Knight and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Knight and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2203 (21 June 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2741
Re:Karli Moana Knight
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Andrew McLean Williams
Date:21 June 2022
Date of Written Reasons: 11 July 2022
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Member Andrew McLean Williams
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. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151.
PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Andrew McLean Williams
11 July 2022
INTRODUCTION

On 16 June 2021, a Delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Special Category (Subclass 444) visa (“the visa”) under s.501(3A) of the Migration Act 1958 (Cth) (“the Act”), on the basis that the Applicant did not pass the character test under s.501(6)(a), and because the Applicant was serving a full-time sentence of imprisonment.[1]
[1] Exhibit 1, G39 pages 151 to 159.
On 12 July 2021, the Applicant requested the revocation of the cancellation of her visa (“revocation request”).[2]
[2] Exhibit 1, G8 page 43.
On 29 March 2022, a Delegate of the Respondent decided not to revoke the visa cancellation.[3] The Applicant then lodged an application for review in this Tribunal, on 5 April 2022.[4] The Tribunal has jurisdiction to review the decision not to revoke the cancellation, pursuant to s.500(1)(ba) of the Act.
[3] Exhibit 1, G3 page 12.
[4] Exhibit 1, G2 pages 3 to 8.
The hearing of this application for review took place on 6 June 2022. At the hearing, the Tribunal heard oral evidence via audio-video link from the Applicant, in immigration detention.
The Tribunal also considered the documentary evidence submitted by each of the Applicant and the Respondent, as is now detailed in the attached Exhibit Register, now marked as “Annexure A” to these reasons.
FACTUAL BACKGROUND AND OFFENDING HISTORY
The Applicant is a 27 year old female New Zealand citizen, who first arrived in Australia in January 2001 when aged six years, accompanied by her parents, brother, and stepbrother.[5] The family took up residence at Surfers Paradise, on the Gold Coast.
[5] Exhibit 1, G38 page 150. G10 page 51.
In 2005, when the Applicant was around 10 years of age, the family moved back to New Zealand. The Applicant expressed that she experienced a sense of ‘culture shock’ and says that she did not adjust well to school in New Zealand, claiming that she was bullied. In consequence the Applicant was home-schooled for a period, before her family eventually returned to the Gold Coast the following year, where they have since remained.[6]
[6] Transcript page 4 lines 35 to 45.
The Applicant attended high school on the Gold Coast however quickly started to lose interest in formal education, and reports instances of frequent truancy.[7] Ultimately, the Applicant left school in Grade 9, and commenced employment, gaining a starting role in office administration.
[7] Exhibit 1, G22 page 85.
At around the age of 15 years the Applicant says that she began to use cannabis occasionally, on weekends, with friends.[8] The Applicant also admits to using ecstasy on one occasion but says that she did not progress to the regular use of ecstasy until after turning 18.[9]
[8] Transcript page 6 lines 1 to 30.
[9] Transcript page 7, lines 19 to 31.
Once 18, the Applicant says that she would use ecstasy on weekends, and cannabis a couple of nights per week, in order to go to sleep.[10] Her parents were aware by this stage that the Applicant was using cannabis and they would tell her to stop, yet to no avail.[11] However the Applicant says that her parents remained completely unaware of her ecstasy use, as this only occurred whilst the Applicant was away from the house, and the effects of same had generally worn off before the Applicant returned home to her parents.[12]
[10]    Transcript page 6 lines 32 to 40; page 7 lines 29 to 32.
[11]    Transcript 66 lines 42 to 47. page 7 lines 1 to 17.
[12]    Transcript page 7 lines 34 to 40.
It was also during this period when the Applicant committed her first offence, one of ‘contravene direction requirement’. The police facts,[13] state that on 14 September 2013, the Applicant was out on a Saturday night, in Surfers Paradise. At about 12:30am, the Applicant approached police and began behaving in a disorderly manner, swearing at the officers and bystanders. In response, the police gave the Applicant a ‘move on’ direction to leave the Surfers’ Paradise ‘Drink Safe’ Precinct, for a period of eight hours. The Applicant complied and left the defined area. However, approximately two hours later, the police found the Applicant in a nightclub within the precinct. In consequence the Applicant was charged with contravening a lawful direction.[14] On 27 September 2013, the Applicant was fined for this offence, yet no conviction was recorded.
[13] Exhibit 3, R1 page 118.
[14] Exhibit 3, R1 page 118.
The Applicant claims that she started using ‘ice’ (methamphetamine) around the age of 19, after she had been introduced to it via a friend from high school. The Applicant says that she shortly thereafter started using ice ‘everyday’, and stopped working in her office administration job.[15] Shortly afterwards, the Applicant moved to North Queensland – variously to Cairns, Townsville and Airlie Beach - and commenced working in strip clubs, initially as a bartender before proceeding to work as a dancer.[16] The Applicant further informed the Tribunal that she would also travel to Melbourne on occasion, also to dance in strip clubs, and would visit her family on the Gold Coast only occasionally. Throughout this epoch the Applicant says that she continued to use ice every day, usually before commencing work, and would also regularly consume between half a bottle and a full bottle of champagne, three to four nights per week, before her evening work shifts commenced.[17]
[15]    Transcript page 8 lines 10 to 26.
[16]    Transcript page 8 lines 15 to 31.
[17]    Transcript page 11 lines 39 to 45.
About six months to a year after moving to North Queensland, and in about 2014/2015, things started to unravel for the Applicant:
And that’s when it all started, taking the drug really started to affect my mental health and it wasn’t the same as when I first started using it. It wasn’t fun anymore. It was really starting to take a toll on my life and have a big effect on my life in different ways like that.[18]
[18] Transcript page 9 lines 43 to 46..
The Applicant informed the Tribunal that her health deteriorated, as did her relationship with her parents, who had still been completely unaware that the Applicant was regularly using ice.[19] Although her parents would oftentimes advise the Applicant to ‘drink less’, the Applicant did not want to listen.[20] The Applicant informed the Tribunal that it was also around this time when:
…that’s when I first lost everything and had to start again and that’s where I really struggled to understand my drug addiction. That’s when I first started to realise this is a really big problem.[21]
[19]    Transcript page 10 lines 1 to 10.
[20]    Transcript page 12, lines 35 to 42.
[21]    Transcript page 10 lines 11 to 14.
On 9 May 2015, the Applicant was apprehended driving unlicensed while speeding by more than 13km per hour yet not by more than 20km per hour.[22] The police issued the Applicant with a notice to appear and an Identifying Particulars Notice (“IDP”) - to attend a police station and give her identifying particulars within seven days - however the Applicant failed to attend. On 1 June 2015 the Applicant’s driver licence was disqualified, for three months.[23]
[22] Exhibit 3, R2, page 130.
[23] Exhibit 3, R2, page 130
On 12 July 2015 –while her licence was disqualified - the Applicant was again pulled over whilst driving. Small quantities of LSD and methamphetamine were found by the police inside the pages of the Applicant’s New Zealand passport, which the Applicant had produced to the officers in response to their request for proof of the Applicant’s identity.[24] In consequence, the Applicant was charged, and released on bail.
[24] Exhibit 3, R1 page 108.
On 31 July 2015, the Applicant was again apprehended for driving whilst unlicensed, and a further IDP notice was issued. The Applicant again failed to appear in Court for these offences, and a warrant for her arrest was then issued.
In November 2015, the Applicant travelled to New Zealand. She returned to Australia on 29 May 2016 and on the following day was convicted upon multiple offences before the Southport Magistrates Court, including 2 x ‘contravene direction or requirement’ and 2 x ‘failure to appear’, for which the Applicant was fined. The Applicant was also convicted of two offences of ‘possessing dangerous drugs’ in relation to the cannabis and LSD found in her passport for which she was placed on a good behaviour bond, for a period of four months. The Applicant’s driver licence was also disqualified, this time for a period of two years.
In 2016/2017, the Applicant moved back in to live with father, and commenced working as a dancer in a Gold Coast gentleman’s club.[25] At around this juncture the Applicant’s drug use also abated, at least for a short period.
[25] Transcript page 16 lines 30 to 42.
In August 2017, the Applicant met “Mr M” through mutual friends on the Gold Coast and they started dating.[26] The Applicant and Mr M started seeing each other every day and the Applicant would stay at Mr M’s place on average for five nights each week, at which point the Applicant started to use ice again, and frequently.
[26] Transcript page 16 lines 25 to 31.
The Applicant reported that there was domestic violence in her relationship with Mr M.
The Applicant described the relationship as volatile and abusive and that she was often tormented and humiliated by Mr M, who also encouraged her drug use.[27]. The Applicant had fears that Mr M was controlling and monitoring her finances and social media, stating that her account passwords were being changed, and her ID and bank cards going missing.[28]
[27] Exhibit 1, G22 page 86.
[28] Transcript page 17.
The Applicant stated Mr M lived an ‘organised crime lifestyle’ and he had cameras, weapons and other equipment in his residence, that he would use to threaten her:
Like, radios, lots of tools, frigging, different knives, made guns, like, slug guns and potato guns, you know, all these different crafty things that he had, and his mates would come over, and they would sit and smoke and make all these things, sharpen their knives or he would call me, video call me, and he would be - have gloves on, and be cleaning bullets and, like, threatening my family at the same time, just, like, yes, it was twisted. It was really twisted.[29]
[29] Transcript page 19 lines 40 to 46 to page 20 lines 1 to 15.
The Applicant said that, at this stage, she was financially dependent on Mr M, and described physical violence in their relationship, stating:
There was just a lot of like arguments and a lot of blow-ups when it came to me and him where I would just be thrown around the room and it would set me off to the point where I needed to go back to my dad and tell him about what’s happening and we needed to get help from Centrelink to get me out of the situation that I was dependent on him (indistinct) and, at that stage - yes, there was a few incidences where I was bounded [sic] and like slapped around the room and yelled at and just humiliated and stuff and I remember - - -
…
...it was very like scary for me because he - he was so organised in the way that he was and I had - I had no proof of anything and I didn’t even have a phone, you know. I couldn’t even like, you know, get - get my shit together to even save my life really.[30]
[30] Transcript pages 17 lines 33 to 46.
On 9 January 2018, a DVO was issued for five years naming the Applicant as the respondent and Mr M as ‘the aggrieved’. The incident giving rise to this DVO had transpired on Christmas Day, 2017. Police records,[31] reflect that the Applicant had gone to Mr M’s house and had become upset when the Applicant saw a neighbour of Mr M’s also on the property. The Applicant retrieved a baseball bat from her car, and swung it at Mr M, and Mr M grabbed her arm and threw her into a bush, before grabbing the bat, and throwing it away. The Applicant then got back up again, and came at Mr M, this time scratching, kicking, and punching. Mr M’s father intervened, separating the Applicant from his son. Mr M sustained some minor injuries, including scratch marks to his back and face.
[31] Exhibit 3, R1 pages 7 to 10.
In relation to the factors giving rise to this incident, the Applicant said that, prior to her arrival at Mr M’s house, she had been informed by a friend that Mr M had sent a girl around to the friend’s house in order to collect things belonging to the Applicant, including the Applicant’s passport. At the time of being so informed, the Applicant happened to be very drunk, so proceeded over to Mr M’s house in order to confront him about this, whereupon the Applicant also attacked Mr M:[32]
…I was out the front of the gate, and the gate was shut, and he - I remember just abusing him, just screaming at him and telling him that I wanted to kill myself and, you know, hurt him, and all this stuff, and why would he do that to me? it was just a lot of, like, psychosis, screaming drug, you know, fuelled drunk and crazy screaming and it just escalated really quickly and he opened up the gate and said ‘Come here, come here’. I said, ‘Okay’, walked out to him and - and he hit me, he punched me and that’s when I swung the bat at him and I just tried to scratch him, tried to hurt him as much as I could.[33]
[32] Transcript page 23.
[33] Transcript page 24 lines 27 to 35.
Mr M informed police that he did not wish to proceed with assault charges. However, the police issued a domestic violence order (‘DVO’) against the Applicant, nonetheless. The DVO included conditions that the Applicant was not to commit acts of domestic violence and was prohibited from approaching within 100 meters of Mr M, or his workplace, or his residence.[34]
[34] Exhibit 3, R1 page 10.
Three days after this incident, the Applicant went back to New Zealand to stay with family in an attempt to ‘start again’, and ‘heal’, and ‘get off the drugs’.[35] During this period the Applicant says that she stayed with her New Zealand grandparents.
[35] Transcript page 20 lines 20 to 35.
In early 2018, the Applicant returned to Australia. In February 2018 the Applicant was offered - and accepted - a drug diversion order and was given written directions by the police under the Police Powers and Responsibilities Act to attend. Notwithstanding that order, the Applicant failed to attend.[36]
[36] Exhibit 3, R1 page 13.
On 28 April 2018 the Applicant committed an offence in New South Wales. The NSW police facts sheet[37] records that the incident involved the Applicant and a co-worker from the gentleman’s club where the Applicant had been working at the time. The Applicant had become angry at the victim and had called her a “Maltese dog” and had said words to the effect of “I’ll take your head off”. The Applicant then told another co-worker that she was “…going to get that Maltese cunt, get out of my way”. The victim and the other co-worker then retreated into another room, whereupon the Applicant punched a window, in an effort to gain access to the victim. When the victim sought to escape from the room, the Applicant ran after her, and punched the victim in the jaw. A warrant was issued by the Sutherland Local Court to the Applicant on 4 July 2018 for the offences of ‘destroy/damage property’; ‘stalk/intimate intend fear physical harm’; and ‘assault occasioning actual bodily harm’.[38]
[37] Exhibit 3, R4 142 to 143.
[38] Exhibit 3, R5 page 146.
On 13 August 2018, the Applicant was driving and was pulled over by police for a random drug test, which returned a positive result for methylamphetamine.[39] The Applicant admitted to police that she had engaged in recent drug use. A search of the vehicle at that time also located a bud of cannabis, as well as a brass smoking pipe, together with a cone piece, in the Applicant’s handbag.[40]
[39] Exhibit 3, R1 page 84.
[40] Exhibit 3, R1 page 84.
On 28 August 2018, Mr M filed an application to vary the DVO.[41] However, it was not removed.
[41] Exhibit 1, G5 page 35.
On29 November 2018, the Applicant failed to appear in court and, on 12 March 2019, was convicted for that failure to appear; as well as for ‘contravene direction/requirement’ in relation to her failure to attend drug diversion when she had been directed to do so in February 2018; and for possessing dangerous drugs and the drug utensil in August 2018.
On 16 May 2019, the Applicant was evicted from her temporary Domestic Violence Crisis Accommodation.[42] When collecting her belongings, caretakers had located a bong. Shortly thereafter, the Applicant’s social workers approached the police and requested that they assist in the task of removing the Applicant from the crisis accommodation, as she was intoxicated, in violation of their rules. The police transported the Applicant to a different accommodation which had been booked by her social workers for the night. However, around 15 minutes later the police had to be recalled, as the Applicant had by then destroyed the room. The kettle and room telephone had each been smashed; the bathroom door was off its hinges; and the shower had been intentionally flooded. The Applicant was then transported to the watch house and was interviewed by police whereupon she admitted the bong to be hers, claiming this had been ‘constructed three weeks previously’ to smoke cannabis, in order to assist the Applicant to get to sleep.[43] The Applicant said she didn’t recall what she had been so enraged about at the time of this incident, yet assumes that she would have “raged about - just all of my life really. Just an outburst of stupidity and immaturity” and that at “that stage of my life, I didn’t understand my drug addiction. So, I didn’t have any skills, I didn’t have any coping skills. I wasn’t speaking to any counsellors …Nothing to rely on or fall back on.”[44]
[42]    Exhibit 3, R1 pages 72 to 76
[43]    Exhibit 3, R1 72 to76.
[44]    Transcript page 32.
On 9 June 2019, the Applicant committed her most serious violent offence, stabbing Mr M, with a knife. The Applicant and Mr M had broken off their relationship a few months previously, yet had still continued to see one another, and frequently. The sentencing remarks of the learned sentencing Judge record:
On the 9th of June 2019, you called triple O and told them you had stabbed your ex boyfriend. Police attended and saw the complainant with a laceration to his hand and one to his left triceps. The complainant told police that you had stabbed him following an argument between the two of you in his bedroom, during which you grabbed a knife from his lunchbox. Then, when he tried to grab the knife, it caused a cut to his palm. He then tried to restrain you, he placed you in a leg lock, and you stabbed him in the arm. He sustained two lacerations, one to his triceps, some 10 centimetres in length, extending into the muscle and a five centimetre laceration to his palm. Both wounds required suturing in the hospital.
After this, you took part voluntarily in a record of interview. At first, you told the police that you wanted to kill the complainant. It appears you then calmed down and said, "I just wanted to hurt him to get me out and make it clear that I am not okay. I am not all here".[45]
[45] Exhibit 1, G5 page 35.

The police statement of facts,[46] record that the Applicant had said in the presence of the police: “This is what he gets for treating me like shit. The fucking dog got what he deserved. I am not a piece of shit and I wanted to make him hurt”. The police facts presented to the court also state that, in the lead up to this offence the Applicant had texted Mr M to enquire whether she could stay with him. At the time, Mr M also had friends over at his house who were smoking ‘ice’, and that they had collectively tormented or ridiculed the Applicant, after her arrival at Mr M’s house. After the friends left, the Applicant became angry with Mr M for his having also treated her 'like a dog'; which then led to the verbal altercation, culminating in the knife attack.
[46] Exhibit 3, R3 140.
On the same date the Applicant was arrested and held on remand.
On 26 June 2019 the Applicant was convicted of wilful damage and ‘possess utensil’ and was fined for the incident in May 2019. Bail was granted on 27 August 2019.
On 12 February 2020, as part of an Organised Crime taskforce, police executed a search warrant on a property where Mr M had been residing for some time.[47] The Applicant was in the house at the time of this police raid, in breach of the DVO that had been in place for the protection of Mr M from the Applicant since 2018. When questioned by the police about this, the Applicant informed the police she knew she shouldn’t be there, yet had still been visiting Mr M, ‘once a week’.[48] The Applicant also informed the Tribunal that her former boyfriend Mr M was arrested on the day of this police raid, and that Mr M has since been imprisoned for a lengthy period, for serious drug trafficking, and other offences.[49]
[47] Exhibit 3 R1 pages 48 to 49.
[48] Exhibit 3, R1 page 49.
[49] Transcript page 22 lines 25 to 46 and page 23 lines 1 to 2.
In this period the Applicant also breached her bail conditions on multiple occasions, predominately by failing to report, as required.[50] The Applicant told the Tribunal that she had failed to report on a few occasions, as she was afraid of being arrested and going back to gaol.[51]
[50] Exhibit 3, R1 pages 35 to 39.
[51] Transcript page 35 42 to 45 and 46 lines 1 to 5.
On 5 August 2020 the Applicant was convicted of the wounding offence, and was sentenced to 18 months imprisonment, with an immediate release to parole with 80 days of presentence custody being declared as time served. The sentencing remarks of the learned sentencing judge state:
HER HONOUR: And you did well in your grades. Unfortunately, when you were only in grade 9, you formed an intimate relationship and became involved in cannabis and ice misuse. You have had a number of relationships which have been volatile and abusive…you spoke about feeling tormented and humiliated in your· relationship with the complainant. But that is no excuse whatsoever for using a very dangerous weapon in the struggle with him that day.
Since release from custody, you report having ceased alcohol and illicit drug use. You are taking prescribed medication to manage depression and bipolar disorder, and you say that you are exercising daily.
…
I must say though you have a mental health care plan, but you have not done anything about attending sessions. That is why it is particularly important that you are released on parole with some supervision to make sure that you continue not taking drugs, attend other programs to assist with your mental health, and hopefully to prevent you from resorting to violence again in the future. You must appreciate that you have a problem with reacting violently, and you need to do something about that, otherwise you will go back into custody. Even worse, you might hurt somebody very seriously.
…
I also have regard to the fact that people who use a knife or any kind of weapon in circumstances of committing domestic violence or indeed other types of offences can expect to go to custody, even if they are young and they are somebody that does not have any significant prior criminal history. An aggravating feature in your case is the breach of the protection order and the fact that this a domestic violence offence. So a term of imprisonment is appropriate to reflect the need to deter you and others from committing such offences and also as a means of protection of the community. [52]
[52] Exhibit 1, G5, pages 36 to 37.
On 4 October 2020 the police were called at around 1:40am after witnesses reported a female causing a disturbance on a street whilst holding a knife.[53] The police then located the Applicant, who was found to be under the influence of an unknown substance. Residents reported to police that the Applicant had scratched someone’s car with a knife and had also entered a yard and attempted to knock down someone else’s CCTV camera.
[53] Exhibit 3, page 31.
The Applicant informed the Tribunal that this incident occurred when she went to the house of her brother’s friend. Other people were there doing drugs and the brother’s friend took her wallet from her and had attempted to sexually assault her. The Applicant says that she went into the kitchen, and grabbed a knife, and ran out into the street.[54] The Applicant informed the Tribunal that she had been using drugs at the time, and that she wasn’t thinking straight.[55] However, the Applicant did not tell this version of version of events to the police when they had attended this incident on 4 October 2020.
[54] Transcript pages 33.
[55] Transcript page 34 lines 6 to 31.
The Applicant was convicted on 2 November 2020 for public nuisance, wilful damage, and trespass and was fined $600. She was also convicted of five breaches of bail and one breach of DVO, yet not further punished.
In November 2020, the Applicant entered a residential rehabilitation centre. She stayed at that centre for about one month before losing her place at the rehabilitation centre. The Applicant said she lost the place as she had taken some cold and flu medication during the Christmas break, and then returned a positive urine test upon re-entering the facility after Christmas.[56] The Applicant says that she pleaded to be allowed the chance to submit to a second drug test yet says that she was instead told to take ‘two weeks off and come back’. After leaving the facility, the Applicant says that she started to binge drink again, and was homeless, as her family did not want to take her in.[57]
[56] Transcript page 14 lines 8 to 25.
[57] Transcript page 15 lines 12 to 20.
The Applicant then went to stay with another friend, up in Cairns. On 11 January 2021 the Applicant unlawfully assaulted a female friend, in Cairns.[58] They had been having dinner and drinks at the house of another mutual friend. The Applicant became angry, and started yelling, before punching the victim in the head, multiple times. The victim tried to defend herself before the other friend intervened. The victim then left, and later attended hospital. The victim had bruising, swelling, and lacerations, on her face and head. The Applicant told police the victim had begun acting in an unruly manner and had been running around the house causing a disturbance. The Applicant says that she had tried to calm the victim down, and, in the process, had pushed her into a light switch. The Applicant also says that she herself was bitten by the victim, and that police did observe a bruise, on her arm.
[58] Exhibit 3, R1, page 21.
The Applicant said the victim had demanded that the Applicant ‘get some ice’ and started “acting unlike herself and running crazy”, the victim had grabbed the Applicant’s collar whereupon the Applicant had pushed the victim because she was ‘being rowdy’, whereupon the victim had hit her head and bit the Applicant, so the Applicant had punched the victim in the face, twice.[59] The Applicant also said the victim had smashed her phone.
[59] Transcript page 27.
The Applicant was arrested and released on bail. Three days later, the Applicant breached her bail conditions by text-messaging the victim of this assault.[60] However, the Applicant also said to the Tribunal that the police themselves had told her that she could text the victim. [61]
[60] Exhibit 3, R1 page 13.
[61] Transcript page 28 line 25 to 42.
On 17 January 2021 the Applicant was again arrested, for being intoxicated in a public place after police were called following reports that the Applicant had been yelling abuse and acting erratically.[62] The Applicant was convicted and not further punished for this offence.
[62] Exhibit 3, R1 page 17.
On 23 April 2021 the Applicant was convicted for breach of bail, and for the aforementioned assault in Cairns, and was sentenced to concurrent terms of imprisonment of one month and three months respectively, which was each suspended, for 18 months.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s.501CA(4) of the Act. Relevantly, s.501CA(4) provides:
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 Tribunal is satisfied that the Applicant made the representations required by s.501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, it becomes necessary to revoke the original decision.[63]
[63] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
There are therefore two issues before the Tribunal:
·whether the Applicant passes the character test; and
·if not, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is set out 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 defined by 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”.
On 5 August 2020 the Applicant was sentenced to 18 months imprisonment, with 80 days of pre-sentence custody declared as time served, and the Applicant was immediately released, on parole. Unfortunately for the Applicant, the fact of immediate parole release is an irrelevant consideration. What matters for present purposes is the term of imprisonment to which a person has been sentenced, and not the amount of time actually served.[64]
[64] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a “substantial criminal record”, and cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) for the mandatory cancellation of her visa to be revoked.
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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[65]
[65] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles, that must inform a decision maker’s application of Part 2 of the Direction.
Those principles are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 measurable 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four ‘Primary Considerations’ that the Tribunal must take into account. These are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction then sets out four ‘Other Considerations’ which must also be taken into account. These are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
These are “other” considerations, as opposed to merely secondary considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[66]
“...Direction 65 [now Direction 90] 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.”
[66] [2018] FCA 594.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the Ministerial Direction requires that decision-makers keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. It further states that entering or remaining in Australia is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals, or the Australian community.
Paragraph 8.1(2) of the Ministerial Direction requires decision-makers to have consideration for the following requirements when determining the weight to be applied to Primary Consideration 1:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) 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 8.1.1(1) of the Direction specifies that decision makers must have regard to a number of further factors. These are then set out, as sub‑paragraphs (a) – (g) inclusive, of paragraph 8.1.1(1) of the Direction.
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

The circumstances of the Applicant’s offending have been set out in preceding paragraphs of these reasons. During the Applicant’s sentencing on 5 August 2020 her Honour the sentencing Judge said, in part:
“….people who use a knife or any kind of weapon in circumstances of committing domestic violence or indeed other types of offences can expect to go to custody, even if they are young and they are somebody that does not have any significant prior criminal history. An aggravating feature in your case is the breach of the protection order and the fact that this a domestic violence offence. So, a term of imprisonment is appropriate to reflect the need to deter you and others from committing such offences, and also as a means of protection of the community”[67]
[67] See above at paragraph 41.
In the ordinary course, violent crimes are to be viewed very seriously, and here, regard must especially be had for the fact that the Applicant has been sentenced to a term of actual imprisonment, a penalty ordinarily reserved in the hierarchy of sentencing for only the most serious category of offending.[68] The Applicant has now committed 31 offences over a period of eight years, and a pattern of escalating seriousness is evident in that offending. Cumulatively, the Applicant’s offending can only be assessed as having had a deleterious impact on the Australian community.
[68] PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The Tribunal concludes that the nature and seriousness of the Applicant’s offending to date is such as to weigh heavily against revocation.
(b)The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) of the Ministerial Direction provides that, when considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) then provides that, when assessing the future risk that may be posed by the non-citizen to the Australian community, decision makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(v)information and evidence on the risk of the non-citizen re-offending; and
(vi)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Applicant’s criminal history instances a broad array of harms that may deleteriously impact members of the Australian community in a variety of ways, in the event that the Applicant were to re-offend again in the future. Of most immediate concern is the Applicant’s violent offending using a weapon in a domestic setting, which includes risks up to and including the possibility of death, as well as lasting psychological consequences for victims, and others. In the Tribunal’s assessment, the risk of a repetition of this type of offending is now so serious that any risk is unacceptable. Offending of this type also imposes significant costs on the healthcare and justice systems.
The Applicant has also previously committed an array of property, motor vehicle, and public nuisance-type offences and these too, if repeated, are likely to result in financial costs and other inconveniences, to Australian citizens, businesses, and the community.
There is no evidence before the Tribunal in the form of any psychological report providing any professional assessment of the risk of the Applicant now re-offending being either low or negligible. The Tribunal notes that even the prior imposition of terms of imprisonment have not been enough to prevent the Applicant from re-offending, and that further criminal offences were committed by the Applicant even while still on parole for the offence of wounding, with the offence of ‘assault occasioning bodily harm’ having been committed by the Applicant only five months after her parole release on the most serious wounding charge. The fact of further violent offending whilst on parole can only now be regarded by the Tribunal as a concerning and aggravating feature in this instance.
The Tribunal has before it a psychological report by Mr Craig Holt of Craig Holt and Associates dated 17 December 2019 which had been tendered to the sentencing Court in August 2020.[69] This report sets out the background and psychological history of the Applicant as had been reported by her to that report writer. Mr Holt identified several “positive prognostic indicators” for the Applicant including her high levels of regret and remorse, willingness to have ongoing psychological and psychiatric treatment; her intent to complete rehabilitative programs; and her pro-social career goals. Mr Holt recommended the Applicant engage in ongoing psychological treatment under a Mental Health Care Plan, concluding that such a plan would be likely to significantly reduce the likelihood of the Applicant re-offending. Mr Holt did not however provide an assessment of the Applicant’s risk of re-offending at the time of his report, such that it is unclear the degree to which any ongoing treatment plan would reduce the likelihood of the Applicant reoffending, if released into the Australian community. Equally, there is no evidence before the Tribunal of any consequential treatment regime having been commenced by the Applicant in response to the recommendation made by Mr Holt; nor any corresponding treatment report. Accordingly, the Tribunal is unable to attach any weight to the prognosis in Mr Holt’s report regarding a reduction in the risk of the Applicant re-offending.
[69] Exhibit 1, G22 pages 84 to 89.
Although the Applicant has explained that she became addicted to methylamphetamine, and has struggled with her mental health, with anger management, and with rage; and has herself been the victim of a volatile and abusive relationship, there is no acceptable evidence before the Tribunal of the Applicant having satisfactorily addressed any of these issues, and only limited weight can be attached by the Tribunal to the Applicant’s own claims that she has recovered her sobriety and developed insight into her condition, sufficient to curb the possibility of the Applicant now re-offending.
The evidence before the Tribunal of a support network surrounding the Applicant is exceedingly limited, and the Tribunal notes that the support of family did not previously prevent the Applicant in her offending behaviours, such that there is no evidence now sufficiently compelling to persuade the Tribunal that social support networks will be enough to mitigate the risk of any future offending, by the Applicant. Given that the Applicant has been in the controlled environment of either prison custody or immigration detention continuously now since March 2021, the Tribunal cannot conclude that there is any evidence of the Applicant having the capacity to exist in an unstructured and unsupervised environment without the risk of her relapsing, if now allowed to proceed back into the Australian community. In sum therefore, the Tribunal concludes that the risk of the Applicant re-offending remains unacceptable.,
Conclusion: Primary Consideration 1: The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Ministerial Direction, as well as the principles outlined in paragraph 5.2, and finds that:
·the nature of the Applicant’s criminal offending and other conduct is viewed very seriously;
·if the Applicant were to engage in the type of criminal or other serious conduct which she has committed in the past, the nature of the harm to potential future victims is likely to be very serious; and
·there is an unacceptable likelihood of the Applicant re-offending.
In consideration of all the evidence and each of the relevant factors contained in the Ministerial Direction, the Tribunal finds that Primary Consideration 1 weighs heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant has been convicted of a violent offence in the form of unlawful wounding, having stabbed her ex-partner with a knife; at a time when the Applicant was already restrained by the terms of a DVO dated 9 January 2018 naming her ex-partner as the protected party. This is a matter that falls squarely within the definition of ‘family violence’ in paragraph 4 of the Ministerial Direction.
The Applicant has also committed further acts of domestic violence, including her having attempted to strike her ex-partner Mr M with a baseball bat, as well as scratching, punching and kicking him. In a cumulative sense, considerable public resources have been consumed in dealing with the Applicant’s domestic violence behaviours, and there is no independent evidence before the Tribunal indicating that the Applicant has taken any steps to address any of these behaviours. The Tribunal notes that there is at least some evidence now suggesting that the Applicant is herself the victim of an abusive relationship and may have been the victim of coercive and controlling behaviours by her ex-partner. Ultimately however this is insufficient to excuse the conduct of the Applicant, and it affords little dispensation from the significance of the Applicant’s own acts of domestic violence, when armed with dangerous weapons. It remains necessary for the Tribunal to attach very significant weight in favour of non-revocation to this consideration.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Ministerial Direction compels a decision maker to make a determination about whether cancellation or refusal under s.501, or non-revocation under s.501CA is in the best interests of a child affected by the decision. 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 refuse or cancel the visa 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 Ministerial Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include:
Paragraph 8.3(4) of the Ministerial Direction then sets out a number of factors that are to be taken into consideration regarding the best interests of minor children in Australia:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)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;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of her own, yet declares two niece’s ‘A’, aged about three, and ‘I’ aged seven, as well as a nephew ‘A’, aged five. The Tribunal concludes that the best interests of these minor children in Australia is a factor that weighs in favour of the revocation of the Applicant’s visa cancellation. However, only minor weight can now be attached to this consideration on account of the following:
·The Applicant’s relationship with each of her niece’s ‘A’ and ‘I’ and with her nephew ‘A’ is not parental;
·The time spent by the Applicant in either imprisonment or in immigration detention, as well as other periods of lengthy physical absence away from the place of domicile of her nieces and nephew;
·In light of paragraph 8.3.4(b) in the Ministerial Direction, the Applicant’s criminal history and drug-use history must now be considered as factors detracting from the likelihood of the Applicant being a positive role model in the lives of the children; and
·There is no obvious impediment to the Applicant maintaining a relationship with her nieces and nephew by electronic means as she currently does, per paragraph 8.3(4)(d) of the Ministerial Direction.
Consideration: Primary Consideration 3
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration does weigh in favour of the revocation of the cancellation of the Applicant’s visa, yet only minor weight can now attach to Primary Consideration 3.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non-citizen to remain in Australia
Paragraph 8.4(2) of the Ministerial Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa may be appropriate, simply because the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Ministerial Direction provides that the above expectations of the Australian community apply regardless whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Ministerial Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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 Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Ministerial Direction.

Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Although the Applicant arrived in Australia as a child, it is to be noted the Applicant started to commit offences very shortly after attaining adulthood, and has now been convicted of serious violent offences, including serious family violence, and has continued to commit acts of violence in breach of parole conditions. Cumulatively, these factors give rise to serious character concerns.
Ultimately, the Tribunal concludes that this primary consideration weighs very heavily in favour of non-revocation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Considering all relevant factors, Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the ‘Other’ Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Ministerial Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 27-year old female citizen of New Zealand, who lived in New Zealand up until the age of six, and who still now has family in New Zealand, including her grandparents, with whom the Applicant has lived with in New Zealand for a period, previously. The Applicant has undertaken return trips to visit family in New Zealand in 2015 and in 2017.
There are no substantial language or cultural barriers that would now confront the Applicant in New Zealand. New Zealand is a country with modern healthcare services and the social welfare and economic supports that are available to New Zealand citizens are known to be broadly comparable to those that are available in Australia. Although there is some evidence before the Tribunal suggesting that the Applicant has now been diagnosed as bipolar, there is nothing now before the Tribunal to suggest that the Applicant could not obtain appropriate and comparable treatment for bipolar disorder in New Zealand, to that which is available for that condition, in her case, in Australia.
The Tribunal accepts that the Applicant will face some upheaval, as well as some initial difficulty and hardship when seeking to re-establish herself in New Zealand yet assesses these difficulties as only likely to pertain in the short term, and not to be either insurmountable, or to be so much as to be crushing. The Applicant will be able to maintain connection with her Australian family by electronic telecommunication means, and New Zealand is quite proximate to Australia, in the event that the Applicant’s Australian-based family may wish to travel to New Zealand in order to visit with the Applicant in the future.
In an overall sense, the Tribunal determines that this ‘Other’ consideration now weighs only marginally in the Applicant’s favour as a factor in support of revocation of the visa cancellation decision. The weight that can be attached to it is not so compelling as to outweigh any of the other factors that are now in support of upholding the visa cancellation decision.
Impact on victims
Paragraph 9.3(1) of the Direction relevantly states:
“Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.”
The victim of the Applicant’s most serious wounding offence has provided a short letter, in support of the Applicant.[70] However, paragraph 9.3 of the Ministerial Direction is directed towards the impact of the proposed visa cancellation on the victim. The Applicant’s former partner has not described any such impact on him. In light of same, the Tribunal attaches only neutral weight to this consideration.
[70] Exhibit 1, G25, page 90.
Links to the Australian Community
In consideration of this ‘Other’ consideration, paragraph 9.4 of the Ministerial Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia in 2001 at the age of six, and has resided in Australia for approximately 21 years, bar for a few months on a few occasions when she returned to live in New Zealand. The Applicant has declared previously working in office administration between 2011 and 2013, and as a dental assistant during 2009. The Tribunal assesses this as only a modest contribution to the Australian community.
The only other employment of which the Tribunal is aware relates to the Applicant’s past employment as a dancer in adult entertainment venues. On the evidence, it appears that this employment was undertaken primarily so as to afford a means of financial support for the Applicant’s illicit drug addiction, such that no weight is now attached by the Tribunal to the fact of this employment, beyond acknowledging the likelihood that income tax contributions would have been deducted by her employer, at that time.
There is no evidence before the Tribunal in relation to volunteer work, or other community engagement by the Applicant.
As for the strength duration and nature of any familial or social links, as contemplated by paragraph 9.4.1(2)(b) of the Ministerial Direction, the Applicant has declared the fact of her parents and three siblings living in Australia, as well as two nieces and a nephew. The Tribunal accepts that emotional hardship will be caused to these immediate family members, in the event that the Applicant is to be removed from Australia, yet now assesses this as being outweighed by those other considerations, now identified above, that are in support of the Applicant having her visa cancelled.
Impact on Australian business interests
There is no evidence of adverse impact on Australian business interests of a type contemplated by paragraph 9.4.2(3) of the Ministerial Direction, and the Applicant does not claim that her removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs only very marginally in favour of revocation of the visa cancellation decision
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
·Primary Consideration 1: Weighs heavily against revocation of the visa cancellation decision.
·Primary Consideration 2: Weighs very heavily against revocation of the visa cancellation decision.
·Primary Consideration 3: Minor weight in favour of revocation of the visa cancellation decision.
·Primary Consideration 4: Weighs very heavily against revocation of the visa cancellation decision.
·Other Consideration (a): Not applicable
·Other Consideration (b): Marginal (Minor) weight in favour of revocation of the visa cancellation decision.
·Other Consideration (c): Neutral weight
·Other Consideration (d): Marginal (Minor) weight in favour of revocation of the visa cancellation decision.
A considered application of the Ministerial Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member McLean-Williams

..............................[SGD]..........................................
Associate
Dated: 11 July 2022

Date of hearing: 6 June 2022

Applicant:

By videoconference

Solicitor for the Respondent
Mr Alex Chan

Sparke Helmore

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

1

Section 501 G Documents (G1 to G41 paged 1 to 182)

R

-

14 April 2022

2

Respondent’s Tender Bundle (R1 to R6 paged 1 to 183)

R

-

25 May 2022

3

Respondent’s Statement of Facts, Issues and Contentions

R

25 May 2022

25 May 2022

[2022] AATA 2203

21 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501 G Documents (G1 to G41 paged 1 to 182)	R	-	14 April 2022
2	Respondent’s Tender Bundle (R1 to R6 paged 1 to 183)	R	-	25 May 2022
3	Respondent’s Statement of Facts, Issues and Contentions	R	25 May 2022	25 May 2022