Long and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 726

Long and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 726 (12 April 2024)
Division:GENERAL DIVISION
File Number:2024/0376
Re:Ann Long
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 April 2024
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 January 2024 is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...............[Sgd]........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include attempt to possess prohibited drugs with intent to sell or supply, possession of stolen or unlawfully obtained property, dishonesty offences, multiple driving and traffic offences, drug offences – Applicant is a 61-year-old citizen of the United Kingdom who arrived in Australia as an 18-year-old – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor grandchildren – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to the United Kingdom – impact on victims – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Anne Long and Department of Immigration and Multicultural Affairs [1997] AATA 543
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.3(4),8.3(4)(a)(i), 8.3(4)(a)(iii),8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 April 2024
BACKGROUND

The Applicant is a 61-year-old woman who was born in the United Kingdom. She arrived in Australia to reside permanently on 30 September 1981 when she was 18 years old (R1/101).
On 31 August 2021, the Applicant was sentenced in the Perth District Court to a term of five years and eight months imprisonment for “attempt to possess prohibited drugs with intent to sell or supply” and one year imprisonment for “possession of stolen or unlawfully obtained property”. The terms commenced on 24 January 2020 and were to be served concurrently (R2/387).
On 28 September 2021, the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that she had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (R1/102).
The letter advising the Applicant of the Cancellation Decision advised that she could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 21 October 2021 (R1/40-60). She submitted a personal circumstances form, statements, and numerous letters of support with her revocation request. She subsequently submitted further support letters and other evidence including course completion certificates (R1/61-78).
However, on 18 January 2024, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/4). This is the Reviewable Decision currently before me.
The Reviewable Decision (and documents pertaining to the decision) was handed to the Applicant in immigration detention on 19 January 2024 (R1/2 and 132).
On 22 January 2024 she lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (R1/1-3). She was therefore within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 19 January 2024, meaning that I must decide this application on or before 12 April 2024.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if she does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard in person on 21 March 2024.
The Applicant was represented by Ms Jasmin Angel of Estrin Saul Lawyers. The Respondent was represented by Mr Ashley Burgess of The Australian Government Solicitor.
The Applicant gave evidence at the hearing in person.
The Applicant’s son Brian gave evidence by telephone, and the Applicant’s daughter Elyce gave evidence in person at the hearing.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s Bundle of Documents, comprising pages 1-28 (Exhibit A1);
(b)Applicant’s Supplementary Bundle of Evidence, comprising pages 1-21 (Exhibit A2);
(c)Statement from the Applicant’s friend, Adele, with Attachment A (the Applicant’s ACIC criminal history check) dated 18 March 2024 (Exhibit A3);
(d)Statutory Declaration by the Applicant’s nephew, Lee, dated 18 March 2024 (Exhibit A4); and
(e)Section 501 G Documents, labelled G1-G5, comprising pages 1-141 (Exhibit R1)
I also marked the Tender Bundle, labelled TB1-TB5, comprising pages 1-835, for identification only, as Exhibit R2. I advised the parties that due to the volume of material in Exhibit R2 I expected them to specifically identify any documents they sought to rely upon in this bundle in written and oral submissions, or during the examination of witnesses.
I also had before me the:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 22 February 2024;
(b)Respondent’s SFIC dated 8 March 2024; and
(c)Applicant’s Reply dated 15 March 2024.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(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.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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 measureable [sic] 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because she has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). As I mentioned in the Background section above, on 31 August 2021, the Applicant was sentenced in the Perth District Court to a term of five years and eight months imprisonment for “attempt to possess prohibited drugs with intent to sell or supply” and one year imprisonment for “possession of stolen or unlawfully obtained property”, with the terms to be served concurrently.
Consequently, the Applicant fails the character test, and the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent 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, , [sic] 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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has a lengthy criminal history. Her offences include driving and road traffic offences, offences involving dishonesty such as stealing, receiving, burglary and possessing stolen or unlawfully obtained property, drug offences involving the possession of cannabis, the manufacture of heroin and attempting to possess drugs, breach of police order and breach of bail (R2/387-392).
Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). The Applicant has not committed any of the categories of crimes listed in those sub-paragraphs.
However, the categories of offences that can be regarded as “serious” or “very serious” are not limited to the categories of offences set out in in paragraphs 8.1.1(1)(a) and (b) of Direction No 99. Those categories are not exhaustive and other offences can be serious or very serious. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]) and as a consequence has frequently considered drug-related offending to be serious.
The offences that formed the basis of the Cancellation Decision was “attempt to possess prohibited drugs with intent to sell or supply” (Drug Collection offence) and “possession of stolen or unlawfully obtained property” (Drug Money offence). The Applicant and her husband were arrested attempting to collect drugs that were buried in bushland. They were arrested after police surveillance. The facts were summarised by the sentencing Judge who sentenced the Applicant on 31 August 2021 (R1/28-29):
On 21 January [2020], in the afternoon, the police attended bushland along the footpath on [street and suburb name omitted]. At the rear of [address omitted], they found a purple garage bag. It contained two packages of methamphetamine which had been buried in the sand of the footpath.
A search warrant was executed. The methamphetamine was seized and substituted with an inert substance. The drugs were weighed. One package contained 171 grams of methamphetamine at a purity of approximately 68 per cent, and the second package contained 627 grams of methamphetamine. And the purity of that package was approximately 74 per cent.
On 23 January 2020, at about 12.50, i.e. two days later, you and your husband walked along the footpath towards where the drugs were buried. I’ve seen the video footage of your arrest on that day.
Mr Long [the Applicant’s husband] dug up the purple garbage bag, and you held onto a white shopping bag. The police approached and arrested you and Mr Long. The shopping bag held by you contained scales, clip seal bags, a spoon, and a plastic food container, the sort of items commonly associated drug dealing. You can be seen in the video footage as the police approach, firstly, putting the bag behind you, and then putting it up on the wall that went along the footpath.
You were taken back to the home that you were staying in in [suburb name omitted] where a search of the house was conducted. And that’s where the police located $19,990 in Australian currency which is the subject of count 2.
The sentencing Judge further observed that, “it’s quite clear his role [the Applicant’s husband’s role] was more significant than yours” and sentenced the Applicant on the basis that she played a lesser role in the Drug Collection offence. Her Honour was also satisfied that over the years the Applicant had been subject to domestic violence perpetrated by her husband (R1/31 and 33). The sentencing Judge referred to the Drug Collection offence as being serious because the maximum term of imprisonment was a life sentence. Her Honour also considered the large amount of methamphetamine which was well above the trafficable amount and that the distribution of drugs into the community could lead to serious consequences (R1/28 and 35). I agree with Her Honour’s comments which highlight the seriousness of the Drug Collection offence.
This Tribunal has often found driving offences to be serious due to the serious and adverse consequences to innocent road users that can result from this types of offences (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16];]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]; Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32; MJNN and Minister for Home Affairs [2019] AATA 3205 at [53]-[54]). The Applicant’s record of repeated driving offences tends to indicate an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. The repeated nature of that offending also, in my view, adds to the seriousness because it suggests a deliberate disregard for road safety laws and the well-being of others.
At the hearing the Applicant suggested that some of her traffic offences were committed by her sister in law who is now deceased, and that her sister in law had even pretended to be her in court. She said that she was shocked by this but thought there was nothing she could do about it and did not raise it with the police (transcript/38-40). Although I had some sympathy for the Applicant and found her explanation to be plausible, I cannot go behind the fact of those convictions which I must attribute to the Applicant (HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202). What was less plausible was the Applicant’s explanation for her most recent driving offence of “no authority to drive – suspended” on 10 February 2019 (transcript/44). That explanation was that when the police pulled the vehicle over, her husband was driving and the Applicant was a passenger, but her husband made her swap seats with him. Even if I accept the police pulled up in front of the vehicle, it is unlikely that police would not notice the Applicant and her husband swapping seats after the vehicle was pulled over. Nevertheless, as I have stated, I cannot go behind the fact of that conviction which must be attributed to the Applicant.
The Applicant has 25 convictions for driving offences committed between 27 April 1987 and 10 February 2019. They include “speeding by more than 10 km/hr but less than 20 km/hr”, several offences for driving without a licence, having false number plates or number plates not issued to that vehicle, several offences for driving an unlicensed vehicle, failing to give her name or address to police under the Road Traffic Act 1974 (WA), and “exceed 0.08g alcohol per 100ml of blood” with a reading of 0.111. Laws prohibiting driving whilst suspended or without being the holder of a valid licence, laws prohibiting unlicensed vehicles from being driven, and laws about speeding and prohibiting driving under the influence of alcohol are in place to ensure the roadworthiness of vehicles, to ensure unsafe drivers are not on the roads and are ultimately in place to protect the safety of other innocent road users, including pedestrians and cyclists. I note that most of the offences are less serious in nature than many driving offences such as reckless driving and/or driving at speed to escape police. However, the Applicant’s driving offences are numerous and repeated, which when coupled with the potential harm that can result, makes them collectively serious.
The Applicant was sentenced to the following terms of imprisonment (para 8.1.1(1)(c) of Direction No 99):
·Three years imprisonment on 5 November 1987 comprising 12 months for “heroin sell/ supply” and two years cumulative imprisonment for “heroin possess quantity intent to sell/ supply”.
·One year imprisonment on 11 August 1993 for “heroin manufacture”.
·18 months imprisonment on 6 December 1996 comprising 18 months imprisonment for “burglary and commit offence agg[ravated] (habitat)”, nine months concurrent imprisonment for “burglary and commit offence agg[ravated] (place)”, three months concurrent imprisonment on each charge for two counts of “stealing”, and one month concurrent imprisonment for “breach of bail”.
·Five years and eight months concurrent imprisonment on 31 August 2021 for the Drug Collection offence and one year concurrent for the Drug Money offence.
·Four months imprisonment on 18 October 2021 for “fail to comply with a requirement” under the Criminal Property Confiscation Act 2000 (WA).
The Applicant has also received fines and disqualifications for her other offences including for driving offences, breach of a police order, possession of stolen or unlawfully obtained property, two cannabis possession offences and a stealing offence. The fines that the Applicant received are indicative that the Courts viewed those offences as being of a less serious nature, such that they did not warrant a custodial sentence of imprisonment. However, as I have concluded above, the Applicant’s repeated driving offences are collectively serious, although they were not at the more serious end of the scale so as to warrant custodial sentences of imprisonment.
The Applicant has been convicted of 25 driving/traffic offences and 19 criminal offences with her first conviction being on 14 May 1982 and her last offence being committed on 23 January 2020. There have been breaks in her offending including for: approximately four years between May 1982 and March 1986; approximately three years from December 1996 and April 2003; and approximately eight years from May 2011 to February 2019. Overall, her offending is frequent, there are repeated offences, and the Drug Collection offence committed on 23 January 2020 was her most serious, as evident from the lengthy term of imprisonment she received. This suggests there is a slight trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
The Applicant has appeared in court on numerous occasions for her offending which can be regarded as frequent. She was sentenced to custodial terms of imprisonment on five occasions, has breached bail and has been fined on numerous occasions. This would have placed a burden on the resources of police, corrective services, and the Courts. There is likely to have been a moderate cumulative effect (para 8.1.1(1)(e) of Direction No 99).
There is no evidence to suggest the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99).
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has received numerous warnings.
Her first warning was dated 21 June 1988 and followed her convictions for heroin possession and supply on 5 November 1987 (R1/91). Despite that warning she committed several further offences including “heroin manufacture” for which she received one year imprisonment. Another warning was issued on 15 December 1993 following these offences which the Applicant acknowledged receipt of on 20 December 1993 (R1/90).
The Applicant then reoffended with drug, traffic and dishonesty offences including stealing and aggravated burglary. On 9 June 1997, a delegate of the Minister ordered the Applicant’s deportation from Australia (R1/98). The Applicant was advised of this deportation order in a letter dated 13 June 1997 (R1/92-97). That deportation order was set aside by the Tribunal on 5 December 1997 (Anne Long and Department of Immigration and Multicultural Affairs [1997] AATA 543), and the Tribunal gave the following warning, at para [30]:
The applicant must realise, however, that this decision goes in her favour largely because the Tribunal has found that, she is a good mother when free from drugs and that, in that state, it is in the best interests of the children to have close “family” contact with her. Should she revert to reliance on drugs, however, the interests of the children will be best served by separation from her and this would be taken into account against her in any future deportation proceedings.
At the hearing the Applicant agreed that at this time she appreciated that further offending may result in her being deported (transcript/30).
On 6 October 1998, the Applicant was issued with a notice of intention to cancel her visa under s 501 of the Migration Act (R2/503-506). On 15 December 1998, the Minister decided that it was in the national interest to cancel the Applicant’s visa due to the seriousness of her offending (R2/511) and she was taken into immigration detention for six months. The Applicant explained that at the time she thought that she had been unlawfully detained because she had not broken the law and immigration officers had come to her home to take her into detention (transcript/32).
Due to her visa being cancelled on character grounds, the Applicant was advised that she could only apply for limited classes of visa, including various types of bridging visas (R1/99-100). Whilst the Applicant was in immigration detention, she applied for two bridging visas so that she could get released from immigration detention, but they were refused on 18 January 1999 (R2/529) and 1 April 1999 (R2/525).
She was released from immigration detention on 16 June 1999 on the day that a High Court appeal to challenge the cancellation of her visa had been scheduled (R2/491). On the same day she was issued with another notice of intention to cancel her visa under s 501 of the Act (R2/487).
The Applicant committed two further offences of driving without a licence in March and October 2003 after which time another warning was issued to the Applicant on 30 October 2003 (R1/89). That warning was sent to the Applicant via her legal representative at that time, but she does not recall receiving it. She also gave evidence that she did not think her visa would be cancelled for traffic offences (transcript/36-37).
I also note that the Applicant’s husband’s visa was cancelled in 2002 and 2007. The 2002 cancellation of his visa was overturned by the Federal Court in September 2003. The 2007 cancellation of his visa was affirmed by the Tribunal but later overturned by the Full Federal Court. The Applicant could not recall much about her husband’s 2003 visa cancellation proceedings in the Federal Court. She recalled giving evidence in support of her husband being able to stay in Australia in the 2007 Tribunal proceedings (transcript/40-41).
Although the Applicant could not recall the precise details of every warning, she received numerous warnings, notices of intention to cancel her visa, her deportation had been ordered on a previous occasion, she had spent approximately six months in immigration detention, and she knew that, on at least one occasion where she gave evidence at the Tribunal hearing, her husband’s visa had been cancelled due to his criminal offending which he had sought to overturn in the Federal Court (transcript/48-49). I am satisfied that, by the time the Applicant received her last warning in October 2003, she knew that further criminal offending could result in the cancellation of her visa.
Where the offence or conduct was committed in another country, Paragraph 8.1.1(1)(h) of Direction No 99 requires me to consider whether that offence is an offence in Australia. The Applicant’s offences were committed in Western Australia and so this sub-paragraph is not applicable.
The Applicant has committed numerous and frequent offences over many years. Her offending ranges from less serious offences for which she has received fines, repeated driving offences, and serious drug offences including for possessing and supplying heroin, manufacturing heroin, possessing cannabis and the Drug Collection and Drug Money offence that formed the basis of the most recent cancellation of her Visa. She has received numerous warnings which did not deter her from reoffending and previously spent approximately six months in immigration detention. She has been sentenced to five custodial sentences of imprisonment, with the term she was sentenced to for the Drug Collection offence and Drug Money offence being a lengthy total term of five years and eight months. There is a slight trend of increasing seriousness and a moderate cumulative effect.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)

Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should she engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
The nature of the harm if the Applicant were to commit further drug offences is varied. Selling and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, mental and other health issues for drug users as well as fatalities through overdose, and the negative impact that this can have on remaining friends and family members.
The nature of harm if the Applicant were to commit further general offences including breach of bail and offences involving dishonesty such as aggravated burglary, stealing, or receiving is varied and may include financial and psychological harm to members of the Australian community. The nature of harm that results from such offending is generally less serious than the harm which results from violent offences and drug-related offending.
The Applicant also has numerous and repeated driving/ traffic convictions including driving whilst suspended and driving an unlicensed vehicle. She also has a conviction for driving under the influence of alcohol, for driving with false number plates or number plates not issued to that vehicle and for refusing to provide her name and address to police. The primary purpose of road traffic and driving laws is the protection of road users. For example, laws that drivers hold a valid drivers’ licence exist to make sure that people driving motor vehicles are appropriately qualified and skilled to drive, and laws requiring details to be provided to police exist so that police can check that people are licensed to drive for those reasons. Prohibitions against driving whilst suspended exist to ensure that road users are appropriately qualified and safe to do so. Prohibitions against driving under the influence of alcohol and drugs ensure that innocent road users are not endangered. Contraventions of these laws can have minor, through to very serious consequences, including road traffic accidents and even fatalities and can also result in physical and psychological injuries to innocent road users.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 61-year-old woman who, as I mentioned above, has been convicted of 25 driving/ traffic offences and 19 criminal offences in Australia between 1982 and 2020. She has not been deterred by several sentences of imprisonment, previous visa cancellations and approximately six months in immigration detention. Overall, the Applicant’s history of offending over such a lengthy period suggests that there is a likelihood of future reoffending.
The Applicant was previously a heroin addict; however, she has not used heroin for approximately 20 years. She was able to give up heroin in approximately 2002 or 2003 when her youngest daughter was approximately two years old (transcript/37). I am of the view that much of the Applicant’s criminal history up until that time was attributable to her heroin addiction. The relevant offences included possessing and selling or supplying heroin in 1987 and manufacturing heroin in 1993, which she was attempting to manufacture for her own personal use due to her addiction (transcript/23).
Since giving up heroin, and after receiving a warning dated 30 October 2003, up until February 2019, the Applicant committed 13 driving/ traffic related offences and two criminal offences being “possessing stolen or unlawfully obtained property” in 2008 and “breach of a police order” in December 2010. Between December 2010 until 23 January 2020, she did not commit any criminal offences. This period of ten years suggests that the Applicant can live in the community without committing any criminal offences. There was also a period of approximately eight years between driving offences in May 2011 and February 2019 where the Applicant did not commit any offences (R2/387-389). Again, this suggests that the Applicant can live a law abiding life in the community.
The Applicant married her husband in 1982 and they had four children together. The Applicant’s husband has subjected her to domestic violence over the years, which was noted by the sentencing Judge on 31 August 2021. The sentencing Judge also noted a statement from the Applicant’s son who said that he had witnessed his father being “abusive and controlling” towards the Applicant (R1/31). The Applicant’s evidence was that her husband used to tell her what to do and that she would listen to him and do what he said because she was afraid of him (transcript/43).
At the time of the Drug Collection offence and the Drug Money offences (23 January 2020) that resulted in the cancellation of her Visa, the Applicant’s husband was a long-term heroin user with gambling debts. The Applicant also stated that just before she and her husband were arrested, after years of trying to get him to stop using drugs, he had started on methadone. She knew that he had drugs buried and walked with him to dig up the drugs when they were both caught by police. She described being very unhappy with his activities but that he would not listen to her and that she was arguing with him when she accompanied him to dig up the drugs (transcript/48). The sentencing Judge acknowledged the Applicant played a lesser role in the offending and that she knew the drugs were buried but was not aware of the amount (R1/33-34). I did not think that the Applicant was trying to minimise her offending when she gave evidence about this offending at the hearing. In her statement she said (A1/19, para [20]:
I take full responsibility for my actions and I’m truly remorseful. I’m so sorry that I got caught up in it all and didn’t walk away.
I was of the view that she took responsibility for her role in in the offending and that her evidence was consistent with the findings of the sentencing Judge about the lesser role she played in the offences. As I mentioned above, I was less convinced by the Applicant’s explanation that she and her husband swapped places with respect to the “no authority to drive – suspended” offence committed on 10 February 2019. Except for that explanation, I did not otherwise think that the Applicant was trying to minimise her offending and I was of the view that she accepted responsibility for her offending and the consequences of it.
The Applicant’s husband is not a positive support person for her, as the following remarks from the sentencing Judge on 31 August 2021 indicate (R1/31):
…I am satisfied that you have been subjected to domestic violence over the years, and I do take that into account in your situation.
You remain together. And obviously that’s a decision for you, and it’s a decision – you’ve obviously got a family together. But going forward, it’s a matter for you as to whether you continue to remain in a relationship with someone who has hurt you and has got you involved in very, very serious offending in this case.
The Applicant’s husband is currently in prison and has another five years to serve on his term. If the Applicant can stay in the community, this will provide her with time to reintegrate and to consolidate her rehabilitation before he is released. The Applicant has been working with her counsellor and has a strategy for if she finds herself in a “bad situation” with her husband or other people in the future. That strategy includes calling the police and contacting her support network (her children, friend Adele and counsellor Chelsea) for help. She also has a code word that she can tell them so that they will know she is in trouble and can help quickly (A2/9, para [13]). The Applicant described the skills that she has learnt from the courses she has completed, including being able to stand up for herself against her husband in the future (transcript/6):
I know that I can stand up to my husband. Before, whatever he said, I would do, just to make him happy. And because, I don’t know, maybe I was frightened of him. But now I’m a lot stronger. I know I can stand up to him. I’ve spoke to him on several occasions, and I have told him that if he doesn’t stay clean off the drugs and if he gets out, I will walk away from him and end our relationship, even though we’ve been married for 40 years, 41 years. I can do it this time. I don’t care. Because the most important thing to me is my children and my grandchildren, especially my older daughter’s three children. I feel like without me, they’re not going to have much of a chance here in Australia …
There are five more years until the Applicant’s husband is released, and the strategies that the Applicant has put in place are likely to help navigate issues that may arise with him in the future. However, the relationship has been coercive over many years and the Applicant has had difficulty standing up to her husband in the past. If the Applicant remains in a relationship with her husband when he is released, there remains some risk that he will be a negative influence and that she may reoffend.
As well as being influenced by her husband, the Applicant lost her adult son Daniel, and her sister in law Cathy, to suicide in 2017. She had difficulty coping with her grief after these tragic events and described herself as not being in a good place. She did not seek help for her grief because she was the primary caregiver for her three grandchildren because their mother, the Applicant’s eldest daughter Chelsea, was on drugs and had been sent to prison (A1/19, para [12]-[7]; R1/31).
To the Applicant’s credit, her prison behaviour was good, and she worked in the trusted position of a cleaner in the administration offices, and initially in the prison kitchen. She was also a peer support worker and completed a 48 session mental health course to develop skills in her peer support role. Her Parole Review Report from the prison described her as “showing a consistent work history and a good work ethic” and as being “a well regarded member of the Peer Support Team” (R2/191). In her evidence at the hearing, the Applicant described the deterrent effect of prison (transcript/13):
I’m 61 years old, 62 this year. And the last time I was – this time when I was in prison it was the biggest shock and wake-up call of my life, because they were all just young people, and it was quite scary being older person and being in prison. I never want to do that ever again. Was the biggest wake-up call of my life.
Although she was assessed as being a low risk of reoffending by prison treatment assessors and therefore not recommended for any treatment intervention (R2/180), in addition to the mental health course I referred to above, the Applicant participated in the Standing on Solid Ground and Life skills programs on a voluntary basis. She has completed other programs in immigration detention including “Be the Best You Program” in June 2023, “Drug and Alcohol Abuse 101” in November 2023, “Understanding Addictions” in February 2024, “Healthy Relationships” in February 2024, as well as vocational training in horticulture, workplace safety and food service (A1/1-10). A letter dated 15 February 2024 from the Applicant’s counsellor from Holyoake, Chelsea, stated that the Applicant had attended 10 counselling sessions and that (A1/11):
Despite not being a requirement to engage in counselling through her stay in detention, Mrs Long sought to continue engaging in counselling, recognising her need for additional support across this period, and the positive impact counselling had on making behaviour, thinking and lifestyle changes. Mrs Long was observed to be consistently active in her participation throughout her engagement, and attended all scheduled sessions on time, without one instance of absence. Her high levels of participation and consistent attendance suggest high levels of motivation to complete the program and reduce her risk of relapse into substance use and re-offending.
The Respondent referred to a Parole Assessment for the Applicant from August 2023, which stated that the Applicant’s primary risk factors appeared to be susceptibility to negative influence by her husband, poor decision-making, issues with problem solving and consequential thinking skills and possible financial problems (R2/181). The Respondent submitted that none of the courses specifically deal with those issues (RSFIC, para [34]). The Applicant has, however shown some insight into these issues and does appear to have addressed some of them in counselling, as demonstrated by the plan she has developed with her counsellor to seek help if a husband or another person attempts to negatively influence her. Overall, the Applicant’s completion of voluntary programs, counselling and occupational training shows that she is motivated and willing to change.
The Applicant has a comprehensive plan in place if she is released into the Australian community. She will attend weekly counselling sessions with her counsellor from Holyoake, Chelsea (A2/8, para [6]). She will also be on parole, and subject to parole conditions and supervision until 23 September 2025 (R2/540-541). Her parole conditions include random urinalysis, attending programs and counselling as directed, and engaging in employment, training or job seeking. These conditions will assist her to reintegrate into the community and to use her time positively. I note that the Prisoners’ Review Board (PRB) also thought that the Applicant was a low risk of reoffending, however, their assessment of risk is different to the assessment I am making. Parole is for a limited period and is subject to conditions, supervision, and the potential to return to prison to serve the maximum sentence if parole is breached. I must assess the Applicant’s likelihood of reoffending including beyond her sentence maximum for the longer term which will be without the imposition of any conditions and supervision. Nevertheless, I take the PRB’s opinion into consideration subject to those qualifications.
The Applicant also has confirmed casual employment with a construction company (A1/12). The Applicant will also help her daughter Chelsea care for her three children because she is raising them as a single mother and is currently struggling. As well as having regular contact with, and support from her counsellor, the Applicant also has support of her adult children, particularly her son Brian and daughter Elyce who are willing to offer her emotional and financial support. Her son Brian will also provide her with stable accommodation in his home and she will also assist him to care for his children. The Applicant’s close friend Adele is also willing to support her in any way she can, including providing accommodation and emotional support (A3, para [20]). The Applicant’s plan, and her support persons, are protective factors that will assist the Applicant to make positive and meaningful use of her time and not to reoffend.
In the past the Applicant has said that she will not use drugs or reoffend, that she had engaged in counselling and that she had developed self-awareness, self-confidence, and a sense of responsibility, for example in written submissions she made in November 1998 and January 1999 (R2/523-524). These are substantially like representations she is making in these proceedings. I note that the Applicant’s circumstances have changed since those representations were made. She ceased using heroin on approximately 2002 or 2003, and there was a period of 10 years from December 2010 until 23 January 2020 where she did not commit any criminal offences. She found her last term of imprisonment to be particularly difficult due to her age and has voluntarily undertaken voluntary programs (as well as counselling). Nevertheless, the Applicant’s previous representations which proved to be inaccurate, do cast some doubt on her current representations that she will not reoffend.
The Applicant appears to genuinely appreciate that she is facing permanent removal from Australia, that she faces being returned to a country where she does not know anyone and that holds negative and painful memories for her. As a child, her father was physically abusive, and when she was 13 years old, the Applicant was raped by a man whose children she was babysitting. She realises that it will be traumatic for her to return to the United Kingdom and is fearful of how she will cope with these bad memories without the support of her counsellor with whom she has a strong rapport. She is also fearful of leaving all her immediate family behind in Australia and does not know where she would go or what she would do if returned to the United Kingdom. She appreciates the negative effect that her offending has had on her children and grandchildren (A1/23-24).
In summary, the following factors are not protective or suggest some likelihood of reoffending:
·The Applicant has a lengthy history of offending which suggests a likelihood of future reoffending.
·The Applicant has received numerous warnings, visa cancellations and refusals and has spent time in immigration detention and has reoffended despite this.
·The Applicant has said she was remorseful in the past and would not reoffend, and undertook counselling in the past, and yet she reoffended.
·The Applicant remains in a relationship with her husband who has been a negative influence on her in the past.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
·She has not used heroin for approximately 20 years which was the main contributing factor to her earlier offending.
·Her husband will be in prison for another five years which will give her an opportunity to complete her parole and reintegrate into the community without his negative influence. The Applicant has also developed strategies and a support network that will assist her not to be influenced by him.
·Even though she was assessed as a low risk of reoffending by prison treatment assessors and not eligible for programs, she completed voluntary programs, counselling and vocational training which shows a willingness to change. The Applicant appears to me to have genuine insight into her offending and remorse. She is now 61-years-of-age and appears to have matured following the completion of these courses and her more recent counselling.
·She will be subject to parole supervision and conditions until 23 September 2025 that will assist her rehabilitation and reintegration into the community. The PRB was also of the view that she was a low risk of reoffending.
·She has a comprehensive release plan including stable accommodation, employment, ongoing weekly counselling, emotional and financial support from her son Brian and daughter Elyce, and her friend Adele, and she will be occupied helping her daughter Chelsea care for her three children. She will also assist her son Brian with his children.
·The deterrent effect of the time the Applicant has spent in prison, her fear of returning to the United Kingdom where she has traumatic memories, and of being permanently separated from her children and grandchildren in Australia who need her.

Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low to moderate likelihood of reoffending.
The Respondent submitted that any risk of the Applicant reoffending is unacceptable. A similar submission was made in Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606, where Deputy President Boyle remarked, at [48]:
The Minister contended, however, that the harm that would be caused if the conduct were to be repeated, is so serious that any risk that it may be repeated is unacceptable, citing para 8.1.2(1) of Direction 99. I do not accept that contention which, in my experience, appears to be a standard contention made by the Minister in most cases involving Direction 99. It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated...[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations. The Minister does not identify any particular elements or characteristics of the Applicant’s conduct, or the harm that would be caused, which would warrant elevating this case to one coming within the operation of the final sentence of para 8.1.2(1).
I agree with the learned Deputy President’s remarks which, in my view, are applicable in this application. I do not consider that the Applicant’s offending (and her lesser role in the offences that resulted in the Cancellation Decision), and the harm that could result, falls within the most serious range of offences (such as violent or sexual offences) that would elevate it into this “unacceptable” category.
Overall, after considering the nature of the harm that could result if the Applicant reoffended, and the low to moderate likelihood of the Applicant committing further offences, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 weighed strongly against, and paragraph 8.1.2 weighed moderately against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(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 noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:
family violence means 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. Examples of behaviour that may constitute family violence include:
a)           an assault; or
b)           a sexual assault or other sexually abusive behaviour; or
c)           stalking; or
d)           repeated derogatory taunts; or
e)           intentionally damaging or destroying property; or
f)            intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
The following definition, in para 4(1) of Direction No 99 is relevant:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
The Respondent referred to the Applicant’s conviction on 7 December 2010 for “breach of police order” under the Restraining Orders Act 1997 (WA) on 7 December 2010 (R2/388).
The corresponding statement of material facts names the Applicant as the accused and states that she and the protected person, who I will refer to as L, “have been in a domestic relationship for several months” (R2/405).
It states that the police order was issued after police were called to a property due to an argument between the accused person and the protected person. Further, when police arrived the accused person was sitting in her car yelling at the protected person who was in the rear yard. After speaking to the parties, police “ascertained” that the accused person had made verbal threats and issued the police order. It was breached when the accused person returned to the property and walked toward the front door. Police were at the property for another purpose and advised her to leave. She returned to her car but did not leave. Police told her to do so, or she would be arrested. According to the statement of material facts, the accused person stated that she had property to collect and argued with police who then charged her with breaching the police order.
Although the Applicant was convicted, she stated that the order was for the protection of her sister-in-law Cathy’s partner, L, and that she has never been at the address, nor was she ever in a relationship with L. The Applicant’s representative submitted that the Applicant may have been mistaken for Cathy (ASFIC, para [81]).
I agree with the Respondent’s submission that although I cannot go behind the fact of the conviction, there is very little evidence about the circumstances of the offence and whether it would meet the definition of family violence. Although the accused person yelled at the complainant, possibly made threats, and breached the police order by coming back to the property, there is no evidence that L was coerced or controlled or that he was fearful. Also, “repeated derogatory taunts” are given as possible examples of “family violence” in para 4(1) but it is unclear whether the accused person’s behaviour could be characterised in that way.
I note that the parties agree that this primary consideration should be given neutral weight.
I agree, for the reasons I have just discussed, and I find that this consideration should be given neutral weight.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.     more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has family members in Australia who will be affected by my decision.
The Applicant’s adult son Brian, who is an Australian citizen, said in a written statement that he and his two children need the Applicant in their lives “to feel whole again” and that the entire family would be “devastated” if she could not stay in Australia. He described struggling after the death of his brother Daniel in 2017 and that not having his mother and father present because they were in prison made him feel alone. He stated that, “our family have been through a lot and I know that everyone just needs mum to come home”. Brian also stated that “[w]e all need her and look forward to having her at home with us” because the Applicant will stay with him and help him look after his two minor children if she is released into the Australian community. Brian has also offered the Applicant any support she needs including financial support, accommodation with him, and support for her to continue counselling (A1/14).
In another statement, Brian confirmed that he is relying on the Applicant to help raise his children. He described needing his mother because he felt “completely alone”. He described having a “special bond” with his mother and stated, “I need my mother with me” (A2/11-12).
The evidence in Brian’s statements was confirmed in his evidence at the hearing in support of his mother being able to stay in Australia. He described being very close to his mother, and how he struggled after the death of his brother Daniel in 2017. Brian described how he needs his mother in his life and how he relies on her for emotional support. He stated that his mother was “all I have”.
I find that Brian would suffer practical and emotional detriment if the Applicant was removed from Australia.
The Applicant’s Australian citizen daughter Elyce also wrote that she is missing her mother. She stated that, “I strongly support my mother staying here as our whole family would be beyond lost and absolutely devastated to be without her”. Elyce further stated that, “I would be absolutely torn apart to have to see her go” (R1/70).
Elyce now has a two-year-old son and is getting married. She wants her mother to be in Australia with her to plan her wedding, walk her down the aisle and to support her (A1/15). Elyce also stated that (A1/16):
It has broken my heart not having my mother here with me along the journey of raising my son. I didn’t get to have her in the delivery room with me, like my sister did with all 3 of her children, and I pray that when I have my next child she will be with me. She really has missed out on a lot with my little family over the past 4 years. Every special holiday like waking up Christmas morning without her here. My life will never be the same if I don’t have my mother here with me. Before she went to prison she was my best friend. We did everything together and I could tell her absolutely everything. I miss just coming home and getting into bed with mum telling her all my stories, although I still tell her everything it’s not the same her not being here with me.
To conclude this letter I strongly support my mother staying here as our whole family would be beyond lost and absolutely devastated to be without her.
Elyce gave evidence at the hearing that was consistent with her written statements. She described her mother as her “best friend” and said that her mother had undertaken the role of both parents because her father was never around. Elyce stated that now that she has her own son, she needed her mother’s support. She stated that she really needed her mother in Australia to support her.
In addition, the Applicant’s friend Adele, who has known the Applicant for more than 20 years, wrote in a statement dated 18 March 2024, that (A3, para [9]):
Ann is extremely close to her children and I know they would be absolutely devastated if she were removed from Australia. Ann’s youngest daughter Elyce … recently had a little boy, and all Elyce has wanted is for her mum to come home, meet her baby and be close to her children and family again. Elyce was very young when her parents went to prison, just 19 years old, and she has struggled a lot without her mum. I know that she needs Ann as much as Ann needs her.
I find that Elyce is also likely to suffer emotional detriment if the Applicant is removed from Australia.
The Applicant has another adult daughter, Chelsea, who has struggled with a drug addiction and needs the Applicant’s support to raise her three children. Brian stated that his sister Chelsea had “deep trauma” because she found their aunty Cathy after she had “hanged herself”, and that after that event Chelsea “turned to drugs and ended up in prison” (A2/11). The Applicant was the primary caregiver for Chelsea’s three children before she went to prison because Chelsea had also been sentenced to a term of imprisonment. Elyce wrote that Chelsea is struggling without the Applicant and needs the Applicant to guide her and help her with the three children (A1/16). The Applicant also stated that Chelsea needs her to help with the children and that Chelsea does not have anyone else to help with them (A1/22, para [50]). Both the Applicant and Elyce also gave evidence at the hearing that they were concerned that Chelsea was not coping well looking after the children by herself and were scared she would go down the wrong path again and revert to using drugs.
I find that Chelsea would likely suffer practical and emotional detriment if the Applicant was returned to the United Kingdom.
The Applicant’s adult children are indicative of her strong ties to the Australian community, and I therefore give significant weight to those relationships (para 8.3(2) of Direction No 99).
The Applicant’s husband is also named Brian. There is an affidavit from him in the G-documents which appears to me to have been provided for the Applicant’s sentencing (R1/68-69). Brian is also facing deportation himself, because like the Applicant, his visa has been mandatorily cancelled. Given the cancellation of his visa, Brian is currently not a person who has a right to remain in Australia indefinitely. Even if the cancellation of his visa is revoked, I do not have any evidence from him, or from any other family member, regarding the impact on him if the Applicant is deported.
The Applicant’s mother in law, Catherine, also wrote that she is very close to the Applicant (A2/1). She is willing to provide the Applicant with “full support if she comes home”. She stated that:
I really look forward to Ann coming home and completing our family. It’s not the same without her here. I would be heart broken, especially knowing she has no one in England, and she is ready to settle into family life here. I know it would be a happy ending if she stays.
The Applicant’s niece, Christine stated that her “Nan” (Catherine) would be “heartbroken” if the Applicant was deported because they saw each other every day before the Applicant went to prison. Christine’s evidence was that her grandmother is 81, has health issues and would not be able to travel to England. This would mean that she would never see the Applicant again (A2/6).
Based on this evidence, I also find that the Applicant’s mother in law would suffer emotional detriment if the Applicant is removed from Australia.
Christine also stated that she would be “devastated” if the Applicant was deported. Christine suffers from schizophrenia and is unable to work. Christine further stated that, “If she cannot stay, I would be devastated as I feel comfortable and safe with my Aunty” (A2/7). Christine has also offered to support the Applicant by driving her places, helping her look for a job, taking her shopping and being there for her. I also find that Christine would suffer emotional detriment if the Applicant was deported.
The Applicant’s sister in law, Maria, stated that the Applicant “is extremely close to all her family here”. She stated (A2/3):
I myself would be absolutely devastated to ever lose Ann. The family have suffered a lot, it’s not the same talking on a visit, we all need her right here in Australia to be a part of our lives. I am grief stricken watching the sadness on my families’ faces knowing they want this nightmare to end. I see Ann’s children trying very hard to have nice lives, but I see the heartache and pain they endure.
I also find that Maria would suffer emotional detriment if the Applicant was removed from Australia.
The Applicant’s nephew Lee also gave evidence in a statutory declaration in support of the Applicant staying in Australia (A4; see also R1/79). He described that the Applicant is very close to her family, and that she would be missed if she was removed to the United Kingdom (A4, paras [12]-[14]):
I do not believe Ann should be removed from Australia, this would be detrimental to both her children and grandchildren. She was always a hands on and helpful grandparent and filled children’s lives with lots of love and joy. She also gave good guidance to her daughters and sons to follow and I believe that they still need her here.
We will miss her as part of our family. Her outgoing and friendly nature would be truly missed at all family celebrations and general catchups, enjoying together what this beautiful country has to offer.
I would be eager to be there to welcome Ann back into the family, involve her in as many family activities as we do and I am always just a phone call away which Ann knows.

As I have mentioned, Zahriah does have two parents to care for him.
The Applicant’s conduct has not had a direct adverse effect on Zariah. There is no evidence that Zahriah has ever been at risk, nor that he has suffered trauma due to the Applicant’s conduct.
I find that revocation of the Cancellation Decision is in the best interests of Zahriah. For the reasons set out above, including that the relationship is non-parental, that he has two parents to care for him, but that he has started to form a relationship with the Applicant and would benefit from her being physically present in his life, I find that his interests weigh slightly in favour of revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by her lengthy criminal history, the Applicant has breached this expectation by not obeying Australian laws. This includes the Drug Collection offence which was a serious drug offence that resulted in the mandatory cancellation of her Visa. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant has not committed any offences that fall within the types of conduct listed in those sub-paragraphs.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant and her individual circumstances.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under ss 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to the United Kingdom as soon as is reasonably practicable and she will remain in immigration detention until she is removed.
Further, if she is removed to the United Kingdom, it is likely that the Applicant will face a range of restrictions which would make it unlikely that she would meet the criteria under the Migration Act for a visa to enable her to re-enter Australia.
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 61 years of age.
The Applicant has lived in Australia for the last 43 years, since she was 18 years old. All the Applicant’s family, including her husband, adult children and grandchildren are in Australia. She returned to the United Kingdom in 1986 (R1/101) because her husband wanted to visit but has not been there since. There are unlikely to be any language or cultural barriers if she were to return to the United Kingdom, but it is an unfamiliar country where she will have no family support. Her parents are deceased, and she has a brother in the United Kingdom, but they have not spoken since the 1980s when he found out she was a drug user and so he is unlikely to be able to offer her any kind of support (A1/23, para [61]). The Applicant has stated that she “wouldn’t know where to go or how to start a new life on [her] own” and that she fears leaving her whole family behind in Australia and being homeless (A1/24, para [67]). The separation from her family in Australia and lack of family or social supports in an unfamiliar country are likely to detrimentally impact the Applicant’s emotional state.
The Applicant only has traumatic memories of the United Kingdom. Her father was physically abusive. In addition, when she was 13-years-old, she was raped by a man whose children she was babysitting. The Applicant stated that “it would be extremely traumatic for me to return to the UK because these bad things are all the memories I have left and I would be trying to confront them without any support from anyone” (A1/23, para [65]). She said that as a result, she was fearful for her mental health if she had to return to the United Kingdom (A1/23, para [66]). It is likely that these factors will increase the emotional detriment that the Applicant may suffer if removed to the United Kingdom.
The Applicant’s son, Daniel, and sister in law, Cathy, both died in 2017 within two days of each other. The Applicant stated that “these devastating events have created deep emotional ties that make leaving Australia very difficult”. She stated that before she was arrested, she visited her son’s resting place at the cemetery every week. She stated that it would be “totally devastating” if she could not do so because she was deported and did not know how she would cope (A1/23, para [58]). This may also exacerbate the emotional impact on the Applicant if she was returned to the United Kingdom.
In her personal circumstances form the Applicant ticked the box for “no” in response to a question asking whether she had any diagnosed medical or psychological conditions (R1/58). A health discharge form certified the Applicant as fit to travel to the United Kingdom, but specified several health conditions and medications, however the health conditions appear to have been treated (left knee pain treated with surgery and a “good” outcome recorded) or are relatively minor (such as psoriasis or hay fever which are treated with medications) (R2/531-536).
Although the Applicant does not have any diagnosed mental health issues, she started seeing a counsellor in prison (R1/58). She has continued with counselling to address her grief following the loss of her son and feels that she has a good relationship with her counsellor Chelsea who she feels comfortable confiding in. The Applicant is worried about not having the same relationship and support from a different counsellor if she were deported to the United Kingdom (A1/23, para [66]). Also, given the Applicant’s traumatic memories and experiences in the United Kingdom, being returned there may have a negative impact on the Applicant’s mental health.
In Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511 at [100], Anastassiou J stated that, “I also agree that common knowledge is a sufficient basis for finding … that the standards of health care, education, social welfare and housing support in the United Kingdom would be ‘comparable’ to those in Australia”.
I am also concerned about whether the Applicant would access services such as counselling if returned to the United Kingdom, due to her concerns about not having a rapport with any other service provider that she currently has with her counsellor. Also, I do not have any evidence as to whether the Applicant would be entitled to any social security payments in the United Kingdom. Although she is likely to have the same rights as other United Kingdom citizens, I am uncertain whether she would be eligible to receive social security payments because she has not lived or worked in the United Kingdom. This raises concerns about her ability to access social security.
The Applicant has some work experience in Australia as a shop assistant, factory worker, cleaner and aged care worker. She has also undertaken some TAFE studies (A1/22, para [57]). I am concerned that this experience will not be sufficient for the Applicant to find employment if she was returned to the United Kingdom due to her lengthy criminal history and deportation. Indeed, it is likely to be very difficult for the Applicant to find work and support herself, and as I have stated above, her entitlement to social security is unclear. This raises doubt about whether the Applicant will be able to establish herself and maintain basic living standards.
The Respondent has also submitted that it is likely that the Applicant’s husband may also be deported because his Visa has been cancelled under s 501(3A) of the Migration Act, and that if that happened, they could support one another to establish themselves in the United Kingdom. Although the Applicant’s SFIC states it is unlikely her husband will have his Visa cancellation revoked, I do not have sufficient information to be assured of that likelihood. Even if I did, the impediments that the Applicant would face if returned, such as having difficulty finding employment, the potential impact on her mental health due to the trauma she experienced in the United Kingdom, the disruption to the work she has done with her counsellor, the impact of being separated from her immediate family and the inability to visit her son’s resting place, would remain as significant impediments. I do not think that being deported with her husband would make much of a difference in relieving the impediments the Applicant would face, other than that she would have some companionship.
I find that there are significant impediments to the Applicant being able to establish herself and maintain basic living standards if she was returned to the United Kingdom that may be very difficult for her to overcome.
Consequently, I find that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)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.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on any victims.
Consequently, this other consideration should be given neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
·The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
·The family violence primary consideration was neutral.
·The strength, nature, and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
·The best interests of the Applicant’s grandchildren weighed in favour of revocation of the Cancellation Decision. Teah and Zariah’s interests weighed slightly, Lucas and Sophie’s interests weighed moderately, and Curtis, Zeth, Ruby-Ann and Skylar’s interests weighed strongly, in favour of the revocation of the Cancellation Decision.
·The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
·I gave neutral weight to the other consideration of the legal consequences of the decision.
·The extent of impediments if removed other consideration weighed strongly in favour of revocation of the Cancellation Decision.
·The other consideration regarding the impact on victims was also given neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each consideration is appropriate.
Overall, I find that the primary considerations of the strength, nature, and duration of the Applicant’s ties to Australia, the best interests of minor children (particularly the children whose interests weighed strongly), and the extent of impediments if removed other consideration, which weighed strongly in favour of the revocation of the Cancellation Decision, outweighed the considerations that weighed against the revocation of the Cancellation Decision. Those were the primary considerations of the protection of the Australian community which weighed moderately to strongly, and the expectations of the Australian community which weighed moderately, against the revocation of the Cancellation Decision.
In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 January 2024 is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 221 (two hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

................[Sgd]............................................
Associate
Dated: 12 April 2024

Date of hearing: 21 and 22 March 2024

Representative for the Applicant: Ms Jasmin Angel, Estrin Saul Lawyers

Representative for the Respondent:

Mr Ashley Burgess, The Australian Government Solicitor

Date of hearing:	21 and 22 March 2024
Representative for the Applicant:	Ms Jasmin Angel, Estrin Saul Lawyers
Representative for the Respondent:	Mr Ashley Burgess, The Australian Government Solicitor