KFMK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

KFMK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 18 (12 January 2024)
Division:GENERAL DIVISION
File Numbers: 2023/8037
Re:KFMK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:12 January 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 20 October 2023 that the mandatory cancellation of the Applicant’s Class WC Subclass 030 Bridging Visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
.............[SGD]...........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – non-revocation of mandatory visa cancellation – Direction No.99 – protection of Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – supply large commercial quantity of methylamphetamine – low risk of reoffending – where protection visa application on foot – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
12 January 2024
INTRODUCTION

On 20 May 2018, KFMK (the Applicant), a 37-year-old female citizen of Mexico, arrived in Australia on a student visa and commenced studies at an international college.[1]
[1] G3, 63.
In 2019, NSW Police received intelligence that some foreign nationals were involved in a plan to ship a large quantity of methylamphetamine to Australia from Mexico. The shipment never arrived. It was successfully intercepted by Mexican authorities.
On 2 May 2019, KFMK was arrested in connection with this criminal enterprise. On 14 April 2020, she signed a statement headed ‘Crown Case Statement’, establishing her involvement.[2]
[2] Respondent’s Tender Bundle (RTB), 17, 19.
On 5 August 2022, she applied for a protection visa.
On 19 August 2022, she was granted a Class WC Subclass 030 Bridging Visa (the visa).[3]
[3] G3, 64. It is not clear on the materials whether or when her original student visa lapsed.
On 7 September 2022, following a judge alone trial in the Downing Centre District Court,[4] she was sentenced to six years imprisonment with a non-parole period of three years. The sentence commenced on 18 February 2021, allowing for time served in custody, with the non-parole period due to conclude on 17 February 2024.[5]
[4] G3, 58. The exact date of the trial is not clear from the materials, but it would appear to be some time prior to the sentencing hearing.
[5] G3, 58.
The charge was that between 3 April 2019 and 3 May 2019 she did knowingly take part in the supply of a prohibited drug, namely, methylamphetamine, being an amount not less than the large commercial quantity applicable to that prohibited drug.[6]
[6] See subsection 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) which provides: ‘A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.’
On 4 January 2023, the visa was mandatorily cancelled.[7] She was at the time serving a full-time sentence of imprisonment in Mid North Coast Correctional Centre.[8]
[7] G3, 63.
[8] G3, 63.
On 26 January 2023, she requested the Minister to revoke the cancellation of her visa. She stated:
I would like to ask for an opportunity of my visa revocation, the reasons for this ae [sic] because I am afraid of the death threats I was receiving prior to my incarceration. These death threats were made to me and my family. If I get sent back to Mexico, there is a high risk I will be found. My name has been mentioned in the news and I am scared they will see the names of the people I mentioned at court. My life is in danger as well as my family's safety. I have a [redacted] license; I am willing to contribute my work at any clinic that will accept me. I have a fiancé here in Australia, we have been together over 4 years, we trust each other. He is a good man, hard worker, family orientated. He has never left me alone during this hard time, he has helped me a lot in all types of ways. We would do everything together including the gym, swimming shopping and cooking. We would go to church together; I have never met anyone with such discipline and healthy lifestyle. We want to get married and start our own family when all this is over. Australia is a good country; I feel safe here and believe it is a good country to start a family. I would be a good citizen and role model to others, showing them the right path from the mistakes I made. I want to be able to help others; I believe I will be able to do that better in Australia.[9]
[9] G3, 73.
On 20 October 2023, a delegate of the Minister decided not to revoke the mandatory cancellation of her bridging visa (the reviewable decision).[10] The Applicant received notification of the decision on 23 October 2023.[11] On 31 October 2023, she applied within the statutory time limit[12] for review of the reviewable decision.[13]
[10] G2, 10.
[11] G2, 7.
[12] See subsection 500(6B) of the Act.
[13] RSFIC, para 19.
Her application came before the Tribunal on 3 and 11 January 2024. The Minister was represented by Mr J. Hutton, solicitor, of the Australian Government Solicitor. The Applicant was self-represented.
The 84th day for the purpose of subsection 500(6L)(c) of the Migration Act 1958 (Cth) (the Act) is 15 January 2023.
BACKGROUND
The Applicant asserts that she started using drugs as a teenager and this continued into her thirties. She smoked marijuana and used cocaine and MDMA. Her lifestyle was hedonistic, and she liked to travel.
In around 2017 one of her friends (Person 1) introduced her to a man (Person 2). She went to various parties with this couple at which the consumption of alcohol and recreational drugs was commonplace. Person 2 was affluent and had access to a hacienda where some of the parties were held. They talked about a desire to migrate. She said she wanted to start a new life. She was thinking of going either to Canada or Australia but chose Australia because of its climate. Person 2 asked her to do him a favour in Australia. This involved collecting a key from one individual in Sydney and giving it to another. She thought this was a minor favour and saw nothing wrong with it.[14] He also agreed to pay her student fees and accommodation, which she took as a generous sign of friendship.
[14] G3, 177.
On 20 May 2018, she arrived in Australia on a student visa and commenced studies at an international college.[15] Soon thereafter she met her current fiancé on a dating site. She obtained employment in a city pub and later at a casino.
[15] G3, 63.
On 29 March 2019, she was contacted by a person claiming to be a friend of Person 2’s. They agreed to meet in person. Unbeknownst to her, he was a law enforcement undercover officer (UCO). They met on 4 April 2019. Before Adams ADCJ she gave the following evidence:
Q. You had a conversation with an undercover police officer on 4 April. So at the time of that conversation you were aware, were you not, that the conversation was about narcotics?
A. INTERPRETER: I had an idea, but I didn't know exactly.
Q. Do I take from that that until the conversation with the undercover officer you didn't know the quantity or the nature of the narcotics?
A. INTERPRETER: I didn't know anything. The undercover police made me known.[16]
[16] G3, 177-178.
There were several text exchanges over the following week and on 15 April 2019, she told the UCO that she was returning to Mexico.[17]
[17] G3, 35.
She returned to Mexico on 24 April 2019 on a return ticket paid for by her fiancé.[18] She told a psychiatrist that she was having relationship difficulties with her boyfriend, and he supported her visiting Mexico to see her parents.[19]
[18] G3, 179.
[19] RTB, 37.
She gave sworn evidence to the District Court that she was followed when she returned to Mexico, and that she was threatened by men who said they would kill her family if she did not follow instructions.[20] She returned to Australia on 1 May 2019, a month earlier than planned.[21] When she returned she did not stay with her fiancé, because she did not want him to be involved in the situation.[22] She stayed with a friend.
[20] G3, 179.
[21] G3, 63.
[22] RTB, 37.
On 2 May 2019 she met the UCO. She was given the keys to a van containing 55 kilograms of an inert substance which the UCO represented to be methylamphetamine. As described by Turnbull J:
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 [Address 1].
About 10.03am on 2 May 2019, UCO exchanged SMS messages with KFMK, and they confirmed the meeting at [Address 2] at 10.30am. The witness drove to the intersection of [Address 1]. Shortly after the witness arrived, KFMK 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 drove KFMK to the corner of [Address 1], where the Hiace van registration [redacted] was parked. The witness unlocked the van and gave the keys to KFMK. The witness opened the door and showed KFMK 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 KFMK with the van with the key and inert substance.
At 2.27pm on 2 May 2019, police observed KFMK approach the van which was still parked outside [Address 1]. KFMK 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. KFMK then got out and walked away from the van.
At about 4.20pm on 2 May 2019, police attended [Address 3]. After police knocked on the door, KFMK opened the door and was placed under arrest. When placed under arrest, KFMK told police that ‘I didn’t do anything’. Following a search of the unit, police seized an iPhone, iPad, passport in the name of KFMK and the keys to the unit.
The key to the van registration [redacted] was located on KFMK upon her arrest.
She was arrested at her flat later that day. She was held in custody in the Mary Wade Correctional Centre in Sydney. On 4 September 2019, she was interviewed in the Sydney offices of the Australian Crime Intelligence Commission. She handed over her iPhone and iPad she had brought from Mexico. She assisted the authorities.
On 30 October 2020, she pleaded guilty to one count of attempt to possess an amount of a prohibited drug, namely 55 kilograms of methylamphetamine, for the purpose of supply.[23] She was represented by counsel. The matter proceeded to a sentencing hearing before Adams ADCJ.[24]
[23] RTB, 16.
[24] G3, 167.
She stated under oath that although she signed a statement relied upon by the Crown, she felt she had no choice because the police would not change anything.[25] Moreover, she stated that during her short visit to Mexico she had received threats to her life and the lives of her parents. Adams ADCJ suggested to defence counsel that a ‘proper conference’ with his client was appropriate.[26] The hearing was adjourned to 10 November 2020, and she was released on stringent bail conditions. When the matter resumed, her counsel sought leave to withdraw the guilty plea which was unopposed by the Crown, and leave was granted.[27] The matter was then remitted to the Local Court.[28]
[25] G3, 190.
[26] G3, 190.
[27] RTB, 16.
[28] G3, 38.
Subsequently, the attempt charge was dropped, and she was then charged with being knowingly concerned, as described above.
Unfortunately, the materials before the Tribunal do not include a transcript of the trial. At her sentencing hearing, the trial judge described the process as follows:
The trial though proceeded in a most efficient manner. There was a single witness, being the informant, through which all the evidence was presented. That obviated the need to call the UCO, which is a consideration going beyond mere convenience, and because it not only allowed for efficient use of court time, it preserved the UCO’s anonymity. That is a matter of public interest, and facilitates the use of such techniques, and the security of personnel employed in that important, and as this case demonstrates, productive investigative role.
All the calls and recordings were played through that witness. Evidence given by the accused on prior occasions was also agreed to be presented by way of the transcripts. There was a statement of agreed facts that consisted of five pages, and that in fact established all the additional aspects of the Crown case, including the involvement at a criminal level of the offender.
The issues were explicitly notified in opening, and if I might say so, efficiently addressed by counsel throughout the trial. The trial proper went for four days with evidence. It was judge alone. It was in the shadow of the pandemic. Addresses and sentencing submissions were, at various points, subsequently made, and AVL was utilised as was very much needed in the pandemic, and compounded the efficiency of the disposal of these proceedings, because it allowed for AVL addresses to a regional court, which is where I typically sit.
On 5 August 2022, the Applicant applied for a protection visa.[29]
[29] RSFIC, para 51.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
As noted above, on 7 September 2022, the Applicant was sentenced in the Downing Centre District Court to six years imprisonment with a non-parole period of three years, for one count of Take part supply prohibited drug >= large commercial quantity. [30]
[30] Subsection 33(3) of Drug Misuse and Trafficking Act 1985 (NSW) provides that if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited drug concerned, the penalty for the offence is a fine of 5,000 penalty units or imprisonment for life, or both.
The combined operation of subsections 501(6)(a) and 501(7)(c) of the Act implies that a person sentenced to a term of imprisonment of 12 months or more does not pass the character test.
According to a submission prepared by the Applicant’s representative she has appealed against her sentence.[31] However, no information has been provided to the Tribunal as to the status of this appeal. The Tribunal is therefore obliged to proceed on the footing that the penalty imposed on 7 September 2022 provides a valid basis for finding that the Applicant presently does not pass the character test.
[31] G3, 98, 99.
I therefore turn to consider whether there is ‘another reason why the original decision should be revoked’.
MATERIALS BEFORE THE TRIBUNAL
Applicant’s materials:
(a)Applicant’s handwritten submissions tendered on 3 January 2024
(b)Parole order filed on 4 January 2023
Respondent’s materials:
(a)Respondent’s statement of facts, issues and contentions (RSFIC) filed on 15 December 2023
(b)Respondent’s chronology filed on 15 December 2023
(c)Respondent’s tender bundle filed on 15 December 2023
Other:
(d)Section 501G Documents filed on 9 November 2023
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)

The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes ‘another reason’ under paragraph 501CA(4)(b)(ii).
In the present case there is no evidence of family violence (PC2), relevant minor children (PC4), impact on specific victims (OC3) or Australian business interests (OC4).
THE NATURE OF THE OFFENDING
Turnbull J described the offending as follows:
On 10 November 2020, counsel for KFMK applied to withdraw her plea of guilty. KFMK gave evidence on that application. That application was granted by Adams ADCJ, and the matter remitted to the Local Court.
The record-of-interview was conducted with the assistance of an interpreter. As I say, she indicated that there had been “a guy” forcing her to participate, “He threatened to hurt my family and that’s why I was doing everything he told me to do, and this is why I returned to Sydney.” That transcript suggested that she was acting under duress. I do not hold against her the signing of the agreed facts, in fact, I take that into account as a very substantial matter in my consideration of the appropriate penalty here, and I will turn to that in some detail in a moment.
During the course of the trial, I rejected the defence of duress, and I had some scepticism about the offender’s emphasis on motivating threats, which I found not to have been made at all until her departure to Mexico. I did find the following in relation to her conduct and role, but if I might say so, the parties are aware, and anyone interested ought to become aware, of the detail of the judgment in the trial which runs to in excess of 45 pages.
There is an extensive background as to her close association with a person called [Person 1] who was a girlfriend with a person called, [Person 2], who is a link to the cartel in my finding. The Offender indicted that she came to Australia as a result of the boyfriend, [Person 2] paying for her school and her flight. He did the transactions, he deposited money into her account, and for the first four months present in Australia, she was funded in that way. She also suggests that he was the one who gave her the white mobile phone in advance of meeting the undercover officer. I found that, inevitably, she may have suspected, but certainly over the course of time became aware, that what was required of her was much more than receiving the key. Something far more sinister was afoot, and that is in the context of matters referrable to her, and her involvement in the drug milieu with [Person 1] and [Person 2]; her experiences over some years in advance; her attendance at [Person 2]’s house, and her observations therein.
I do accept that she did incur debt in the manner that she set out, that is in the order of between $15,000 and $20,000. I found that she may well have thought, perhaps by putting her head in the sand because she was vulnerable as a result of her drug affiliations, and generally, that when presented with the initial opportunity, that is an opportunity to come to Australia, that she was so excited she considered that that presented to her a new beginning, and she may have convinced herself that it was no more than a minor favour. She indicated in her record of interview various aspects about her life, and her desire to come to a new place, perhaps a new beginning. I accept that she was someone who was inclined to consume significant amounts of drugs in the years in advance of her attendance here.
I consider though that she understood within a short period of time on arriving in Australia that she had enhanced obligations. It is clear that she remained in Australia until such time as the drugs, apparently, were available for collection. That was well beyond the anticipated period of time. She is in a strange land, and it seems that the financial support did run out. She did get a job and I have seen evidence that she was a good worker and highly regarded. She undertook an English course, and as it turned out she has fostered a relationship in Australia which endures to this day. As I say, I accept a degree of naivety in coming to Australia from Mexico, a vulnerability or a capacity in her to be manipulated, and that arises, as I have already indicated, by exposure to drugs, and a lifestyle and also a cultural environment, which seems to suggest that she must have accepted though, that there might be more, and indeed there was more, to be done when she arrived here.
I do conclude that the accused was vulnerable, and I will go into further detail in a moment. She was compromised by obligations on what she owed, and that arose from what had been spent on her behalf. She has additional personal vulnerabilities health wise, and clearly had a problem with drugs, and potentially with alcohol as well. I consider that she may have expressed some of those concerns about involvement to [Person 1], and that her return to Mexico has to be seen in the context of those personal challenges. I expect though, that [Person 1] had been told that she was coming back to Mexico, and [Person 2] undertook a sinister response by way of subtle reminder that her return before the drugs had been received into Australia would upset people.
It is clear that she was an individual who was exposed to detection in her role, and that also allowed for the ‘higher-ups’ to be insulated. I found that she was briefed to perform a task of opening the door for the fee paid by others. I found that she was someone who was capable of negotiating with the UCO in the way that reflected her evident briefing, and her involvement going far beyond the mere receipt of a key.
I accept that she had a sense of loyalty perhaps, and she comes from a potentially normalised drug culture, and I do conclude she did not really understand the potential for detection in this country, as it is apparently much greater than might be expected in her country of origin. Ultimately, she did become a committed participant. I accept though, as the delivery approached, she may have been in two minds. There is evidence that her relationship here was fading, although happily that has been restored and is strong now. There is evidence expressed to the UCO that she was frustrated, having wasted so much time in waiting. She was homesick. She has, I find, frail parents, elderly parents, and no doubt she was keen to go and see them.
However, I do also find that the pre-eminent reason, the dominating reason, for a return to Mexico, was to renew a professional qualification, to retain options for a return to Mexico in that occupation, that was the real imperative for her return. I accept that a threatened reminder may have been seen to be needed by the cartel when she got back there. They were statements which involved, she said, [Person 2] ringing her between two phone calls, and I made some findings in relation to that, phone calls on either side do not seem to reflect the threats. In any event, on the balance of probabilities I accept that she was followed upon her return to Mexico. I accept that she was approached by a man who exhibited a black bag. I accept that he threatened her with reference to completing her task in Australia, and I accept, on the balance of probabilities, that he made a reference to placing her parents in the black bag, or perhaps that would be the body bag.
I did not find that the offender went to Mexico to withdraw from the crime, she went, it seems, for a host of reasons, but as I say, principally to re-register a qualification. In reality she did intend to return. Her life remained here unchanged, her relationship continued, her job continued, her capacity to conclude her role was unimpaired. Indeed, the phone had been left, that is the compromised phone, had been left in a locker at work, and when she returned, she went through with the arrangements for the van, and the obtaining of the inert amounts, although she did not actually drive the van, as it turned out, willingly. She understood that within that van was drugs, and in any event, I did conclude that this is a case where the accused voluntarily associated with others engaged in this criminal activity. She ought reasonably to have foreseen the risk of being subject to compulsion by threats of violence.
I accept that her motivation for coming to Sydney was in part financial, and that there was a financial motive involved here, but it is quantified at a level so far less than the hundreds and hundreds of thousands of dollars which were anticipated to have been required to release the drugs and which no doubt would have on the street been worth many millions, that it pales into insignificance. None of those costs or profits were to be borne or received by her.
It is clear that this offender was though, a trusted facilitator. There are so many aspects of her conduct towards the UCO which were highlighted in the judgment at trial, which demonstrate this offender’s naivety as a criminal. It is clear that she was somebody who was, from time to time, unduly candid. She was patently exposed to detection.
She involved herself in conversations, she was propped up and prompted in conversations with the UCO by others, even during the course of them. Her own mendacity is not apparent. The interactions confirm my view, that she was being utilised by more ruthless associates who recognised that she was someone who had capacities, so many of those have been laid out independently in her work responsibilities and references and the like, but had apparent vulnerabilities and fears that could be exploited. That explains so much about what she ultimately was prepared to do.[32]
[32] G3, 37-42.
Turnbull J made a specific finding that threats to kill were made against her family, and that she returned to Australia to complete her assigned duties because of those threats. He stated:
In any event, on the balance of probabilities I accept that she was followed upon her return to Mexico. I accept that she was approached by a man who exhibited a black bag. I accept that he threatened her with reference to completing her task in Australia, and I accept, on the balance of probabilities, that he made a reference to placing her parents in the black bag, or perhaps that would be the body bag.[33]
[33] G3, 41.
Turnbull J considered that KFMK was an active participant in some unlawful purpose, even if she did not understand the details. Relatively soon after arriving in Australia as a potential migrant, she realised that something more was afoot than doing a minor favour relating to a key. She had ‘enhanced obligations’.[34] His Honour found that she did not return to Mexico in April 2019 to withdraw from the offending, but for other personal reasons relating to her employment in Mexico, her professional qualifications, and a desire to see her parents. If she experienced duress in Mexico during her short visit, it was self-induced. She had by her prior conduct exposed herself to such threats and ought reasonably to have foreseen that risk. His Honour was satisfied that duress could be excluded to the requisite standard.
[34] G3, 39.
However, as noted by the learned judge, the existence of duress is a relevant mitigating factor, even if the circumstances do not give rise to an exculpatory defence.
The Tribunal must of course accept the finding by the District Court at trial excluding the defence of duress. There is no scope for the Tribunal to call into question a conviction upon which the jurisdiction of the Tribunal is founded. Nevertheless, it is hard for this Tribunal to accept that in meeting with the UCO and talking about distribution she was acting free from any compulsion arising from the threats made to her in Mexico. The Tribunal considers that such factors are relevant to assessing the nature and gravity of the offending.
The conclusion to which Turnbull J was led was perhaps inevitable given the statement signed by the Applicant prior to the first aborted District Court hearing. Before the Tribunal she was taken specifically to this statement, and asked to accept it line by line, which she did, although the Tribunal was left with a sense that once again, she felt that she was unable to disagree with anything that she had signed therein.
I note that Turnbull J assessed her role as a relatively low-level participant, although not at the lowest end of the hierarchy. His Honour stated:
She is a woman with no prior record. She is a woman of previous good character, absent the drug aspects. Those are matters that I take into account in her favour.
I conclude ultimately that her role is at the lower end, but not the lowest end of the hierarchy, one that is very extensive indeed. A trusted but manipulated facilitator who was capable of independent action to achieve a straightforward criminal end.
Of course, the amount of drugs is a very important factor, and must be given weight here, but it is certainly not determinative, she must be sentenced for what it is she did.
The maximum penalty facilitates recognition of the experience of the Courts, that a host of conduct can be caught under this section, and indeed the sentencing obligations are reflected within the breadth afforded by the maximum penalty.
In my view this is certainly a matter which is well removed from a mid-range offence, however in my view it is a matter which, as I say, is conduct that is not at the lowest end of the range, nor is it proximate to the mid-range, but nothing but full-time custody is required. In matters of this sort, general deterrence has a great weight, 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.[35]
[35] G3, 43.
In assessing the likelihood of risk to the Australian community, I note the report prepared by a forensic psychiatrist dated 14 August 2020:[36]
Prospects for Rehabilitation
There are a number of major risk factors or needs that have been specifically identified as relevant to the prospects of rehabilitation in relation to offending (criminogenic factors) and these include an antisocial personality pattern; pro criminal attitudes, values, beliefs, and rationalisations; antisocial associates and social supports for crime; substance abuse; inappropriate family or marital relationships; poor school performance or work skills and a lack of involvement in prosocial recreational activities. It has been identified that where these needs are present they ought to be targeted in any rehabilitation program.
KFMK has few criminogenic factors that are associated with reoffending. She does not appear to have an antisocial personality pattern or pro criminal attitudes. She has the support of her family in Mexico and has more recently reported engaging in a longer term intimate relationship. She has established a career in her country of origin as a [redacted] and appears to have the capacity for consistent stable employment. KFMK has associated with pro-criminal or antisocial peers in the context of illicit substance abuse.
KFMK's primary criminogenic needs, requiring management in any rehabilitation plan, include her substance use disorder, and persistent psychological vulnerabilities that increase her susceptibility to peer influence.
Although the evidence regarding protective factors or factors that are associated with a reduced risk of offending is in it's early stages, there has been some research into those factors that lead to desistance (or giving up crime) in relation to high volume offending such as burglary, drug supply and low level violence. Those factors have included getting older; formation of family supports and relationships; sobriety; employment; hope and motivation; empathy for others; association with a non-criminal community; not having a criminal identity and having someone who believes in them.
KFMK appears to have protective factors associated with a reduced risk of reoffending including being involved in a stable relationship; her capacity for employment; not having a criminal identity and having someone who believes in her.[37]
[36] RTB, 32.
[37] RTB, 42-43.
In terms of assessing the risk to the Australian community, I note the following. There is a sentencing assessment report dated 23 June 2022 that refers to a medium-low risk of recidivism.[38] A previous report dated 11 September 2020 refers to a low risk of recidivism.[39] A pre-release report dated 7 November 2023 states that there ‘would appear to be no compelling reasons for [KFMK] to remain in custody’.[40] On 7 December 2023, the NSW State Parole Authority made an order for the Applicant’s release of parole on 17 February 2024 on standard conditions. I am satisfied that the likelihood of recidivism is low.
[38] RTB, 3.
[39] RTB, 29.
[40] RTB, 12.
CONSIDERATION
Given the Applicant’s awareness that she was involved in an enterprise intended to import a commercial quantity of drugs into Australia, I find that those considerations relating to the protection and expectations of the Australian community (PC1 and PC5) weigh against the Applicant. However, in my view, these considerations do not press heavily, given the circumstances under which she was conscripted by the cartel. She was duped by her so-called friends who took advantage of her naivety. Neither the sentencing remarks nor the psychiatric assessment suggest any ingrained criminal tendencies.
As to the other relevant considerations, I note that apart from her fiancé, she has no social or community ties of any significance. Her fiancé has lived in Australia for ten years and is a permanent resident. I accept that the prospect of an ongoing relationship with her fiancé in Australia has significant value to the Applicant and that her removal will be an emotional blow to them both. However, I note that there was strain in their relationship before she went to Mexico, and she was arrested almost immediately upon her return. She did not stay with her fiancé when she returned. I accept the evidence given by her fiancé by telephone at the hearing before the Tribunal that he was supportive of her and committed to their relationship.
The extent of impediments to return to Mexico appear to be minimal. She was a 31-year-old adult when she came to Australia. She now has a positive relationship with her mother and wants to reconnect with her sister. She has a recognised professional qualification in Mexico, and but for the stain of a drug conviction in a foreign country, may be expected to have reasonable prospects of employment. She is well educated. There are no language impediments.
The main obstacle to her repatriation to Mexico lies in her associations with an infamous drug cartel. In her application she has clearly articulated the basis for a non-refoulement claim.
The Respondent’s representative downplayed the gravity of any threat to the Applicant by reason of her past associations. I do not share this sanguine assessment. The cartel in question is an egregious criminal gang and does not value human life. Police protection may be inadequate. I note the comments made by Adams ADCJ:
HIS HONOUR: The situation is, I think, that the power of the drug cartels in Mexico is so notorious. I'm not quite sure if it amounts to a matter of judicial notice, but I don't doubt that Mr Snelling could find a dozen experts, as could the Crown, to tell us how bad it is… Almost every second day one sees just murders, government corruption, it's just an appalling situation.
REVILLE: That's why going to the police is often in Mexico, I understand, an unadvisable--
HIS HONOUR: No, it's more dangerous than staying away from them, that's the problem. But the point is, and I'm acting just on the basis of what is generally publicly accepted and I may be entirely mistaken, this boils down to this fact, if the witness is to be believed, then this is not a plea of guilty. That is the fundamental problem of proceeding and I take it, Mr Crown, you agree that it's difficult. That one way or another these issues may need to be litigated, either in the context of a sentence proceeding or in the context perhaps of a trial.[41]
[41] RTB, 192.

The Direction requires the Tribunal to consider and understand the nature of such a claim but ‘may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed’.[42] The Applicant has applied for a protection visa, and I accept the Respondent’s submission that any non-refoulement claim should be considered in that context.
[42] Direction, para 9.1.2(2).
Given the circumstances of her conscription to this criminal enterprise, the primary considerations relating to the safety and expectations of the Australian community (PC1 and PC5) do not press heavily in this case. Nevertheless, they outweigh PC3 and OC2. The sheer scale of the enterprise involving a very large quantity of methylamphetamine compels this conclusion upon the Tribunal.
Neither the strength, nature, and duration of her ties to Australia (PC3), nor the extent of impediments if removed (OC2) weigh strongly in favour of revoking the mandatory cancellation. These factors cannot outweigh the primary considerations relating to community protection and community expectations.
OTHER REASONS FOR REVOKING THE REVIEWABLE DECISION
A significant aspect of this case is the unusual feature that the Applicant was on bail in the community and subject to stringent conditions for a lengthy period of 22 months, from 10 November 2020 to 7 September 2022. She was required to report twice daily and was subject to an evening curfew, which Turnbull J described as a form of ‘house arrest’.[43] During this long period her bail conditions were progressively relaxed, to reflect her good behaviour.
[43] G3, 50.
In deciding whether there is another reason why the reviewable decision should be set aside, the Tribunal is mindful of the practical consequence of the decision that must be made, which is whether she should be held in immigration detention or in the community under the terms of her parole during the processing period for the protection visa.
I note the material contained in the psychiatrist’s report relating to her mental health, an early diagnosis of ADHD, and occasional bouts of depression. I note also that the sentencing judge found special circumstances because it was her first time in custody, she had mental health issues and recommended the need for ongoing drug rehabilitation.[44]
[44] G3, 59-60.
There is a reasonable basis for concluding that her mental health will be compromised if she is transferred to immigration detention after the completion of the assigned non-parole period. She is a vulnerable person in a foreign country and would continue to be shut off from the support of her family and fiancé.
She is entitled to substantial credit having successfully completed a long period on bail between the two District court hearings referred to above. Given the low risk of recidivism, there is no compelling reason for her to be detained in immigration detention for what might be a considerable processing period. Her good behaviour during the long period of bail should be rewarded. I note especially the view expressed by the NSW Corrective Services in the pre-release report dated 7 November 2023 that there is no compelling reason for her to be in custody.[45]
[45] RTB, 12.
I am satisfied that the community will not be at risk. The Parole Board has already made an order for her release on 17 February 2024. I note that her sentence does not end until 17 February 2027 and during this time she will be subject to ongoing parole conditions.[46]
[46] G3, 60.
Finally, I note that this is a case where the visa that is restored by this process will last only so long as the protection visa application is on foot. As put by the Respondent:
If the Tribunal sets aside the delegate’s decision the applicant will remain in custody until she is released, and on release she would enter the community on a bridging visa. That bridging visa will cease on the determination of the applicant’s protection visa application.[47]
[47] RSFIC, para 54.
If her application for a protection visa is unsuccessful, the visa will automatically cancel.
I have therefore decided to set aside the reviewable decision and restore her bridging visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 20 October 2023 that the mandatory cancellation of the Applicant’s Class WC Subclass 030 Bridging Visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........[SGD]..............................................................
Associate
Dated: 12 January 2024

Dates of hearing: 3 and 11 January 2024

Applicant: In person

Solicitors for the Respondent: Mr J. Hutton, Australian Government Solicitor

[2024] AATA 18

12 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	3 and 11 January 2024
Applicant:	In person
Solicitors for the Respondent:	Mr J. Hutton, Australian Government Solicitor