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

Knight and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4595 (8 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6801
Re:Wendy Lesley KNIGHT
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:8 December 2021
Place:Sydney

The decision under review is affirmed.
.............................[sgd]...........................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – domestic violence committed by the Applicant – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
Djalic v Minister for Immigration, Multicultural andIndigenous Affairs (2004) FCAFC 15
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigrationand Border Protection (2019) FCAFC 202
MBMZ v Minister for Immigration and Border Protection [2014] 220 FCR 1
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President

8 December 2021

The Applicant seeks review of a decision of a delegate of the Minister (“the Respondent”) made on 15 September 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 8 December 2020, to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) (“the original decision”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that she had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
The Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 15 September 2021, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 21 September 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 25 November 2021 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which 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.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5Decision-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 type 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.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)the strength, nature and duration of ties to Australia; and
(ii)the impact on Australian business interests.
FACTS
The Applicant, who is 48 years of age, was born in New Zealand. The Applicant is a citizen of New Zealand.
EVIDENCE
Statements
The Tribunal has had regard to the various character references and statements before it. For reasons of confidentiality, the names of those who have provided statements or references are not reproduced in this decision.
Oral evidence
The Tribunal heard oral evidence from the Applicant, and from the applicant’s daughter, father, and sister.
Medical evidence
No medical evidence has been produced, but two letters prepared by counsellors have been supplied to the Tribunal.
APPLICANT’S CRIMINAL HISTORY
The applicant first arrived in Australia when she was approximately in 1989 when she was 16 years of age. The applicant commenced offending in 1991 when she was 18 years of age.
The significant offending of which the applicant has engaged in are as follows:
a.February 1991, Brisbane Magistrates Court - the Applicant was convicted of 42 charges of stealing, and given probation for 12 months.
b.16 April 2000 - a police record was made of a violent incident in which the applicant smashed a mirror following her attempt to be allowed into a unit. The police record notes that the applicant had an extensive criminal history/drug involvement in the King’s Cross and Cabramatta areas.
c.22 June 2007 – the applicant was convicted under various sections of the Crimes Act 1900 (NSW) of maliciously destroying or damaging property, common assault, and contravening an apprehended domestic violence order. These offences arose out of a dispute with her ex-partner and involved the applicant using a fire extinguisher to damage the wall the victim’s apartment, and spraying the fire extinguisher over the wall, floors and carpet of the corridor of the apartment building, and then attacking the victim with an aluminium pole. As a result of fears held for the safety of the victim, the Parramatta Local Court issued an apprehended violence order (AVO). On the day following the issue of the AVO and in breach of the order the applicant attended the premises of the victim.
d.On or about 18 January 2013 - the applicant presented for payment at the Agrani Exchange Office at Potts Point a cheque made out to herself in the amount of $2800. The cheque was stolen and the applicant wrote the cheque herself.
e.The Applicant was convicted of the following offences between 21 November 2013 and 3 October 2018: goods suspected of being stolen in/on premises, possessing prohibited drug, dishonestly obtaining a financial advantage by deception, possessing prohibited drug, dishonestly obtaining financial advantage by deception, driving while suspended, stealing, soliciting in view of church, soliciting within view of a dwelling, and goods in custody.
On 19 December 2019, the applicant was convicted at the Downing Centre Local Court of reckless wounding for which she was sentenced to imprisonment for 20 months with 15 months non-parole. This is the offence that resulted in the sentence that led to the Applicant’s visa cancellation.
An appeal was lodged on the issue of the severity of the sentence. In the Parramatta District Court on 27 October 2020, the sentence of imprisonment was reduced to 12 months commencing on 27 October 2020 and concluding on 26 October 2021 with a period of eight months non-parole.
Sentencing observations
The Tribunal has considered sentencing observations in relation to these convictions.
On 19 December 2019, Magistrate Baptie said in the sentencing remarks:
The victim had fallen sleep in the lounge room and was snoring and this caused the offender to get angry with the victim, and a verbal argument ensued. It would appear from the prosecution’s case, that the offender armed herself with a knife, and was swinging the knife at the victim, and that caused a nick to his chin area. She then proceeded to pick up another knife and cause an injury to the upper left arm of the victim, which was described as having a 3 to 4 cm entry wound, it was approximately 15 cm deep, and almost exited through the other side of the victim’s arm. He was operated on and remained in hospital for two days.
The court is of the view that the matter was of a domestic violence nature, given that the two parties were residing at the one premises. The assessment of the objective seriousness is at fault in the mid to high range.
On 27 October 2020, before the District Court of New South Wales Judge O’Rourke SC said:
People in the community cannot grab a large knife and then just put it into someone’s arm, if it was in any other part of the body it could have been fatal. I have taken into account all those factors. I have taken into account the subjective material that has been produced today which is indicative that the appellant has not had an easy life, that she has had to suffer some things throughout her life but that also she has been involved in drugs and addicted to drugs but in the last 12 months or so has turned herself around and she is living a far more stable lifestyle with her daughter and also in a business sense.
The offender must be punished for stabbing someone in the arm and causing such serious injury. I find the sentence imposed appropriate but in light of the steps taken by Ms Knight since and to continue her course of rehabilitation I am prepared to reduce the sentence.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(e)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(f)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because she has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
As was observed in HZCP v Minister for Immigrationand Border Protection (2019) FCAFC 202, by McKerracher J at [67] :
It may be accepted that “another reason” is a broad expression. What is excluded from falling within the scope of the expression is the possibility of the applicant passing the character test as the decision-maker does not come to consider whether there exists “another reason” under section 501CA (4) (b) (ii) if the decision-maker is satisfied the person passes the character test.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind 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. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction.
The crimes for which the Applicant was convicted were, in her earlier years, petty crimes which have resulted in the imposition of fines or bonds. The 2019 offence for which the applicant received an initial sentence of 20 months with a non-parole period of 15 months involved the stabbing of a victim with a knife. The applicant, on appeal, was successful in having her non-parole sentence reduced to 12 months with an 8 month non-parole period. The reduction was granted in view of her attempts to rehabilitate herself.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)The applicant has been convicted of a crime of violence described as being in the mid to high range of objective seriousness by the sentencing Magistrate.
(b)Such crime was committed in a domestic situation, involving an altercation with a person with whom she had been residing.
(c)The applicant has a history of offending for more than 20 years. Many of the offences are of a minor nature. However, there are incidents, culminating in the 2019 conviction, which indicate that the applicant may become angry and violent as evidenced by the assault upon her ex-partner on 7 December 2006. There is also evidence that in more recent years the applicant has consumed methamphetamine and according to her evidence, discussed hereunder, the 2019 conviction resulted from the applicant coming off a “three-day bender” which was apparently the cause of her anger and hostility.
(d)The applicant has been untruthful with the Australian government on more than one occasion. She has supplied false and misleading information - Her arrival card when entering Australia on 29 August 2002 require the applicant to disclose any criminal convictions. The applicant did not disclose the existing convictions in Australia. Another question asked whether the applicant intended to reside in Australia, to which she indicated “no”. The applicant says she obviously misread the form.
(e)With regards to the 2019 conviction that led to the cancellation of her visa, the applicant apparently tried to mislead the Department as to the circumstances of the offending. In her personal circumstances form dated 15 December 2020, she made representations of her actions being in self defence against the alleged sexual assault upon her by the victim (discussed in detail below), which she stated in clause 14 of such form. This was entirely misleading, and the applicant admitted that this was not correct during cross-examination.
The length and escalation of the applicant’s criminal offending, and the violent nature of her offending – culminating in attacking her co-habitant with a knife – along with providing governmental departments with false and misleading information on at least two occasions, leads the Tribunal to consider the applicant’s offending to be very serious.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
The applicant acknowledges her long criminal history which commenced when she was 18 years of age. She states that as early as 2007 she attempted to take her own life by taking 25 Xanax tablets. She recovered in hospital.
In 2018 she was charged with driving whilst her licence was suspended and learned that she had accumulated a debt of $16,000 in fines. She has participated in a work and development order scheme, thereby reducing the debt to $7000.

The applicant states that the 2019 offence occurred following an altercation which her companion told her to leave the house. She picked up a knife from the bench and stabbed him in the arm. She attributed such conduct to her drugtaking.
In jail and in detention, she has undertaken numerous courses to assist her dealing with hostility. She has undertaken a course in dealing with finance, and a 16-week course known as the High Intensity Program Unit (HIPU) dealing with foundations, addictions and aggressions. The following courses were each a part of the HIPU - RUSH - Real Understanding of Self-Help, EQUIPS Foundations, EQUIPS Addiction, and EQUIPS Aggression She also took part in courses regarding ‘getting out and staying out’, a course regarding having control of her finances, and a course about retaining rental properties.
The applicant states that she has attended courses in religious studies and painting classes.
The applicant states that since her visa was cancelled, she has reflected upon her life and of the issues which have led to her offending. She states that she has “reached out” to many help centres such as the Kirketon Road Centre which offers counselling and support in relation to drugs and alcohol, a Women’s Legal Aid Centre, the Wesley Mission for assistance with financial support, clothing and furniture, and Odyssey House, through which she has signed up to weekly online meetings for “mental health and drugs & alcohol addiction”.
The applicant states that she proposes to rent a home with her daughter and her daughter’s partner, or alternatively she can stay with another friend who has a stable lifestyle and full-time employment who is a “very good influence”. She does not propose to return to the work of a sex worker, as she wishes to remain ‘clean’ and does not believe that working the industry would be conducive to that. She instead wishes to obtain employment in a “normal job”, perhaps in sales.
A counsellor from the Kirketon Road Centre provided a letter in support of the applicant. The letter states that the applicant first attended the centre in March 2007 and that since that time she had regularly accessed support from the medical and counselling units. The author of the letter has been a counsellor to the applicant since January 2019. The author states that the applicant has divulged her childhood sexual abuse as a teenager. The letter does not express any concern that the applicant is violent or dangerous.
The sentencing assessment report dated 19 November 2019 assesses the applicant at a “T2 Low risk of reoffending according to the Level of Service Inventory-Revised (LSI-R).”. A subsequent sentencing assessment report dated 27 October 2020 refers to the fact that the applicant’s business had “significantly picked up and that she is building a steady stream of clients”. Such report also refers the fact that the counsellor reported that the applicant had “shown a sincere intent to engage in a therapeutic process and work on her drug and alcohol issues – and the historical psychological issues that underlie these issues”.
The Tribunal is required to consider the future risks when determining the application before it, in that the decision-maker cannot regard visa cancellation or deportation as a form of punishment for past events: see Djalic v Minister for Immigration, Multicultural andIndigenous Affairs (2004) FCAFC 15 at [58]. The rationale for such principle rests on the basis that the applicant has been punished already for the crimes committed.
In MBMZ v Minister for Immigration and Border Protection [2014] 220 FCR 1 at (192), Buchanan J said:
…the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
While the Tribunal takes into account the prognostications for the future contained in the Sentencing Reports and the expressions of remorse, the courses undertaken whilst in prison and outside of prison address the applicant’s drug habit and of the applicant’s desire to change past lifestyle, the Tribunal notes that the applicant has been in receipt of counselling from the Kirketon Road Centre since approximately 2007. There is no evident change in her lifestyle since, and the Tribunal must also consider that there is a likelihood that there may not be change in her lifestyle in the future.
A casenote report of the NSW Department of Corrective Services dated 4 November 2019 reports that the applicant claimed that she did not commit the offence and that she denied ever holding the knife. She said that she had ceased “shooting up” years prior, and that the victim stabbed himself. A further report of the same service dated 13 November 2019 states that the applicant lied about the entire offence and includes the following:
Reported that [the victim] lied about the entire offence, reported that was sleeping the day of the offence when he came home and started yelling at her about getting him drugs. Reported that she told him that she is done with it and is not going to use/get him anymore. Reported that she saw him getting crazy and wanted to leave when he grabbed a knife, reported that he told her he would set her up. Stated that he said "if you dont get me some drugs im going to fucking tell the cops yous stabbed me and ill fuck you up" [sic].
The sentencing assessment report, dated 19 November 2019, contains the following
Ms Knight denies committing the offence, commenting that “it’s crazy that he [the victim] has gone this far”.
Ms Knight denies inflicting any injury upon the victim, reporting that she “never held a knife and that the victim stabbed himself”.
The report also contains the following:
Ms Knight reported that she is not a violent person and that she tries to avoid all types of violence as she was abused by her ex-partner.
In her personal circumstances form, dated 15 December 2020, provided to the respondent in response to the notice of the cancellation of her visa, the applicant stated:
My charges are because my flatmate was sexually assaulting me every day constantly texting me my daughter and my girlfriends disgusting rude pics of himself naked even when my daughter was 17 yrs [sic] he tried to hold me down and rape me I was defending myself I’ve been a subject to sexual abuse my whole life and I think it was unfair I was convicted for finally defending myself.
In an email written by the applicant on 31 August 2021 to NCCC Revocations and headed ‘Natural Justice Letter’, the applicant wrote, inter alia:
If I had had better counsel for my court and given the right advice I never would of been charged and been in the position I’m in now.… I am [sic] in no way a threat or dangerous for the Australian public I’m willing to swear that I will never be in trouble with the law or anyone ever again I have fully learned from my mistakes and I completely remorseful for what I have done.
The applicant told the Tribunal that what she had stated was untrue. She said that the stabbing occurred following herself and a partner having a three day “bender”. She stated that she became annoyed with the victim because he was snoring and in the course of an argument, she picked up the knife and stabbed him.
The applicant has repeatedly denied responsibility for the 2019 crime, and did not believe she is guilty of the offence, although at the hearing she admitted to the facts as they had been recorded by the police. The applicant claimed to know more about the offence but did not provide further details. Despite her acknowledgement of the circumstances, namely a drug fuelled dispute, the Tribunal gained the impression that the applicant did not truly accept or understand the seriousness of the offence. It appeared that she persisted in her belief that she is not guilty. However, the Tribunal has no power to review the criminal conviction and must proceed on the basis that the facts as found at the trial to be correct: see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. In that decision McKerracher J said at [63]:
Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends. That is the point of the deportation cases, as recently succinctly summarised in LLF. The position is not different in substance in the present situation where the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1).
As such, the Tribunal cannot give any consideration to any representations to innocence by the Applicant, although it must be said she did not put any forward during the hearing.
However, the Respondent submits that the applicant’s previous refusal to admit to her offending – demonstrated in her blaming the victim for the offence in 2019 from allegations of sexual assault to accusations that the victim had manufactured the situation in order to force the applicant to buy him drugs – should be take into account when considering the remorse expressed by the applicant. The Tribunal has considered and accepted this submission.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs strongly against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of 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 (sub-paragraph 8.1.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
Since residing in Australia, the applicant has been involved in an incident involving domestic violence. In 2006, the applicant used a fire extinguisher to damage the entrance to the victim’s residence before maliciously spraying the walls and carpet of the building with the fire extinguisher. She then waited for the victim to exit the property then attacked him with an aluminium pole, striking the victim’s arm and striking him on the back right side of his head. As a result, she was given an apprehended domestic violence order.
However, there is nothing to suggest that this offending falls within the remit of this consideration, and neither party has made submissions to the contrary.
Finding on Primary Consideration B
As such, the Tribunal finds that this consideration has neutral weight.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(iii)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(iv)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(v)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
(f)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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has a daughter, T, aged 25 year, who had a child in 2017 (‘the grandchild’). There is no evidence concerning the father of T. T surrendered the child to a family who are members of the same church to which T belongs. The applicant has never seen the child, however there was a suggestion that she had met the child through videochat while in detention or gaol. T proposed that if the applicant is able to remain in Australia, she would be regarded as the aunt.
There appears to be no real bond between the applicant and her grandson.
Finding on Primary Consideration C
The Tribunal considers that the best interests of the child weighs only slightly in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be 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 the 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.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
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 (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Tribunal also observes that the Tribunal should not consider that cancellation is a form of punishment: the applicant has served her sentence and accordingly has already been punished for the offence, as per Djalic above.

It is a well-established principle that the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The applicant states that she was born in New Zealand to a New Zealand mother and Australian father.
The applicant states that her parents separated when she was 18 months old. She has two half siblings from her mother’s second marriage. Her half siblings reside with the applicant’s mother in New Zealand. She has no contact with her mother, stepfather and half siblings.
The applicant’s childhood was unhappy. As a child she resided with her mother and her stepfather, and lived in the garage of a grandfather’s house. According to the applicant, her mother would beat and punish her, and abuse her. Her grandfather had a loving relationship with her, but when he passed away her mother removed her from a Catholic college and transferred to a public school to save the costs of a private school. Thereafter the applicant’s mother arranged for the applicant to be placed in foster care. The applicant states that her grandfather bequeathed his house to her. After she was in foster care, she learnt that her mother had made an application and had received such benefit instead of the applicant.
The applicant acknowledges that during her childhood she would break out from the boarding house and that she experienced bad influences which ultimately led to her placement in a juvenile corrections centre. She states that whilst in the correction centre she was sexually assaulted by a staff member, who may have been protected by other staff members. She states that a claim has been made following a Royal Commission of Inquiry into Abuse in Care. Such claim has been verified by correspondence produced to the Tribunal.
The applicant states that a social worker asked her who she could live with and the applicant told him that she had an older sister and father in Australia. The applicant then came to Australia to reside with her father for about two to three months then moved out to live with friends. The applicant then began working in a massage parlour, which introduced her to sex work.
The applicant was married on 29 September 1994. Thereafter she met another partner who is a father of her son. Subsequently this partner was jailed for drug offences. The applicant’s daughter is a product of a different relationship.
The applicant stated she has been periodically a sex worker for 30 years, and that she worked in the industry to make money to support herself and her children, and her partner at the time had been jailed for drug offences. The applicant also acknowledges that she has used drugs for more than 20 years, but states that her use has not been constant. She began experimenting with methamphetamine (ice) six years ago and states that the last offence for which he was convicted resulted from her use of ice two to three times per week. She states that when using ice, her behaviour changed and she became easily aggravated, angered and very moody and would often go three to four days without sleep. She states that she ceased using drugs around four days after the 2019 stabbing offence.
The applicant states she contracted hepatitis C from her drug use but following treatment in jail, she has now recovered.
Finding on Primary Consideration D
In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh against the Applicant.
While it is apparent that the applicant has had an unhappy childhood and upbringing, which may have contributed to her drug abuse, and the crimes of violence were not directed at strangers, and seem to be committed while under circumstances in which the applicant was apparently drug affected, the offence that resulted in the cancellation of the applicant’s visa was considered mid-to-high on the scale of seriousness.
As such, the Tribunal finds that this consideration weighs against revocation of the original decision.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter, and has neutral weight.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant has resided in Australia since 1989. The Tribunal must consider the extent of impediments if the applicant were removed from Australia. The applicant is 48 years of age and has resided in Australia for 22 years. As referred to below, the applicant may face a period of readjustment but there are no substantial language or cultural barrier, and the social, medical and/or economic support available to the applicant will be similar to that in Australia.
The applicant’s mother and her family reside in New Zealand. However the relationship is estranged. The applicant was placed in governmental care in New Zealand when she was approximately 13 years of age. The applicant’s father stated that the applicant’s mother has two brothers who have families in New Zealand and that he is close to the two brothers and their wives. The applicant’s father stated that he visits New Zealand 2 to 3 times per year to see them; however the applicant has not met these relations.
There would be a period of readjustment for the applicant if she were returned to New Zealand. However, the applicant has shown that she can make a living and claims to want to start a new life with a “proper job”. There should be no impediment to the applicant re-establishing herself in New Zealand where the customs and language are virtually identical to that in Australia. Health and welfare services should be available to the applicant, as they are in Australia.
On balance, this consideration weighs slightly in favour of revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 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.
In sentencing remarks, Magistrate Bieke recorded that the victim of the assault suffered a knife wound which was approximately 15cm deep and almost exited through the other side of the victim’s arm. The victim was operated on and remained in hospital for two days. However, there is no evidence from the victim, nor is there any evidence of any other victim resulting from any of the other offences with which the applicant has been convicted before the Tribunal.
As such, the Tribunal does not find this consideration to be relevant to this matter and assigns in neutral weight.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant’s sister and her two adult children resided in Australia, as does her father. The biological father of the applicant and his parents were born in Australia. The applicant’s grandson was born in Australia.
The applicant has a son F who is a member of a government agency. F has recently signed for another period of four years with the agency which potentially requires him to travel overseas. No other details have been provided of the son, and he did not provide any statement to the Tribunal.
The applicant has a daughter, T, who provided a written statement and who provided oral evidence in support of the applicant. T has resided with her current partner for the past three months in Queensland. In her childhood, T was brought up in New Zealand by her grandmother. T states that the applicant would move in with her in New South Wales if she were permitted to remain in Australia. T has worked in the care industry but has been retrenched. Whilst there has been limited face to face communication between the applicant and T, the last visit being in approximately 2019, the applicant states that she communicates with T by video call every day.
T has requested that the applicant remain in Australia so that she can participate in family life.
The Tribunal notes that the children of the applicant are now adult each of whom appears to have had limited contact with the applicant during their lifetime. There is limited evidence of any strong tie between the applicant and her children and father. It is apparent that she does have some relationship with her daughter, T. The applicant has maintained contact with her daughter by electronic means. There is no reason why this should not continue if the applicant were living in New Zealand.
The applicant expresses the belief that she has been selfish but putting her work before her family, and that if she is deported she will never have the opportunity of knowing her children, her grandson and her future grandchildren. She states that she wishes to maintain a relationship with every family member including her father, sister and children. She has not met her grandson who was born interstate whilst she was on bail. The applicant asks for a second chance to remain in Australia.
She has a biological sister who is a permanent resident in Australia. The sister provided both oral and written evidence in support of the applicant. The applicant also has a father who resides in Australia. The applicant’s father provided a written statement and provided oral evidence to the tribunal. The applicant has had no communication with her father – there was some suggestion at hearing that the applicant and her sister had not seen their father in over 20 years - and the association between them appears negligible. It was only after the applicant was in jail that she and her father reconnected.
The applicant’s older sister, in her statement, verifies the unhappy upbringing of the family. She states that the applicant is not a violent person. The sister also requests the second chance be given to the applicant despite her offending.
The father of the applicant has provided a statement which confirms that he resides in Australia, that his children had a very unhappy life, and that the applicant came to Australia to reside with him because of the adverse circumstances of the applicant when in New Zealand. The applicant’s father stated he had never known the applicant to be a violent person and that the applicant’s actions must have arisen from being drug affected. In his oral evidence, the father acknowledge that he had not seen or talked to the applicant for a long period prior to her incarceration.
Two close friends of the applicant have provided statements which speaks highly of the applicant’s concern for others and that her violent action was wholly inconsistent with their knowledge of her. The Tribunal has referred to the links to Australia and to any family members as set out above.
The applicant was asked whether she filed a tax return. In response she said that her employer, the operator of a strip club, had paid her tax for 15 years and that the club had now shut down. She informed an officer of the NSW Department of Corrective Services that she was being supported by Centrelink in the months prior to entering custody. The applicant claimed that she only applied to Centrelink to give her links to Australia in an attempt to prevent deportation. The applicant allegedly informed the officer that she used to earn $2500 a week. During her evidence the applicant stated that such figure was a lie, and that true income was approximately $300 to $400 per week.
There is no evidence that the applicant has any particular financial ties to Australia. She owns no property in Australia.
The applicant commenced offending soon after arriving in Australia, and there is no evidence that she has made any positive contribution to the Australian community. There is limited evidence of any family ties and social links with Australian citizens, except her family and friendships with the persons who have provided references in support of the applicant
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
Finding on Links to the Australian Community
The Tribunal finds that this consideration weighs in favour of revocation.
CONCLUSION
Primary Consideration A and D both weigh against revocation of the original decision, albeit slightly differently in weight. Primary Consideration B has neutral weight, and Primary Consideration C weighs slightly in favour of revocation.
The other considerations of international non-refoulement obligations and impact on victims have neutral weight in this matter. The impediments that the applicant may face were she to be removed weigh slightly in favour of revocation, and the applicant’s links to the Australian community weigh in favour of revocation.
On balance, the Tribunal finds that Primary Considerations A and D outweigh Primary Consideration C and the other considerations in favour of revocation.
The Tribunal is to determine whether there is “another reason” which might justify the Minister revoking the original decision. In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal finds that there is no other reason why the original decision should be revoked, as referred to in s 501CA(4) of the Act. It follows that the decision under review should be affirmed.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President.

...............................[sgd].........................................
Associate
Dated: 8 December 2021

Date(s) of hearing: 25 November 2021

Solicitors for the Applicant: Ms M Mamarot, SouthWest Migration and Legal Services

Solicitors for the Respondent: Ms M Kelly, Sparke Helmore

[2021] AATA 4595

8 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	25 November 2021
Solicitors for the Applicant:	Ms M Mamarot, SouthWest Migration and Legal Services
Solicitors for the Respondent:	Ms M Kelly, Sparke Helmore