LQVM and Minister for Immigration and Border Protection (Migration)

[2016] AATA 388

LQVM and Minister for Immigration and Border Protection (Migration) [2016] AATA 388 (10 June 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1556
Re	LQVM
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	10 June 2016
Place	Melbourne

The Tribunal affirms the decision under review.

...................................[sgd].....................................

Egon Fice, Senior Member

Catchwords

IMMIGRATION – application for bridging visa – where applicant has substantial criminal record – where applicant fails character test – where discretion to reject application enlivened – whether discretion should be exercised in accordance with ministerial direction – where applicant convicted of drug related offences involving minors – where applicant provided significant assistance with police investigations – where sentence significantly reduced due to co-operation – where expectation of Australian community would be to refuse application – decision affirmed.

Legislation

Administrative Appeals Tribunal Act (Cth) s 43(1)

Migration Act 1958 (Cth) ss 499, 501

Sentencing Act 1991 (Vic) s 6AAA

Cases
R v Cartwright (1989) 17 NSWLR 243

Secondary Materials

Ministerial Declaration no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection) cl 6, 8, 11, 12.

REASONS FOR DECISION

Egon Fice, Senior Member

1. LQVM, a Vietnamese citizen, first arrived in Australia on 25 February 2006 as the holder of a Visitor (Class TR) visa.  Since that time she has held two Visitor (Class TR) visas and two Student Guardian (Class TU) visas.  Her most recent arrival in Australia was on 6 July 2012 as a holder of a Student Guardian (Class TU) visa.  On 8 July 2013 her visa was cancelled on character grounds while she was present in Australia.

2. LQVM’s Student Guardian visa was cancelled because the Minister for Immigration and Border Protection determined that she did not pass the character test, having been sentenced to a term of imprisonment of four years and three months by his Honour Judge Taft in the County Court of Victoria on 7 August 2014.  Her sentence included a non-parole period of two years and three months.  The offences of which LQVM was convicted included: traffic drug of dependence (3 charges), cultivate narcotic plant commercial quantity – cannabis, supply drug of dependence to child – to supply another person, cultivate narcotic plant – cannabis, theft and deal with property suspected proceeds of crime.

3. Following her release on parole, LQVM was placed in immigration detention.

4. On 2 July 2015 LQVM applied for a Protection Visa under s. 65 of the Migration Act 1958 (the Act).  A delegate of the Minister refused LQVM’s Protection Visa application on 11 September 2015.  LQVM lodged an application with the Administrative Appeals Tribunal, Migration & Refugee Division, seeking review of the delegate’s decision.  On 11 January 2016 the AAT (MR Division) remitted the matter for reconsideration on the ground that there were substantial grounds for believing there was a risk that LQVM would suffer significant harm if returned to Vietnam.

5. While waiting for a decision to be made by the Minister’s delegate regarding her Protection Visa application, on 23 December 2015 LQVM lodged an application for a Bridging E (Class WE) visa. On 17 March 2016 a delegate of the Minister determined that LQVM did not pass the character test set out in s. 501(6) of the Act. The delegate decided to exercise his discretion under s. 501(1) to refuse LQVM’s application for a bridging visa. It is that decision which is the subject of review by this Tribunal.

6. There was no issue between the parties about the fact that LQVM did not pass the character test as described in s. 501(6) of the Act. Nevertheless, Mr R Melasecca, a solicitor who appeared on behalf of LQVM, submitted that she was not a person of bad character. The only issue I am required to determine is whether the exercise of the discretion provided for in s. 501(1) of the Act by a delegate of the Minister to refuse to grant LQVM a Bridging E (Class WE) visa was the preferable decision.

   THE EXERCISE OF THE DISCRETIONARY POWER TO REFUSE THE GRANT OF A VISA

7. Section 501(1) of the Act, which applies to the Minister or a delegate of the Minister, provides:

   Decision of Minister or delegate – natural justice applies

   (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

   Note:     Character test is defined by subsection (6).

8. Section 501(6) provides, amongst other things, that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7). Section 501(7) provides:

   Substantial criminal record

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   (a)…

   (b)…

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or…

9. There can be no question that LQVM does not pass that character test because she has a substantial criminal record as that expression is defined in s. 501(7) of the Act. Therefore, the discretion to refuse to grant LQVM a visa is enlivened. For the purpose of reviewing a decision, the Tribunal, standing in the shoes of the delegate of the Minister, may exercise all the powers and discretions conferred by any relevant enactment (the Act) on the person who made the decision (Administrative Appeals Tribunal Act 1975, s. 43 (1)).

10. However, the exercise of discretion by the Tribunal is not unfettered. Section 499 of the Act deals with directions which the Minister may give regarding the exercise of powers conferred by the Act. Relevantly, it provides:

    499 Minister may give directions

    (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.

    …

    (2A)A person or body must comply with a direction under subsection (1).

11. The current directions made by the then Minister for Immigration and Border Protection, Mr Scott Morrison MP, on 22 December 2014 are described as Direction No. 65 (the Ministerial Direction).  The Preamble to the Ministerial Direction relevantly provides:

    6.1  Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    (3)     …

    (4)The purpose of this Direction is to guide decision-makers performing the functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test… such decision-makers must comply with a direction made under section 499.

12. The Ministerial Direction also sets out the principles (at 6.3) which provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501. Relevantly, they are as follows:

    (1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.…

    (6)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

13. Clause 8 of the Ministerial Direction sets out the relevant considerations which must be taken into account.  In this case, they are:

    (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case.  There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of the visa holder, or revoke a mandatory cancellation of a visa.  These different considerations are articulated in Parts A, B and C.…

    (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)  Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)  Primary considerations should generally be given greater weight than other considerations.

    (5)  One or more primary considerations may outweigh other primary considerations.

14. Because in LQVM’s case we are dealing with a visa application, Part B of the Ministerial Direction sets out the relevant primary and other considerations.

    PRIMARY CONSIDERATIONS

15. The primary considerations are set out in clause 11 of the Ministerial direction.  That clause provides:

    (1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

    Protection of the Australian community

16. Clause 11.1 of the Ministerial Direction explains 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.  It also states that there is a low tolerance for visa applicants who have previously engaged in criminal or other conduct.  Consideration should be given 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.

    The nature and seriousness of LQVM’s offending

17. Clause 11.1.1 (1) sets out the matters to which I must have regard.  In LQVM’s case, they include:

    ·the principle that crimes committed against vulnerable members of the community… such as minors… are serious;

    ·the sentence imposed by the courts for a crime or crimes;

    ·the frequency of offending and whether there is any trend of increasing seriousness.

18. The Reasons for Sentence of his Honour Judge Taft set out in some detail the criminal offending of LQVM.  LQVM pleaded guilty to 3 charges of trafficking in a drug of dependence; one charge of cultivating a commercial quantity of cannabis; one charge of cultivating cannabis; one charge of supplying a drug of dependence to a child; and a final charge of theft.  According to his Honour, LQVM was arrested in November 2012 in the course of an operation and investigation by Victoria Police with the assistance of Federal authorities into a well organised drug syndicate which trafficked methylamphetamine (colloquially known as ice) and heroin in Victoria, New South Wales and South Australia.  The syndicate was also involved in cannabis cultivation and trafficking in Victoria.  Regarding LQVM’s involvement, his Honour said, at [5]:

    You [LQVM], together with your partner … , were identified as the syndicate leaders in charge of a drug distribution network.

19. The police executed a search warrant at the house where LQVM resided, locating a sophisticated hydroponic cannabis setup.  The majority of the two-storey house had been converted into hydroponic growing rooms.  A total of 160 cannabis plants at various stages of growth were found.  The total weight of the cannabis plants was 68.6 kg.  The theft charge related to the theft of electricity as a result of the installation of a bypass installed at the house.

20. LQVM was also charged with trafficking methylamphetamine on three occasions.  The total amount of the drug trafficked was 392 g.

21. LQVM was convicted of a further cultivation of cannabis charge relating to a different location where 117 plants were seized weighing total of 44.4 kg.  She was substantially involved in the cultivation of that crop, although her involvement ceased due to her arrest in November 2012.

22. LQVM was charged with supplying methylamphetamine to a child (her son) who was 14 years of age at that time.  She supplied that drug to her son for the purpose of supplying it to another person.  She used her son as an interpreter when communicating with drug customers over the phone and to act on her behalf by handing foils containing

    
    

    methylamphetamine to another person.  Although it was uncertain as to the quantity of

    
    

    methylamphetamine sold by LQVM, transactions occurred on about 15-20 occasions.  The total value of the methylamphetamine which LQVM sold was approximately $100,000.

23. LQVM was also convicted of trafficking heroin between October and November 2012.  This occurred on three separate occasions which included to sales of a 350 gram block.  There was also one further sale of 28 grams of heroin which resulted in the total heroin trafficked by LQVM to be 728 grams.  That was in excess of what was described as a commercial quantity.  A 350 gram block of heroin was valued between $100,000 and $200,000, depending on the level of purity.

24. After being arrested and interviewed by the police, LQVM denied any wrongdoing.

25. Judge Taft said the following about LQVM’s offending:

    Your offending is objectively most serious.  It is characterised by the following features:

    ·     Your offending extended over a number of months rather than being confined to days or weeks.

    ·     You exercised a directorial role within a sophisticated drug syndicate.

    ·     Your dealing in illicit drugs was entirely undertaken for substantial monetary rewards, a component of which you repatriated to family members in Vietnam.

    ·     Your commitment to an engagement with the business of drug trafficking was dedicated and professional.

    ·     The conversations in which you engaged were mostly coded and you were acutely aware of the illegality of your activity and the risks of apprehension.  At one point you discussed turning off heat lamps while aeroplanes or helicopters were overhead in order to avoid detection.

    ·     Your moral culpability is high.  You engaged in the dirty business of trafficking in illicit drugs without any concern as to the consequences of drug dependency – for you the polysubstance drug enterprise was simply a business opportunity which you exploited in every possible way including the involving of your teenage son.

26. LQVM was sentenced to an aggregate term of imprisonment of four years and three months and she was not eligible to be considered for parole until she had served two years and three months of that term. Judge Taft also mentioned that pursuant to s. 6 AAA of the Sentencing Act 1991 (Vic), but for LQVM’s pleas of guilty which he said were inextricably intertwined with the assistance she provided to the authorities in the prosecution of other offenders involved in the drug distribution network, she would have been sentenced to a term of imprisonment of eight years and six months with a non-parole period of six years and six months.

27. Regarding the assistance LQVM provided to the investigating authorities, Judge Taft said, at [27]:

    The overall value of your evidence can only be regarded as high.  Further, although the value of your evidence varies as between co-offenders, in respect of a number of individual accused your evidence is of the highest value.  The assistance which you have provided, coupled with your undertaking to give evidence in forthcoming trials, demands a very considerable sentencing discount.

28. As for the frequency of offending, Mr Melasecca submitted that LQVM had no prior convictions and that should be taken into account.  While that appears to be correct, as Judge Taft said in his Reasons for Sentence, the seven charges to which LQVM pleaded guilty involved serious criminal conduct consisting of offending which extended over a number of months.  It did not simply involve an isolated incident.  Furthermore, he described LQVM is having a directorial role within a sophisticated drug syndicate.  In fact the only reason that her offending ceased was that she was arrested.  He described her engagement in the business of drug trafficking as dedicated and professional.  It is reasonable to infer that but for her arrest, the offending would have continued.  This is not a case of an isolated criminal act committed on impulse by a vulnerable person.

    Risk to the Australian community should LQVM commit further offences or engage in other serious conduct

29. While I had no evidence before me in the nature of a professional assessment of the risk to the Australian community which LQVM may pose, particularly if she should reoffend, given that her application in this case is for a bridging visa, which by its very nature is a short-term instrument which would allow her to be released into the community, that would be for a very short period until her protection visa claim was determined.  Clause 11.1.2 (4) of the Ministerial Direction provides that I should consider the risk of harm in the context of the type of visa being applied for. 

30. Logically, it is reasonable to assess her risk of reoffending as low as it is unlikely that she would in any way jeopardise her chances of being granted a protection visa. 

31. Although I had evidence a certificate indicating that LQVM had completed a number of courses while incarcerated, the only one which appears to have any relevance in this case is a workshop described as Wellbeing & Reintegration 2013.  She has not spent any time in the community since her offending as, immediately upon her release on parole, she was placed in the migration detention centre.

32. Although Mr Melasecca submitted that LQVM was remorseful which was demonstrated by her willingness to give evidence against others in the drug syndicate, Judge Taft’s Reasons for Sentence suggests that may be an overstatement.  His Honour said that after her arrest, LQVM denied any wrongdoing.  Furthermore, upon Mr Melasecca submitting that LQVM’s introduction to drug trafficking was in the context of financial difficulties caused by her former partners, Judge Taft said, at [33] and [34]:

    …I have substantial misgivings as to the history of your involvement in the business of drug trafficking and those reservations have particular applicability when your assertions remain untested….

    … I do accept that your pleas of guilty were entered at a very early stage of this proceeding and are an acknowledgement by you of your wrongdoing.  I am less persuaded that they demonstrate or reflect a high level of insight or contrition….

1. I should also mention a number of witnesses who provided written statements and gave oral evidence regarding practical and emotional support which they were prepared to provide to LQVM were she released from immigration detention.  While those witnesses clearly mean well and I have no doubt their support is sincerely welcomed by LQVM, as far as her application for a bridging visa is concerned, they carry little weight.  It may reduce, to some extent, the risk of reoffending even though I consider that risk to be low.

   Best interests of minor children in Australia are affected by the decision

2. I did not have any evidence of minor children in Australia who were affected by the decision.

   Expectations of the Australian community

3. Clause 11.3(1) of the Ministerial Direction deals with the expectations of the Australian community.  Fundamentally, it states that the Australian community expects non-citizens to obey Australian laws while in Australia.  It also provides that visa refusal may be appropriate simply because of the nature of the character concerns or offences being such that the Australian community would expect that the person should not be granted a visa.  Decision-makers should also have regard to the Government’s views in this respect.

4. Having regard to the very serious nature of the offences committed by LQVM, and her role in a sophisticated drug syndicate which was described as being dedicated and professional, it is not possible to conclude otherwise than the Australian community would expect LQVM to be refused a bridging visa.

   OTHER CONSIDERATIONS

5. Clause 12(1) deals with other considerations which apply to visa applicants.  It provides:

   In deciding whether to cancel a visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

   (a)International non-refoulement obligations;

   (b)Impact on family members;

   (c)Impact on victims;

   (d)Impact on Australian business interests.

   International non-refoulement obligations

6. Clause 12.1 of the Ministerial Direction explains that a non-refoulement obligation is an obligation not to forcibly return, export or expel a person to a place where they will be at risk of a specific type of harm.

7. In the context of an application for a bridging visa, it seems to me that non-refoulement obligations do not arise because they will be assessed when LQVM’s protection visa application is finally determined.  If I were to find that the preferable decision was that LQVM not be granted a bridging visa, she would simply remain in migration detention until her protection visa claim was finalised.

   Impact on family members

8. There was no evidence before me that there were any family members of LQVM in Australia who might be affected by a decision to refuse to grant her a bridging visa.

   Impact on victims

9. I had no evidence before me regarding the effect of a decision to grant LQVM a bridging visa would have on the victims or their families of her criminal conduct.

   Impact on Australian business interests

10. I did not have any evidence before me dealing with this consideration.

    SUBMISSIONS REGARDING GOOD CHARACTER

11. Although there was no dispute between the parties that LQVM did not pass the character test set out in s. 501(6) of the Migration Act, Mr Melasecca submitted that I should take into account LQVM’s willingness to testify against others in the drug syndicate as evidence of her good character. In fact, Mr Melasecca submitted that her willingness to testify, despite exposing herself to serious personal harm in doing so, as well as the fact that her pleas of guilty and assistance to police in having other members of the drug syndicate convicted, were evidence of her good character and resulted in a substantial saving of community resources. Mr Melasecca also referred to the following statements made by Judge Taft at [26] and [27]:

    The effect of your undertaking is that you have implicated nine other offenders and it is proposed that you will be called as a Crown witness in five trials which will variously be conducted in Victoria, New South Wales and South Australia.

    This Court was told about the value of the evidence which you have undertaken to provide.  The overall value of your evidence can only be regarded as high.  Further, although the value of your evidence varies as between co-offenders, in respect of a number of individual accused your evidence is of the highest value.  The assistance which you have provided, coupled with your undertaking to give evidence in forthcoming trials, demands a very considerable sentencing discount.

12. With respect to Mr Melasecca, in my opinion, LQVM’s decision to assist the police and the Director of Public Prosecutions in obtaining convictions against co-offenders does not necessarily speak of her good character.  A very significant reason for offenders providing assistance to the authorities is so that they receive a substantial discount on their sentence.  In this case, LQVM’s sentence was effectively halved.  While the willingness to assist authorities in prosecuting others may indicate remorse and also rehabilitation prospects, that is not always the case.  In fact the Courts have clearly indicated that motive for cooperating is not determinative.  In R v Cartwright (1989) 17 NSWLR 243, at 252, Hunt and Badgery-Parker JJ said:

    Some discount for providing assistance should be given whatever the offender’s motive in giving it, whether it is genuine remorse or simply self-interest.  What is to be encouraged is the offender’s full and frank cooperation, whatever his or her motive.  However, greater leniency may be warranted if the offender’s motive for providing assistance is genuine remorse.

13. Regardless, for the purposes of s. 501(1) of the Act, the discretion is enlivened where the person in question does not satisfy the Minister that he or she passes the character test, not whether that person is of good character. LQVM does not pass the character test because she was sentenced to a term of imprisonment of 12 months or more.

14. In the course of oral submissions, Mr Melasecca also referred to clause 6.3(7) of the Ministerial Direction dealing with principles to be applied in exercising the discretion.  He submitted that LQVM had made a contribution to the Australian community by assisting the police and the Director of Public Prosecutions in successfully prosecuting her co-offenders.  Relevantly, clause 6.3 (7) provides:

    The length of time a non-citizen has been making a positive contribution to the Australian community, … are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15. It should be immediately apparent that clause 6.3(7) of the Ministerial Direction deals with a positive contribution to the Australian community made by a non-citizen on a voluntary basis, over a period of time.  It has no application in the context referred to by Mr Melasecca.      

    CONCLUSIONS

16. In weighing up the relevant considerations to which I have referred above, both primary and other considerations, I am mindful of what is said in clause 8 of the Ministerial Direction regarding the difference between a visa holder and an applicant for a visa.  Visa applicants should have no expectation that a visa application will be approved.

17. In my opinion, in cases of this nature, the protection of the Australian community is paramount.  It is a primary consideration.  The first limb of this consideration refers to the nature and seriousness of an applicant’s offending.  There appear to be a number of inconsistencies between what Mr Melasecca submitted about this issue and the statements made by Judge Taft in his Reasons for Sentence.  In cases where such inconsistencies exist, I should prefer the statements made by the Sentencing Judge.

18. Mr Melasecca submitted that LQVM was pressured into participating in the drug syndicate under a threat of violence from her then partner (husband) and the fact that she needed the money because money she had given to her partner had been squandered on gambling.  He made similar submissions at the Sentencing hearing.  Judge Taft said this about those submissions, at [33]:

    … I have substantial misgivings as to the history of your involvement in the business of drug trafficking and those reservations have particular applicability when your assertions remain untested.

19. Unfortunately for LQVM, I find myself in precisely the same position as Judge Taft.  I had no objective evidence which supports Mr Melasecca’s submission.  LQVM did not give evidence in the hearing of this matter and therefore her evidence was, as previously, not tested.

20. Judge Taft described LQVM’s involvement in the drug syndicate as a directorial role.  He would only have done so on the basis of evidence which was before him.  Similarly, Judge Taft said that LQVM’s dealing in drugs was entirely undertaken for substantial monetary rewards.  Furthermore, the conversion of her house into what was described as a sophisticated hydroponic cannabis setup is inconsistent with LQVM’s claim of coercion.  The drug dealing which was conducted went on for a number of months before LQVM was arrested.  LQVM also used her 14-year-old son to sell the drugs to users.  None of these actions are consistent with a person who was an unwilling participant in the drug syndicate.

21. Contrary to submissions made by Mr Melasecca, LQVM did not admit guilt when interviewed by police following her arrest.  In fact she denied guilt.  It does not appear to be the case that she offered to assist the police with their investigation shortly after she was arrested.  Her arrest took place on 29 November 2012 but, from the correspondence between the police investigating the criminal activities of the drug syndicate and Mr Melasecca in September 2013, it was only at that time it was suggested that LQVM may be willing to expose others involved in the drug syndicate. 

22. The reasonable inference to be drawn from the delay and the equivocal offer of assistance is that LQVM was reluctant to assist; possibly because of fears of harm coming to her or her family and also that those fears may have been weighed up against the possibility of a significantly reduced sentence.  Undoubtedly, reduction in her inevitable custodial sentence must have formed part of her reason to assist police.

23. There can be no doubt that the drugs which were supplied to drug customers included drugs which may have caused serious harm to those ingesting them.  There was no evidence that LQVM was at all troubled by that.

24. The factors to which I have referred above lead me to find that LQVM’s offending was very serious and the use of her son to distribute and sell drugs can only be described as despicable.  That, by itself, is a very significant reason for refusing LQVM a bridging visa.

25. As to the risk to the Australian community, given the circumstances in which LQVM now finds herself, her risk of reoffending is, realistically, low.  She appears to be determined to remain in Australia and accordingly unlikely to do anything to jeopardise her claim for a protection visa.  However, this finding is not made without some trepidation on my part particularly as Judge Taft said he was not persuaded by her early guilty plea that it reflected a high level of insight or contrition.  Nevertheless, given the expressions of support offered by a number of witnesses on the hearing of this matter, I remain of the view that her risk of reoffending is low.

26. The final relevant primary consideration is the expectations of the Australian community.  Given the nature of LQVM’s offending and particularly the use of her son in the course of her criminal enterprise, I have found that the Australian community would expect that she would not be granted a bridging visa.

27. As regards the other considerations, Mr Melasecca place considerable weight on what he described as evidence of her good character pleading guilty and assisting the police and the Director of Public Prosecutions in obtaining the conviction of other members of the drug syndicate.  As I have explained above, the reasons for LQVM’s cooperation are not clear.  It is just as likely that the prospect of a significantly reduced custodial sentence played a part in her coming to that conclusion despite the fact that she may have placed herself in the way of considerable harm in doing so.  I cannot place much weight on this consideration.

28. In summary, I find that the nature and seriousness of LQVM’s offending is such that the expectations of the Australian community, taking into account her low risk of reoffending and cooperation with the authorities in achieving the conviction of other drug syndicate members, nevertheless necessitate a decision that her application for a bridging visa should be refused.

29. It follows I must find that the decision of the delegate of the Minister made on 17 March 2016 to exercise his discretion under s. 501(1) of the Migration Act to refuse LQVM a bridging visa was the preferable decision. I affirm that decision.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

...........................[sgd]...........................

Associate

Dated             10 June 2016

Date(s) of hearing	26 May 2016
Advocate for the Applicant	Mr Rob Melasecca
Counsel for the Respondent	Ms Catherine Symons
Solicitors for the Respondent	Sparke Helmore Lawyers