrived in Australia in May 2018 on a student visa.[3] Her flights, tuition and initial stay in Australia were paid for by ‘Daniel’, a person to whom she alleged was the central figure in the below offending.[4]
[3] Exhibit R1, 175.
[4] Ibid 49.
Criminal offending and sentence
On 7 September 2022, the Applicant was sentenced in the District Court of New South Wales to one charge of knowingly take part in the supply of a prohibited drug, namely, methylamphetamine in an amount which is not less than the large commercial quantity applicable to that prohibited drug.[5] The period of offending was between 3 April 2019 and 3 May 2019.[6]
[5] Ibid 43-69.
[6] Ibid 43.
The Applicant was sentenced to six years’ imprisonment with a non-parole period of three years.[7]
[7] Ibid 69.
The Applicant was convicted of this offence in April 2022 following a judge-alone trial.[8] The relevant agreed facts, signed by the lawyer of the Applicant, were accepted as factual findings by the judge at the trial and formed the basis on which the Applicant was sentenced.[9] Those findings are as follows:[10]
[8] Ibid 43, 1259.
[9] Ibid 43, 44.
[10] Ibid 44-8.
In March 2019, New South Wales Police established Strike Force [redacted] to investigate the attempted importation of methylamphetamine into Australia from Mexico. Police received intelligence that a number of foreign nationals were awaiting the arrival of a shipment of methylamphetamine from Mexico. The shipment of methylamphetamine, co-ordinated by the Jalisco New Generation Cartel ("the Cartel"), was intercepted by Mexican authorities and never arrived in Australia.
The Cartel had arranged for the methylamphetamine to be smuggled into Australia using a "door", a term used to describe persons who have the resources, knowledge and capability to import prohibited drugs into a country without detection. The "door" was then going to deliver the drugs to associates of the Cartel who would pay a "door fee" and take receipt of the drugs before distributing them to local suppliers.
During the course of the investigation, police obtained several telephone intercept warrants and implemented physical and electronic surveillance. A controlled operation using undercover operatives was also authorised, along with the use of inert substituted amounts of methylamphetamine, which were packaged and boxed.
[The Applicant] was identified as a person of interest. [The Applicant’s] role was to receive delivery of 110 kilograms of methylamphetamine in two 55 kilograms instalments. [The Applicant] would then hand over the methylamphetamine to an unknown person. Payment of the "door fee" for the 110 kilograms was to be organised by someone else. Only one delivery of the inert substance occurred due to the controlled police operation being deployed.
On 29 March 2019, an undercover police officer, identified in this proceeding by the pseudonym UCO Josh, engaged in communication via text message with a person using the handle 'Mr Jones'. There was an agreement reached between the two to meet in person on 4 April 2019 at a restaurant in Parramatta.
…
On 4 April 2019, UCO Josh met with [the Applicant] at the Sunrise Restaurant in Parramatta. They had a lengthy conversation, which was lawfully recorded.
…
Between 8 and 15 April, UCO Josh exchanged further text messages with 'Mr Jones'. These messages further discussed the delivery and payment of the door fee. A further meeting was arranged for 16 April 2019.
On 15 April 2019, a call was made by UCO Josh to [the Applicant] which was lawfully recorded. During this call, [the Applicant] informed UCO Josh that she was returning to Mexico on 24 April 2019 as she had 'something to do' and there was no one else who could take her place. She did not know if she wanted to come back or was going to make it back on time.
On 24 April 2019, [the Applicant] boarded a flight and travelled to Mexico. At approximately 8am on 1 May 2019, [the Applicant] returned to Australia.
On 29 April 2019, UCO Josh contacted [the Applicant] via text message to confirm they were going to meet at 2pm on 1 May 2019.
On 28 April 2019, investigators prepared numerous packages of an inert substance. The inert substance was packaged in 1 kg packages and placed into white Grace brand archive boxes.
…
At approximately 8am on 1 May 2019, [the Applicant] returned to Australia.
At approximately 2.46pm on 1 May 2019, [the Applicant] met with UCO Josh in his vehicle in Parramatta. They had a lengthy conversation, which was recorded.
During the conversation, [the Applicant] indicated that her instructions were to take receipt of 55kg of the consignment, and after an hour, money would be paid. Following that, another 55kg was to be handed over, and the remainder of the money paid.
UCO Josh and [the Applicant] agreed the delivery would take place the following day, with the van containing the first 55kg to be parked in a location near Parramatta.
…
A Toyota Hiace van bearing NSW registration number [redacted] was packed with 55 kilograms of the packaged inert substance in 'Grace' brand storage boxes. The van was fitted with optical and audio surveillance devices. This vehicle was parked by police at the corner of Alfred and George Street, Rosehill.
About 10.03am on 2 May 2019, UCO Josh exchanged SMS messages with [the Applicant], and they confirmed the meeting at River Road West, Rosehill at 10.30am. The witness drove to the intersection of Alfred Street and Rover Road West, Rosehill. Shortly after the witness arrived, [the Applicant] approached his vehicle got into the passenger seat. They had a conversation which was lawfully recorded. During this conversation, they discussed the quantity of the drugs being 55kg of methylamphetamine and the way in which it was packaged.
UCO Josh drove [the Applicant] to the corner of George and Alfred Street, Rosehill, where the Hiace van registration [redacted] was parked. The witness unlocked the van and gave the keys to [the Applicant]. The witness opened the door and showed [the Applicant] several cardboard boxes inside the van which contained the inert substance.
They agreed to meet back at the same location in an hour to exchange the money. At about 11.07pm, the witness left the location and left [the Applicant] with the van with the key and inert substance.
At 2.27pm on 2 May 2019, police observed [the Applicant] approach the van [redacted] which was still parked outside… George Street, Parramatta. [The Applicant] was observed to enter the driver's seat and sit in the driver's seat for about 30 seconds and unsuccessfully attempted to start the vehicle. [The Applicant] then got out and walked away from the van.
At about 4.20pm on 2 May 2019, police attended [redacted]. After police knocked on the door, [the Applicant] opened the door and was placed under arrest. When placed under arrest, [the Applicant] told police that 'I didn't do anything'. Following a search of the unit, police seized an iPhone, iPad, passport in the name of [the Applicant] and the keys to the unit.
The key to the van registration [redacted] was located on [the Applicant] upon her arrest.
At about 5.40pm, police used the van key which was seized from [the Applicant] to access the van which was still parked at … Parramatta. Located in the van were the six (6) Grace boxes with the inert substance packaged inside.
At about 8.20pm, [the Applicant] participated in a record of interview with the assistance of an interpreter. During the interview [the Applicant] stated that a "guy forced me to" participate, "he threatened to hurt my family. This is why I was doing everything he told me to do. And this is why I returned to Sydney".
As mentioned above, the Applicant was convicted of this offending after a judge-alone trial. The Applicant had earlier entered a plea of guilty to this charge.[11] During the plea hearing, the Applicant gave evidence that ‘Daniel’ had threatened her family, and she was acting under duress at the time of the offending. The plea hearing was then adjourned to a later date. On this date, counsel for the Applicant applied to withdraw her plea of guilty which was granted.[12] The Applicant was later committed for trial. At trial, the Applicant agreed upon a number of salient facts but maintained she was acting under duress. This defence was rejected by the trial judge, and she was convicted. The judge made a finding that the finding of guilt was inevitable:[13]
That inevitability arose because, in part, the offender by way of agreed facts signed by her, accepted her involvement, and accepted her involvement at times where duress or evidence of duress was absent but within the indicted period.
[11] Ibid 48.
[12] Ibid 48-9.
[13] Ibid 57-8.
The Applicant’s visa history
On 5 August 2022, the Applicant applied for a Protection (Class XA) visa.[14]
[14] Ibid 148-172.
On 19 August 2022, the Applicant was granted a Bridging C (Class WC) visa to allow her to remain in Australia during the processing of her protection visa application.[15]
[15] Ibid 722-3.
On 4 January 2023, the Applicant’s Bridging C visa was mandatorily cancelled under s 501(3A) of the Act as a result of the sentence she received on 7 September 2022.[16]
[16] Ibid 145.
On 1 February 2023, the Applicant made representations about seeking revocation of the cancellation decision.[17]
[17] Ibid 176.
On 20 October 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation of her Bridging C visa.[18]
[18] Ibid.
On 31 October 2023, the Applicant sought review of the non-revocation decision to the Administrative Appeals Tribunal (AAT).[19]
[19] Ibid.
On 12 January 2024, the AAT set aside the delegate’s decision and reinstated the Applicant’s Bridging C visa.[20]
[20] Ibid 199-218.
On 17 February 2024, the Applicant was released on parole.[21]
[21] Ibid 127, 905.
On 12 June 2024, the Applicant applied for permission to work on her Bridging C visa whilst awaiting an outcome for her protection visa application.[22]
[22] Ibid 139-143.
On 1 July 2024, the Minister cancelled the Applicant’s Bridging C visa under s 501BA of the Act.[23]
[23] Ibid 145.
On 13 August 2024, the Applicant was detained under s 189 of the Act and transported to immigration detention.[24] The Applicant acknowledged receipt of Notice of visa cancellation under s 501BA of the Act.[25]
[24] Ibid 176.
[25] Ibid 147.
On 19 September 2024, a decision was made in respect of her protection visa application. The Applicant was found to be owed protection obligations as provided for in s 36(2)(aa) of the Act.[26]
[26] Ibid 175-198.
On 14 October 2024, the Applicant was issued with a Notice of intention to consider refusal of her protection visa application under s 501(1) of the Act.[27]
[27] Ibid 219-223.
On 13 January 2025, a delegate of the Respondent determined that the Applicant does not pass the character test and exercised their discretion under s 501(1) to refuse to grant the Applicant a Protection (Class XA) visa (‘the visa refusal decision’).[28] The Applicant was notified of the visa refusal decision by email.[29]
[28] Ibid 21-40.
[29] Ibid 18-20.
On 13 January 2025, the Applicant lodged an application for review of the visa refusal decision with the Tribunal.[30]
[30] Ibid 8-17.
Also on 13 January 2025, the Applicant was released from immigration detention and placed on a Bridging R visa (BVR).[31]
[31] Ibid 1345-56.
Tribunal proceedings
The hearing of this matter took place in the Melbourne registry of the Tribunal on 27 March 2025. The parties appeared by video. The Applicant gave evidence with the assistance of a Spanish interpreter and was cross-examined. She was advised of the privilege against self-incrimination and indicated she understood this privilege.
The Tribunal received into evidence a joint Hearing Book totalling 1,356 pages and a letter from Settlement Services International dated 20 March 2025, filed on behalf of the Applicant.[32]
CONSIDERATION
[32] Exhibits R1 and A1 respectively.
Does the Applicant pass the character test?
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
In the Applicant’s case, she was sentenced in September 2022 to a term of six years’ imprisonment, with a non-parole period of three years. There is no question that this sentence amounts to a ‘substantial criminal record’ as defined in s 501(7)(c) of the Act. Having determined that the Applicant has a ‘substantial criminal record’, it must follow that the Applicant does not pass the character test as defined by s 501(6) of the Act.
The Tribunal makes a finding the Applicant does not pass the character test.
Should the discretion be exercised to refuse to grant the Applicant’s visa?
Having been satisfied that the Applicant does not pass the character test, the Tribunal needs to consider whether the discretion in s 501(1) should be exercised to refuse to grant the Applicant’s visa. In determining this question, the Tribunal must comply with the Direction and apply it to the specific facts and circumstances of the Applicant’s case. The primary and other considerations in the Direction are considered below.
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has considered the matters raised in paragraph 8.1 of the Direction and has had particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens. The Tribunal notes that the Applicant has not obeyed Australian laws and has engaged in conduct which may cause or threaten harm to individuals and the Australian community. The nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is considered below.
Nature and seriousness of the conduct
Paragraph 8.1.1(1) of the Direction provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
f) the cumulative effect of repeated offending;
g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has had regard to each of the paragraphs listed above. In regard to paragraph (a), the Direction provides a non-exhaustive list of certain conduct that may be considered very serious. The offence that the Applicant was convicted of carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.[33] The sentencing judge took into account the maximum penalty ‘as Parliament’s confirmation of the community’s view of the seriousness of the offence…’[34]
[33] Ibid 43.
[34] Ibid.
The Respondent contends that the Applicant’s offending conduct should be considered very serious and identifies a number of key features of the Applicant’s conduct and role in the offending that were highlighted by the sentencing judge.[35] The sentencing judge rejected the Applicant’s claims of duress as a reason for her offending.[36]
[35] Ibid 1329-31 [42], 1333 [55].
[36] Ibid 49.
The key features which are relied upon by the Respondent include:
(a)A finding by the sentencing judge that, over time, the Applicant became aware that she was required to do much more than simply receiving the key, considering her past interactions with ‘Daniel’ and their joint involvement in drugs;[37]
(b)Further to this point, the sentencing judge found that she was someone who was capable of negotiating with the UCO in a way that reflected her evident briefing and involvement going far beyond the mere receipt of a key, and that she ultimately became a committed participant;[38]
(c)The finding by the sentencing judge that the street worth of the drugs would have been many millions;[39]
(d)Although the sentencing judge accepted that the Applicant’s role was at the lower end, she was not at the lowest end of the hierarchy.[40] The sentencing judge made a finding that she was a ‘trusted but manipulated facilitator who was capable of independent action to achieve a straightforward criminal end’;[41]
(e)The amount of drugs involved was also a very important factor;[42]
(f)The sentencing judge also found that the Applicant’s conduct is ‘well-removed from a mid-range offence’ but that it is not ‘at the lowest end of the range’. The sentencing judge remarked that nothing but full-time custody is required, ‘so that people who come to this country in order to facilitate the supply of this hideous drug, must know that when detected, they will face significant penalties’.[43]
[37] Ibid 1330 [42(b)].
[38] Ibid 1330 [42(d)].
[39] Ibid 1330 [42(j)].
[40] Ibid 1330 [42(l)].
[41] Ibid 53-4.
[42] Ibid 1330 [42(m)].
[43] Ibid 1330 [42(n)].
The Applicant’s submissions (made through her previous representative) rely upon the sentencing judge’s findings that the Applicant’s behaviour was influenced by her vulnerability and concern for her own safety.[44] In that regard, the sentencing judge also concluded that the Applicant had additional personal vulnerabilities which included a problem with drugs and potentially alcohol.[45]
[44] Ibid 275 [20].
[45] Ibid 275 [20], 51.
The Applicant also relies on the sentencing judge’s findings that she was threatened on her return to Mexico complete the crime in Australia.[46]
[46] Ibid 275-6 [21].
The Tribunal has considered the arguments of both parties. The Tribunal considers that the Applicant’s conduct should be viewed as very serious. The Tribunal has had regard to the maximum penalty for this offence, the amount of drugs agreed to be trafficked, and the Applicant’s role as a facilitator in the transaction. The Tribunal accepts that she may have been subject to external influence in performing that role, but ultimately the responsibility for her offending conduct laid squarely at her feet. Therefore, for the purposes of paragraph (a), the Tribunal makes a finding that the Applicant’s conduct is very serious.
The Tribunal considered whether the Applicant’s conduct could be considered as serious under paragraph (b) but considers that the scale of drug trafficking the Applicant was involved in places her offending in the very serious category. The Tribunal does accept that the trafficking was an isolated ‘transaction’ but notes that the Applicant was an important facilitator in that transaction which involved supplying a large commercial quantity of methylamphetamine.
In regard to paragraph (c), the Tribunal notes that the Applicant was sentenced to a significant period of time in custody for the offending conduct. The Applicant submits that this sentence is well below the maximum sentence for offences of this nature.[47] The Respondent submits that where a court has sentenced an offender to a term of imprisonment, this must be viewed as a reflection of the objective seriousness of the offence, noting that terms of imprisonment are the last resort in the sentencing hierarchy.[48] The Tribunal concludes that the sentence was significant, particularly where the Applicant fell to be sentenced as a first-time offender, with findings by the sentencing judge that there were special circumstances in the Applicant’s case. Those special circumstances include a willingness to facilitate the course of justice by earlier plea of guilty (despite withdrawing that plea at a later date), her lengthy period on bail, a finding that she is a woman of ‘good character, and generally has pro-social conduct.’[49] The Tribunal has regard to the above factors, and concludes that the sentence imposed by the court for this crime is significant and reflects the gravity of her offending.
[47] Ibid 246 [25].
[48] Ibid 1332 [52] citing PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 [46].
[49] Ibid 61-2.
Paragraph (d) of the Direction deals with the impact of the offending on victims. The sentencing judge specifically referred to the effects of methylamphetamine on the community stating it is a ‘terrible thing in our community, as a daylight walk in the main streets of any regional town or city will confirm.’[50] The Applicant’s submissions acknowledge that drugs do have a negative impact on individuals and the community, but note that the Applicant was not directly responsible for causing harm to any particular victim.[51] The Tribunal considers that the impact of this offending is of the utmost seriousness. It might be argued that the Applicant did not directly cause harm to any particular victim, but she was a willing participant in an enterprise that involved trafficking a large commercial quantity of methylamphetamine. If that quantity of drugs had made it into the community, the impact of that would be devasting.
[50] Ibid 69.
[51] Ibid 276 [26].
The Tribunal accepts that the Applicant has no prior convictions and that there is no increase in frequency or seriousness of offending, nor any repeated offending (paragraphs (e) and (f)).
The Tribunal also accepts that paragraphs (g), (h) and (i) are not applicable to the Applicant’s circumstances.
Having taken into account the factors listed at paragraph 8.1.1(1) of the Direction, the Tribunal considers that the Applicant’s offending is very serious. The Tribunal has had regard to the nature of the offence, the maximum penalty, and the Applicant’s role. Knowingly taking part in the supply of a large commercial quantity of methylamphetamine is conduct that must be viewed as very serious by the Australian Government and the Australian community and the Tribunal makes this finding.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:
i.information and evidence on the risk of the non-citizen reoffending; 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).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal has considered the nature of the harm to individuals and the Australian community should the Applicant engage in further criminal or other serious conduct (paragraph (a)). Should the Applicant again engage in the supply of illicit drugs, it would likely cause devasting physical and psychological harm to drug users and the Australian community in general. It would also have a significant impact on the criminal justice system and burden Australia’s health and welfare systems. The Tribunal has had regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Tribunal considers that this is a case where if the conduct and the harm that would be caused, if repeated, is so serious that any risk it may be repeated is unacceptable.
The Tribunal has also considered the likelihood of the Applicant engaging in further criminal or other serious conduct (paragraph (b)). The Applicant submits that the likelihood of her engaging in further criminal or other serious conduct is low.[52] The Respondent likewise considers the Applicant’s risk as low but submits that any risk is unacceptable.[53]
[52] Ibid 278 [37].
[53] Ibid 1338 [86].
The Applicant relies upon various reports and assessments which consistently describe her risk of reoffending as low.[54] Those reports, whilst they do support a finding that the Applicant’s risk is low, include some comments by the respective authors that the Applicant lacks insight into her offending. Those comments and reports were put to the Applicant during cross-examination. The Applicant consistently maintained that she was remorseful, and she knew her offending was serious. In regard to specific comments about insight into her offending, she suggested that the words used by the authors of the various reports might be their interpretation, but those words are not a true reflection of her views of the offending. This is explored further below.
[54] Ibid 277-8 [30]-[37].
The Tribunal has taken the following information and evidence into account when considering the Applicant’s risk and rehabilitation:
(a)Report of Dr Kerri Eagle, Forensic Psychiatrist, dated 14 August 2020 which states:[55]
[55] Ibid 283-296.
(i)The Applicant reported that said she had not heard of methylamphetamine until she came to Australia.[56]
[56] Ibid 287.
(ii)The Applicant did not display signs or symptoms of a major mental illness.[57]
[57] Ibid 291.
(iii)Her symptoms were consistent with a depressive episode.[58]
[58] Ibid.
(iv)Dr Eagle diagnosed the Applicant with a substance use disorder, which has been in remission in the controlled custodial environment.[59]
[59] Ibid 292.
(v)Dr Eagle opines that the Applicant’s offending behaviour likely arose out of a combination of psychological vulnerabilities, and depressive symptoms giving rise to a substance use disorder that in the circumstances made her susceptible to intimidation or influence from pro-criminal groups.[60]
[60] Ibid 293.
(vi)The Applicant has few criminogenic factors associated with reoffending. She does not appear to have an antisocial personality pattern or pro-criminal attitudes. Her primary criminogenic needs include management of her substance use disorder, and persistent psychological vulnerabilities that increase her susceptibility to peer influence.[61]
[61] Ibid.
(vii)She also has protective factors including being in a stable relationship, capacity for employment, not have a criminal identity and having someone who believes in her.[62]
[62] Ibid 294.
(b)NSW Corrective Services Sentencing Assessment Report dated 11 September 2020 in which:[63]
[63] Ibid 110-13.
(viii)This Report assessed the Applicant as low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).[64]
[64] Ibid 112.
(ix)The Applicant reported to the author that although she ‘mostly agreed with police facts’ she denied certain aspects.[65]
[65] Ibid 111.
(x)She acknowledged she was involved in something illegal, but reported she had no knowledge it was related to drug importation or methamphetamine.[66]
[66] Ibid.
(xi)She also acknowledged that if the drugs were real, then the supply of drugs would have destroyed people’s lives and impact the wider community.[67]
[67] Ibid.
(xii)The Applicant was assessed as suitable to undertake community service work.[68]
[68] Ibid 112.
(c)NSW Corrective Services Pre-release Report dated 7 November 2023 in which:[69]
[69] Ibid 114-23.
(i)The Applicant was assessed as a low risk of reoffending according to the LSI-R tool.[70]
[70] Ibid 120.
(ii)She did incur three misconduct charges in prison, namely destroy property, possess drug and disobey direction.[71] (Those incidents are expanded upon below).
[71] Ibid 118.
(iii)She completed various courses and programs in prison including the EQUIPS Foundation and EQUIPS Addiction programs.[72] She has also completed vocational training programs and has been employed in various roles during her incarceration.[73]
[72] Ibid.
[73] Ibid 119.
(iv)The Applicant also expressed a desire to obtain her certification to practise as a radiologist in Australia, having achieved that qualification in Mexico.[74]
[74] Ibid 120.
(d)NSW Corrective Services Report (undated):[75]
[75] Ibid 124.
(i)Which contains an extract of the educational/rehabilitation courses the Applicant has undertaken in custody as well as her employment.
(e)NSW Corrective Services Case Note Reports dated 17 February 2024 through to 29 August 2024:[76]
[76] Ibid 127-138.
(i)which detailed the Applicant’s progress on parole. Of concern, was a Case Note dated 7 March 2024 indicating that she denied having any knowledge that she was involved or communicating with anyone from a drug cartel. She acknowledged she was involved in something illegal however had no knowledge that it related to drug importation or methamphetamine. She felt unable to step back as both she and her family were threatened.[77]
[77] Ibid 129.
(ii)a further Case Note dated 3 April 2024 indicated that the Applicant was attending appointments and was being honest and open about her drug use and was working on relapse prevention.[78]
[78] Ibid 133.
(f)Letter of support from NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 19 August 2024 in which:[79]
[79] Ibid 309-10.
(i)The author reported that the Applicant has attended four sessions of counselling since May 2024. In the author’s opinion the Applicant is experiencing clinically significant level of anxiety, depression, and post-traumatic stress symptoms which are causing her distress, negatively impacting her level of psychosocial functioning and subjective mental well-being.[80]
[80] Ibid 309.
(ii)The author reports that the Applicant is engaged and committed to treatment at STARTTS in order reduce her symptoms of depression, anxiety and post-traumatic health.[81]
[81] Ibid 310.
(g)Letter of support from Cumberland Women’s Health Centre dated 28 August 2024 in which:[82]
[82] Ibid 299-300.
(i)The author reports that the Applicant has attended for counselling, attended groups and workshops. The author also states that the Applicant has reported great remorse for offending and has committed to not reoffending in the future.[83]
[83] Ibid 300.
(h)Letter of support from Community Restorative Centre dated 29 August 2024 in which:[84]
(i)The author confirmed that they are providing support to the Applicant as an alcohol and other drugs transition worker. The author had been working with the Applicant since mid-February and describes her as highly engaged and showing great motivation to reintegrate back into the community.[85]
(ii)The author reports that the Applicant has expressed great remorse for her offending and is confident that the Applicant poses no danger to the Australian community.[86]
(i)In the Letter of support from Settlement Services International dated 20 March 2025:[87]
(i)The author reports that the Applicant has been a client of their program since January 2025, and they have been supporting her to settle back into the community.[88]
(ii)The Applicant has been attending weekly counselling sessions and has engaged well and has committed to attending counselling sessions every week.[89]
[84] Ibid 298.
[85] Ibid.
[86] Ibid.
[87] Exhibit A1.
[88] Ibid.
[89] Ibid.
The Tribunal has taken into account the three incidents in custody which are referred to in paragraph (c)(ii) above. The first incident being Damage Destroy Property occurred in 2019 in which the Applicant inadvertently caused a fire in a microwave. The Applicant was reprimanded and cautioned for this incident.[90] The second incident of Possess Drug occurred in 2020 and involved the Applicant having an excess supply of Panadol and ibuprofen in her cell. For this incident the Applicant was taken off ‘buy-ups’ for 14 days.[91] The third incident was Disobey Direction which also occurred in 2020 when the Applicant refused to return to her cell. She was confined to her cell for one day as a consequence.[92] The Tribunal has considered these three incidents as minor in nature and are not indicative of a risk of reoffending in the community, given the Applicant has not reoffended at all whilst on bail or since being released.
[90] Ibid 1189-90, 1185.
[91] Ibid 1182-3.
[92] Ibid 1171-6.
The Tribunal has also taken into account various letters of support from former employers and has noted the many programs and certificates the Applicant has completed during her time in custody.[93]
[93] Exhibit R1, 308, 312-8.
The Tribunal has also taken into account the many statements the Applicant has written to the sentencing court and to the Department.[94] In her most recent statement to the Department dated 4 September 2024, she maintains she is a person of good character and has been clean of drugs since May 2018, and does not have any intentions to use drugs at any time.[95] She is committed to becoming a better version of herself, and has benefitted from counselling she has been receiving. She can recognise her emotions and deal with them healthily, and counselling helped her understand this.[96] She reports she has learned her lesson and has not reoffended and will not reoffend again.[97]
[94] Ibid 225-250.
[95] Ibid 231 [35].
[96] Ibid 232 [40].
[97] Ibid 233 [43].
The Tribunal has considered the contents of the various reports and materials referred to above. The Tribunal finds that the Applicant’s likelihood of engaging in further criminal or other serious conduct is low. The Tribunal accepts that the Applicant has engaged in rehabilitation to address her risk of reoffending. The Tribunal also accepts that the Applicant may have demonstrated a lack of insight into her offending, which was consistent with her earlier plea of not guilty by maintaining she was acting under duress. The Tribunal accepts the Applicant’s oral evidence to the Tribunal that she now understands the seriousness of her offending and that she is remorseful.
Although the Tribunal accepts the Applicant’s risk is low, it does accept the Respondent’s submissions that any risk of reoffending is unacceptable.[98] The Tribunal has reached this conclusion based on the following circumstances:
(a)The finding by the Tribunal of the very serious nature of the Applicant’s criminal conduct;
(b)The nature of the potential harm to members of the Australian community should the Applicant reoffend; and
(c)The sentencing judge’s finding that she was a willing, committed, and voluntary participant on the offence.
[98] Ibid 1338 [86].
The Tribunal is less inclined to accept the Respondent’s argument that she has not been candid in her role in the offending and continues to minimise her role, or that her rehabilitation has been limited, and has not been tested in the community.[99]
[99] Ibid.
As mentioned above, the Tribunal does accept that there may have been an initial lack of insight, but otherwise has no reason to doubt the Applicant’s written and oral testimony to the Tribunal that she is remorseful and accepts the gravity of her offending. The Tribunal also accepts that she has taken all available opportunities to advance her rehabilitation both in a custodial setting and in the community.
Decision-makers must also have regard to paragraph 8.1.2.(2)(c) of the Direction which provides that where consideration is being given to refuse to grant a visa, whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa. The Tribunal does not consider that risk of harm (which has been assessed as low in any case) is affected by any of these factors given the Applicant is applying for a protection visa which would allow her to stay in Australia on a permanent basis.
Conclusion on primary consideration 1
The Tribunal has concluded that the nature and seriousness of the Applicant’s conduct is of a very serious nature. The Tribunal considers that the nature of the harm should the Applicant engage in further criminal or other serious conduct would result in devastating physical and psychological harm to drug-users and the Australian community in general. There would also be a significant negative impact on the criminal justice and health and welfare systems.
The Tribunal has concluded that the likelihood of the Applicant engaging in further criminal or other serious conduct is low but has concluded that the conduct and harm that would be caused, if repeated, is so serious that any risk it may be repeated is unacceptable.
The Tribunal finds that this primary consideration weighs very heavily in favour of exercising the discretion in s 501(1) to refuse the Applicant’s visa.
Primary consideration 2: Family violence committed by the non-citizen
This primary consideration is relevant in circumstances where a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven that involve family violence.
There is no evidence that the Applicant engaged in family violence. The Tribunal has determined that this primary consideration is not relevant and has afforded it neutral weight.
Primary consideration 3: The strength, nature and duration of ties to Australia
This primary consideration requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely.
Where consideration is being given to cancel a non-citizen’s visa or revoke a mandatory cancellation of their visa, decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to how long the non-citizen has resided in Australia, and the strength, duration and nature of any family or social links with Australian citizens, permanent residents and/or people who have an indefinite right to remain in Australia.
In regard to this primary consideration, the Applicant relies upon her relationship with her long-term partner, who is a permanent resident of Australia as evidence of her ties.[100] The Applicant reports being in this relationship since May 2018, and that the relationship has been consistent and supportive.[101]
[100] Ibid 278 [39].
[101] Ibid.
The Applicant’s de facto partner has written three letters in support of the Applicant.[102] In the most recent letter dated 3 September 2024, the Applicant’s partner writes of their desire to start a family but that they have been unable to due to the uncertainty of the Applicant’s immigration status.[103] The Applicant also gave oral evidence to the Tribunal that she too wants to start a family with her de facto partner, but the instability and uncertainty of the visa process has affected this for both of them. Her partner confirmed that the couple want to get married, have children and buy a house.[104] They desire to have a normal life and to take care of each other for the rest of their lives.[105]
[102] Dated 29 May 2022 (306-7), 3 August 2023 (304-5), and 3 September 2024 (302-3).
[103] Exhibit R1, 302 [4].
[104] Ibid 302 [9].
[105] Ibid 302 [10].
The Applicant also relies on her consistent work history and the letters of support provided by her former employers in Australia.[106] The Applicant has been described as a courteous, polite, respectful and hard-working individual who has demonstrated extreme remorse for her actions and is a person who can contribute positively to society, with a great willingness to start over.[107] Her other former employers also describe the Applicant in a positive light and state that she is trustworthy and has demonstrated a strong work ethic and commitment to personal growth.[108]
[106] Ibid 279 [41]-[43].
[107] Ibid 249 [41].
[108] Ibid 279 [42]-[43].
The Applicant submits that such support from the Australian community should demonstrate her strong ties to Australia, and that this factor should weigh against exercising the discretion to refuse her visa.[109]
[109] Ibid 279 [44].
The Respondent also acknowledges the Applicant’s ties to Australia.[110] The Respondent accepts that the Applicant has made a positive contribution to Australia through her previous employment.[111]
[110] Ibid 1389-40 [91]-[95].
[111] Ibid 1389 [95].
The Respondent does contend that overall, this consideration weighs slightly in favour of the Applicant.[112]
[112] Ibid 1340 [99].
Conclusion on primary consideration 3
The Tribunal has considered the strength, nature and duration of the Applicant’s ties to Australia. The Tribunal notes that the Applicant arrived in Australia as a 31-year-old in May 2018. The Applicant’s offending commenced in April 2019, so less than a year after arrival. The Tribunal also notes that the Applicant has been in a relationship with her partner since May 2018, so was in this relationship at the time of the offending. The presence of the relationship and support from her partner did not deter her from offending. It is acknowledged however that despite her very serious crimes, her partner has remained supportive of her. The Tribunal also acknowledges the Applicant’s consistent employment record and the contribution this has made to Australia.
On balance the Tribunal considers that this primary consideration weighs in the Applicant’s favour, but only moderately.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to consider the best interests of any minor children in Australia who may be affected by a cancellation or refusal decision under s 501, or non-revocation under s 501CA.
The Applicant and Respondent agree there are no minor children who would be affected by the decision.[113]
[113] Ibid 279 [45], 1340 [101].
Accordingly, this primary consideration is not relevant to the Tribunal’s consideration and is given neutral weight.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction provides as follows:
(1) 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This primary consideration requires decision-makers to consider the expectations of the Australian community as articulated by the Australian Government. A decision-maker must consider and apply the community expectations normatively, even though the ascertainable community expectations in a particular case may differ.[114]
[114] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [91].
The Direction also provides that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect such a person is not granted or continue to hold a visa. Paragraph (3) provides that the expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Respondent contends that the Australian community would expect that the Applicant is not granted a visa on account of her very serious offending and other conduct.[115] It is submitted that refusing to grant the Applicant her visa is appropriate simply because of the nature of the Applicant’s offending.[116]
[115] Ibid 1341 [103].
[116] Ibid.
The Applicant concedes that the offending is of a serious nature, but relies upon her low risk to the Australian community.[117] Reliance is also placed on the sentencing judge’s remarks that the Applicant was largely regarded as a person of good character by her peers, and his Honour’s hope that she would return to the community as a law abiding citizen ‘as everyone who knows you accepts you are capable of being.’[118]
[117] Ibid 280 [47].
[118] Ibid 280 [48], 69.
The Applicant otherwise submits she has been punished for her offending, is remorseful, and has worked hard to better herself to ensure she does not reoffend in the future. It is submitted that her efforts have been recognised in the consistent assessment of her posing a low risk of reoffending.[119]
[119] Ibid 280 [49].
Conclusion on primary consideration 5
The Tribunal considers that the Applicant has breached the Australian community’s expectations in a very serious manner by committing the offence of taking part in the supply of a prohibited drug in not less than a large commercial quantity. She offended very soon after arriving in Australia. The Australian community would therefore expect, as a norm, the Government to not allow such a person to remain in Australia and the Tribunal makes this finding.
In the Tribunal’s view, this primary consideration weighs very heavily in favour of exercising the discretion to refused to the grant the Applicant’s visa.
Other consideration 1: Legal consequences of the decision
This other consideration requires decision-makers to consider the legal consequences of a decision under s 501 or 501CA. Particular considerations apply to non-citizens who are covered by a protection finding, and those who are not covered by a protection finding.[120]
[120] See paragraphs 9.1.1. and 9.1.2. of the Direction.
The Applicant in this case is covered by a protection finding.[121] A delegate of the Respondent found that the Applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.[122] Section 197C of the Act states that
s 198 does not require or authorise the removal of an unlawful non-citizen to a country if there has been a protection finding.[121] Exhibit R1, 175-198.
[122] Ibid 198.
The Tribunal accepts the Respondent’s submission that a decision to affirm the refusal of the Applicant’s visa will not result in her removal to her country in light of s 197C(3) of the Act.[123] Further, it is accepted that there is presently no other country to which there is a real prospect that the Applicant could be practicably removed to in the near future.[124] The Applicant cannot be subject to being detained for the purposes of removal pursuant to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[125]
[123] Ibid 1341 [108].
[124] Ibid.
[125] [2023] HCA 37.
The Applicant was granted a BVR on 13 January 2025 and is currently subject to a number of conditions as a consequence.[126] Despite the imposition of these conditions, the Applicant is permitted to live and work in the community. The Tribunal notes that a decision affirming the decision to refuse the Applicant’s visa will mean that she will remain in the community on a BVR, until such circumstances change and her removal to a third country becomes reasonably practicable. Further legal consequences include being unable to apply for another protection visa by virtue of s 48A of the Act, unless the Minister decides (under s 48B) to lift the bar if satisfied it is in the public interest to do so. The Applicant is also unable under s 501E to make an application for any other visa, whilst in the migration zone, other than a BVR.[127]
[126] See Annexure A to Respondent’s SOFIC 1345-56.
[127] Exhibit R1, 1343 [116].
The Applicant gave oral evidence to the Tribunal that she is having difficulty obtaining employment because of her BVR status, however she failed to provide any evidence to corroborate these assertions. The Tribunal accepts that there may be some minor practical difficulties in adhering to the visa conditions but does not consider such difficulties as insurmountable.
Whilst the Tribunal accepts there are some legal consequences resulting in a decision to affirm the visa refusal decision, the practical reality is that the Applicant is unlikely to be removed from Australia in the near future and will remain in the community on a BVR. The Tribunal concludes that this other consideration only weighs moderately in the Applicant’s favour.
Other consideration 2: Extent of impediments if removed
This other consideration requires decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Respondent submits, and the Tribunal accepts, that the Applicant is not presently liable for removal from Australia, and s 197C(3) prevents her removal.[128] Given this state of affairs, the Respondent contends this other consideration should be given neutral weight.[129]
[128] Ibid 1343 [118].
[129] Ibid 1343 [119].
The Tribunal accepts the Respondent’s submission. There is currently no prosect of the Applicant being removed to Mexico or another third country, and as a result, this other consideration cannot presently be realistically assessed. In any event, the Applicant has not provided any evidence that she would face any impediments related to her age or health, or substantial language or cultural barriers. Any social, medical and/or economic impediments are not known.
Paragraph 9(1) of the Direction states that decision-makers must take into account, where relevant, this other consideration. The Tribunal has taken this other consideration into account and has ascribed it neutral weight in the balancing exercise given there is presently no real prospect of removal.
Other consideration 3: Impact on Australian business interests
This other consideration requires decision-makers to consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, where a decision under s 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There has been no evidence advanced in support of this other consideration, and it doesn’t appear to be relevant on the presently known facts. The Tribunal gives this other consideration neutral weight.
Any other considerations
The Applicant has invited the Tribunal to consider her risk of harm should she be returned to Mexico. She relies upon the public reporting of her criminal matter at the time. Reliance is also placed on various third-party sources which support the proposition that there is an elevated risk of harm given the nature of her criminal offending and personal circumstances.[130]
[130] Ibid 280.
The Tribunal accepts that this other consideration would weigh on the Applicant, even if there is no real prospect of her removal to her home country in the foreseeable future. It is accepted that regardless of whether this is a practical reality or not, the prospect and uncertainty of removal would cause the Applicant some anxiety.
On balance the Tribunal affords this other consideration slight weight in the Applicant’s favour.
CONCLUSION
Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The Tribunal is satisfied, by reason of the sentence imposed on her on 7 September 2022 by the District Court of NSW, that the Applicant does not pass the character test.
Having been satisfied that the Applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion in s 501(1) to refuse to grant the Applicant a visa by reference to the Direction and the relevant facts and circumstances of the Applicant’s case.
In applying the Direction, the Tribunal has determined that primary considerations 1 and 5 weigh very heavily in favour of exercising the discretion to refuse to grant the Applicant a visa. Only primary consideration 3 and other consideration 1 weigh moderately in the Applicant’s favour.
Primary considerations 2 and 3 weigh neutrally in the balancing exercise as does other considerations 2 and 3. The other consideration relating to the risk of harm weighing on the Applicant is also given slight weight in the Applicant’s favour.
The Tribunal has given greater weight to primary consideration 1 as it is permitted to do by paragraph 7(2) of the Direction given the nature and seriousness of the Applicant’s conduct. The Tribunal has afforded the primary considerations greater weight than the other considerations.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal concludes that the discretion in s 501(1) should be exercised to refuse to grant the Applicant a visa.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
27 March 2025
Applicant: In person Advocate for the Respondent: Mr Matthew Gauci Solicitors for the Respondent: Hunt & Hunt Lawyers
0
4
0