KHGY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1349
•18 May 2020
KHGY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1349 (18 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1031
Re:KHGY
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date:18 May 2020
Place:Brisbane
The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
..............................[SGD].........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
18 May 2020
THE ISSUE BEFORE THE TRIBUNAL
KHGY (“the Applicant”) is a 27 year old citizen of New Zealand. In 1996, when she was three years old, she relocated to Australia with her family and she has not left Australia since.[1]
[1] Exhibit G1, G-Documents, G-2, page 68.
In August 2019 the Applicant was convicted of multiple offences and sentenced to concurrent periods of imprisonment of 15 months (x2), 12 months, six months, and three months.[2]
[2] Ibid, pages 26 to 27.
This led to the Respondent deciding to mandatorily cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“visa”) under s 501(3A) of the Act on the basis that she did not pass the character test. The Applicant subsequently made representations as to why the decision should be revoked. The Respondent decided not to revoke its decision (“decision under review”).[3]
[3] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions, page 1, paragraphs 1 to 2.
The Applicant has lodged an application with this Tribunal seeking a review of the decision under review.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Exhibit G1, G-Documents, G-2, page 9 to 11.
In the hearing of this application the Applicant gave evidence by video link and her mother and another witness, Mr A, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
I note that Exhibit R2 is a bundle of documents that was summonsed by the Respondent. Upon receipt of those documents by the Tribunal, copies were forwarded to the Applicant’s lawyer and Respondent’s lawyer. In the normal course the Respondent would discern which of the documents were relevant, then file a copy of those and serve a copy on both the Applicant and her lawyer. Unfortunately, that did not occur in this matter, and that is no criticism of the Respondent’s legal representative who appeared at the hearing having taken over carriage of the matter after this oversight occurred. Exhibit R2 is made up of police records relating to the Applicant. The Applicant did not have an opportunity to review those records and seek advice from, or provide instructions to, her lawyer in relation to them prior to the hearing or prior to giving evidence. The Respondent contended that, in those circumstances, the Tribunal should not make any finding that prefers the evidence contained in those records to evidence given by the Applicant, noting that the information contained in the documents is evidence of persons who were not available for cross‑examination (thus the evidence is untested).[5] I consider this to be a proper approach and one that is fair to the Applicant.
[5] Transcript, page 88, line 35 to page 89, line 8.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant is 27 years old and has three children aged three, four and five. Her mother, father and four siblings live in Australia. She also has four half-siblings, on her father’s side, in Australia.[6]
[6] Exhibit G1, G-Documents,G-2 pages 51, 55, 59, 65 and 66.
The Applicant moved to Australia with her family when she was three years old. Her parents’ marriage broke up when she was 13 years old. In relation to this her mother said “Over the years [the Applicant]’s dad physically and verbally abused us. I had to stop this and escaped to a womens (sic) refuge with my five children”.[7] The Applicant’s mother changed her name to avoid being found by her father.[8] The Applicant spent the following years living between her parents’ houses which, according to her, caused her a lot of emotional distress and she “acted out”.[9] The Applicant said her father was physically and mentally abusive towards her.[10] I accept that the Applicant grew up in a home where there was physical abuse and that her father was psychologically and physically abusive to her.
[7] Ibid, page 75.
[8] Ibid.
[9] Ibid, page 44.
[10] Transcript, page 10, lines 9 to 10.
The Applicant’s first recorded sentencing episode was in 2008 when, at the age of 15, she was sentenced for stealing and receiving stolen property (or property fraudulently obtained). At that time she was living with her father.[11] She said the item she stole was a hoodie.[12]
[11] Transcript, page 11, lines 35 to 42.
[12] Transcript, page 12, lines 1 to 2.
The Applicant said that between the ages of 16 and 20 she alternated between being homeless and living with her father. She said when living with her father got too much because of his violence she would return to the streets.[13] Her mother gave evidence that she did not have much contact with the Applicant between the ages of 16 and 20 because she was living with her father, and that she was unaware that the Applicant had been homeless at that time.[14] The Applicant received youth allowance from the age of 17, however, her payments were often cut off because she would forget to report to her job service provider as required.[15]
[13] Transcript, page 9, lines 35 to 38 and page 10, lines 14 to 22.
[14] Transcript, page 65, line 12 to page 66, line 24.
[15] Transcript, page 40, lines 35 to 40.
In 2009 the Applicant was convicted of affray and assault occasioning bodily harm whilst armed/in company. A conviction was not recorded and she was sentenced to probation for 12 months. The Applicant described this incident as involving a fight with a girl, and subsequently said it involved two groups who were fighting.[16] She denies that she was armed[17]. I accept that “armed” and “in company” are alternatives for that offence. I find that the Applicant was involved in a fight involving two groups and that she assaulted a female.
[16] Transcript, page 12, lines 25 to 31.
[17] Ibid, lines 40 to 47.
The balance of the Applicant’s criminal history, between the ages of 16 and 20, is made up of:
· unauthorised dealing with shop goods (x4);
· possessing dangerous drugs;
· possessing utensils or pipes (x2);
· contravening a direction or requirement (x2);
· failure to appear in accordance with bail undertaking (x2);
· stealing; and
· receiving tainted property.
For most of these offences a conviction was not recorded. The Applicant said that when she was homeless she engaged in crimes to support herself including shoplifting clothes and food,[18] and she occasionally used marijuana.[19] Her explanation is consistent with the types of offences she committed and the relatively lenient sentences imposed.
[18] Transcript, page 10, lines 24 to 29; page 13, lines 35 to 44.
[19] Transcript, page 13, lines 30 to 34.
When the Applicant was 20 she lived in an apartment through Youth Services. During this time she was convicted of possessing utensils or pipes and receiving tainted property, both offences having been committed on the same date. Her evidence was that she had a party at her home and police found a bong for which she took the blame.[20]
[20] Transcript, page 22, lines 25 to 34.
In early 2014 she twice breached a bail condition, committed a public nuisance, contravened a direction or requirement, and in 2015 she was dealt with for breaching a probation order (arising out of breaching a bail condition) and a community service order (arising out of committing public nuisance).
While not being homeless, the Applicant lived a somewhat transient existence for the next several years, moving between the homes of relatives and friends, and for six months having her own rental accommodation with her then partner. She had her first child in 2014 and her second child in 2015.[21]
[21] Exhibit G1, G-Documents, G-2, page 55.
In 2016, the Applicant was twice found trespassing, and was subsequently convicted in relation to both offences.[22] She gave evidence that she could only remember one trespassing episode and that this had occurred at a time when she was living with her sister. She had left her two children in the care of her sister so she could spend a weekend socialising and drinking.[23] During that weekend the police told her to stay away from Surfers Paradise and because the apartment that she had booked for the night was in Surfers Paradise she and her friends had nowhere to stay. The Applicant was drunk at the time,[24] she and her associates went to an abandoned house to continue drinking, and she was subsequently found there by police.[25]
[22] Ibid, page 28.
[23] Transcript, page 26, lines 14 to 16.
[24] Transcript, page 27, lines 35 to 38.
[25] Transcript, page 26, lines 5 to 46; page 27, lines 1 to 2.
There was a period in which the Applicant’s mother looked after her two children. The Applicant estimated that this was for around one year. Her mother initially estimated that it was two years, between 2016 and 2018, and that the Applicant’s eldest child was two and her third child had not yet been born.[26] The Applicant’s mother subsequently estimated that the period was 2015 to the end of 2017.[27]
[26] Transcript, page 62, lines 30 to 35.
[27] Transcript, page 63, lines 13 to 15.
The Applicant had her third child in January 2017.[28] The Applicant gave evidence that her two older children were in the care of her mother because her partner went to prison[29] and it was free for her mother to put the children in daycare whereas it would have been expensive for her.[30] She was unable to explain why she thought that was the case and she admitted that she had not enquired with Centrelink about receiving a childcare benefit or subsidy for those children.[31] She said she had care of her daughter and put her in daycare during this time and that it was a “little bit” expensive.[32] The Applicant’s mother gave evidence that she took over the care of the children because the Applicant and her partner were having problems and she did not think the children were safe around the Applicant’s partner.[33] I find the Applicant’s mother’s evidence as to why the two older children were in her care more plausible than the Applicant’s and I accept it and reject the Applicant’s explanation.
[28] Exhibit G1, G-Documents, G-2, page 55.
[29] Transcript, page 38, line 21.
[30] Transcript, page 39, lines 10 to 23.
[31] Ibid, lines 25 to 35; page 40, lines 1 to 10.
[32] Transcript, page 39, lines 34 to 43.
[33] Transcript, page 63, lines 1 to 11.
The Applicant’s mother said that at the end of 2017, the children’s father begged her for a chance to take care of his children so she gave the two she was looking after into his care, however, he became violent. She became sick with breast cancer, so the Applicant’s younger sister took over care of those children.[34] I find that the Applicant’s mother was the full-time carer of the two eldest children between some time after September 2015 (when the second one was born) and the end of 2017, at which time they were transferred into the care of the Applicant’s sister for a period.
[34] Ibid, lines 13 to 28.
In mid-2018, the Applicant and the father of her three children split up. At that time she and her three children lived with her ex-partner’s aunt.[35]
[35] Transcript, page 33, lines 16 to 21.
While the Applicant’s mother was sick with breast cancer she was unable to help the Applicant although the Applicant asked for help on many occasions.[36]
[36] Exhibit G1, G-Documents, G-2, page 76.
Between June and December 2018 the Applicant volunteered, on and off, with a charity, handing out blankets, food and toiletries for the homeless. She said she did it because she knew what it felt like to be homeless.[37]
[37] Transcript, page 52, lines 14 to 40.
In late 2018 the Applicant was convicted of being intoxicated in a public place.[38]
[38] Exhibit G1, G-Documents, G-2, page 28.
In December 2018, the Applicant was at a friend’s house when her ex-partner, who was on the run from police, arrived in a stolen car. He had phoned her beforehand asking where she was. When he arrived, she asked him to take her to the chemist as she needed Ventolin and other medicine for their son. He took her and then returned her to her friend’s home.[39] The police attended the residence and questioned her. She admitted that she had gone to the chemist with her ex-partner.[40] She attended the police station, was granted bail, and given a court date.[41] However, she was too scared to go to court so she went on the run.[42] The Applicant left her three children in the care of her younger sister.[43] She said, at this time, she felt depressed and unwanted by her family.[44]
[39] Transcript, page 33, lines 42 to 46; page 34, lines 20 to 27.
[40] Transcript, page 34, lines 1 to 2.
[41] Ibid, lines 34 to 39.
[42] Transcript, page 16, lines 1 to 2.
[43] Transcript, page 35, lines 7 to 17.
[44] Exhibit G1, G-Documents, G-2, page 45.
The children have been in the Applicant’s younger sisters care ever since. The Applicant gave evidence that during the time she was on the run she “couch-surfed” and lived on the street, and that she visited her children around once every two weeks.[45]
[45] Transcript, page 35, lines 19 to 26; page 36, line 36.
In January 2019 the Applicant got into a stolen car, was caught by the police, was granted bail, and was given a court date.[46] In relation to this offence, the Applicant told the Tribunal that she was in a stolen vehicle, the police had driven past, the driver had evaded the police and lost them for around five minutes, and that everyone but her had abandoned the vehicle but she stayed and was with the vehicle when the police arrived.[47]
[46] Transcript, page 35, lines 27 to 36.
[47] Transcript, page 54, lines 40 to 48.
On 14 February 2019, the Applicant was the passenger in a stolen vehicle. The vehicle was parked in the emergency set down and pick up area of a hospital. While the Applicant subsequently pleaded guilty to unlawful use of a motor vehicle, she denied to the Tribunal that it was stolen. She said that the person who was driving the car owned the car. She claimed that she had walked away from the car and did not hear the driver tell the police, in answer to a question about who owned the vehicle, “To be honest, it’s stolen”.[48]
[48] Transcript, page 53, lines 1 to 41.
According to a police court brief, between 16 and 19 February 2019, a car rental business was broken into through the car wash area, six sets of car keys were stolen, and a vehicle was taken. That vehicle was then driven on 18 February 2019 to a carpark and a person got out of that vehicle, broke into another vehicle and stole items from it, then got back into the stolen vehicle. The Applicant subsequently pleaded guilty to enter premises and commit indictable offence by break, unlawful use of motor vehicle, enter premises and commit indictable offence, and receiving tainted property in relation to these incidents. However, in an email to the Respondent in November 2019 she said she was not guilty of the two enter premises offences and one unlawful use of motor vehicle offence from February 2019. She said she pleaded guilty on advice from her lawyer.[49] She told the Tribunal that she had no involvement at all in the offences and was never there. She said she was “stupid” for pleading guilty.[50]
[49] Exhibit G1, G-Documents, G-2, page 80.
[50] Transcript, page 54, lines 15 to 25.
On 20 June 2019 at around midnight the Applicant was caught driving a stolen car with methamphetamine in her saliva.[51] She said that, at the time she was “pretty high”.[52] She was remanded in custody[53] and she has been in prison or Immigration Detention ever since. The Applicant said she had used “ice” to help stay awake when she was on the run, between March and June 2018, and that she used it once or twice a week in that period.[54]
[51] Exhibit G1, G-Documents, G-2, page 27; Transcript, page 51, lines 19 to 30.
[52] Transcript, page 44, lines 24 to 25.
[53] Exhibit G1, G-Documents, G-2, page 32.
[54] Transcript, page 36, lines 15 and 16; page 44, lines 29 to 38.
On 15 August 2019 the Applicant was convicted of the following offences and sentenced as follows:
Date of offence
Offence
Sentence
20.6.19
Unlawful use of motor vehicle 15 months imprisonment
Drug-driving Convicted and not further punished, disqualified for 3 months Unlicensed driving 16-19.2.19 Enter premises and commit indictable offence by break 15 months imprisonment
18.2.19 Unlawful use of motor vehicle 23.12.19 Unlawful use of motor vehicle 12 months imprisonment 14.2.19 Unlawful use of motor vehicle 18.5.19 Breach of bail 3 months imprisonment 21.1.19 Unlawful use or entry of motor vehicles 6 months imprisonment
18.2.19 Receiving tainted property 18.2.19 Enter premises and commit indictable offence 14.2.19 Stealing Conviction recorded and not further punished
21.1.19 Possess utensils or pipes 10-13.5.19 Breach of bail 27.5.19 Breach of bail 29.5.19 Breach of bail 3.6.19 Breach of bail
The learned sentencing Magistrate said the following to the Applicant when passing sentence:
“You have pleaded guilty to these offences, which I take very much into account. I cannot give you the same discount I would have if you had not continued to commit further offences whilst on bail. Like many people, you were under - clearly under the influence of methylamphetamine, and rather than thinking that you were hanging out with the wrong people, you have become the wrong person. You are a person who steals other people’s cars for the immediate gratification of yourself and travelling around with your friends, taking drugs, rather than looking after your children, which is probably the most - single most important function you have on this planet.
…
One of the more serious matters is that you, along with [name redacted], decided to go to a car wash and steal six different sets of keys and then take a Mercedes wagon. At the time, it may have only been a few months old. It was certainly no more than a year old. And then you used that car to go around and facilitate breaking into other people’s cars and taking things out of their vehicles.As I have said, you were on a number of bail undertakings, and you consistently failed to report, though I note that you did report from time to time...
…
The other offence of concern is the - you turned up in…a bronze Honda Civic, which, again, has been taken from its legitimate owner, and perhaps most seriously, at the end, this landed you in custody. Not surprisingly is that a car reported stolen sometime after 8 pm on the 16th of June - you are driving it only a few days later and you do not have a driver’s licence. Your learner’s licence was first suspended at the time and you were clearly under the influence of drugs at some point because some of those were in your system.
…You deserve 15 months in prison and you deserve to stay in there a little bit longer. I am going to leave you in there for another month which will mean that you will actually have 12 months on parole.”[55][55] Exhibit G1, G-Documents, G-2, G-2, pages 31 and 32.
As I have indicated, the Applicant denied involvement in the offences committed between 16 and 19 February 2019. These offences attracted penalties of 15 months and six months. The Tribunal may not make a finding that is contrary to a conviction, or the facts underpinning a sentence, that grounds a decision-maker’s jurisdiction.[56] The convictions that the Applicant now disputes led to the imposition of sentences that, along with other sentences, precipitated the mandatory cancellation of the Applicant’s visa under s 501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act, thus enlivening the Minister’s power under s 501CA of the Act to make the decision under review. Accordingly, I reject the Applicant’s evidence as far as it is inconsistent with her convictions and the facts relating to those convictions that were accepted by the learned sentencing Magistrate.
[56] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In relation to the Applicant’s unlawful use of a motor vehicle on 14 February 2019, for which she was sentenced to 12 months imprisonment, she claimed that the vehicle in question was not stolen and that the driver owned the vehicle. Her conviction is not consistent with the vehicle not having been a stolen vehicle so I reject that part of her evidence. I further reject that she (mistakenly) believed that the driver of the vehicle owned the vehicle as this does not seem plausible in the context that she had been riding around in stolen cars in the months beforehand and she offered no reason to the Tribunal as to why she thought that particular vehicle was not stolen.
I am satisfied that during the period from December 2018 to June 2019 the Applicant:
· failed to report in accordance with bail conditions on several occasions, although did report sometimes;
· occasionally used methamphetamine;
· was a passenger in a stolen car on four occasions;
· drove a stolen car, unlicensed, with methamphetamine in her system on one occasion; and
· was involved in breaking into a car rental premises, stealing car keys and stealing a car. I am further satisfied that, while a passenger in this stolen car, she was involved in breaking into another (parked) car and taking items from it.
The sentences of imprisonment were ordered to be served concurrently and the Applicant was given a non-parole period of three months, from which the time she had spent on remand was deducted. Her custodial term ended on 13 September 2019 and since then she has been in Immigration Detention. If she is released she will be on parole until 14 November 2020.[57]
[57] Exhibit G1, G-Documents, G-2, page 38.
The Applicant’s children remain in the care of her younger sister. Her mother looks after them every weekend, or every second weekend in the holidays, although she has not been able to since the COVID restrictions took effect.[58] The Applicant’s mother considers that the children are well cared for.[59]
[58] Transcript, page 62, lines 1 to 3
[59] Transcript, page 64, line 1.
The Applicant has elected not to have her children visit her in prison as she does not think it is a good place for her children to be.[60] However, she is currently in contact with all three children via video calls every day. Her sister facilitates these.[61] When the Applicant speaks with her children she considers that they seem happy and well cared for, although she does not approve of the way her sister disciplines them.[62] The Applicant’s mother said the children frequently ask about the Applicant and want to know when she is coming home. They get excited when the Applicant calls them and when they call her.[63]
[60] Exhibit G1, G-Documents, G-2, page 45.
[61] Transcript, page 51, lines 35 to 40; Exhibit G1, G-Documents, G-2, page 80.
[62] Transcript, page 55, lines 10 to 25.
[63] Transcript, page 67, lines 20 to 30.
The Applicant’s mother she said she and the Applicant’s younger sister had tried to return the children to the children’s father but he refused to take them.[64] The Applicant’s mother said she now does not want to return the children to their father and that she thinks the children would prefer to live with her.[65] When asked if she was prepared to look after them if the Applicant could not and her younger daughter refused to, she answered in the affirmative.[66]
[64] Transcript, page 64, lines 20 to 23.
[65] Transcript, page 66, lines 42 to 45.
[66] Transcript, page 64, lines 30 to 31.
The Applicant did not give definitive evidence about what would happen to her children if she were to be removed from Australia. In a statutory declaration provided to the Tribunal she said she would have to leave her children behind if she were deported. She gave evidence that she worries that they would struggle with her because she does not have any support in New Zealand, and asked who would look after her children if she was sick.[67] She said her children would probably stay in Australia with her sister because of the lack of support in New Zealand. She said her sister was not happy about it and had “mixed emotions”.[68] The Applicant’s sister, who has care of her children, did not give evidence in the hearing. The Applicant said she had asked her to but her sister told her that looking after her children was good enough and that was all the help she would give.[69]
[67] Transcript, page 17, lines 1 to 23.
[68] Transcript, page 37, lines 30 to 46; page 38, lines 1 to 7.
[69] Transcript, page 37, lines 20 to 23.
The Applicant’s mother provided two letters of support and gave evidence in the hearing. She said that she is worried that her daughter will harm herself if she is sent to New Zealand because she has nowhere to go, does not know anyone there and she suffers from depression and anxiety.[70]
[70] Transcript, page 60, lines 5 to 12.
The Applicant underwent a psychological assessment, by a Mr Cinar, psychologist, for the purpose of these proceedings. She had never previously been assessed or sought treatment. Mr Cinar diagnosed her with complex Post Traumatic Stress Disorder (PTSD) and pointed to her exposure to domestic violence throughout her childhood and adolescence.[71]
[71] Exhibit A5, Psychological Report of Mr Hasan Cinar, paragraph 6(4).
If the Applicant is allowed to return to the Australian community, she intends to live with her children and her mother in a home currently occupied by her mother and the owner of the home, a Mr A who is a long-time friend of her mother. The Applicant’s mother has been sharing Mr A’s four bedroom home with him for 12 years[72] and Mr A has known the Applicant since she was a teenager.[73]
[72] Transcript, page 60, lines 15 to 20.
[73] Transcript, page 42, lines 36 to 37.
Mr A, who is 73 years of age[74] gave evidence before the Tribunal. He impressed as a down to earth, forthright witness and I accept this evidence. When asked if he had a close relationship with the Applicant he said:
“Well, put it this way. I never used to cop any crap off her and I told her the way it was, it’s as simple as that. Like, the rules in this house are - they weren’t strict but I wouldn’t cop any crap from them.”[75]
[I take “them” to refer to the Applicant and her siblings]
[74] Transcript, page 73, line 5.
[75] Transcript, page 72, lines 25 to 30.
Mr A said he was not previously aware that the Applicant had been homeless, using drugs and committing offences. He was very concerned for the Applicant’s children possibly being without their mother. He said he was prepared to allow the Applicant and her children to live in his home rent-free on a long term basis.[76] He said if he thought she was using drugs again he would call the police straight away.[77]
[76] Transcript, page 73, lines 1 to 2.
[77] Transcript, page 73, lines 11 to 12
The Applicant’s mother said that Mr A loves the Applicant’s children and treats them as though they were his own.[78] She said she is now cured of cancer and “100% well”, so she is able to look after the Applicant with her children.[79] She is further prepared to help the Applicant get help in relation to her mental health.[80]
[78] Transcript, page 65, lines 4 to 7.
[79] Transcript, page 61, lines 1 to 11.
[80] Transcript, page 61, lines 13 to 16.
The Applicant would like to get a job but realises it is very difficult with her criminal history. She said she would like to study nursing but the only clinic that would take her with her criminal history is in Melbourne. She said possibly if her mother was prepared to look after her children she could study nursing in Melbourne.[81]
[81] Transcript, page 46, lines 24 to 26.
The Applicant and her mother both gave evidence that the Applicant has no-one in New Zealand. The only person the Applicant knows in New Zealand is a half-sister who briefly lived in Australia and with whom she barely speaks.[82]
[82] Transcript, page 17, lines 24 to 25
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[83]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[84]
[83] [2018] FCAFC 151.
[84] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[85] I will address each of these grounds in turn.
[85] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to two terms of imprisonment of 15 months in addition to other shorter terms of imprisonment, with a non-parole period of three months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[86] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test.[87] She cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.
[86] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
[87] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 7.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[88]
[88] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[89] and “Other considerations”.[90] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[89] The Direction, paragraph 13.
[90] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[91]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[92]
[91] [2018] FCA 594.
[92] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decisionmaker’s application of the primary considerations and other considerations are summarised 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
The Applicant’s offending when she was between the ages of 15 and 20 (2008 to 2013) was relatively minor, consisting mainly of shoplifting and breaching bail. The offending was closely associated with her very unfortunate living situation – which alternated between living with an abusive parent and living on the streets. The offences mostly attracted small fines and a community based order. Accordingly, with the exception of the affray and assault occasioning actual bodily harm, I give these offences very little weight. The affray and assault occasioning actual bodily harm is an offence of violence and, it was committed against a female who was quite possibly a minor. According to the Direction, these factors make it serious. However, taking into account that: this offence was committed in the context of a fight between two groups and there is no evidence that it was an unprovoked attack; that it was committed eleven years ago when the Applicant was herself a minor; and I am not satisfied that the Applicant has committed subsequent acts of violence, I give it limited weight.
The Applicant’s offending between 2014 and November 2018 was also relatively minor, consisting of public nuisance (the facts of which were not established in the hearing), breaches of bail, contravene direction or requirement, trespass and being intoxicated in a public place. Again, the penalties imposed were small fines and community based orders. One aspect that does render the offending more serious is that some of it breached community based orders.
None of the Applicant’s offences appear to have been committed against vulnerable people within the meaning contemplated by sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction. The contravene a direction or requirement offences (in 2010 and 2014) involved police in the sense that the Applicant disobeyed police directions, however, this is not the same as committing an offence against police.
In terms of the cumulative effect of repeated offending, the shoplifting offences deprived shops of food and clothing items that could have otherwise been sold for profit, and the breaches of bail presumably caused inconvenience to the police and courts. These are not insignificant impacts but in the scale of seriousness of offending they are at the lower end.
Of greater concern is the period between December 2018 and June 2019 when the Applicant committed multiple offences while on bail.
Members of the community should be able to go about their day without their cars or other property being stolen. The evidence is that the Applicant was involved in one instance of stealing a car and one instance of stealing from a car. The other unlawful use of a motor vehicle offences relate to her being a passenger or driver in cars that had been stolen by others. There is no evidence that she encouraged the stealing of those vehicles. Rather, the first time she was involved in the unlawful use of a motor vehicle, her ex-partner had asked her where she was and then attended that location in a stolen vehicle. She had used the vehicle (as a passenger) to do some shopping.
I note that at this time the Applicant was without the support of her mother due to her mother being sick with cancer.
There does appear to be a trend of increasing seriousness in the Applicant’s offending in the sense that she went from relatively low-level, nuisance type offending to being involved in the theft of a car and the use of stolen cars. Her most recent offence, involving unlicensed driving and drug-driving, for which she did not give an explanation, adds a dimension of seriousness as driving under the influence of alcohol or drugs involves potential risk of serious harm to other road users.
The sentences that the learned sentencing Magistrate imposed for the break-in at the car rental business and the unlawful use of motor vehicles were substantial. His Honour’s sentencing remarks indicate that among the matters he took into account were the facts that the Applicant committed some offences while on bail, and that she stole other people’s cars for her immediate gratification rather than looking after her children, which he characterised as the “single most important function [she had] on this planet”. It is apparent that, in determining the seriousness of the Applicant’s offending and the appropriate penalties, His Honour took into account her irresponsible attitude.
There is no evidence that the Applicant caused damage to any of the vehicles she stole or used unlawfully. There is no evidence that her offending involved violence or that any victims were vulnerable people or government officials acting in the performance of their duties.
It is difficult to quantify any tangible cumulative effect of her repeated offending as I am not satisfied that the Applicant was involved in stealing more than one car and there is no evidence that her use of vehicles that had been stolen by others caused harm to persons or property beyond, presumably, inconvenience to the owners of the vehicles.
There are aspects of the Applicant’s offending, in its totality, that are serious. It is concerning that she has consistently found herself before the courts since 2009. The escalation in her offending to the point where she broke into a business and stole a car while on bail is also concerning. However, in these types of matters, there is a spectrum of seriousness, and paragraphs (a) to (i) assist decision-makers to determine where on that spectrum an Applicant’s offending lies. Applying those factors, the Applicant’s offending, even including the offending between December 2018 and June 2019, is at the lower end of that spectrum.
I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply in this matter.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)paragraph 13.1.2(1)(a) requires me to consider 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)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of her offending to date, including any escalation in her offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant’s past offending includes the following types of conduct:
·assault occasioning actual bodily harm;
·minor stealing/receiving;
·possession/use of cannabis or methamphetamine;
·breach of bail;
·contravene direction or requirement;
·public nuisance;
·trespass;
·public intoxication;
·break and enter;
·stealing a car;
·use of stolen cars;
·unlicensed driving; and
·drug-driving.
The nature of harm should the Applicant commit further assaults is physical injury. The nature of harm flowing from minor stealing offences is that members of the community and business would be deprived of property or suffer monetary loss. Although, I note that the losses arising from the Applicant’s offending appear to have been minor. Further drugdriving poses a very real risk of serious harm to other road users. Further break and enters and theft of cars is likely to result in, at the very least, inconvenience and a feeling of violation to the owners of the cars and premises. If the Applicant were to engage in further offences involving breaching bail, contravening a direction or requirement, public nuisance, trespass and public intoxication she would essentially cause annoyance and inconvenience to other members of the community and some frustration of the criminal justice system.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
Excluding the offences that the Applicant committed to feed and clothe herself while she was homeless, the common theme in her offending is that it is impulsive, foolish and committed with other people. Highly relevant then is whether she is prepared to grow up and stop associating with bad influences. There is some evidence that she has done some growing up since being imprisoned and having her visa cancelled.
In her request for the revocation of the decision to cancel her visa, which she lodged in September 2019, the Applicant said:
“If I’m granted [with] this visa I can definitely guarantee that I WON’T mess up [with] the law again. This whole experience has definitely snapped me out of it. It made me realise what I had until it was gone.
I’m ready to be a mother to my kids again. I’m their primary carer. I don’t want my kids growing up knowing that both their parents are in jail (let alone one about to be deported).
I’m asking for forgiveness and I truly truly apologise to the Australian Community and my family for being such a selfish human. I don’t EVER want myself and my family to be put in this situation again.
I hope I make sense to you. I’m not a very good writer, but I hope you understand my life events, my family and I are not perfect and I am upset about the decisions and actions I’ve made.”[93]
[93] Exhibit G1, G-Documents, G-2, page 46.
In relation to her children specifically, she said:
“… without them I’d probably be in a much (sic) disastrous situation than what I’m in now. I’ve made some really bad choices and I sit here doubting myself cause I have left my kids with family and without their parents for a period of time when I should have just made the right choice by them.[94]
[94] Ibid, page 56.
In relation to her risk of re-offending she said:
“I believe that at the time of my offences, my thoughts and actions were appauling (sic). I think hanging around a crowd that commit such offences, no doubt had me put in the books. What puts me at risk of offending in the future is not changing as a person not for myself but my kids & family. I really do believe that if it wasn’t for Border Force to tell me of my cancellation, I would have most probably got out and reoffended. This is a real eye-opener.”[95]
[95] Ibid, page 60.
An email the Applicant sent to the Respondent included the following:
“I hope that you understand that I am not the same woman iwas when I committed these crimes. Iam filled with remorse, regret and utter embarrassment that any of these charges are under my name, let alone the fact that I even have a criminal record.
…
I generally keep to myself here and while its (sic) easy now for me to make good decisions for myself and my children. I do find the isolation here very difficult to deal with. But I’m willing to do whatever it takes to get back my babies.”[96][Errors in original][96] Exhibit G1, G-Documents, G-2, page 80.
When the Applicant was asked by her lawyer what she learned in prison she replied:
“Never to go back. I was actually scared in there…What did I learn from it? Never to commit another offence again, I guess. That sounds so dumb – don’t know.”[97]
[97] Transcript, page 18, lines 36 to 39.
When he asked how she could be trusted not to re-offend she said that was a hard question and when prompted to try to answer she said her children were the reason she would not re-offend and she added that she had been selfish.[98]
[98] Transcript, page 18 line 41 to page 19, line 8.
When the Tribunal asked what her plan was to avoid re-offending she said “Look after my kids and hopefully look for a job, because I’ve never had a job before”.[99] When asked if there was anything else that would help her to avoid returning to old habits she said “My mum. My mum, I didn’t have her most of my – almost half my life. My mum.”[100]
[99] Transcript, page 19, lines 38 to 39.
[100] Transcript, page 19, lines 35 to 43.
The Applicant was asked by the Respondent what her intentions were if she were returned to the community. She responded “My intentions are never to come back here and never to commit a crime. I don’t want to face deportation again”.[101]
[101] Transcript, page 56, lines 20 to 25.
While the Applicant denied responsibility for some of her offending, her evidence about her criminal behaviour in general, and her admissions that she was selfish and irresponsible were frank and uncontrived.
The Applicant has only ever been imprisoned once. She has now been in either prison or Immigration Detention for nearly eleven months. There is no evidence before me that she has not been of good behaviour, or that she has used illicit drugs, while incarcerated. I accept that being imprisoned and having her visa cancelled has given her a respect for the law that she was sorely lacking prior to her incarceration. I further accept that, while she has often not been the primary carer of her children, the prospect of having no physical presence in their lives and no potential to be their primary carer is deeply distressing to her. In that sense, the Applicant has learnt her lesson. However, there are other factors that determine the risk that she will re-offend if she is returned to the wider community.
Mr Cinar interviewed the Applicant by telephone on two occasions. He said that best practice in terms of a psychological assessment is to interview a person face-to-face.[102] I take into account that the accuracy of his assessment of the Applicant is somewhat limited by his inability to use evaluative methods that require a face-to-face interview.
[102] Transcript, page 81, lines 20 to 32.
Mr Cinar’s diagnosis of complex PTSD was not challenged by either party and I accept it. Mr Cinar said there was a medium risk that the Applicant would re-offend and that was not challenged. He said his risk assessment was largely based on the Applicant’s criminal history and the fact that she has not had any mental health treatment. He said the risk was ameliorated by some protective factors such as family support and the Applicant’s remorse which he considered to be genuine,[103] and could be further reduced by continued family support and treatment for the Applicant’s psychological condition.[104] He said that a medium risk level was associated with a 30 to 40% chance of a person returning to jail within the next 12 months. This, to my mind, is a significant risk.
[103] Transcript, page 77, line 37 to page 78, line 5; page 82, lines 8 to 10; page 82, line 33.
[104] Transcript, page 78, lines 1 to 8.
Mr Cinar did not consider the Applicant to have a dependence on methamphetamine. He said in his report that the Applicant’s use of methamphetamine had been precipitated by her “marriage breakdown”.[105] He said in oral evidence that it was precipitated by being in a toxic relationship with her ex-partner. He opined that her risk of further use could be minimised due to her no longer being in that relationship. When he was asked if his opinion would change if she had used methamphetamine when she was not in that relationship, he said it would, and that he would consider there to be a higher risk of her returning to methamphetamine use[106] (the logic being that her use could not be attributed to a factor that is no longer present in her life). However, the Applicant gave evidence that she used methamphetamine partly to stay awake when she was on the run. It is also apparent that the Applicant was still associating to some degree with her ex-partner after they broke up. I am satisfied that the Applicant’s use of methamphetamine was precipitated by multiple factors associated with the recent breakdown of her relationship, being on the run and having some degree of contact with her ex-partner, and that it is most unlikely that she will experience a similar combination of factors if she is returned to the community and lives with her mother and Mr A as planned. Accordingly, I do not accept that the risk of the Applicant returning to methamphetamine use is higher than Mr Cinar’s initial assessment.
[105] Exhibit A5, Psychological Report of Mr Hasan Cinar, paragraph 4(1).
[106] Transcript, page 80, line 33, to page 81, line 4.
Furthermore, I am not satisfied that the Applicant has any kind of drug dependency. She gave evidence that she occasionally used marijuana when she was 17, that between the ages of 19 and 26 she did not consume illicit drugs but did consume alcohol socially, and that she has only ever used methamphetamine in the period when she was on the run and that it was occasional use only. She said she has no intention of using methamphetamine in the future.[107] Her criminal history is not indicative of a drug addiction and is more consistent with recreational use. I am satisfied that there is a low risk, at most, that the Applicant will use illicit drugs if returned to the community. It follows that I am satisfied that there is a low risk, at most, that she will engage in drug-driving if returned to the community.
[107] Transcript, page 45, lines 1 to 5.
The Applicant did not express great confidence in her ability to avoid re‑offending, and she does not have a clear plan to achieve that. She has had a difficult life involving abuse, neglect and instability. Her adolescence lacked the nurturing and guidance that teenagers need. Since her teenage years, she has never had stable, long-term accommodation (until she was incarcerated). She has three small children to look after, which is a difficult task for any single parent. She needs help in her day to day life and she needs treatment for her mental health. The Applicant appears to accept that she needs counselling[108] and her mother said she will support her with that.
[108] Transcript, page 56, lines 40 to 45.
I am satisfied that if the Applicant is returned to the wider community her life will be very different to the way it was before. She will have long-term, rent-free accommodation for herself and her children. She will have the support of her mother and Mr A, both of whom are devoted to her children. She will effectively be under the supervision of Mr A who will not “cop any crap” and will call the police if she returns to drug use. I consider that, in line with what Mr Cinar said about the benefits of continued family support, this arrangement will act as a strong protective factor and reduce the Applicant’s risk of re-offending. I consider that there are reasonable prospects that the Applicant will remain in that supportive environment for the following reasons:
·It is to her benefit to live rent free with her mother’s support;
·She will be subject to parole until November 2020 so her living arrangements will be approved and monitored by the Parole Board for that period;
·She is fearful that if she returns to crime she will be imprisoned and deported; and
·Her ex-partner, with whom she committed her more serious offences, does not want contact with their children and she did not express any intention to reconcile with him.
Accordingly, I am satisfied that the risk that the Applicant will re-offend if returned to the wider community is ameliorated by her proposed living arrangements so that it is towards the low end of the medium range.
Conclusion: Primary Consideration A
This consideration is concerned with the protection of the Australian community from criminal or other serious conduct. It focuses on the nature and seriousness of conduct and the risk of harm to the community.
The Applicant’s offending is, in general, at the lower end of the scale in terms of seriousness.
There is a medium risk (although towards the lower end of medium), that the Applicant will re-offend if she is returned to the community. Based on her previous criminal conduct there is a risk that she will: involve herself in the theft of cars for the purpose of driving them or riding in them; ride in cars that have been stolen by someone else; engage in petty theft; engage in drunken or nuisance-type behaviour; and/or fail to appear in accordance with bail undertakings. I cannot find, on the evidence, a risk that such offending would involve hooning, violence, damage to property or more serious dishonesty offences such as selling stolen vehicles. The harm that would result, while not insignificant, is relatively low-level.
The type of offending that the Applicant has previously engaged in that carried the risk of the most serious harm to members of the community is drug-driving. I have found that there is a low risk that the Applicant will use illicit drugs if she is returned to the Australian community.
Given the Applicant’s past offending and the medium risk of re-offending (except in relation to drug related offences), this Primary Consideration A must weigh in favour of non‑revocation. However, taking into account all of the relevant factors, I afford it limited weight.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person;
·the extent to which the person is likely to play a positive parental role in relation to the child;
·the likely effect that any separation from the person would have on the child;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·whether there are any other people who fill parental roles with the child; and
·any known wishes of the child.
The Applicant’s children are aged three, four and five. Prior to being incarcerated the Applicant sometimes fulfilled the parental role but there were long stretches when she did not. When the children were being looked after by her sister or her mother, she visited regularly.
There is no evidence that the Applicant ever engaged in illegal or harmful conduct around her children or brought criminal associates into their lives. She communicates with all three of her children every day from Immigration Detention. She has not wanted them to visit her because she does not think it is a good environment for them. While the Applicant has not fulfilled an ongoing parental role, I am satisfied that she loves her children and has been a positive influence in their lives. It is significant that when she relinquished the care for her children she left them in the care of people she trusted to look after them.
Being the sole carer of three small children is a difficult job for anyone. It seems clear that the Applicant is not capable of looking after herself and her children without help. If she is removed to New Zealand, she will not have help and her children will be in a perilous situation. I do not consider this to be a realistic option.
If the Applicant leaves her children in Australia, which she has indicated is most likely, it is not certain who will fulfil the parental role. The Applicant’s mother’s evidence is that they are not safe with their father and that he does not want care of them. It is concerning that her mother tried to return the children to him, believing that he had posed a risk to their safety previously, however, I accept her evidence that she will look after them if the Applicant or her sister cannot. The Applicant and her mother both said the Applicant’s younger sister does not want to keep looking after the children. Both the Applicant’s sister and her mother have cared for the children for long periods of time and there is no suggestion that this has had a negative impact on the children. The Applicant’s mother has stable accommodation and Mr A has a positive relationship with the children.
However, it cannot be in the children’s best interests to grow up without their mother physically present in their lives. The Applicant’s mother gave evidence that all three children ask about the Applicant and want to know when she is coming home. The children will undoubtedly miss their mother if she is removed from Australia, even if they keep in contact via electronic means of communication, as is the case now. The children are very young, and if the Applicant is deported they will be without their mother for most of their respective childhoods. Due to their young ages there is significant potential for the Applicant to fulfil a positive parental role in their lives if she remains in Australia.
Furthermore, it is evident that the Applicant cannot look after herself. She has no support in New Zealand. She suffers from untreated PTSD and her mother said she is afraid the Applicant may harm herself if she has to go to a place where she has no support. I think there is a very real possibility that the Applicant will not cope in New Zealand. It is not in the best interests of her children for them to watch from afar their mother’s decline or, the alternative - to have no contact with her.
It may well be the case that if the Applicant is returned to the community, her mother will fulfil the role of parent more than she will. However, even if this occurs, the children will still have the benefit of their mother’s presence in their lives and in their home. The Respondent conceded that it would be in the children’s best interests to have the Applicant in Australia, available to them, whether or not she is their primary carer.[109] This is a fair and proper concession. I am cognisant that the Applicant talked about possibly studying nursing in Melbourne if her mother agreed to look after her children. The Applicant seemed to think of this possibility on the spot and it seems highly contingent. I give it little weight.
[109] Transcript, page 95, lines 40 to 45.
In her request to the Department for revocation of the decision to cancel her visa, the Applicant nominated several nieces and nephews as minor children whose best interests would be served by revocation of the decision.[110] However, she told the Tribunal that she was no longer involved in the lives of these children and that she does not have contact with them because of conflict between her and the parents of the children, being two half‑brothers and one half-sister.[111] The Applicant hopes that if she is returned to the Australian community she could resume contact with these children.[112] The Applicant provided very little in the way of details about these children and her relationships with them, although it seems that they each have at least one parent fulfilling the parental role. I accept that there is potential for the Applicant to play a positive, non-parental role in their lives, however, her future involvement in their lives is speculative at best. Accordingly, I am unable to attribute any determinative weight to this primary consideration on the basis of the best interests of these minor children.
Conclusion: Primary Consideration B
[110] Exhibit G1, G-Documents, G-2, pages 57 to 58 and 65.
[111] Transcript, page 48, lines 15 to 33.
[112] Transcript, page 49, lines 1 to 8.
On the basis of the best interests of the Applicant’s three minor children, applying the relevant factors contained in paragraph 13.2(4) of the Direction, Primary Consideration B weighs heavily in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[113]
[113] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, the following matters are relevant:
·the Applicant has lived in Australia since she was three years old, and has never left, meaning she has lived in Australia for most of her life. She may be afforded a greater level of tolerance on this basis;
·the first time that she was dealt with by a court was when she was 15 years old;
·she had a difficult upbringing with violence in her home and periods of homelessness;
·she has never been employed but has made a modest contribution to the community through some volunteer work;
·while she has engaged in many episodes of offending, her offences are, in general, relatively minor in nature;
·the sentence of imprisonment imposed on her by the Magistrate’s Court and the cancellation of her visa have impressed upon her that her previous behaviour was unacceptable. She now demonstrates genuine remorse for her offending and is highly motivated to abide by the law for the sake of her children;
·there is a moderate risk that if she is returned to the wider Australian community she will re-offend although this risk is somewhat ameliorated by her proposed living arrangements and other factors that I have mentioned in relation to Primary Consideration A;
·there is a low risk of drug related offending. If she re-offends otherwise, the resultant harm is likely to be relatively low-level. It is not the case that any risk of re-offending is unacceptable;
·she suffers from complex PTSD and her mother is worried that if she is removed to New Zealand, where she has no support, she could harm herself; and
·she has three young children whose father wants nothing to do with them and who may pose a safety risk to them. These children are members of the Australian community. As set out in Primary Consideration B, it is against their best interests for the Applicant to be removed to New Zealand.
The Applicant has breached the trust of the Australian community. However, weighing all of these matters, I am not satisfied that this primary consideration weighs in favour of non-revocation.
Conclusion: Primary Consideration C
Primary Consideration C is neutral.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. Therefore, this consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of three and she has not lived or visited anywhere else since then. On account of her youth when she relocated, the time she has been here, and the fact that she did not commence offending soon after arriving in Australia, she is entitled to some measure of weight in her favour under paragraph 14.2(1)(a) of the Direction.
The Applicant has never been employed but she has done some limited volunteer work. This adds a very slight measure of weight in her favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant’s three children, her family, and most of her relatives live in Australia. I am satisfied that she has significant familial ties to the Australian community.
I will not repeat what I have said under Primary Consideration B in relation to the impact of the Applicant’s removal to New Zealand on her three young children. Suffice to say, it is likely to have a significant negative impact on each of them.
In her Personal Circumstances form the Applicant said she grew up looking after her siblings, nieces, nephews and cousins in Australia.[114] She does not seem to have particularly close relationships with any of her four siblings or other relatives but it is reasonable to infer that her removal to New Zealand would sadden her siblings.
[114] Exhibit G1, G-Documents, G-2, page 61.
The Applicant’s removal to New Zealand would mean that she would be separated from her mother indefinitely. In addition, her mother is worried that she will not cope in New Zealand as she has no support there, and she might harm herself. This is quite an emotional burden for the Applicant’s mother to bear.
If the Applicant is removed to New Zealand, it will fall to her mother and/or her younger sister to fulfil parental roles for her children. The Applicant’s mother does not seem to mind but her sister has expressed “mixed feelings” about it as, at her age, she wants her own life. Such a responsibility, especially on a long term basis, is likely to be a big imposition.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that her removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non‑revocation decision (i.e. where the Applicant does not get her visa restored to her) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that them in that country.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand which is culturally and linguistically similar to Australia.
The Applicant does not claim to have any medical problems. She has a diagnosis of complex PTSD and her mother thought she suffered from anxiety and depression. It is reasonable to find that the level of medical and mental health treatment and support available in New Zealand is comparable to that in Australia.
However, the Applicant struggles with basic things like maintaining stable accommodation. Until recently she had never sought treatment for her mental health. There is a real possibility that, in New Zealand, she would not take the initiative to seek treatment for her mental health and keep appointments. She will have the added mental burden of being separated from her young children indefinitely. Mr Cinar said that, in terms of the Applicant’s mental health, having family nearby would be a protective factor and that the Applicant’s symptoms would be exacerbated if she did not have access to her children.[115]
[115] Transcript, page 83, lines 24 to 33.
The Applicant has no employment history and a criminal history that has made it difficult for her to obtain employment in Australia. Without work experience, and with a criminal history that has made it hard for her to obtain in employment in Australia, she will likely struggle, at least initially, to secure employment in New Zealand. She has no family or social support in New Zealand. However, as a New Zealand citizen she will be entitled to welfare payments and other government assistance.
It is likely that the Applicant will face significant difficulty in re-establishing herself in New Zealand while also coping with her mental health condition and the loss of her children. I am not satisfied that any such difficulty would be short-term only. I am concerned that there is a real risk that the Applicant would not cope if she is returned to New Zealand.
Accordingly, I am of the view that this Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)International non-refoulement obligations: not relevant;
(b)Strength nature and duration of ties: weighs heavily in favour of revocation;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: neutral; and
(e)Extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A carries limited weight in favour of non-revocation;
·Primary Consideration B weighs heavily in favour of revocation;
Primary Consideration C is neutral; and
·Other Consideration (b) weighs heavily in favour of revocation and Other Consideration (e) weighs moderately in favour of revoking the mandatory visa cancellation decision.
I find that Primary Consideration B and Other Considerations (b) and (e) combined outweigh Primary Consideration A.
Accordingly, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
...............................[SGD].........................................
Associate
Dated: 18 May 2020
Date of hearing: 28 and 29 April 2020 Solicitors for the Applicant: Mr Fardin Nikjoo
Nikjoo LawyersSolicitors for the Respondent:
Mr Adam Ray
Clayton Utz “Attachment A – Exhibit List”
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (Paged 1-229)
R
-
9 MAR 20
R1
Respondent’s Statement of Facts, Issues and Contentions (Paged 1-12)
R
15 APR 20
15 APR 20
R2
Bundle of summonsed material from Queensland Police Service
R
-
28 APR 20
A1
Applicant’s Statement of Facts, Issues and Contentions (Paged 1-14)
A
-
19 MAR 20
A2
Applicant’s Statutory Declaration (unsigned)
A
-
9 APR 20
A3
Statement of Applicant’s Mother
A
21 MAR 20
9 APR 20
A4
Psychology report of Mr Hasan Cinar
A
9 APR 20
9 APR 20
A5
The Guardian article – “We are sitting ducks for Covid-19’: asylum seekers write to PM after detainee tested in immigration detention, Rebekah Holt and Saba Vasefi
A
24 MAR 20
16 APR 20
A6
Human rights Law Centre article – Federal Government must act urgently to avoid COVID-19 catastrophe in immigration detention, Michelle Bennet and Gemma Pearce
A
2 APR 20
16 APR 20
A7
SBS article – For a detainee inside an Australian immigration detention centre, COVID-19 is terrifying, Jarni Blakkarly
A
25 MAR 20
16 APR 20
A8
Applicant email re whether children are subject to care and protection orders
A
25 MAR 20
25 MAR 20
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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