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

Manson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2833 (6 September 2023)
Division: General Division
File Number(s): 2023/4274
Re:Ayesha Jane Marion Manson
APPLICANT

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

DECISION
Tribunal:Senior Member A Poljak
Date:6 September 2023
Place:Sydney

The decision under review is affirmed.
................................[SGD]........................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – mandatory cancellation of a Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A Poljak
5 September 2023

Ayesha Jane Marion Manson, the applicant, is a citizen of New Zealand. The applicant first arrived in Australia on 21 June 2008 and held a Special Category (Temporary) (Class TY) (Subclass 444) visa (visa).
On 12 July 2022, the applicant was convicted of three counts of 'drive motor vehicle during disqualification period–2nd+off', for which she was sentenced to an aggregate term of imprisonment of 14 months. The sentence was reduced on appeal to a term of imprisonment of 12 months, which occurred subsequent to the decision under subsection 501(3A). The offences occurred between 1 January 2022 and 14 April 2022.
On 6 October 2022, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation). On 28 October 2022, the applicant made representations to have the cancellation decision revoked under section 501CA of the Act. On 15 June 2023, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's visa. This is the decision under review in these proceedings (decision under review).
Issues
The applicant does not pass the character test by virtue of her sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.
Relevant Legislative Provisions
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than the other considerations: paragraph 7(2).
Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the strength, nature and duration of ties to Australia;
(iv)the best interests of minor children in Australia; and
(v)expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:
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 99 provides that 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 applicant's conduct
The nature and seriousness of the applicant’s conduct, particularly that related to the applicant’s offending conduct, is viewed very seriously.
The applicant’s offending conduct is outlined in her National Criminal History Check. Her criminal record is extensive and includes offences relating to domestic violence, stolen goods, driving offences, drug related offences and an aggravated break and enter. Noting here that violet crimes and acts of domestic violence are viewed very seriously. Relevantly, paragraph 8.1.1 (1)(a)(iii) of Direction 99 provides that acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously.
On 8 August 2009, the applicant committed the offence of common assault against a former partner. It involved the applicant punching him to the face. In 2010, no conviction was recorded for the offence; however, she was fined. The applicant has also engaged in violent conduct against women, namely, the applicant was charged with common assault against her former partner’s sister which also occurred on 8 August 2009. The evidence from the Queensland Police Service indicates that the applicant pinched and scratched the victim’s chest, neck, stomach and lower back region. While I acknowledge that the applicant was not convicted of this conduct, the applicant’s own evidence contained in an affidavit dated 30 October 2009, details the incident, and provides that the applicant and her former partners’ sister, “…were both pushing, grabbing, and pinching each other…”.
There are various reports in NSW Police Incidents report of domestic violence related incidents involving the applicant, starting in about 2013 to as recent as 2022. The applicant has been listed as the victim in approximately 27 incident reports with three separate partners. She has also been listed as the accused in multiple incident reports.
The applicant has also committed acts of family violence against her former partner. In 2017, the applicant was subject to an apprehended domestic violence order (ADVO) for his protection (person in need of protection or PINOP). The conditions prohibited her from, amongst other things, stalking, harassing, or intimidating, and from approaching or contacting him unless through a lawyer. Despite the conditions imposed on her, the applicant breached the ADVO on numerous occasions. The details of the breaches are contained in NSW Police Facts Sheets. Relevant aspects are summarised as follows:
(a) on 19 July 2017, the applicant approached the PINOP while he was sitting in his car. The applicant yelled at him, reached inside the vehicle, removed the car keys from the ignition and ran away. The applicant subsequently contacted the protected person on the phone on three occasions in the presence of police. She later returned the car keys to the police Station.
(b) on 2 September 2017, the applicant attended the PINOPs property, approached the PINOP and asked for money that he owed her. On 3 October 2017, the applicant attended the PINOP’s place of employment and once told to leave, she entered the vehicle belonging to the PINOP and drove to Campbelltown train Station. On 4 October 2017, the applicant attended the PINOPs place of residence and attempted to open the rear doors of the house.
The applicant was charged and on 8 August 2017 and 12 October 2017 and was convicted of the offences following a plea of guilty. The applicant was fined and subjected to a 12-month section 9 good behaviour bond. These matters were called-up on 18 July 2018, when the applicant was again charged with contravene prohibition/restriction in AVO (Domestic). The Police Fact sheets record that the applicant and the PINOP were sighted together when an ADVO was in place.
On 28 November 2019, the applicant was convicted of Agg B&E dwelling etc in company steal <=$60000-T1’ (break and enter offence) which occurred on 26 May 2019. The NSW Police Facts Sheets describes the applicant and the co-accused as coordinating break-ins of two storage units, using bolt cutters to remove padlocks, and stealing a Samsung television, a helmet, tools and a chainsaw. At the time of the offending, the applicant was subject to a section 9 bond and a Community Correction Order (CCO).
The applicant has a very extensive driving record and is a habitual disqualified driver. Given the frequency of this offending, it is viewed very seriously.
The applicant has been convicted of four offences of ‘drive vehicle, illicit drug present in blood etc...’. The applicant was under the influence of methylamphetamine on three of these occasions, namely on 14 August 2016, 2 April 2019, and 14 April 2021. Overall, the applicant has been convicted of 18 driving offences in the period of 2015 to 2022, ranging from driving never licensed, speeding, using an unregistered vehicle, using an uninsured vehicle and further drive whilst disqualified offences. The applicant has received various fines, bonds, CCOs, Intensive Correction Orders (ICO) and terms of imprisonment in respect of this offending, which have increased in severity over time. I also note that the applicant has been convicted of a single drink driving offence in New Zealand.
The applicant's recent conviction for three counts of ‘drive motor vehicle during disqualification period–2nd+off’ occurred in ‘close succession’ from 1 January 2022 to 14 April 2022. This was despite having been arrested after each of the offences or charged after each of the offences. On sentencing, it was noted that the applicant committed the offences while subject to an ICO for the same type of offence and a sentence of imprisonment was imposed as a means of specific deterrence to the applicant, and general deterrence to the community, noting that the applicant continued to offend despite being subject to orders of the Court. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.
The Tribunal has previously found driving offences to be serious: QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 (at [51]–[54]) ('QJYD'). In QJYD, the Tribunal found (at [51]):
…Indeed, the Tribunal has often regarded driving offences to be of a very serious nature. Road traffic laws are in place to protect the community, including innocent road users, from harm. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads.
The applicant’s conduct to date has shown a complete disregard for Australian law and has put members of the Australian community at risk. She has not been deterred from offending despite numerous convictions and sentences.
Risk of Reoffending
For the following reasons, I am of the view that the likelihood of the applicant engaging in any further criminal conduct is a moderate risk and this risk is an unacceptable risk.
The applicant was assessed as being at a low risk of reoffending in a Sentencing Assessment Report dated 13 August 2019. However, since this time, the applicant was reoffended numerous times.
In a Sentencing Assessment Report dated 10 January 2022, the applicant was assessed at a medium to low risk of reoffending. It is noted in the report that the applicant indicated an awareness of the dangers associated with driving disqualified and an awareness of her inability to drive at the time of offending. Regarding the applicant’s response to supervision, it was noted that she had been supervised since October 2020 and was subject to ICOs. Her response to this supervision was noted as borderline. Since this Sentencing Assessment Report, the applicant continued to offend.
The applicant completed the online Traffic Offenders Rehabilitation Program (TORP) on 12 March 2022. Since this time, the applicant has reoffended, and was detected driving whilst disqualified and in possession of a prohibited drug, namely methamphetamine, on 12 March 2022; the very same day that she received a certificate for completing TORP.
The applicant has expressed responsibility and remorse for her offending. However, this evidence is attributed limited weight in circumstances where the applicant has previously expressed similar sentiments to the Courts and continued to commit offences of a similar nature. Significantly, the applicant has an extensive history of breaching judicial orders.
In evidence is a report of Ann Marie De Santa Brigida, counselling psychologist, dated 2 May 2022. The report appears to have been commissioned for the purposes of a Court Report in relation to her most recent offending and the applicant underwent assessment on 11 April 2022. In the body of the report, Ms De Santa Brigida recorded the applicant’s self-reported history and background. Also included is a detailed psychological profile and assessment of the applicant. It is noted that the Ms De Santa Brigida diagnosed the applicant with post-traumatic stress disorder (PTSD), which started following the death of her partner on active duty in Afghanistan. It is further stated that the applicant presented with a complex sequalae of psychological problems, which has included substance abuse and impulsive behaviour. Ms De Santa Brigida noted that the applicant’s substance abuse appeared to have spiralled following the death of her partner and recorded that the applicant appeared to have developed a depressive disorder following the onset of PTSD following the death of her partner in Afghanistan.
At hearing, the applicant advised that her partner did not die in Afghanistan and the story was a fabrication. She stated that she originally made up the story as a coping mechanism but in cross examination, she accepted that the story was made up to garner sympathy and leniency in sentencing and also reiterated in these proceedings. The applicant agreed that she decided to tell the truth about the fabrication when the Minister provided a document from the Department of Home Affairs Identity Services about the applicant’s former partner. As a result of this admission, I place no weight on the psychological report of Ms De Santa Brigida. The assessment and conclusions are so inextricably linked with the fabricated history provided by the applicant, that the findings cannot be separated and relied upon. Additionally, Ms De Santa Brigida was unavailable for cross examination and could not therefore express an opinion how her report may have changed given the change in information.

While I note that the applicant expressed remorse for her actions in making up a story about her former partner dying in Afghanistan, it demonstrates a significant ability to lie when it suits her. This does put into question the truthfulness of her evidence and expressions of remorse.
The likelihood of the applicant reoffending appears to be closely related to drug use. She claimed at hearing that she has been free from methylamphetamine drugs for 4 years Despite this evidence, I note that the applicant was charged and convicted of driving under the influence of methylamphetamine on 14 April 2021; was charged and convicted of possession of methylamphetamine as recently as 12 March 2022; and was found in possession of contraband (drugs) with incarcerated on 17 July 2022.
I do acknowledge that prior to her incarceration, the applicant took steps to attend weekly drug and alcohol counselling and has undertaken various rehabilitation courses while in custody. There is no available evidence about the applicant’s drug and alcohol counselling or treatment. The applicant has provided evidence of having completed a number of courses to assist in her rehabilitation; Seasons for Growth: Exploring the seasons of grief and loss, completed on 29 November 2022, TORP, completed on 14 July 2022, and High Intensity Programs Unit (HIPU), completed on 2 December 2022 which consisted of EQUIPS RUSH, EQUIPS Foundation, EQUIPS Addiction, and EQUIPS Aggression. The applicant contends these programs have her taught her ‘new skills’ to make the right decisions. Again, it is notable, that the applicant has previously made similar representations to the Courts, including that she has engaged in psychological intervention and acknowledged the effect of her drug use on her decision-making, only to continue to reoffend.
The applicant appears to have had a significant work history while in Australia and claims that her previous employer may possibly offer her employment should she be released. She said she may also find work in hospitality. Despite her drug use over the years, the applicant has maintained employment. In regard to whether full-time employment will be a protective factor if the applicant is released into the community, I note that this has not stopped her from offending in the past. This is consistent with what his Honour Judge Smith SC observed on appeal that full-time employment did not stop the applicant from committing her most recent offences.
The applicant’s friend, Roxanne Page, has given evidence in these proceedings and has offered her support to the applicant should she be released into the Australian community. She has offered her home and time for as long as is needed. At hearing, Ms Page explained that she had a close relationship with the applicant and spoke with her on most days. She expressed that the applicant had changed and had learnt a lot while in incarceration and in detention. Ms Page gave assurances that she would not let the applicant drive and would keep her away from people who are a bad influence. She accepted that the applicant expressed a desire to get her own place and said it would be harder to look out for her, but she was always available if needed. I do note however that Ms Page has known the applicant for over 10 years, and during this time, the applicant engaged in offending conduct. It is unclear how Ms Page’s involvement would now act as an effective deterrent.
As a whole, this primary consideration significantly weighs against revocation.
Family Violence
Direction 99 provides that 'family violence' means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The definition also includes examples of behaviour that may constitute family violence; paragraph 4(1) of Direction 99.
The principles providing the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation provide that 'the inherent nature of certain conduct such as family violence … is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community'; paragraph 5.2(6) of Direction 99. Direction 99 provides that acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed, are viewed 'very seriously'; paragraph 8.1.1(1)(a)(iii) of Direction 99. Further, the primary consideration about family violence is relevant where the applicant has been convicted of an offence and/or there is information or evidence from independent and authoritative sources indicating that the applicant has been involved in the perpetration of family violence; paragraph 8.2(2)(a), 8.2(2)(b) of Direction 99.
The applicant's ex-partners are 'member of the person's family' for the purposes of paragraph 8.2 of Direction 99, which specifically defines 'member of the person’s family', for the purposes of the definition of family violence to include a person who has, or has had, an intimate personal relationship with the relevant person.
Instances of domestic related violence have been detailed above at paragraphs [19] to [22]. The instances constituted threatening behaviour causing the victim’s to be fearful, and therefore were acts of family violence. While I do accept that the breaches of the ADVOs are at the lower end of seriousness, the conduct is nevertheless to be viewed as serious.
The applicant's conduct was relatively frequent; however, it did not increase in seriousness, nor is there a discernible cumulative effect of the offending.
The applicant has expressed remorse and shame for her actions. She has plainly been the victim in many instances of domestic related violence over the years and it appears that drug use has been a common feature. The applicant has acknowledged her responsibility for her family violence conduct and has taken some steps to attend rehabilitative programs addressing her underlying drug use issues. I commend her for that and hope that she continues to pursue rehabilitation. However, the history of the applicant frequently disregarding ADVOs and judicial orders indicates a lack of insight into the impact of her behaviour.
This primary consideration weighs against revocation of the cancellation decision.
Strength, nature and duration of ties to Australia
Paragraph 8.3(4) of Direction 99 requires that, in assessing this consideration, decision-makers must have regard to:
a) the length of tie 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 Australia 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 the 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 arrived in Australia at the age of 21. She spent her formative years in New Zealand. Since arriving in Australia, the applicant has sought to establish a life for herself. She did this through employment and through her domestic relationships.
The applicant has immediate family members in Australia, namely, her fiancé Mr Henderson, stepdaughter Ms Latia Henderson and step-grandchild.
Mr Henderson has provided a character reference dated 16 December 2022, in support of the revocation of the applicant’s visa. He details his strong emotional connection with the applicant, the significant role she plays in their family and the support she provided him when his three-year-old daughter passed away in a tragic accident in 2018 while he was incarcerated. He states that should the applicant be removed to New Zealand, their communication would become video calls, and audio calls making it hard to maintain the relationships they currently have.
The applicant’s stepdaughter Ms Henderson has also provided a character reference for the applicant dated 14 December 2022. Ms Henderson details their strong relationship. She submits that while she initially rejected the applicant, the applicant accepted her as her own and ‘loved [her] unconditionally’ and ‘included [her] in everything’, making her ‘feel loved and accepted’. Ms Henderson details the applicant’s persistence in the relationship and her support to her over the years through ‘attending [her] parent teacher interviews, picking [her] up from parties and holding [her] hand while [she] gave birth’. She states that the applicant adopted her new role as a grandmother seamlessly and the love she shows her and her son in unconditional. Ms Henderson submits that should the applicant be returned to New Zealand, ‘the gravity of her leaving Australia will destroy our family, not only will I loose my Mum but my son loses his Nannie, an my Dad loses his future Wife’. She states that she will not be able to afford to travel to New Zealand frequently to keep their family connection strong.
While I accept that the applicant’s fiancé and stepdaughter will be impacted by a decision not to revoke the cancellation decision, any practical hardship would be limited. As already noted, Ms Henderson, is currently serving a five-year prison term and her fiancé Mr Henderson is also incarcerated, awaiting sentencing.
I do acknowledge that other family members, including the applicant’s step grandson, and friends of the applicant who reside in Australia will be impacted by a decision not to revoke the cancellation decision.
The applicant has contributed to the Australian community though employment since arriving in Australia. However, limited weight should be given to the length of time the applicant spent in the Australian community, noting she was convicted of her first criminal offence in 2009, soon after arriving in Australia.
I do accept that the applicant’s strength, nature, and duration of ties to Australia favours revocation of the mandatory cancellation decision.
The best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of Direction 99 requires the Tribunal to decide whether revocation is, or is not, in the best interests of minor children in Australia affected by the decision.
The applicant has a step-grandson, born in September 2021 (the Child). The applicant was present at his birth and claims to have a close connection with the child. The child’s mother, who is the stepdaughter of the applicant, is currently incarcerated and due to be released in 2027. At present, the child lives with his great-grandmother. The applicant has not been able to contact the great grandmother or have any contact with the child since being in detention.
There is very limited information about parenting arrangements for the child should the applicant be released. Prior to incarceration, the applicant said the child stayed with her and her fiancée part-time and if released, the applicant hopes to help with the child’s care as much as she can. As the nature and duration of the applicant’s relationship with the child is limited and noting she did not and will not likely fulfil the primary parental role in the future, limited weight is afforded to this aspect.
I do accept that the applicant has good intentions about her relationship with the child, however any further criminal offending will likely have a negative impact on the child. This is particularly relevant in this matter as I have already found that the applicant’s chance of reoffending is moderate, the child’s mother and grandparents are all currently incarcerated and will likely be for some time.
At hearing, the applicant explained the negative affect her incarceration and separation had on the child. It follows, that the removal of the applicant to New Zealand may also have a negative affect on the child.
It is accepted that the best interests of the child weighs in favour of revocation.
The expectations of the Australian community
Paragraph 8.5 provides:
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.
…
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.
The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen she will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision.
Other Considerations
Other considerations are set out in Direction 99, at paragraph 9(1). The applicant has not made any claims in relation to the legal consequences of the decision, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the consideration that is relevant in this case is the extent of impediments if removed.
Extent of impediments if removed from Australia
Direction 99 provides, at paragraph 9.2, that:
(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 a citizen of New Zealand and as such, the relevant country the applicant would be removed to is New Zealand. There are no evident language or cultural barriers for the applicant as she spent her formative years in New Zealand, having arrived in Australia at the age of 21. There is some evidence of the applicant requiring medical treatment in relation to a potential diagnosis of cervical cancer. She also has a history of drug abuse and possible mental health issues. As a New Zealand citizen, she will receive the same standards of health care, education, social welfare, and housing as other New Zealand citizens.
The applicant’s mother resides in New Zealand. The applicant explained that she will not be able to reside with her mother and sister as their accommodation is very limited. However, the applicant has provided evidence that her mother has offered her support, mostly emotional, in the past. There is no reason to find that the applicant’s mother would not provide the same support were she returned to New Zealand.
The applicant is a relatively young woman with transferable skills from her employment in hospitality and as a trained hairdresser. However, I do accept that she would suffer a period of adjustment both financially and practically due to the lack of support available to her in New Zealand.
It is accepted that the applicant would face emotional hardship upon being returned to New Zealand due to her separation from her fiancé and the breakup of her current family. As stated at hearing, her fiancée is facing incarceration for an unknown period of time, her stepdaughter is incarcerated for 5 years, and her step grandson resides in Australia. Given Mr Henderson’s criminal convictions, it is unknown when he will be released from prison, and it is unlikely that he will be allowed to travel to New Zealand given his criminal record. The applicant advised that her and Mr Henderson are taking things one day at a time but her removal to New Zealand would most likely end their relationship. The applicant will also loose the ability to visit her stepdaughter in prison and she will lose any prospect of face-to-face contact with her step grandson. While the applicant can maintain contact via video and telephone, the separation will have a significant impact on their connections. These circumstances will no doubt cause the applicant emotional grief and turmoil and is a significant factor I have taken into consideration.
The applicant has also provided letters of support from Shane Nathan, Michelle Kalivati, Perry Giannoulis, and Louise Groot. They speak positively of the applicant’s character. Mr Nathan and Ms Kalivati detail what they understand about the impact of the applicant’s removal to New Zealand.
I consider that this factor weighs in favour of revocation.
Decision
The primary considerations of the protection of the Australian community from criminal or other serious conduct; family violence; and the expectations of the Australian community significantly weigh against revocation. I am not satisfied that these are outweighed by the strength, nature, and duration of the applicant’s ties to Australia; the best interests of minor children in Australia and the other consideration of the extent of impediments if removed.
The decision under review is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................
Associate
Dated: 6 September 2023

Date of hearing: 24 August 2023

Representative for the Applicant:
Dr M Van Galen-Dickie, Sisters Inside

Solicitor for the Respondent: Ms G Gutmann, Minter Ellison

[2023] AATA 2833

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	24 August 2023
Representative for the Applicant:	Dr M Van Galen-Dickie, Sisters Inside
Solicitor for the Respondent:	Ms G Gutmann, Minter Ellison