Marino and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 613

Marino and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 613 (27 May 2025)
Applicant/s:  Jodene Marino
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/2863

Tribunal:Senior Member S Webb
Place:Sydney
Date:27 May 2025
Decision:The 20 March 2025 decision not to revoke the cancellation of Ms Marino’s visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

…………[SGD]………………………………..
Senior Member S Webb
Catchwords
MIGRATION – mandatory visa cancellation – criminal convictions – failure to pass character test – substantial criminal record – review of decision not to revoke visa cancellation – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community – seriousness of conduct – escalation – drug addiction – potential harms – rehabilitation and lapses in recovery – protective factors – medium risk of reoffending – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of non-revocation – extent of impediments if removed from Australia – balance of considerations – decision affirmed
Legislation
Migration Act 1958 (Cth), ss 198, 499, 500, 501, 501CA
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116
Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

Jodene Marino is a citizen of New Zealand who has been residing in Australia under a Special Category (Class TY) (subclass 444) visa (Visa). She was convicted of criminal offences and sentenced to a term of imprisonment which resulted in mandatory cancellation of her Visa under s 501(3A) of the Migration Act 1958 (Act).
Ms Marino made representations seeking revocation of the mandatory Visa cancellation decision. A delegate of the Minister decided not to revoke the decision to cancel her Visa. Ms Marino applied for review of this decision by the Tribunal.
The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.
Facts
The following facts are established by the documentary and oral evidence before the Tribunal.
Ms Marino was 24 years old when she first travelled to Australia on 27 November 2007.[1] At that time the other members of Ms Marino’s immediate family, her parents and 8 siblings, resided in New Zealand. Subsequently, her parents and 5 of her siblings separately moved to Australia.
[1] Exhibit 1, 237.
It is Ms Marino’s evidence, as a child, she spent time on a family farm and attended school until the age of 14. She experienced childhood trauma and commenced marijuana use at the age of 12. She was exposed to gangs. Subsequently, she obtained employment, including in a timber yard. She engaged in a relationship and a pattern of conduct from which she wanted to escape. She explained it was for this reason she relocated to Australia.
Soon after arriving in Brisbane, Ms Marino moved to Blacktown in Sydney and then moved to the Northern Beaches area, where a cousin resided. She commenced an intimate relationship with Alfred Cortes and obtained stable employment.
Unfortunately, Mr Cortes encountered serious health issues and, in or about 2015, the relationship with Ms Marino broke down. Ms Marino’s employment ended in redundancy.
Ms Marino engaged in drug-related conduct and commenced using methylamphetamine (also described as ‘ICE’ or ‘Meth’). She became addicted to this drug and, by her own account, she became a heavy user, consuming more than 1 gram per day.
It was in this context Ms Marino engaged in increasingly serious criminal conduct which led to her being sentenced to a 2-year term of imprisonment which commenced on 21 January 2023. Ms Marino has a lengthy record of offending conduct.[2] The first offence she committed in Australia was a driving offence in August 2009. She was fined $300 and disqualified from driving for 6 months. On 30 September 2015, her driver’s licence was suspended for non-payment of fines and she was fined $700 and disqualified from driving for 3-months. On 16 November 2015, Ms Marino was convicted of dishonestly obtain property by deception and driving offences for which she was fined and disqualified from driving to 2 years.
[2] Ibid, G6-G7.
In February, March, June and August 2016, Ms Marino was convicted of further driving offences. On 17 August 2016, Ms Marino was sentenced to a 9-month term of imprisonment, suspended under bond, in respect of driving offences.
On 16 July 2018, Ms Marino was convicted of a string of offences and sentenced to a 12-month term of imprisonment and a 2-year bond. The offences included:
(a)possession of a prohibited drug (2 counts);
(b)break and enter house etc steal value <=$60,000;
(c)dishonestly obtain property by deception offences (2 counts);
(d)shoplifting;
(e)goods in personal custody suspected of being stolen;
(f)possess housebreaking implements;
(g)receive property-theft; and
(h)driving motor vehicle during disqualification period; and
(i)breach of bail.
On 11 June 2019, Ms Marino was convicted of dishonestly obtain property by deception and shoplifting offences. She was sentenced to an 8-month intensive corrections order and an 18-month community corrections order. She was required to participate in drug and alcohol counselling.
On 2 September 2020, Ms Marino was convicted on dishonestly obtain property by deception and larceny offences, and she was sentenced to a 9-month intensive corrections order and 12-month community correction orders.
On 17 April 2023, Ms Marino was convicted, without penalty, of possession of a prohibited drug and enter enclosed land without lawful excuse.
On 31 May 2023, Ms Marino was convicted of a string of offences, including:
(a)possession of a prohibited drug (4 counts);
(b)possession of a prohibited weapon without permit (4 counts);
(c)deal with property proceeds of crime <$100,000;
(d)larceny (2 counts);
(e)and break and enter house etc steal value <=$60,000 (2 counts).
Among other penalties, she was sentenced to an aggregate 2-year term of imprisonment, commencing on 21 January 2023, with a 12-month non-parole period.
On 4 July 2023, Ms Marino’s Visa was cancelled under s 501(3A) of the Act and she was invited to make representations.[3]
[3] Ibid, G34.
On 6 July 2023, Ms Marino requested revocation of the mandatory cancellation decision.[4] She lodged a Personal Circumstances Form on 13 August 2024,[5] setting out details of family members and minor children in her life.[6] Subsequently, Ms Marino made further representations and provided additional information.[7] Supporting documents were given by Mr Cortes and Phuong Kim Le.[8]
[4] Ibid, G15.
[5] Ibid, G16.
[6] Ibid, 160-162.
[7] Ibid, G17-G29, 169-227.
[8] Ibid, G30-G31.
On 20 January 2024, Ms Marino was released from gaol and taken into immigration detention, which is presently ongoing.
On 20 March 2025, a delegate of the Minister decided to refuse Ms Marino’s request for revocation of the mandatory cancellation decision.[9] On 29 March 2025, Ms Marino lodged an application for review of this decision by the Tribunal.
[9] Ibid, G3-G5.
Issues
Ms Marino’s application is to be determined under s 501CA(4) of the Act which provides:
(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.
As Ms Marino made representations in accordance with the invitation to do so, the issue is whether the Tribunal is satisfied:
(a)Ms Marino passes the character test set out in s 501 of the Act; and, if not
(b)whether there is another reason to revoke the decision to cancel her Visa.
There has been some controversy about the extent to which, if at all, the word ‘may’ in s 501CA(4) confers a residual discretion on a decision-maker. The parties did not squarely raise or address this point, and I will go no further with it but to note there are divergent authorities addressing the point.[10] If there is such a discretion, it would be unlikely to apply unless the decision-maker is satisfied of the matters set out in either s 501CA(4)(b)(i) or (ii). I will proceed on the basis that where a state of satisfaction in respect of either of the elements in s 501CA(4)(b) is achieved, exercise of the power is mandated.
[10] See for example; Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116; Ali v Minister for Home Affairs [2020] FCAFC 109; Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172; Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125.
The Minister’s Direction 110 (Direction) under s 499 of the Act applies. The Direction sets out objectives, principles and considerations which must be taken into account where they are relevant. It does not direct the result in the circumstances of any case, and it does not limit the matters of relevance a decision-maker is able to consider.
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 risk of causing physical harm to the Australian community.
5Australia 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.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-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.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance:
6Making a decision
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.
1Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
2Primary considerations 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.
…
3Other considerations
(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 Australian business interest
Character test
With regard to the character test set out in s 501 of the Act, the relevantly applicable threshold is set out in s 501(6):
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
…
7For the purposes of the character test, a person has a substantial criminal record if:
(a) …
…; or
(3) the person has been sentenced to a term of imprisonment of 12 months or more.
I am satisfied, and the parties agree, Ms Marino does not pass the character test on this ground.
Another reason
Ms Marino is seeking a second chance. She asserts, within the framework of considerations set out in the Direction, the Tribunal has flexibility to consider the individual elements of her case. She alleges she commenced using methylamphetamine in late 2015, following the end of her long-term intimate relationship with Mr Cortes. Ms Marino accepts that her offending conduct escalated with her drug habit following the loss of her job and a failed attempt to resume her intimate relationship with Mr Cortes in 2017. She explained this “pushed me to begin a down hill spiral into drugs and associating with other drug users”.[11] In Ms Marino’s submission, matters deteriorated in 2018 when she commenced a relationship with a heroin addict who engaged in domestic violence and after her father died in 2020: “Life was a very toxic downhill spiral between 2019 and 2023”.[12] Ms Marino accepts her conduct was serious and it caused harm to individuals and the Australian community.
[11] Exhibit 1, 170.
[12] Ibid, 179.
Ms Marino asserts that drug addiction drove her offending conduct. She asserts drug addiction is a medical issue and there is clear evidence that overcoming the medical need for drugs is a difficult process which, in many cases, is iterative. This, she argues, is an important context in which to consider lapses in her abstinence during the period of her immigration detention. She explained she used ICE twice and cannabis on three occasions in order to test her resolve to remain abstinent, and the negative feelings she experienced, so the argument goes, did not result in relapse of her addiction but reinforced her commitment to remain drug-free.
Ms Marino submits she is deeply remorseful for and is embarrassed by her drug-affected conduct and her unlawful actions. She asserts she has engaged in rehabilitative courses and psychological counselling, and there are strong protective factors which mitigate concerns about her past offending conduct. She is adamant about her commitment to abstain from further drug use and to implement strategies to achieve this. Nevertheless, she acknowledges there is some risk she might relapse and re-offend and asserts the level of risk is low. Should her Visa be reinstated, she contends the ongoing support and accommodation Mr Cortes has offered will buttress her commitment to remain abstinent. She asserts the offers of accommodation and employment on farms she received from Mr Le and Dierdre Brierley (the mother of a friend) would enable her to re-engage in productive work outside the Northern Beaches area, and this, too, would reduce the risk of relapse and re-offending.
Ms Marino gave evidence she intends to take up Mrs Brierley’s offer should she be released, as this will enable her to live and work without exposure to drugs or people involved in drugs with whom she previously associated. This, she alleges, will assist her to maintain strategies she has learned to manage stress, concerning memories and to remain abstinent. She submits that Mrs Brierley will not tolerate illegal activity or drug use, and this reinforces the protective factor such employment would provide.
In Ms Marino’s submission, the protection consideration weighs against reinstating her Visa, but not heavily.
Ms Marino contends, having resided in Australia for more than 17 years, she has strong ties to Australia through members of her immediate family, a god-daughter and god-son, and a network of close friends who are Australian citizen or permanent residents. She alleges her supportive network of family and friends will support and assist her to remain drug-free should she be allowed back into the Australian community, and they will be adversely affected should she be forced to depart from Australia.
In Ms Marino’s submission, her life spiralled into serious offending conduct, drug abuse and addiction 10 years after arriving in Australia. Ms Marino asserts, for many years, she positively contributed to Australia: economically, through constructive community activities and employment, and socially, through positive and enduring relationships with her friends and their children. Forcing her to return to New Zealand will, she contends, have an adverse impact on her family members, her god-children, and her close friends who are Australian citizens or permanent residents in Australia. She alleges people in her life will be unable to maintain physical contact with her if she is removed from Australia as a result of financial constraints or past trauma. She explained she will be “devastated” if she is forced to return to New Zealand.[13] Ms Marino contends these considerations weigh solidly in favour of revoking the cancellation of her Visa.
[13] Ibid, 170.
Ms Marino alleges there are four minor children in her life whose best interests will not be served by forcing her to return to New Zealand. She alleges her close and enduring involvement in the lives of each of these children will be adversely impacted by physical separation from them. Ms Marino submits that, should she be returned to New Zealand, her mother intends to return with her to provide support and assistance dealing with family members and this will not be in the best interests of other minor relatives, nephews and nieces. This consideration, she contends, weighs in favour of revoking the decision to cancel her Visa.

Ms Marino accepts the expectations of the Australian community weigh against revocation, but only minimally.
In Ms Marino’s submission, the impediments she will face if forced to return to New Zealand include an elevated risk of relapse into addiction and a lack of positive family support. She explained her concerns that returning her to New Zealand is likely to result in an increased risk of relapse. She argues that, should she be forcibly returned to New Zealand, there is a real risk she would be exposed to drugs and gangs, and the effects of childhood trauma, including concerning memories, might be rekindled. Even though Ms Marino expressly disavowed any claim for protection in the present consideration of legal consequences of a decision not to revoke cancellation of her Visa, she contends the impediments she will face if forced to return to New Zealand weigh significantly in favour of revoking the decision to cancel her Visa.
In Ms Marino’s submission, the Tribunal has wide discretion to consider the circumstances of members of her immediate family in New Zealand which she considers adverse to her safety and her prospects of remaining drug-free.
Ms Marino asserts, in consideration of the particular circumstances of her case, the Tribunal should be satisfied there is another reason to revoke the decision to cancel her Visa.
The Minister disagrees. In the Minister’s submission, Ms Marino commenced offending soon after arriving in Australia as an adult, and she has demonstrated continuing disregard for Australian laws and the safety of the Australian community over many years. The Minister contends the increasing seriousness and the cumulative effect of Ms Marino’s offending weighs very heavily against revocation in the balance of considerations. The Minister asserts Ms Marino harmed members of the Australian community and her criminal conduct diverted substantial law enforcement, court and community support resources which must be taken into account. The risk of harm that would be caused should Ms Marino repeat her past conduct, breaking into people’s private residences, stealing their personal possessions, the Minister argues, exceeds the tolerance of the Australian community.
The Minister alleges there is a medium level of risk Ms Marino might relapse into drug addiction and commit further offences should her Visa be reinstated. Methylamphetamine or ICE, the Minister asserts, is notoriously addictive and Ms Marino’s addiction is likely to be lifelong. The Minister contends her evidence should be approached with caution as elements of it are inconsistent, self-serving and not corroborated. The Minister argues, on an objective assessment of the evidence, Ms Marino persisted with drug-use and criminal or other serious conduct despite the support of her friends and her participation in rehabilitative courses and therapies. Ms Marino has a pattern of turning to drug-use in response to life stresses in the past and this pattern, so the argument goes, is likely to be repeated should she be released into the community. The Minister submits that Ms Marino’s avowed plan to work on Mrs Brierley’s remote cattle property in isolation from community or therapeutic supports is not realistic and, if carried out, it would remove her from the rehabilitative and therapeutic supports she requires to remain abstinent, as well as from her network of supportive friends.
In the Minister’s submission, the protection considerations weigh heavily against reinstating Ms Marino’s Visa.
The Minister asserts Ms Marino’s ties to Australia are not strong. This, the Minister argues, is demonstrated by the absence of supporting statements or evidence from members of her immediate and extended family, other than her mother, who are purportedly residing in Australia. The Minister accepts Ms Marino has strong ties with Mr Cortes and a network of supportive friends, including Kassandra Speight and Matthew Staples. The Minister notes that Mr Staples was not available for cross-examination and his written evidence has not been explicated or tested. In the Minister’s submission, insofar as it traverses controversial points, Mr Staples’ evidence can be given little weight. The Minister alleges Ms Marino commenced offending soon after arriving in Australia and she continued to offend for the majority of the 17 years she has spent in Australia. The Minister contends this reduces the weight which can be given, particularly as Ms Marino spent 23 years in New Zealand before travelling to Australia. The Minister accepts, nonetheless, that Ms Marino’s ties to Australia weigh in favour of revoking the Visa cancellation decision, but not heavily.
The Minister also accepts the best interests of minor children in Ms Marino’s life might be affected should her Visa not be reinstated. It is the Minister’s submission the evidence does not establish Ms Marino played a positive a parental role with each of the four minor children she nominated, and her relationship with them is coloured by periods of absence or sporadic contact. The Minister asserts, furthermore, that Ms Marino was drug-affected for most of the children’s lives and her conduct may well have had a negative impact on the children. The Minister contends Ms Marino’s evidence is not supported by evidence from parents of the children, without which the details of each child’s circumstances and relationship with Ms Marino cannot reliably be ascertained. The Minister suggests Ms Marino could maintain contact with the children by telephone and electronically, as she claims to have done during the period in which she has been incarcerated and detained. In the Minister’s submission there is not sufficient evidence to determine the best interests of each minor child and, on the relevant evidence, Ms Marino’s relationship with each child is not parental. The Minister asserts, if this consideration weighs in favour of revoking the mandatory cancellation of Ms Marino’s Visa, which is not accepted, it does so very marginally.
The Minister contends the norm the Government has expressed in respect of Australian community expectations weighs solidly against revoking the cancellation of Ms Marino’s Visa.
The Minister asserts Ms Marino might experience a period of adjustment on returning to New Zealand if her Visa is not reinstated, but this does not amount to an impediment of consequence or significance as she grew up in New Zealand and she has family members who may be in a position to support or assist her. The Minister argues that Ms Marino would be supported by her Mother and an aunt (and conceivably other family members who have not been contacted), with whom they could stay while preparing accommodation for Ms Marino on a family plot of land her mother owns.
In the Minister’s submission, on balance, the relevant considerations weigh against revoking cancellation of Ms Marino’s Visa and the Tribunal should be satisfied there is not another reason to do so.
Consideration
Under the Direction, as the objective n s 5.1(3) makes perfectly clear, when considering whether there is another reason to revoke mandatory cancellation of a non-citizen’s visa, the decision-maker must consider the specific circumstances of the case.
Protection of the Australian community
The principles set out in s 5.2(2) and (3) of the Direction state that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens, and non-citizens who engage in criminal or other serious conduct should expect to be denied the privilege of remaining in Australia. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and do not cause or threaten harm to individuals or the Australian community. These matters should be kept squarely in mind when considering protection of the Australian community.
It is also necessary to consider the
nature and seriousness of Ms Marino’s conduct to date under s 8.1.1 of the Direction and the risk of harm to the Australian community under

s 8.1.2 should she engage in further serious conduct.
Nature and seriousness of conduct
The following matters are set out in s 8.1.1:
8In 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,, 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Ms Marino’s criminal conduct is not expressly within the types of conduct the Australian government considers to be very serious or serious in s 8.1.1(a) and (b). Nevertheless, the types of conduct expressly identified in these provisions are not exclusive.
I am satisfied Ms Marino’s conduct, breaking into private homes and premises, stealing items and personal possessions, and engaging in dishonesty offences is within the meaning of serious conduct for present purposes. While some driving offences are of a minor nature, Ms Marino’s record of driving offences, including driving while disqualified and affected by drugs is more serious. I am not persuaded Ms Marino’s conduct crosses the threshold of very serious conduct.
The sentences imposed upon Ms Marino are also instructive. The sentences increased with the seriousness and frequency of Ms Marino’s offending, and with her repeated failure to comply with bonds, community correction orders and intensive correction orders. Ms Marino’s apparent disregard for Australian laws is clearly a factor which was taken into account in sentencing. Ultimately, Magistrate Denes sentenced Ms Marino to an aggregate 2-year term of imprisonment. This reflects the seriousness of her offending conduct as described by the Magistrate:
It started off back in June 2022. They are relatively, what I will call, minor matters, except for the possession of knives, and she had bail for those at some point, and they have been ongoing… then in December 2022 and then January 2023 there are two very significant break and enters and thefts, one of them from a nursing home, although it related to one of the workers at the nursing home … not one of the aged care residents themselves, and then there is this other break and enter where the matters of sentimental value were taken…
…
In relation to the first group of matters that occurred in June 2022, noting that she has been in custody since 21 January, in relation to the drug matters, all the drug matters… S 10A CONVICTION ONLY, NO ADDITIONAL PENALTY.
In relation to the weapon matters, the knives, the laser pointers and the dealing with proceeds of crime…: CONVICTED, FIXED TERM OF 6 MONTHS, TO DATE FROM 21 JANUARY, THAT WILL EXPIRE ON 20 JULY.
The most significant offences are really the two break and enters that occurred in December and January, noting that at least one of them was whilst she was on conditional release; so that is problematic in itself, and it is right in the middle of these drug issues… In my view, there is no alternative but a custodial sentence and. Clearly, particularly for break and enters, even when they are committed by people who have a drug addiction, the community expects that their property is going to be valued, because it is their property; it is their place.
… Noting the early pleas of guilty, you are entitled to leniency.
THE AGGREGATE SENTENCES IN RELATION TO BOTH MATTERS, ALL FOUR OFFENCES, IS TWO YEARS WITH A NON-PAROLE PERIOD OF 12 MONTHS… I am satisfied that there are special circumstances. Miss Marino needs extensive supervision on parole, and plans need to be made for that to happen.
THE INDICATIVE SENTENCES: FOR THE TWO BREA-AND-ENTERS IT IS 12 MONTHS EACH; AND IN RELATION TO THE LARCENIES, SIX MONTHS EACH.[14]
[14] Exhibit 1, 108-110.
I am satisfied, and it is not disputed, there is a trend of increasing frequency and seriousness in Ms Marino’s offending conduct from 2015. This is clearly demonstrated by Ms Marino’s criminal record.
As the frequency of Ms Marino’s offending escalated, so too did the cumulative effect of her offending. This can be measured against the harm caused to victims of her offending as well as by the amount of public and community resources diverted in response to her conduct.
There is evidence Ms Marino was convicted of an ‘Assault Police’ offence on 25 August 2003 in New Zealand, for which a fine was imposed.[15] There is also evidence Ms Marino omitted to declare this criminal conviction on Incoming Passenger Cards when entering Australia on 18 February 2012 and 26 July 2017.[16] Ms Marino explained she did not understand she had a criminal conviction as the matter in New Zealand was dealt with by payment of a fine.
[15] Ibid, 104.
[16] Ibid, 234-235.
I am satisfied Ms Marino’s offending conduct is serious for the purposes of s 8.1.1 of the Direction.
Risk to the Australian community
When considering the need to protect the Australian community from harm, the Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Even so, some conduct and the potential harm repetition would cause is so serious that any risk it may be repeated may be unacceptable.
Regard is also to be had, cumulatively, to the matters set out in 8.1.2:
(i)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(j)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 non-citizen 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).
(k)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
At the heart of these matters is the risk of harm Ms Marino might cause to individuals or the Australian community should she engage in further criminal or other serious conduct if her Visa is reinstated.
The nature of harm stems from Ms Marino’s dishonesty, break and enter and driving offences. Should she engage in further similar conduct, the resulting harm to individuals, businesses and the Australian community would include loss of property and financial loss, as well as the adverse effects of unlawful entry into private places, including individual homes and commercial premises. Should Ms Marino engage in further driving offences, particularly driving while drug-affected, very substantial property damage or physical harm could result to other road users or pedestrians.
The likelihood of Ms Marino engaging in further criminal or other serious conduct turns on the risk of her relapsing into drug-use. Risk is a chameleon-like concept which exists in a spectrum spanning faintest possibility and absolute certainty, where the nature and extent of any risk is coloured by circumstance. The threshold of tolerable risk is related to the seriousness of potential harm. Mortimer J (as her Honour then was) discussed the assessment of risk in Assistant Minister for Immigration and Border Protection v Splendido[17] at [78]:
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for assessment about the nature and extent of any risk of further offending.
[17] [2019] FCAFC 132.
Her Honour discussed the assessment of risk and the legal conception of ‘unacceptable risk’ in Tanielu v Minister for Immigration and Border Protection[18]at [102]:
102. It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
[18] [2014] FCA 673.
While Ms Marino’s past offending is integral to assessment of any risk of future offending, the evaluative assessment of such a risk requires more than inferential tendency reasoning derived from her criminal record: she did it before and she has a propensity to do this kind of thing, so she is likely to do it again. The evaluation of risk in this context requires close consideration of the nature and circumstances of the person’s past conduct as well as evidence of circumstances which may bear upon any risk their past offending conduct might or might not be repeated. This involves consideration of a range of inputs which ‘fall short of criminality but may still rationally bear upon the assessment of whether a person “might” engage in criminal conduct in the future’.[19]
[19] EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536 at [182].

The risk of Ms Marino re-offending has been repeatedly assessed, applying the Level of Service Inventory – Revised (LSI-R) risk assessment tool. In pre-sentence reports on 16 July 2018,[20] 15 November 2018,[21] 31 August 2020[22] and 26 May 2023,[23] a medium risk of re-offending was reported.
[20] Ibid, 440.
[21] Ibid, 296.
[22] Ibid, 445.
[23] Ibid, 451.
I do not accept Ms Marino’s assertion the risk of her re-offending has reduced during the period of her incarceration and immigration detention for three reasons.
Firstly, Ms Marino’s assertion is not supported by relevant material of probative value, such as a further assessment applying the LSI-R risk assessment tool or an assessment of her risk of re-offending by a suitably qualified independent person. On 4 July 2024, Thomas Fegent, a drug and alcohol psychologist, conducted an assessment using the ASSIST health risk tool. This assessed Ms Marino’s ‘current pattern of substance use’ and placed her in the ‘Moderate’ category in respect of marijuana and amphetamine (including ‘crystal meth’) use.[24] Mr Fegent noted:
Discussed harmful effects of THC use and Methamphetamine use.[25]
[24] Exhibit 2, 377.
[25] Exhibit 1, 25.
Secondly, Ms Marino alleges she used ICE twice and cannabis on three occasions during the period of her immigration detention. While she admits to doing so, and leaving aside the inconsistency with Mr Fegent’s records, her explanation that she was merely testing her resolve to remain abstinent tests the bounds of credulity. By her own account, it is possible for a person to obtain ICE or cannabis in detention if they really want it. This suggests obtaining access to ICE or cannabis requires motivation and contacts in the detention centre. Assuming Ms Marino had the contacts necessary to obtain ICE and cannabis, the proposition she was motivated to take the risk of obtaining ICE and cannabis from such contacts to test her commitment to abstinence is not supported by the contemporaneous clinical records in evidence, and it is simply implausible.
Furthermore, Mr Fegent’s notes of consultations with Ms Marino on 4 July 2024 and 11 July 2024[26] do not refer to Ms Marino using ICE or cannabis to test her resolve to remain abstinent. On 4 July 2024, Mr Fegent noted information about Ms Marino’s drug and alcohol use in clinical notes[27] and in a Drug & Alcohol Health Assessment Form.[28] This reveals that Ms Marino:
(a)commenced regular use of marijuana at the age of 11 and amphetamines at the age of 18 (with “5 years break around 2008”);[29] although Mr Fegent noted Ms Marino “Started smoking ice when she was 17yo”;[30]
(b)used marijuana four times and amphetamines twice in the preceding 3 months and in the preceding 4 weeks she used marijuana twice and amphetamines once (the date of last use is recorded to be “13/06 2024”).[31]
[26] Ibid, 384.
[27] Ibid.
[28] Exhibit 2, 371-378.
[29] Ibid, 372.
[30] Exhibit 1, 25.
[31] Ibid, 373.
This does not sit well with information in pre-sentence reports that she experimented with ICE on a social basis at the age of 30,[32] or that she commenced using ICE in 2018.[33]
[32] Ibid, 440.
[33] Ibid, 450.
Thirdly, Ms Marino’s submissions in respect of the distinction between lapse and relapse in the context of recovery from drug dependence,[34] and the reference materials on which she relies,[35] reinforce the importance of medical and behavioural modification and strategies to mitigate the person’s stress reactivity and improve their executive function and self-regulation. The factors which might contribute to a lapse or relapse are illuminating. On the information published by the Alcohol and Drug Foundation, there is a strong connection between dependent drug use, relapse and personal challenges, and the “continuation of old coping patterns that need to be replaced with new ones”.[36] It can be accepted that strategies for preventing relapse include avoiding certain people, places and things; calling on clinical and non-clinical support as needed; doing meaningful activities; self-care and a balanced lifestyle; thinking differently; and
If a person has ongoing emotional, physical and/or mental health issues, they may need to use additional strategies to help their recovery and prevent relapse.
-    Finding the right mix of medications…
-    Alternative tactics that encourage a more holistic wellness approach, e.g. meditation, mindfulness based therapies or yoga.
-    Psychological help, e.g. psychotherapy, cognitive behavioural therapy, or alcohol or other drug therapy
-    Developing self-care routines for diet, exercise and rest.[37]
[34] Ibid, 5-6 and 12-13.
[35] Ibid 50-56.
[36] Ibid, 51.
[37] Ibid, 53-54.
On 15 June 2023, Lauren Davey, a psychologist, consulted Ms Marino to assist with coping strategies and noted:
AOD hx: Reported marijuana use to numb and supress memories, nightmares and flashback symptoms. Added began using methamphetamines to “escape” distressing memories.[38]
[38] Exhibit 1, 424.
When examined on this point, Ms Marino explained she ceased psychological counselling late in 2024 as she learned four strategies which assist her to cope with nightmares and traumatic memories, and she is no longer troubled by such symptoms. When pressed on this point, Ms Marino was able to describe strategies involving breathing and use of an object to differentiate dreams from reality. Additionally, she explained she uses Mirtazapine to assist with sleeping.
In all likelihood, Ms Marino continues to experience symptoms attributable to past traumatic experiences and this is a relevant consideration when assessing her risk of relapse and engaging in further criminal or other serious conduct.
Ms Marino has engaged in some rehabilitative programs, including:
(a)five SMART Recovery meetings from 7 February 2024 to 7 August 2024;
(b)psychological counselling from 30 January 2024 to 10 October 2024;[39]
(c)a High Intensity Program Unit on 15 December 2023;[40] and
(d)a Drug and Alcohol Abuse 101 course on 9 February 2024.[41]
[39] Ibid, 380-389.
[40] Ibid, G27.
[41] Ibid, G26.
Ms Marino’s avowed intention to accept Mrs Brierley’s offer of employment and accommodation on a remote cattle property[42] more than 6 hours drive from Sydney requires careful consideration. On Mrs Brierley’s evidence, even though she has not met or spoken with Ms Marino, the offer of employment and accommodation is open. Mrs Brierley explained her daughter is in prison and she asked Mrs Brierley to assist Ms Marino, which she was willing to do as she and her husband require farm and domestic assistance on their remote cattle property. Mrs Brierley stated she will not tolerate any illegal activity or drug-taking. Ms Marino asserts this will provide her protection from risk of relapse as well as meaningful employment. That might be so, but there are real questions about how realistic the proposal is. Ms Marino would be accommodated, alone, in a farm cottage 3 kilometres from the homestead. The only other people residing on the property are Mrs Brierley and her husband. Ms Marino would be provided with a vehicle for on-farm use only and she would have access to the nearest towns (more than 1 hour distant) every 10 days or so.
[42] Ibid, 17.
Quite clearly, under this arrangement, Ms Marino would be removed from physical engagement in social, community and therapeutic or rehabilitative support which could be expected to be required to assist her continued abstinence. It is also clear, Ms Marino would be geographically separated from her friends and family members, as well as from the Northern Beaches area and any remaining drug-associates in that area. It is conceivable she might be able to obtain supports and to maintain connections with family and friends using electronic communications. There are many unknowns, including how Ms Marino might cope with the isolation. On Ms Speight’s evidence, Ms Marino is an out-going social person. Ms Marino gave evidence that she considered residing on a remote cattle property would be similar to residing in immigration detention or prison. This underscores the question about how realistic this proposal is for Ms Marino and how she might cope with the isolation from people and what effect this might have on her psychological state and on the risk she might relapse and engage in further serious conduct.
On balance, I am satisfied there is a medium level of risk that Ms Marino might engage in further serious conduct.
The previous serious conduct Ms Marino engaged in and the harm to individuals and the Australian community should she engage in further criminal or serious conduct, cumulatively, weigh on the tolerance of the Australian community. I am mindful that the safety of the Australian community is the Government’s highest priority and that, generally, the protection of the Australian community is to be given greater weigh than other primary considerations.
On balance, I am satisfied this consideration weighs against revocation of the decision to cancel Ms Marino’s Visa.
Family Violence
There is no evidence Ms Marino engaged in family violence, although there is some evidence she might have been subjected to domestic violence in 2018. Nothing was made of this in submissions by the parties, and I will go no further with it.
I am satisfied this consideration is not presently relevant.
Strength, nature and duration of ties to Australia
This consideration is explained in s 8.3 of the Direction:
1Decision-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.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Ms Marino has immediate family members in Australia. Details of Ms Marino’s family members are set out in the Personal Circumstances Form she signed on 13 August 2024.[43] Ms Marino gave evidence that her mother, Peggy Marino (Mrs Marino), resides in Australia. Ms Marino has eight siblings, three of whom reside in New Zealand. Mrs Marino, provided a statement and gave oral evidence. On her evidence, Ms Marino has only two siblings residing in Australia.
[43] Ibid, G16, 162.
The difficulty resolving this conflict in the evidence exemplifies the difficulty making findings about Ms Marino’s immediate family members and any impact on them of a decision not to reinstate Ms Marino’s Visa. Only Mrs Marino provided any evidence to the Tribunal or in support of Ms Marino’s case.[44] This is problematic. It is not possible to reasonably assess the impact of the decision on Ms Marino’s immediate family members in Australia without evidence of their relationships with Ms Marino and their particular circumstances. There is insufficient relevant material on which to make findings about other members of Ms Marino’s immediate family, including whether they are Australian citizens, permanent residents or have an entitlement to reside in Australia. Speculation about such matters is not of assistance.
[44] Ibid, 19.
Doing the best with the available evidence, it is probable Ms Marino has not maintained close contact with her siblings for many years. On Mrs Marino’s evidence, Ms Marino was not in contact with her for several years, although this resumed when her father died in 2020. On Mrs Marino’s evidence, she last had physical contact with her daughter 10 years ago.
It is conceivable, as Ms Marino asserts, that the familial ties which bind her family persist despite lack of contact. I accept that Ms Marino and her mother have re-established contact and that her mother is likely to be adversely impacted to some extent should Ms Marino’s Visa not be reinstated. Mrs Marino’s evidence is that, in those circumstances, she would travel with her daughter to New Zealand to assist her re-establish herself there and to intercede with other family members. Mrs Marino explained this would be temporary and she would be able to assist her daughter with accommodation, initially with her sister (Ms Marino’s aunt) and later in a caravan on a family plot of land she owns.
Ms Marino alleges she has a god-daughter and a god-son residing in Australia.[45] There is no evidence from or about these people, including their ties with Ms Marino and any impact of a decision not to reinstate her Visa. There is insufficient evidence of probative value to make any findings about the strength, nature and duration of Ms Marino’s relationship or ties with these people, one of whom is now adult.
[45] Ibid, g16, 160.
I accept Mr Cortes has maintained a strong enduring and supportive friendship with Ms Marino since their intimate relationship broke down in 2015 in the context of serious health issues. He provided two letters of support[46] and gave oral evidence. Mr Cortes has supported and maintained a close friendship with Ms Marino despite her drug-related issues and the periods in which she has been incarcerated or held in immigration detention. I accept that Mr Cortes maintained regular contact and frequently visited Ms Marino while she was in custody or detention. Mr Cortes gave evidence that he will be devastated if Ms Marino is forced to return to New Zealand, but he will continue to support her and visit her when possible should that occur.
[46] Ibid, 10 and G30.
I accept that Ms Marino has friendship relationships with Ms Speight and Mr Staples. Ms Speight provided a letter of support[47] and she gave oral evidence. The nature and strength of her relationship with Ms Speight spans 6 years, during which Ms Speight was undergoing medical treatment for a very serious health condition. Ms Speight described Ms Marino as her best friend. I understand that Ms Speight visited Ms Marino once during the period of her immigration detention.
[47] Ibid, 20.
Mr Staples provided a written letter of support[48] but he was not able to be contacted for oral evidence. On Mr Staples’ untested letter, he first met Ms Marino in January 2022 and they share a passion for BMX bicycles.
[48] Ibid, 21-22.
Ms Marino first arrived in Australia in November 2007. She was 24 years old. Subsequently, she has resided in Australia, only departing for short trips overseas.
On 29 October 2009, less than two years after arriving in Australia, Ms Marino was convicted of her first offence in Australia: “Drive with middle range PCA”.[49] There is no record of her committing further offences until 2015.
[49] Ibid, 103.
I accept that Ms Marino contributed positively to the Australian community in the period from November 2007 to the loss of her long-term job in or about 2017, although the incidence of her offending conduct increased from September 2015.
These considerations weigh in favour of revoking the mandatory cancellation of Ms Marino’s Visa, but not heavily.
Best interests of minor children
Under s 8.4 of the Direction, the Tribunal is required to determine if cancellation of Ms Marino’s Visa is, or is not, in the best interests of minor children who are affected by the decision. The best interests and circumstances of each minor child must be considered individually. In doing so, the factors set out in s 8.4(4) must be considered where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Ms Marino identified five minor children, specifically “CD”, “CR”, “ES”, “AdC” and “AlC”, whose best interests should be considered and, more broadly, asserted that nieces and nephews of hers would also be affected by a decision not to reinstate her Visa and their best interests should also be determined.
The immediate difficulty with this relates to the present state of the evidence. There is only Ms Marino’s evidence to go on. There is no relevant evidence from the parents of the five children specifically identified, and there is no evidence in respect of any of Ms Marino’s nieces and nephews whose best interests should be determined.
I will do the best with the available materials of relevance.
Ms Marino asserts she is god-parent to ES. This assertion is not supported by material of probative value. The nature of Ms Marino’s relationship with ES cannot readily be determined. She alleges she had contact with ES, who she alleges is about 6 years old, “once every fortnight for 2-3 days”.[50] Even if one accepts this, there is no evidence this level of contact continued during period in which Ms Marino was incarcerated or held in immigration detention.
[50] Ibid, 161.
Ms Marino asserts she attended CD’s birth, around 8 years ago, and she has contact “almost everyday [during] school holidays”.[51] She asserts she has “weekly-fortnightly” contact with CR, who she states is around 4 years old, and she has contact with AdC and AlC “once-twice every 2-3 weeks”.[52] The available evidence is not sufficient to ascertain if this is correct or on which to determine the nature of Ms Marino’s relationship with each minor child.
[51] Ibid.
[52] Ibid.
As Ms Marino has spent significant periods of time from 2019 in custody or detention, it can be understood that the amount of time spent with each minor child is substantially less than she has alleged.
I am not persuaded Ms Marino has a parental or caring role with any of these minor children. The oldest of these children is AdC who is alleged to be around 12 years old. Even if Ms Marino has played a role in AdC’s life, having contact once or twice every two to three weeks, it is not established that her role was a positive parental role. The same can be said in respect of CD, CR, ES and AlC. By her own account, Ms Marino was drug-affected for substantial periods from 2015. I do not accept that she played a positive role with each or any of these children when she was drug-affected. Ms Marino alleges she did not use drugs and she was not affected by drugs when in the presence of each of these children.

On the available evidence, I am unable to determine the particular circumstances and views of the parents of each of the children, or the children themselves.
Considering these matters, while I accept Ms Marino might relate in various ways from time to time with each of these children, I am unable to determine if it is, or is not, in each of their best interests for her Visa to be reinstated.
It is conceivable Ms Marino might have nieces and nephews who best interests should be considered, but without evidence of who they are and their particular circumstances, it is not possible to make meaningful findings in consideration of the factors set out in s 8.4(4).
In consideration of these matters, I am unable to be positively satisfied revocation of the decision to cancel Ms Marino’s Visa is, or is not, in the best interests of CD, CR, ES, AdC or AlC, or any other minor child. Speculating about such matters is not helpful.
That being so, this consideration cannot be given significant weight one way or the other.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction:
1The 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.
2In 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.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This 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 Government’s statement of Australian community expectations ‘as a norm’ is generally adverse to any visa applicant who has engaged in serious conduct giving rise to character concerns in breach of those expectations.[53] Nevertheless, the expectations expressed should be considered on the facts of each case and weighed with other relevant considerations. This section of the Direction should not be construed as directing the decision of the decision maker in any case or as inimical to the consideration of relevant facts and circumstances.
[53] FYBR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J at [75] and Stewart at [89].
In FYBR v Minister for Home Affairs,[54] Stewart J explained the consideration involves evaluation of what is appropriate in the particular circumstances of the non-citizen and attribution of weight to an adverse character assessment:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.[55]
[54] [2019] FCAFC 185.
[55] Ibid, per Stewart J at [102].
Consequently, there are two main considerations. The first is the serious conduct Ms Marino has engaged in and the nature of the resulting character concern. The second is an evaluation of the appropriate weight the character concern should be given in the particular circumstances.
Ms Marino’s offending conduct breaches the expectation, as a non-citizen, she should obey Australian laws while in Australia. The resulting expectation is that the Government should not allow her to remain in Australia.
The nature of Ms Marino’s offending conduct, breaking into houses, stealing people’s property, engaging in dishonest conduct, dealing in proceeds of crime, obtaining property by deception, committing serial driving offences and repeatedly breaching Court orders, inform the concern about her character. The concern is also informed by the extent to which her offending conduct relates to drug abuse and addiction. Ms Marino accepts, when drug-affected she would do anything to feed her habit, although she allegedly drew a line at committing acts of violence.
If one accepts that Ms Marino’s addiction should be considered as a health issue rather than a flaw in her personality or underlying character, the weight to be given to the character concern is mitigated to some degree. This would be reinforced if Ms Marino had clear insight into her condition and arrangements were in place for continuing and future engagement in rehabilitative or therapeutic treatment. The strategies Ms Marino described in her evidence do not rise to a level sufficient to mitigate the character concern, albeit I accept they are of assistance to her.
Considering these matters, the character concerns arising from Ms Marino’s serious conduct weigh against revoking the cancellation of her Visa.
Legal consequences of the decision
‘Other considerations’ are generally given less weight than ‘primary considerations’.
Ms Marino did not make submissions of any substance in respect of this consideration and preferred to leave it to the Tribunal. She did expressly confirm that no protection considerations or claims were raised or pressed.
On this point, it remains open for Ms Marino to make a claim for protection if she chooses to do so. Should that occur, it can then be determined on relevant evidence at the time. Presently, there is no cause to consider the matter any further.
The immediate legal consequence of a decision not to revoke the cancellation of Ms Marino’s Visa is that she will be held in immigration detention, pending removal from Australia under s 198 of the Act. Once removed from Australia, it is very unlikely she will be permitted to return.
These are the legal consequences of the policy underlying the character provisions of the Act. They apply in all cases of this kind where the decision-maker is not satisfied of the matters set out in s 501CA(4)(b) of the Act.
Ms Marino asserts the legal consequence of forcing her to return to New Zealand is likely to have an adverse impact on her as she is likely to be exposed to circumstances and nefarious influences which might place her safety and mental health at risk. On the relevant available evidence, it is not possible to assess the veracity of these assertions or the risk to Ms Marino’s safety which might arise from the legal consequences of not revoking the decision to cancel her Visa.
Nevertheless, I accept the legal consequences of a decision not to revoke the cancellation of Ms Marino’s Visa weigh in favour of reinstating her Visa.
Extend of impediments if removed
This consideration is directed to the impediments a non-citizen would face should they be removed from Australia to their home country:
(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.
Ms Marino’s evidence and submissions in respect of this consideration turn on two key factors. The first is that she will lack a supportive family, social or community network and she will have no friends on whom to draw in times of need in New Zealand. The second is that returning to New Zealand might expose her to risks associated with drugs, gangs and the rekindling of traumatic past experiences and memories. These factors would be likely to impede her recovery from addiction and place her future stability and mental health at risk.
I accept Ms Marino is concerned about these possibilities and, on her evidence and the evidence of Mrs Marino, there is a real basis to some of her concerns.
Nevertheless, I also accept Mrs Marino’s evidence that she would assist her daughter by facilitating family relationships and connections, and by providing her with a piece of land on which, in time, she could live, once suitable accommodation has been obtained (such as a caravan).
No doubt, If Ms Marino’s Visa is not reinstated and she returns to New Zealand, she will experience a period of adjustment which might be difficult for her. Ms Marino grew up in New Zealand and resided there until she was 24 years old. She attended school in New Zealand and she obtained employment in various jobs after leaving school. Subsequently, as the present evidence confirms, Ms Marino undertook courses and developed skills and experience which are transferable to New Zealand. She has family members in New Zealand, albeit she is not in contact with them and, in some cases is concerned about affiliating with them or being pressured by them.
Considering these matters, I accept Ms Marino is likely to experience some impediments is her Visa is not reinstated and she is returned to New Zealand. I am not persuaded the impediments weigh heavily in the balance as they are largely offset by factors arising from Ms Marino’s previous life and experiences in New Zealand and her familiarity with New Zealand culture and society. To the extent Ms Marino is likely to encounter some difficulties reintegrating into life in New Zealand having spent 17 years as an adult in Australia, some weight can be given to the impediments she is likely to experience.
I am satisfied this consideration does not weigh heavily in the balance. It weighs in favour of revoking the cancellation of Ms Marino’s Visa, but only slightly.
Impact on Australian business interests
This consideration is directed to Australian business interests:
(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.
Ms Marino alleges that if her Visa is not reinstated, Mrs Brierley’s cattle enterprise will be adversely impacted if she is returned to New Zealand. She asserts Mrs Brierley is likely to experience difficulty obtaining employment support in such a remote location that she and her husband require.
Mrs Brierley’s evidence is that she requires domestic and on-farm support as her husband is over 80 years old and she is scheduled for dual knee surgery later this year.
The proposition that Mrs Brierley might find it difficult to employ support that she requires is unsupported by relevant material of probative value. There is simply no evidence about the state of the labour market in the region of Mrs Brierley’s cattle enterprise or the extent to which her business would be compromised if Ms Marino’s Visa is not reinstated. Nevertheless, at a level of generality one can accept a farmer might encounter some difficulties employing suitable on-farm and domestic support in a remote location. Mrs Brierley did not give evidence addressing these points and she was not asked to do so.
At the highest, all that can be said is Mrs Brierley’s business might be deprived the benefit of employing Ms Marino if her Visa is not reinstated and this might have an adverse impact on the business to some extent.
Considering these matters, noting there is very little to go on, if this consideration carries any weight, it is marginally in favour of revoking the cancellation of Ms Marino’s Visa, but only to a very slight degree.
Conclusion
The safety of the Australian community is the Government’s highest priority. Protection of the Australian community from criminal or other serious conduct is generally to be given more weight than other considerations.
Ms Marino’s criminal conduct is serious and harm will be caused to individuals and the Australian community should she engage in further serious conduct. The potential harm reflects the nature of Ms Marino’s past serious conduct, including breaking and entering into private and commercial properties, stealing, dishonestly obtaining property, dealing in proceeds of crime and breaching Court orders. Her previous conduct demonstrates a disturbing and repeated disregard for Australian law and the impact of her conduct on victims. While this might be explained on the basis of Ms Marino’s drug addiction, this does not lighten the weight of the protection consideration. Rather, it informs the risk of Ms Marino engaging in further criminal or other serious conduct.
Ms Marino has engaged in some rehabilitative programs and therapeutic counselling, and, despite some lapses, she has been largely abstinent from January 2023, during the period of her incarceration and immigration detention. Nevertheless, her resolve to remain drug-free and her resilience when confronted with life stressors and symptoms of past trauma, employing the strategies she described, has not been tested in the community. The protective factors Ms Marino identified, including supportive relationships with close friends such as Mr Cortes and Ms Speight, coping strategies she has learned, a rekindled relationship with her mother, offers of employment outside the Northern Beaches area and the threat of removal from Australia, might bear upon the risk of her engaging in further criminal or other serious conduct, but these do not lessen the weight of the protection consideration to a significant degree. There is a medium level of risk she will re-offend. I am satisfied the protection consideration weighs against revoking the decision to cancel Ms Marino’s Visa.
The consideration of Australian community expectations adds weight against revoking the cancellation of Ms Marino’s Visa. The character concern is sharpened by the nature of the criminal and other serious conduct in which Ms Marino engaged, breaking and entering private places, stealing private property, obtaining property dishonestly, dealing in proceeds of crime, serial driving offences and repeated breaches of correction orders. While the weight given to the character concern is lessened to some degree by consideration of Ms Marino’s drug addiction as a health issue, the consideration of Australian community expectations weighs against revoking the decision to cancel Ms Marino’s Visa.
The strength, nature and duration of Ms Marino’s ties to Australia weigh in favour of revoking the mandatory cancellation of her Visa. Ms Marino first offended in Australia within 2 years of arriving as an adult. While this reduces the weight that should be given, the reduction is largely off-set by the positive contribution she made in employment from 2007 to 2015, before committing further offences. While Ms Marino has immediate family members in Australia, only her mother provided evidence of any impact cancellation of Ms Marino’s Visa might have. By her own account, the impact relates to travelling, temporarily, to assist her daughter to re-establish herself in New Zealand. Mrs Marino explained she travels to New Zealand to visit family members and she owns land in New Zealand which her daughter could use. Mrs Marino has not had physical contact with Ms Marino for 10 years and they previously resided in different Australian states. I am satisfied the adverse impact of the decision to cancel Ms Marino’s Visa is minimal.
In all likelihood, the lack of evidence from other members of Ms Marino’s immediate family reflects the state of her relationships with them. It is not possible to assess or give weight to any adverse impact cancellation of Ms Marino’s Visa might have on such people if they are Australian citizens or permanent residents.
Ms Marino has maintained a strong and enduring relationship with Mr Cortes since 2007. This adds weight to this consideration. There is scant evidence of her relationships with other people in the Australian community. Ms Speight, Mr Staples and Mr Le provided written evidence, but only Ms Speight provided oral evidence. On her evidence, Ms Speight has known Ms Marino for 6 years, but had limited contact with her during the periods in which she was incarcerated or in immigration detention, visiting her on one occasion. Mr Staples’ untested evidence suggests he has known Ms Marino for 3 years, although the nature, strength and extent of any contact between Mr Staples and Ms Marino while she has been incarcerated and in immigration detention is unclear. Mr Le appears to have offered Ms Marino accommodation and employment in August 2024, but there is no evidence of the nature, strength and duration of Mr Le’s relationship with Ms Marino.
Ms Marino asserts she has two god-children and she has enduring relationships with other minor children, as well as extended family members. On the available evidence, it is not possible to assess the strength, nature and duration of such relationships, or any effects of the cancellation of Ms Marino’s Visa.
While consideration of Ms Marino’s ties to Australia weighs in favour of revoking the decision to cancel her Visa, it does not do so heavily.
Ms Marino contends consideration of the best interests of five minor children weighs in favour of revoking the decision to cancel her Visa. There is only scant evidence of Ms Marino’s relationship with these children and the circumstances in which they live. The available materials are not sufficient to support factual findings necessary to determine whether cancelling Ms Marino’s Visa is, or is not, in the best interests of the minor children. That being so, this consideration does not add significant weight one way or the other. Even if I accepted the general proposition that Ms Marino’s has relationships with each of the minor children she identified and her forced return to New Zealand would have an impact upon them, and I am not able to make such a finding on the present evidence, more is required to determine if such an eventuality is in each of their best interests having regard to all relevant factors, including Ms Marino’s drug use and criminal conduct.

Other considerations generally carry less weight.
The legal consequences of not revoking cancellation of Ms Marino’s Visa are the result of policy. She will be held in immigration detention pending removal to New Zealand. In all likelihood, Ms Marino will not be permitted to return to Australia once she departs. No issues of non-refoulement and protection have been raised or pressed. Ms Marino raised concerns about the adverse effect of the legal consequences of not reinstating her Visa, including anticipated risks to her safety and wellbeing. Mrs Marino’s evidence is that she will assist her daughter deal with such matters. To the extent that this adds weight in favour of revoking the cancellation of her Visa, the additional weight is not great.
It is accepted that Ms Marino is likely to experience impediments if the decision to cancel her Visa is not revoked. The extent of such impediments and the weight given is reduced by Ms Marino’s familiarity with New Zealand, having resided there for most of her life, including all of her childhood, and by the support she may be able to access from family members and resources. Ms Marino’s concerns about adverse influences she might experience if forced to return to New Zealand and the possibility these might rekindle past traumatic experiences or increase the risk of relapse in her drug use are mitigated to some degree by the support her mother intends to provide. These considerations add weight in favour of revoking the cancellation of her Visa, but the additional weight is not great.
To the extent Mrs Brierley’s cattle business might be adversely impacted if Ms Marino’s Visa is not reinstated, and this is not supported by relevant material of probative value, it would weigh very slightly in favour of revoking the cancellation of Ms Marino’s Visa. On the available material, no such finding can reliably be made.
On balance, weighing all the relevant considerations, I am satisfied the primary considerations against revoking the decision to cancel Ms Marino’s Visa outweigh considerations weighing in favour of reinstating her Visa. Considerations relating to protection of the Australian community from harm and Australian community expectations weigh more heavily in the balance than considerations relating to the strength, nature and duration of Ms Marino’s ties to Australia and the other considerations to which I have referred.
I am satisfied there is not another reason to revoke the decision to cancel Ms Marino’s Visa for the purposes of s 501CA(4)(b)(ii).
That being so, the decision of the Minister’s delegate on 20 March 2025 is affirmed.

Dates of hearing:
19 and 20 May 2025

Applicant’s Representative: Dr Marianne van Galen-Dickie

Solicitors for the Respondent:

Matthew Burnham, Sparke Helmore Lawyers

Dates of hearing:	19 and 20 May 2025
Applicant’s Representative:	Dr Marianne van Galen-Dickie
Solicitors for the Respondent:	Matthew Burnham, Sparke Helmore Lawyers