McGrath and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3442

McGrath and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3442 (8 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3610
Re:Aine Marie McGrath
APPLICANT

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

DECISION
Tribunal:Member S Burford
Date:8 September 2020
Place:Perth

The Reviewable Decision is set aside and substituted with a decision that the cancellation of the Applicant’s Visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth), be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
................[SGD]........................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – whether the Applicant passes the character test – substantial criminal record – driving offences – Applicant does not pass the character test – whether there is another reason why the Cancellation Decision should be revoked – Direction No 79 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – Applicant arrived in Australia as a nineteen year old – impact on victims – extent of impediments if removed to Ireland – impact of COVID-19 pandemic – Tribunal satisfied there is another reason why the decision to cancel that Applicant’s visa should be revoked – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal 1975 Act (Cth) - s 2A
Migration Act 1958 (Cth) – ss 198, 499(1), 499(2A), 500(1)(ba), 501, 501(1), 501(3A) 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hood and Minister Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1123
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370
RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
WSML and Minister for Home Affairs [2019] AATA 41
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)

REASONS FOR DECISION
Member S Burford
8 September 2020
THE APPLICATION

This is an application for review of a decision made by a delegate of the Respondent

(the Delegate) on 15 June 2020 to refuse to revoke the cancellation of the Applicant’s Regional Sponsored Migration Scheme (Class RN) (subclass 187) visa (the visa) under

s 501CA(4)(b)(ii)
of the Migration Act 1958 (Cth) (the Migration Act).[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
[1] R2, G2, pages 11-25.
BACKGROUND
The Applicant is a 28-year-old citizen of Ireland. She arrived in Australia on 8 June 2012, when she was 19 years old.
On 18 October 2018, the Applicant was convicted in the District Court of Western Australia for the offence of dangerous driving occasioning death and was sentenced to a term of imprisonment of three years, eight months. She was also disqualified from holding or obtaining a motor driver’s licence for three years from the completion of her custodial sentence.
As a result of this conviction, the Applicant’s visa was mandatorily cancelled on

15 March 2019 by a delegate of the Minister under s 501(3A) of the Migration Act (the Cancellation Decision).[2] The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as she had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.[3]
[2] R2, G6, pages 47-52.
[3] Migration Act ss 501(6)(a), 501(7)(c).
The Applicant was notified of the Cancellation Decision by letter dated 15 March 2019 delivered to the Applicant by hand in Bandyup Women’s Prison.[4] The Applicant signed for receipt of the notice on the same day.[5] The notice advised that she could make representations to seek revocation of that decision.[6] On 11 April 2019, the Applicant requested revocation of the Cancellation Decision and made representations regarding why the decision should be revoked.[7] Further material in support of the request was submitted by the Applicant on 12 April 2019, 9 May 2019 and 28 October 2019.[8]
[4] R2, G6, pages 47-52.
[5] R2, G6, page 52.
[6] R2, G6, page 48-50.
[7] R2, G8, pages 55-77.
[8] R2, G9, pages 82-205.
On 15 June 2020 the Delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa. This was the Reviewable Decision. The Applicant was notified of the Reviewable Decision by email to her representative on 16 June 2020.[9]
[9] R2, G2, pages 9-10.
On 16 June 2020, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation of her visa.[10]
[10] R2, G1, pages 3-8.
The application for review made to this Tribunal on 16 June 2020, was made in accordance with s 500(1)(ba) of the Migration Act. This provision allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has jurisdiction to review the decision.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. This requires determination of:
(a)whether the Tribunal is satisfied that the Applicant passes the character test (as defined by s 501 of the Migration Act); or
(b)whether there is a ‘another reason’ why the Cancellation Decision should be revoked.
THE HEARING
The hearing was held on 24 August 2020. The Applicant was represented by Ms Jessica Edis of Putt Legal. The Respondent was represented by Mr Tom Galvin of Minter Ellison. Ms Edis appeared in person. Mr Galvin appeared by telephone. The Applicant appeared via video link from Perth Immigration Detention Centre.
The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by means of electronic communication. The Tribunal determined it was reasonable to hold a hearing in part by electronic communications, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the necessity for the Tribunal to make a decision on the application within the statutory timeframe. The Tribunal took steps throughout the hearing process to ensure the proceedings could be conducted in a manner that was fair to both parties, consistent with the Tribunal’s obligations and objectives under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[11] The parties did not raise any concerns regarding the conduct of the hearing by electronic means. The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.
[11] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
At the hearing, the Applicant made submissions, gave evidence and was

cross-examined. The Applicant also called the following witnesses to give evidence in support of her application:
·Jason Connolly, the Applicant’s partner; and
·Christopher Forde, a friend of the Applicant.
Both witnesses gave evidence via telephone. Mr Forde indicated he was in Singapore at the time of the hearing.
The Applicant provided statements, reports or letters from additional witnesses to the Tribunal. The Applicant indicated a number of these witnesses were available to testify at the hearing. The Respondent agreed to this material being admitted into evidence at the hearing but did not seek to cross-examine the witnesses. Accordingly, these witnesses were not called but the Tribunal has had regard to their statements:[12]
[12] A2.
·Yvonne McGrath, the Applicant’s sister;
·Eimear Drinnan, the Applicant’s cousin;
·Paraic McGrath, the Applicant’s cousin;
·Naiomh Crossett, a friend of the Applicant;
·Joanne Egan, a friend of the Applicant;
·Anita Flaherty, a friend of the Applicant;
·Natasha Hennelly, a friend of the Applicant;
·Ashley McManus, a friend of the Applicant;
·Helen Monaghan, a friend of the Applicant;
·Helen Nash, a friend of the Applicant;
·Ashley O’Hara, a friend of the Applicant;
·Aidan O’Shea, a friend of the Applicant; and
·Maris Starr, a friend of the Applicant.
Additional statements were submitted to the Delegate prior to the Reviewable Decision being made. These included:[13]
[13] R2, G9 and G10.
·Orla Beirne, a friend of the Applicant;
·Damian and Eileen Burke, friends of the Applicant;
·Pamela Day, a friend of the Applicant;
·Marina Forde, a friend of the Applicant;
·Marian Kilroy, a friend of the Applicant;
·Mary Lynch, a friend of the Applicant;
·Emma McKenna, a friend of the Applicant;
·Janet Carrick, a friend of the Applicant;
·Linda Leonard, a friend of the Applicant’s sister;
·Sharon Munnelly, the Applicant’s former employer;
·Paul North, the Applicant’s former employer;
·Erna Sterchi, the Applicant’s former employer;
·Cathal Dolan, the Applicant’s cousin;
·Conor Dolan, the Applicant’s cousin;
·Kenneth Dolan, the Applicant’s cousin;
·Deirdre McDonagh, the Applicant’s cousin;
·Clara McGrath, the spouse of the Applicant’s cousin;
·Alan Burke, a family friend of the Applicant;
·Laura Beggan and Raymond Burke, friends of the Applicant;
·Clara Connell, a friend of the Applicant;
·Michael Larkin, a friend of the Applicant;
·Paul Mongey, a friend of the Applicant; and
·Edwina Cross, a former client of the Applicant.
This material was admitted into evidence as part of the Applicant’s Document Bundle[14] and the Tribunal has also had regard to these statements.
[14] A2.
The Tribunal admitted the following documents into evidence:
·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions;
·Exhibit A2 – Applicant’s Document Bundle (including attachments 1-33);
·Exhibit A3 – Applicant’s Submission in Reply (including attachments AS1-AS5);
·Exhibit R1 – Respondent’s Statement of Facts, Issues and Contentions; and
·Exhibit R2 – G Documents.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by

subsection (7));
….
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of

12 months or more;
….
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(a)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Further, s 499(2A) of the Migration Act states that ‘[a] person or body must comply with a direction under subsection (1).’
On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction No 79.[15]
[15] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 6.1 of Direction No 79 sets out the objectives of the Migration Act, with
para 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A
non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out principles which provide a framework for making decisions under s 501CA(4):
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Informed by the principles set out in para 6.3 of Direction No 79, the Tribunal must take into account the considerations in Part C of Direction No 79, with regard to the specific circumstances of the case.[16] Paragraph 13(2) of Direction No 79 of Part C provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
[16] Direction No 79, paras 7(1)(b), 13(1).
Paragraph 14(1) of Part C of Direction No 79 lists the other considerations which must be taken into account where relevant, as follows:
(1)       In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These           considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in para 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
The Applicant’s criminal history
The Applicant’s offending history is set out in the National Criminal Check ‘Nationally Coordinated Criminal History Check Results Report’ dated 4 January 2019 (National Criminal Check).[17]
[17] R2, G3, page 34.
The Applicant has a single conviction for dangerous driving occasioning death in circumstances of aggravation, for which she was sentenced in the District Court of Western Australia on 18 October 2018. The Applicant was convicted following a jury trial. An earlier trial had resulted in a hung jury.
The offence occurred on 14 August 2016. The sentencing judge, Scott DCJ, described his factual findings regarding the circumstances of the offence as follows:[18]
[18] R2, G6, pages 36-39.
After you finished work on that day, you drove your car with Ms Kelly in the passenger seat. Ms Kelly was a work colleague of yours and a friend of yours. You asked her to get your phone out of your handbag and to ring your boyfriend Jason, with whom you spoke for about 28 seconds.
During at least part of that conversation you were driving on a public road. When you terminated that conversation your car was near the lights where Shepparton Road meets Roberts Road. You drove along the Graham Farmer Freeway and through the tunnel, onto the freeway, and eventually into lane 5 on the Mitchell Freeway travelling north.
You drove along the Graham Farmer Freeway to just after the Leederville Train Station overpass at 80 kilometres an hour, which was the speed limit. When the speed limit changed to 100 kilometres you accelerated to at or about that speed…
Between the termination of the 28-second call and when you lost control of your vehicle there were six occasions, I find, upon which you and Jason exchanged text messages.
The text messages related to discussions about having another drink or having a drink at the Quinn Hotel which Jason was endeavouring to persuade you to attend. There were three text messages from Jason… which you read, and three text messages which you typed and sent to him.
…
Ms Lennon was driving her vehicle in a northerly direction on Mitchell Freeway at a position ahead of your vehicle. She was driving at 80, when the speed limit changed to 100 she accelerated to that speed.
She noticed in her rear-vision mirror that your vehicle was coming behind her at a distance of about 30 to 40 metres and appeared to her to be coming up very quickly to her vehicle.
As a consequence, she proceeded to change lanes into lane 4 and as she was doing so she looked into the rear-vision mirror again and your vehicle was swerving from left to right across lanes 5 and 4, which she described as shallow, quick turns and said, which I accept, that it occurred more than once.
…
I accept Ms Lennon’s evidence that was looking at your vehicle in her rear view mirror at the times at which she saw your vehicle and was that movement. Ms Lennon then saw your car move quickly across the lanes towards the left-hand of Mitchell Freeway towards lane 1. Overall, I do accept the evidence of Ms Lennon.
I reject your evidence that Ms Lennon drove her vehicle from lane 5 into lane 4 directly in front of your vehicle and it was the manner of her driving which caused you to have to take urgent evasive action. At this time, Ms Matthews was driving a Colorado utility in a northerly direction in lane 1 at a speed of approximately 100 kilometres per hour.
In the Colorado were her husband and two children.
I am satisfied that you received a text from Jason at 16:14:12 and typed and sent a response at 16:15:36 in terms of “I will ya (?). Be there in five,” when your vehicle was in lane 4 or straddling lanes 4 and 5 and behind Ms Lennon’s vehicle. When reading Jason’s text and typing and sending your text you were travelling at a speed in excess of 100 kilometres per hour.
Now, I make no finding as to the extent to which you were exceeding a speed of 100 kilometres per hour but I’m satisfied that it was in excess of that speed. Your attention was distracted from your driving such that you were not, for a period of time, aware of the proximity of your vehicle to Ms Lennon’s vehicle which was in front of yours.
When you resumed your attention to your driving you panicked given the proximity of Ms Lennon’s vehicle and turned your steering wheel sharply to the right to avoid what you perceived likely to be a collision which resulted in you driving into the emergency lane.
In order to avoid the barrier to the right of the emergency lane you then wrench the wheel to your left resulting in you losing control causing your vehicle to yaw in an anticlockwise manner and then travel sharply towards and across the left hand lanes where in or about lane 1 the Colorado collided into the passenger side of your vehicle at a speed of approximately 100 kilometres an hour…
The only inference reasonably capable of being drawn from the evidence I do accept is that the reason you lost control of your vehicle was because you were distracted for some time in reading Jason’s text and then typing and sending a response at the speed you were travelling, and only became aware of the proximity of Ms Lennon’s vehicle in front of yours when you were so close to it and then you needed to take the urgent evasive action.
Accordingly, His Honour found that the factual circumstances amounted to a circumstance of aggravation which made the offence more serious. The Applicant was sentenced to a term of imprisonment of three years, eight months. She was made eligible for parole at the expiration of 22 months from the date of commencement of the sentence. In addition, she was disqualified from holding or obtaining a motor driver’s license for a period of three years commencing upon the completion of her term of imprisonment.[19]
[19] R2, G6, page 44.
On 13 July 2020, the Prisoner Review Board (PRB) concluded that the Applicant’s release would present an acceptable risk to the safety of the community and made a parole order.[20] The PRB made the order having regard to the fact that the Applicant had no prior criminal history, the salutary effect of her first term of imprisonment and her participation in a voluntary programme which demonstrated a motivation and willingness to address her offending behaviour. The PRB noted the Applicant’s visa had been cancelled and stated that if the Applicant were successful in having the Cancellation Decision revoked her release in Western Australia did not pose an unacceptable risk to the safety of the community.[21]
[20] A3, pages 3-4.
[21] A3, page 3. See also A1, page 9; A2 pages 83-89 (Parole Review Report), pages 90-93 (Parole Assessment); R2, G2, page 25.
The Applicant was released on parole and is now in immigration detention.
Does the Applicant pass the character test?
The Applicant accepted that she does not pass the character test.
The character test is defined in s 501(6) of the Migration Act.
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Migration Act).
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test under s 501(6)(a). The Tribunal is not satisfied that the Applicant passes the character test (see s 501CA(4)(b)(i) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
As the Applicant does not pass the character test, the Tribunal must consider whether there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
As noted above, the Applicant requested revocation of the Cancellation Decision on

11 April 2019. She made representations in support of that request outlining the reasons she submits the Cancellation Decision should be revoked. The Applicant relied on these representations and submissions before the Tribunal. In addition, she made written and oral submissions to the Tribunal.
In summary the Applicant submitted that the Cancellation Decision should be revoked because:
·She has been convicted of only one offence. She acknowledges the seriousness of the offence and has been devastated by the loss of her friend. She accepts she engaged in criminal behaviour. However, she submitted that the conviction arose from impulsive actions over a short period and there was no intention to harm the victim (or victims) of the offence.
·She has only been convicted of one offence and it would be unreasonable to conclude that she had a propensity to engage in dangerous driving or reckless behaviour generally.
·While the nature of the harm to the community should she reoffend is considerable, the risk of her reoffending is ‘essentially non-existent’ as demonstrated by:
oher remorse and the insight she has gained into the behaviour which lead to the offence through the salutary effect of time in prison and a voluntary program;
othe fact she did not reoffend during the two years she was on bail in the community, including while remaining licenced to drive;
othe three year ban on driving which comes into effect from the date of her release;
othe impact Ms Kelly’s death had on the Applicant and her understanding of the potential consequences of her behaviour;
othe lack of any risk factors for reoffending and her strong prosocial network in Australia;
oher strong history of employment and employability on release;
oher productive and compliant behaviour in custody;
oher voluntary undertaking of a rehabilitation program and education programs available to her in prison;
othe assessment that she was a low risk of reoffending on admission to prison; and
othe fact the PRB assessed her to be an acceptable risk to the community and granted her parole at the earliest opportunity;
·On the basis of these factors the nature and seriousness of her offending should be found to weigh in favour of revocation.
·The best interests of her cousin’s three children with whom she is close, having lived with the children for a time and being godmother to one, weigh in favour of revocation.
·In the Applicant’s circumstances the expectations of the Australian community should not be found to weigh against revocation as ‘a fair minded and mature member of the Australian community would not seek to punish the Applicant further’[22] through her removal.
·The Applicant has strong ties to the community through her partner, sister, cousins and friends. She has made a positive contribution to the Australian community through her consistent employment and involvement with community groups including the Irish expatriate community. This factor should weigh in favour of revocation.
[22] A1, Page 12, para [56].
The Respondent submitted, in summary, that:
·The seriousness of the Applicant’s offending and the possibility of future harm to the community should she reoffend in a similar way both outweigh other considerations in favour of revocation.
·The Applicant’s offending was very serious, particularly having regard to the grave consequences for Ms Kelly and the sentence of imprisonment imposed by the court.
·The Applicant presents a risk of reoffending, demonstrated by:
othe fact she plead not guilty to the offence, demonstrating a lack of remorse and insight into the offending;
oher failure to undertake any rehabilitative courses or treatments to address the underlying causes of her offending;
oher behaviour in prison is not proof she will not reoffend; and
oher prosocial network was not sufficient to prevent her offending before and cannot be relied on to do so in the future.
·While the risk of reoffending is low, any risk is unacceptable having regard to the serious harm which could result were she to reoffend.
·The best interests of the Applicant’s cousin’s children should be given less weight as she has never fulfilled the role of a primary caregiver for the children, can maintain contact in other ways and does not play a parental role with respect to the children.
·The Applicant has family, social ties and some involvement in the community in Australia. However, this should not outweigh the seriousness and risk of reoffending.
·The Applicant came to Australia as an adult, has strong support in Ireland, good prospects for employment and has not identified any impediments to her removal.
·The only COVID-19 restriction the Applicant would face would be 14 day quarantine on arrival in Ireland.
·Other considerations including the Applicant’s ties to Australia do not outweigh the primary considerations or favour non-revocation of the Cancellation Decision.
Primary considerations
First primary consideration: Protection of the Australian community
Paragraph 13.1 of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)
The nature and seriousness of the non-citizen’s conduct to date;

and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1(1) of Direction No 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that 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, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    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);
i)   Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
In considering the protection of the Australian community the Tribunal must give consideration to the nature and seriousness of the Applicant’s offending and other serious conduct.
The Applicant accepted that her offending was serious. However, the Applicant submitted that she has been convicted of only one offence. She acknowledges the seriousness of the offence and maintained that she has been devastated by the death of her friend and the fact her death was caused by her ‘selfish’ actions. She accepts she engaged in criminal behaviour. However, she submitted that the conviction arose from impulsive actions over a short period and there was no intention to harm the victim (or victims) of the offence.[23]

[23] A1, page 6, paras [31] – [33].
The Applicant submitted it should be noted that:[24]
this was not a dangerous driving conviction that involved “hoon” or deliberately risky driving. Rather, it was a case of reckless (and consequentially, dangerous) inattention.
[24] A1, page 6, para [33].
The Respondent submitted that the Applicant’s offending was very serious, particularly having regard to the grave consequences for Ms Kelly and the sentence of imprisonment imposed by the Court.

The seriousness of the offence which gave rise to the mandatory cancellation of the Applicant’s visa was reflected in the comments of the Scott DCJ, who in considering the sentence to be imposed stated:
The principle of general deterrence and sentencing you for this offence is of prime importance…
Over the years there have been increasing concerns expressed by police and constant warnings by them and by the media about the dangers of mobile telephone use by drivers of motor vehicles.
Those warnings include common sense recommendations to drivers such as to put their mobile phone out of reach. If there is a passenger give the phone to that person to deal with any communications.
In addition, to activate any app on the phone which automatically responds to incoming texts alerting the sender that the recipient is driving a vehicle and not to disturb him or her.
Notwithstanding the extensive publicity, these warnings and the increased penalties which are imposed on drivers who use mobile phones, the dangers of doing so continue to be ignored by so many in the community.
Texting using a mobile phone when driving is so obviously dangerous to passengers and other road users because it inevitably involves much more than momentary inattention and distraction from the task of driving safely.
For example, if, when travelling at 100 kilometres per hours [sic], that is 27.78 metres per second, it takes, say, three seconds to look at the incoming text, type in and send a short response, the vehicle will have travelled over 80 metres.
During that time the driver will have been almost entirely inattentive to the exigencies of driving the vehicle. The likelihood of catastrophic consequences of doing so is patently obvious.
As best sentencing can, the community needs to be reminded time and time again that this practice is just so incredibly dangerous and that those who act in this way when driving will be appropriately punished in the hope that those who are thinking of using a mobile phone in this way will be deterred from doing so.
In your case I am satisfied that this was not a matter of momentary inattentiveness. Over a sustained period of time at speeds of 80 kilometres per hour and over 100 kilometres per hour in traffic which was travelling at a speed of at least 80 and 100 kilometres per hour, you were engaged in a mobile telephone call and then texts with your boyfriend, Jason. The communications were inconsequential and entirely unnecessary. They related to making arrangements to meet socially. There was a passenger in your vehicle, Ms Kelly, who could readily have undertaken any communications with Jason.
Your actions demonstrated a selfish disregard for the safety of not only your passenger but also to other road users.
His Honour noted that the Applicant’s offending did not involve circumstances of aggravation such as alcohol or excessive speed which would have significantly increased the maximum sentence. He also accepted she did not intend to put the victim or other road users at such risk however ‘that was the inevitable result’ and he classified her driving ‘as being in the midrange of seriousness of offending.’[25]
[25] R2, G4, page 42.
With respect to the circumstances of aggravation in the Applicant’s case, His Honour stated:[26]
[T]he gravity of your offending is the prolonged use of your mobile phone to engage in texting communications with your partner in circumstances where your vehicle was travelling at speed on the freeway in traffic such that your inattentiveness in doing so inevitably resulted in you being involved in this collision upon losing the control of your vehicle resulting in the devastating death of Ms Kelly.
[26] R2, G4, page 43.
His Honour noted that it was important that the sentence in the Applicant’s case served as a constant reminder of ‘the seriousness of your offending so as to deter you from acting in any similar way in the future’. However, His Honour noted that:
[G]iven your antecedents, that is your record to date and the way in which you have otherwise been a model citizen, I have no doubt that the death of Ms Kelly will always be a matter which will weigh heavily you [sic] and will be a far more compelling reminder to you perhaps than the sentence that I’m to impose.
The Tribunal notes that His Honour imposed a significant sentence of three years and eight months. In doing so His Honour noted the Applicant’s personal circumstances including her unblemished record and otherwise good character, but also emphasised the ‘prime importance’ of the principles of deterrence and in particular, general deterrence with respect to the offence. Having regard to His Honour’s comments, the fact this is the Applicant’s only conviction and the general principle that prison is a sentence of last resort, the Tribunal regards the Applicant’s prison sentence to be significant and reflective of the seriousness of the offence.[27]
[27] Direction No 79, para 13.1.1(1)(d).
The Tribunal notes that the seriousness and potential harm caused by driving offences are taken very seriously by this Tribunal and the courts.[28] While the Applicant was convicted of a single offence and has no other recorded traffic offences, the consequences of this offence highlight the tragic consequences which flow from such conduct and why it is to be regarded as serious.
[28] See, for example: RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437 at [97]–[98], [106]; WSML and Minister for Home Affairs [2019] AATA 41 at [63]–[64]; Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370 at [54]; VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649 at [178]–[183].
There was no evidence before the Tribunal that the Applicant had engaged in any prior conduct or offending. In cross-examination the Applicant denied having texted while driving previously.[29] She admitted to having had one or two speeding offences in the Northern Territory in the period after she first arrived in Australia.[30] There were no recorded speeding or other traffic offences on her criminal record before the Tribunal. The Tribunal accepts that the Applicant may have had minor speeding fines previously, however the Tribunal does not regard that this adds to the seriousness of her offending or conduct, given the evidence before it.
[29] Transcript, pages 31-32.
[30] Transcript, page 33.
The Respondent also submitted that the Applicant’s ‘not guilty’ plea contributes to the assessment of the nature and seriousness of her conduct and offending. The Tribunal accepts this submission in part. The Applicant was entitled to plead not guilty to the offence and the Tribunal accepts she did so on legal advice. The Applicant explained that based on advice and her recollection of the events at the time she plead not guilty. The import of her evidence was that while she always felt guilty for the death of her friend, she did not accept at the time that her texting or driving had been the cause of the accident but that another driver had changed lanes without notice causing her to swerve and lose control of the vehicle. This account was rejected at trial. She testified that following sentencing and during her term of imprisonment she came to understand and accept that her actions had caused the collision and had been selfish and thoughtless. She accepted she was criminally responsible for Ms Kelly’s death. The Tribunal found her evidence in this regard to be genuine. The Tribunal does not regard this as an instance where the not guilty plea represented a defiance of the law or an indication of intentional disregard for the law which might otherwise point to the offending or conduct being more serious or likely to reoccur. The seriousness of the offence stands alone.
However, the Tribunal accepts that the Applicant’s decision to plead not guilty forced both the victim’s family and others involved in the collision though the stress of a trial. It was also no doubt stressful for the driver of the other vehicle who faced an accusation, according to the Applicant’s evidence at trial, that she had contributed to or caused the accident. The Court rejected this account. To the extent of the Applicant’s conduct in pleading not guilty and providing an account of the collision which was ultimately rejected by the Court, the Tribunal accepts this made the circumstances of the offence somewhat more serious. This can be seen to be reflected in the sentencing remarks. However, His Honour noted that concessions made by the Applicant at trial simplified the processes for which he gave some credit in her favour. The Tribunal gives further consideration to the plea issue in the context of the Applicant’s risk of reoffending.
Looking at the other factors identified in paragraph 13.1.1(1) the Tribunal finds the following:
(i)The offence was not of a violent or sexual nature.[31]
(ii)The offence was not against vulnerable members of the community, government representatives or officials.[32]
(iii)The Applicant committed a single offence. Her offending was infrequent and there was no trend of increasing seriousness, nor any cumulative effect of repeat offending.[33]
(iv)There is no evidence the Applicant has provided false or misleading information to immigration officials.[34]
(v)The Applicant had not received any prior warnings.[35]
(vi)There is no evidence the Applicant has committed offences in prison or immigration detention.[36] In this regard the Tribunal notes the evidence suggests that the Applicant has been a co-operative and compliant inmate.[37] The Tribunal accepts on the evidence that the Applicant has been on good behaviour in prison which is to her credit.
[31] Direction No 79, para 13.1.1(1)(a) and (b).
[32] Direction No 79, para 13.1.1(1)(c).
[33] Direction No 79, para 13.1.1(1)(e) and (f).
[34] Direction No 79, para 13.1.1(1)(g).
[35] Direction No 79, para 13.1.1(1)(h).
[36] Direction No 79, para 13.1.1(1)(i).
[37] A2, pages 86, 88; 123.
Having regard to all the circumstances of the Applicant’s conduct and offending, the Tribunal considers that the nature and seriousness of the Applicant’s offending and conduct is serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In considering the protection of the Australian community the Tribunal must also assess the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[38] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[39]
[38] Nigro v Secretary to the Department of Justice (2013) 41 VR 359 cited with approval by Mortimer J in
[39] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”.
As noted earlier, the Applicant’s main contention with respect to this consideration is that she presents a low risk of reoffending. In this regard the Applicant points to her remorse over the collision and the death of her friend; current self-awareness and insight into her offending behaviour, having had the opportunity for reflection on her action and circumstances while in prison; her efforts at voluntary rehabilitation; her supportive social network in Australia; her commitment to her relationship with her partner; and her good prospects for employment.[40]
[40] A1, para [40]. See also R2, G9, pages 104, 116, 120, 128, 130 and 132.
The Respondent accepted that the risk the Applicant will reoffend in a similar manner in the future is low. However, the Minister contended that given the ‘detrimental consequences, including physical injuries and even death, psychological harm, property damage and/or financial losses to members of the Australian community’ which may result if she were to reoffend, even a low risk is unacceptable.[41]
[41] R1, page 8, para [39].
The Respondent contended that the Applicant’s plea of not guilty demonstrated a lack of remorse and insight into her offending. As a result, limited or no confidence should be placed on her current statements of remorse or insight. It was submitted that the Applicant has not undertaken any rehabilitative courses to address the underlying causes of her offending, thus presenting a risk she will reoffend. Further, her good behaviour in custody is untested in the community and cannot be relied on as an indicator of low risk. In addition, the claimed protective factors of her social network and employment prospects were not sufficient to prevent her offending in the past and as such could not be relied upon to reduce the risk of reoffending in the future.[42]
[42] R1, pages 7-8, para [37].
The Applicant committed one offence which resulted in the death of Ms Kelly. As the sentencing judge noted, this was not an unexpected result given the Applicant’s actions in texting while driving a car at speed on a freeway. The Tribunal finds that if the Applicant were to reoffend in a manner consistent with her past offending, this would likely cause significant harm to members of the community including physical injury and even death to victims. That such harm is extremely serious is self-evident.
The Tribunal notes that according to the sentencing judge’s comments, the offence also had a significant impact on the driver and passengers of the vehicle which the Applicant’s car struck and would, ‘likely to indefinitely have a devastating effect’ on Ms Kelly’s family members. Should the Applicant reoffend, members of the community may suffer similar serious impacts as a result.
Accordingly, the Tribunal finds that the nature of harm that could result if the Applicant were to reoffend in a similar manner is very serious.
Turning to the likelihood of the Applicant reoffending if she were permitted to remain in the Australian community,[43] the Applicant submits that she does not pose a risk of reoffending. In support of this contention she cites her remorse and insight into the offence, her lack of antecedents and otherwise model behaviour in the community, her voluntary efforts at rehabilitation, her prosocial network and employment prospects and history.
[43] Direction No 79, para 13.1.2(1)(b).
As noted above, the Respondent accepts the Applicant presents a low risk of reoffending. However, the Respondent contends that irrespective of the level of risk, due to the nature and consequences of such offending the risk is unacceptable.
According to the material before the Tribunal, the Applicant’s risk of reoffending was assessed on her entry to prison to be low risk.[44] The effect of this assessment was that she was not referred to criminogenic programs within the prison system and would not be reassessed for those programs during her sentence. The Adult Community Corrections Parole Assessment, dated 1 July 2020, notes under the heading ‘Risk Assessment’:[45]
Ms McGrath’s only assessed offending related needs are poor impulse control, decision making and consequential thinking skills. As she was not deemed to require programmatic intervention within the prison system, she completed a voluntary Standing on Solid Ground program and two to three sessions with the Prison Counselling Service. Ms McGrath advised she also engaged with a psychologist for a six month period in 2017. She reported that she does not believe she needs to engage in any further counselling at this time as she feels she is coping well, however asserted that if she was required to attend counselling she would comply.
[44] Risk of Reoffending – Prison Version’ assessment, A2, pages 145-147.
[45] A2, page 92.
The Parole Assessment also notes under the heading ‘Programmatic Intervention’ that, if released into the community, the Applicant:[46]
would be encouraged to re-engage in private psychological counselling to address any outstanding guilt/grief issues and to assist with her transition back into the community.
[46] A2, page 91.
The material also records that due to her immigration status, the Applicant was not eligible for some professional development programs offered at the prison. However, she undertook several career development programs which were available to her.[47] The Applicant also worked in the prison reception, the beauty salon and in the canteen as a volunteer.[48]
[47] A2, page 141; R2, G32, pages 174, 175, 200-205.
[48] A2, page 86-88.
The Standing on Solid Ground program is a 50 hour program about emotional intelligence which covers topics including awareness of emotions, observing thoughts, change and personal growth and ways of communicating.[49] The Applicant gave evidence that:[50]
it was a course designed to improve problem solving and cognisant skills and it made me more aware of concept [sic] like such as impulse behaviour, consequential thinking, decision making and I know now all them factors played a role in my offending and yes, I have to admit I learned a lot from that ten week course.
[49] A2, page 136.
[50] Transcript, page 24; see also page 41.
With respect to further counselling the Applicant submitted that she thought there would be a time when she needed it again but was not sure when that would be. She said she felt her need for counselling support was ‘a little bit’ to do with anxiety but ‘more the sadness, the guilt’.[51]
[51] Transcript, pages 41-42.
With respect to rehabilitation, the Respondent contended that the Applicant had failed to address the underlying causes of her offending. It was submitted that this represented an ongoing risk and also indicted a potential lack of insight into her offending behaviour. The Tribunal had a number of difficulties with this submission which were discussed with the Respondent at the hearing. Chief among the Tribunal’s concerns was that there was no evidence before the Tribunal which identified any underlying causes of the Applicant’s offending, other than those indicated in the Parole Assessment – poor impulse control, decision making and consequential thinking. Further, there was evidence the Applicant had voluntarily undertaken a program designed in part to improve problem-solving and behaviour. She had also sought out counselling services prior to entering prison and while in prison to address coping issues including guilt and grief. In the Tribunal’s assessment this demonstrated a commitment on the Applicant’s part to understanding and addressing her prior behaviour. In the Tribunal’s view that is also consistent with her stated commitment not to reoffend.
Further, the Tribunal accepts that the Applicant was assessed to be a low risk of reoffending and was not required to undertake criminogenic programs. In such circumstances the Tribunal can see no basis for a finding that she failed to address unidentified underlying causes of her offending. To the extent such causes have been identified the Applicant has taken steps to address them through self-improvement and understanding. In this regard, the Tribunal considers that the nature of the offending is relevant. As noted in the sentencing remarks, the Applicant’s actions demonstrated a ‘selfish disregard’ for the safety of others but her actions were not intentionally directed at harming the victim or other road users.

To the extent that a lack of consequential thinking was a cause of her offending, the Tribunal considers it is likely that living with the tragic consequences of her actions on the day of the collision acted as a catalyst for the Applicant to achieve an appreciation of the impacts of her decisions and actions. As noted above, His Honour observed that:[52]
I have no doubt that the death of Ms Kelly will always be a matter which will weigh heavily you [sic] and will be a far more compelling reminder to you perhaps than the sentence.
[52] R2, G4, page 41.
The Applicant referred the Tribunal to the ‘Sentencing Spotlight on dangerous operation of a vehicle causing death’ report by the Queensland Sentencing Advisory Council,[53] which considered aspects of offending and sentencing for a cohort of people convicted of an analogous offence in Queensland over a 12 year data period. Of the 361 court events considered there were 361 unique offenders (for the period 2005-2006 to 2016-2017). This meant ‘no offenders were sentenced on more than one occasion across the 12-year data period’ for the offence of dangerous operation of a vehicle causing death.[54] While this was only one report of a relatively small sample size, it provides some support for the view expressed by His Honour that living with the consequences of her actions would act as an ongoing deterrent against the Applicant reoffending. It also indicates a very low, indeed arguably negligible, risk of reoffending for this type of offence.
[53] A2, pages 61-74.
[54] A2, page 68.
The Tribunal has also had regard to the decision of the PRB to grant parole. While the Tribunal takes account of the PRB’s assessment that the Applicant did not pose an unacceptable risk to the Australian community, the Tribunal cannot defer to the opinion of the PRB to the extent it fetters its own discretion.[55] However, the Tribunal gives weight to the PRB’s assessment and notes the PRB did not consider that she required further interventions to manage her risk to the community, recognising she is the subject of a three year driving ban from the date of her release.
[55] See the discussion in Varley and Minister for Home Affairs [2019] AATA 376 at [110] per Senior Member Dr Evans-Bonner; Peterson and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256; Gage and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 326 at [107].
The Applicant has strong prosocial support in the community.[56] The Tribunal places weight on the level of support demonstrated on the evidence before it and regards that this support will act to reduce any risk the Applicant would engage in similar behaviour in the future. Further, the Applicant has strong references and trade qualifications and the Tribunal accepts she has strong prospects for stable employment in the community. The Tribunal also regards that this is a protective factor against reoffending.
[56] R2, G1, pages 85 A2, pages 1-4, 23-60,
The Respondent submitted that these factors were insufficient to prevent the Applicant committing the offence for which she was convicted. The Tribunal accepts that is the case. However, the Tribunal also regards that with the opportunity to reflect on her actions, the experience of incarceration and separation from her social network and most importantly, the loss of Ms Kelly, the Applicant has reassessed her behaviour and understands the risk she placed Ms Kelly and other road users in through her actions. The Tribunal considers that the value the Applicant places on resuming her life in the community will act as a protective factor against reoffending.
The Tribunal accepts that the Applicant is remorseful and her commitment to not reoffending. The Tribunal acknowledges the commitment to rehabilitation the Applicant has made whilst in prison. The Tribunal found the Applicant’s account of her acceptance of criminal responsibility to be genuine. The Tribunal also found of her account of her earlier lack of acceptance of criminal responsibility to be plausible in the circumstances. In this context the Tribunal accepts the Respondent’s submission that the Applicant’s guilty plea reflects a lack of insight into her role in causing Ms Kelly’s death at the time of the offence and trial. However, the Tribunal also accepts that the Applicant has taken responsibility for her behaviour and more importantly, has come to understand how her decisions and actions were responsible for the collision and Ms Kelly’s death. The Tribunal’s view is that this later realisation is significant to her low risk of reoffending.
Having regard to all the circumstances of the Applicant’s offending and the evidence before it, the Tribunal considers that there is an extremely low likelihood of the Applicant offending in a similar way. Given this is the Applicant’s only offence, and having regard to the lack of any significant risk factors for general offending on the part of the Applicant, the Tribunal considers that the likelihood she would commit other serious offences is also very low.
With regard to the protection of the Australian community, the Tribunal finds that the Applicant’s offending was very serious. The Tribunal also considers that serious harm would result to members of the community were she to reoffend. However, the Tribunal considers that there is a very low likelihood of her reoffending. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa, though less weigh is given to this consideration given the very low risk of the Applicant reoffending.
Second primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction no. 79 provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of her own but submits she has a close relationship with the children of her cousin, each aged six, nine and 11 years old.[57] One of the children is her godson.[58]
[57] R2, G8, pages 72-74.
[58] R2, G27, page 147.
The Delegate’s decision considered the interests of these children and also considered the interests of the child of the Applicant’s friends, Mr and Mrs Forde. This child was not mentioned in submissions from the Applicant which focussed on the Drinnan children as ‘blood relatives’ of the Applicant. However, during evidence and submissions reference was made to the son of Mr and Mrs Forde and the Tribunal has considered his best interests on this basis.
Several other children were mentioned in statements or evidence as having a relationship with the Applicant.[59] As these children were not raised by the Applicant in relation to this consideration and were mentioned in the context of their families’ relationships and ties to the Applicant, in the Tribunal’s view the nature of the evidence before it suggests that those children’s interests and those of their families are more properly considered in the context of the Applicant’s ties to Australia.
[59] A2, pages 38-39, 42-43, 44-45, 55-56(with respect to Mr Connelly’s Godson).
The Applicant submitted that she is considered to be a core part of her cousin’s family and plays the role of an aunt with respect to the Drinnan children. They have a close relationship and it would not be in their best interests if she were removed from Australia. She stated:[60]
I love each of these children equally as if they are my own. When I first arrived in Perth, May 2014, I stayed with them prior to the youngest... being born and I gave a helping hand my cousin Eimear Drinnan after his birth. I was honoured to be asked as a godmother to [the youngest child]. Jason and I looked after [the youngest child] and his siblings regularly. I have watched them grow up and they have become quite attached to me, as one of their few family members who lives in Perth. They call me Aunty Aine. I miss them terribly. They were a huge part of my life.
[60] R2, G8, page 74.
The Respondent submitted that while the best interests of the children might be served by the Cancellation Decision being revoked, as the Applicant is not a primary carer and does not play a parental role with respect to the children the consideration should be afforded limited weight.[61]
[61] R1, page 9.
There was limited evidence before the Tribunal with respect to the children. The Tribunal has made findings regarding the interests of the children on the testimony given by the Applicant and the children’s family members, as well as any documentary evidence before it pertaining to the children.
The Drinnan children
As noted above, the Applicant has three second cousins with whom she submits she has a close relationship akin to an aunt. These are the children of her cousin who lives in Australia. The children are Australian citizens. There is no evidence that the children’s interests differ, other than with respect to the youngest child’s position as the godson of the Applicant, and the Tribunal has considered their circumstances together.
The children live with their parents. Their mother provided several statements in support of the application for the Cancellation Decision to be revoked.[62] The Tribunal accepts that if the Applicant is removed to Ireland the children would remain in Australia with their parents and has assessed their best interests on this basis. However, the Tribunal also notes that the evidence of the Applicant was that the children’s extended family are in Ireland, as is the case for the Applicant.
[62] See R2, G2, pages 88-89; A2, pages 28-29.
The Applicant submitted that she has a close bond with the children and is committed to supporting them. She lived in their home in the later stages of their mother’s pregnancy with the younger child and through the early period after his birth to help with the children and support their parents.
The Applicant is in an extended familial relationship with the children.[63] She is the godmother of the youngest child. No evidence was provided regarding the degree to which this arrangement impacted the relationship with the Applicant or the best interest of the child. However, the Tribunal accepts that her position as godmother to the youngest child may place her in a position of some degree of greater responsibility for his well-being, including spiritual. The children’s parents, with whom they live, have parental responsibility for them.[64] There is no evidence that any prior conduct of the Applicant has had a negative impact on the children.[65]
[63] Direction No 79, para 13.2(4)(a).
[64] Direction No 79, para 13.2(4)(e).
[65] Direction No 79, para 13.2(4)(c).
The Applicant testified that the older children had not visited her in prison, as she did not want them exposed to the prison environment or to know that she had been imprisoned. The youngest child had initially visited the Applicant in prison but had stopped when he became old enough to be cognisant of the environment of the prison. The Applicant continues to correspond with the children and there was evidence the youngest had visited with family members.[66] If the Applicant is removed from Australia, the children will be deprived of having a close in-person relationship with her in the future. It would, however, be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or FaceTime.[67] However, the Tribunal accepts this would not provide the children with the same relationship with the Applicant as would be possible if they saw her in person on a regular basis.
[66] A2, page 101-103; R2, G2, page 88; transcript page 64, 65.
[67] Direction No 79, para 13.2(4)(d).
The Tribunal finds that if the Applicant were to return to Ireland, she may be able to maintain some in-person contact with the children who may visit Ireland on occasion with their parents, noting that their grandparents, aunts and uncles and the balance of their extended family remain there. The Tribunal accepts this is not a substitute for the regular contact she may be able to have with the children were she to remain in Australia, or the support they may receive from her here as one of only a few extended family members they have in Australia.
There is no evidence the Applicant has abused or neglected the children in any way in the past,[68] nor is there any evidence the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.[69]
[68] Direction No 79, para 13.2(4)(g).
[69] Direction No 79, para 13.2(4)(h).
There was no direct evidence before the Tribunal of any views of the children.[70] The Tribunal also recognises that the children are relatively young and were the Applicant not to reoffend she could play a positive role in their lives for a significant period.[71]
[70] Direction No 79, para 13.2(4)(f).
[71] Direction No 79, para 13.2(4)(b).
On the basis of the material before it, the Tribunal concludes that revocation of the Cancellation Decision is in the best interests of the Drinnan children. Having regard to the children’s circumstances, personal history and the Applicant’s commitment to a strong relationship with them, the Tribunal considers their best interests weigh in favour of revocation of the decision to cancel the Applicant’s visa.
Mr and Mrs Forde’s son
As noted above, the Applicant’s friends, Mr and Mrs Forde, make reference in their statements to the close relationship between the Applicant and their son, who is around three and a half years’ old.[72] The child is an Australian citizen.[73]
[72] R2, G9, pages 105-106; A2, 12, pages 40-41.
[73] Transcript, page 56.
The child lives with and is cared for by his parents. His father indicated he is currently working in Singapore on contract and the child is in Australia with his mother.[74] His mother and father provided several statements in support of the application.[75] The Tribunal accepts that if the Applicant is removed to Ireland the child would remain in Australia with his parents and has assessed their best interests on this basis. However, the Tribunal also notes that the evidence of the Applicant was that the child has extended family in Ireland.[76]
[74] Transcript, pages 56-57.
[75] See R2, G9, pages 105-106 and 107-109; A2, 12, pages 40-41.
[76] Transcript, page 58.
The Applicant is a friend of the child’s parents, with whom he lives and who have parental responsibility for him.[77] There is no evidence that any prior conduct of the Applicant has had a negative impact on the child.[78] The child has visited her in prison which he calls her ‘holiday house’.[79]
[77] Direction No 79, paras 13.2(4)(a) and 13.2(4)(e).
[78] Direction No 79, para 13.2(4)(c).
[79] A2, page 40.
If the Applicant is removed from Australia, the child will be deprived of having a close in-person relationship with her in the future. It would, however, be possible for him to communicate with her in ways including by telephone or over the Internet.[80]
[80] Direction No 79, para 13.2(4)(d).
There is no evidence the Applicant has abused or neglected the child in any way in the past,[81] nor is there any evidence the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.[82] There was no direct evidence before the Tribunal of any views of the child.[83]
[81] Direction No 79, para 13.2(4)(g).
[82] Direction No 79, para 13.2(4)(h).
[83] Direction No 79, para 13.2(4)(f).
The Tribunal notes that the child is relatively young and were the Applicant not to reoffend she could play a positive role in his life for a significant period.[84]
[84] Direction No 79, para 13.2(4)(b).
On the basis of the material before it, the Tribunal concludes that revocation is in the best child. However, given the distant nature of his relationship with the Applicant as a close friend of his parents, the Tribunal gives his interests limited weight in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal notes the Applicant’s ties to the child’s family are considered further under the consideration of her ties to Australia.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction No 79.
The Applicant submitted that having regard to the Applicant’s personal circumstances including:
·the fact this was the Applicant’s only offence;
·her remorse and ongoing grief at the loss of her friend; and
·her position as a hardworking, productive member of the community with an Australian partner and a close network of friends and family;
a ‘fair-minded and mature member of the Australian community’ would not seek to punish the Applicant further by removing her and would afford her a second chance.[85]
[85] A1, pages 11-12; citing Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390 at [23].
The Respondent contended that Direction No 79 makes the Government’s view of the expectations of the Australian community clear and that that expectation weighs against revocation. It is not for the Tribunal to determine the community’s expectation by reference to the Applicant’s individual circumstances.[86]
[86] R1, page 9 at [45]-[46].

The issue of the meaning of para 13.3(1) of Direction No 79 and, in particular, how the expectations of the Australian community are to be determined has been the subject of significant judicial consideration. The Full Court of the Federal Court in FYBR v Minister for Home Affairs[87] (FYBR (FC)) affirmed the approach that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations.[88] That expectation is then to be weighed with and against other considerations. The Tribunal must give effect to the ‘norm’ stipulated in para 13.3(1). Thus the provision has been described as having the effect of ‘deeming’ that the consideration weighs against revocation of the cancellation of an Applicant’s visa.
[87] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[88] While the case of FYBR (FC) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 of Direction No. 65 which are applicable to applications under Direction No. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal’s view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
While there is some difference in the approach to the question of construction of the relevant clauses, the majority in FYBR (FC) (Charlesworth and Stewart JJ; Flick J dissenting) agree that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration, but to identify the Government’s view regarding community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker’s discretion, taking into account all the primary and other considerations.[89]
[89] Charlesworth J at [73]-[74]; Stewart J at [93] and [103].
Both majority Justices make the point that, as a primary consideration, ‘community expectations’ are to be taken into account along with other factors to inform a

decision-maker’s exercise of discretion.[90] It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable.[91]
[90] See Charlesworth J at [67]; Stewart J at [89] and [91].
[91] See Charlesworth J (at [74]), Stewart J (at [91]-[93]).
As noted by the Tribunal in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, and cited by the Applicant in submissions, it follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view ‘deeming’ the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold a visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or ‘deemed’ in the Direction, they weigh against revocation with respect to ‘serious crimes’.
The Tribunal accepts the Respondent’s submission that the Australian community expects that the Applicant’s visa can, and should, be cancelled in such circumstances. In the Tribunal’s view, the offence in the present case is serious and as such the Australian community would expect that the Applicant would not continue to hold a visa. This is the community expectation which is ‘deemed’ by the Government.
Contrary to the Applicant’s submissions, it is not the Tribunal’s role, as articulated by the Full Court in FYBR, to engage in a determination of what a ‘fair-minded and mature member of the Australian community’ would expect in the Applicant’s circumstances. Applying Direction No 79, the Applicant has committed a serious crime and the Australian community’s expectation, as deemed, is that the visa remain cancelled.
Although the expectations of the Australian community will weigh against the Applicant with respect to serious crimes, the Tribunal must decide in the exercise of its discretion how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. Having regard to the relevant authorities and to the particular circumstances of the Applicant’s case, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the Cancellation Decision, however, the Tribunal considers in all the circumstances limited weight should be given to this consideration.
Other Considerations
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise in any of the submissions, materials or evidence before the Tribunal.[92]
[92] Direction No 79, para 14.1.
While the Applicant raised concerns about returning to Ireland, she did not suggest her return engaged Australia’s international non-refoulement obligations, nor did she make any submissions or claims which would suggest non-refoulement considerations arise having regard to her circumstances.
The Tribunal considers, on the material before it, that Australia’s non-refoulement obligations are not engaged with respect to a decision not to revoke the cancellation of the Applicant’s visa. Accordingly, the Tribunal affords no weight to this consideration.
Strength, nature and duration of ties
Paragraph 14.2 of Direction No 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has been ordinarily resident in Australia since 2012 at the age of 19. She committed the offence when she was 24 years of age.
The Applicant submitted a large number of third-party supporting statements including from her partner, family and friends evidencing the strength of her social connections to Australia, her employment contribution to the community, and her plans for a positive and productive future. She contended that she has strong ties to her partner, family, friends and the Irish ex-patriot community in Australia.
The Respondent conceded that the Applicant has ties to Australia but contended that the Tribunal should not accept that overall she had made a positive contribution to the community. Further, the Respondent submitted that the Applicant’s ties should not outweigh the consideration of protection of the Australian community and the expectations of the Australian community which weigh in favour of non-revocation.
The Tribunal notes the Applicant committed the offence just over four years after arriving in Australia. In the Applicant’s circumstances and having regard to the fact it was a single offence, the timing of the offence does not, in the Tribunal’s view carry significant weight in the assessment of her ties to Australia.
The Tribunal notes that paragraph 14.2 of Direction No 79 requires that consideration be given to the strength, duration and nature of any family or social links with ‘Australian citizens, Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia’. Her partner, sister and some of her cousins here are Australian citizens or permanent residents. The Tribunal notes in this regard that the immigration status of some of the supporting witnesses was unclear from their statements. The Applicant’s representative attempted to identify those statements which could be established as relating to Australian citizens and permanent residents, however it was not possible to do so with respect of a number of the statements. In any event, given the number of supporting statements, including a large number identified to meet the stipulation in paragraph 14.2 the Tribunal did not regard this issue to be determinative of the assessment of the Applicant’s ties to Australia. Further, while the Tribunal notes the Direction requires consideration of the ties to persons who are citizens or who permanently reside in Australia, in the Tribunal’s view the Direction does not preclude consideration of ties which fall outside that scope.
The Applicant has one sister in Australia and the Tribunal accepts on the evidence that they are close. The Applicant submitted that she and her sister, as well as her cousins in Australia, are particularly close because they represent their only family in this country and as such rely on each other for support.[93] The Applicant’s sister stated:[94]
In penning this character reference for Aine, I am sad, mentally depressed, emotionally and physically challenged. I’ve known Aine all my life, the youngest of five children in our family and the excitement of her moving to Perth from Darwin 2014 was a joyful move for both of us.… My intention is to live permanently in Australia and I don’t want to lose the only immediate family I have here.
[93] See for example A2, page 26.
[94] A2, pages 23-24.
The Applicant’s partner, Mr Connolly, stated that:[95]
If Aine were to be deported, it would mean Aine and I leaving a loving support network here in Australia. I would need to quit my FIFO work and be unable to support Aine and I in Ireland.
Aine and I would have no financial means to survive in Ireland and we would have no support network to guide us through what would be a traumatic and difficult time.
If Aine were to be deported, I would also have to leave Australia, the place that both Aine and I call home and where we want to raise our family. Aine and I immigrated to Australia for a better chance of life for us and our future children.
There is evidence that Mr Connelly and Ms McGrath have continued to support the Applicant throughout her incarceration, making frequent visits to her at the prison and the Tribunal does not doubt the strength of their relationships.
[95] A2, page 21.
The Tribunal accepts that the Applicant and her partner have a close relationship and were committed to making a life together in Australia. This is evidenced by her partner’s statements and by the fact they had both applied for citizenship together, though the Applicant withdrew her application in light of her conviction. The Tribunal accepts her partner would suffer emotional hardship if her visa cancellation is not revoked and would be required to decide whether to remain in Australia or relocate with the Applicant to Ireland. Her sister would also suffer emotionally if the Applicant were to return to Ireland.
The Tribunal notes that the Applicant’s father, mother, brother and two sisters reside in Ireland. Her partner Jason and sister Yvonne (Vonnie) are Australian/Irish dual citizens and it is reasonable to conclude that they may have the capacity to travel to Ireland to visit the Applicant if she were returned to Ireland which would lessen the emotional hardship that they are likely to suffer from separation. Indeed the Applicant’s partner has indicated that he would return to Ireland with the Applicant if the visa cancellation is not revoked.[96] However, the Tribunal accepts that their capacity to do so would depend on their financial circumstances and may also be impacted by COVID-19 travel restrictions (considered further below).[97]
[96] R2, G2, page 22; A2, page 21.
[97] See Ms Yvonne (Vonnie) McGrath’s evidence at A2, page 26.
The Tribunal accepts that the Applicant has held full-time employment while in Australia, principally doing hairdressing and hospitality related work. The Tribunal also accepts she has employers prepared to engage her if she is released into the community and that she has good prospects for obtaining and maintaining employment.[98] The Tribunal also regards that the Applicant has made a positive contribution to the community through her employment.
[98] A1, page 12.
The Applicant submitted that she has been an active member of the Irish expatriate community in Australia both socially and through charity work.[99] The large number of statements from members of the Irish expatriate community attest to the Applicant’s contribution to that community and to the value others place on her character and support.
[99] R2, G32, pages 182-183; A2, pages 3, 23.
While the Respondent contended that her behaviour in prison was not relevant to consideration of her risk of reoffending, the Tribunal finds that her productive use of her time in prison and in particular her role in the establishment phase of the beauty salon in the women’s prison evidences a desire and capacity on the part of the Applicant to contribute positively to her community, even while incarcerated. This is to her credit and in the Tribunal’s view is reflected in the broad range of individuals who have provided evidence in support of her application to enable her to remain in Australia.
The Applicant submitted a large number of supportive statements from family members, friends, colleagues and clients. The statements submitted in support of the Applicant speak to the quality of her character and the esteem in which she is held by friends, work colleagues and clients. They attest to her connection to friends in Australia and their families, many of whom have children. They speak to her devastation at the death of her friend and her commitment to not reoffending. In addition, there was evidence that a large number of people frequently visited the Applicant while she was in prison, evidencing the strength of her ties to her support network and community in Australia.
The Tribunal accepts that the Applicant has strong family, social and employment ties in Australia. The Tribunal also acknowledges that her family members, in particular her sister, partner and cousins, and her close network of friends will suffer emotional hardship if she is removed.
Having regard to all of the Applicant’s circumstances, the Tribunal considers that her ties to Australia weigh in favour of revocation of the cancellation of her visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
(1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Tribunal notes the Applicant has been in regular employment for most of the period she has been in Australia and has submitted supporting statements from her former employers, neither the Applicant nor the Respondent made any submissions on this consideration and there was no evidence regarding the impact of non-revocation on business interests in Australia. The Tribunal finds that this consideration has no application in the present matter. Accordingly, the Tribunal affords no weight to this consideration.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Applicant’s offending caused the death of her friend, Ms Sarah Kelly. The sentencing remarks included reference to victim impact statements from Ms Kelly’s family and the driver of the vehicle, Ms Matthews, which struck the Applicant’s car.[100] The remarks note that the effect on Ms Matthews and her family has been significant. The impact on the Kelly family was devastating. The impact statements were not before the Tribunal.
[100] R2, G4, pages 38-39.
The Tribunal notes that there was evidence that as a condition of the Applicant’s parole, an order was made that she could not contact Ms Kelly’s mother. The Tribunal understood from the Applicant’s evidence and the Parole Assessment that this was directed towards the wishes of Ms Kelly’s mother not to have contact.[101] However, there was no evidence before the Tribunal regarding the impact on Ms Kelly’s mother of a decision not to revoke the cancellation of the Applicant’s visa.
[101] Transcript, page 35; A2, page 90.
While the Tribunal is mindful of the impact the offence would have had on those involved and their families, as their views on the impact of revocation are unknown to the Tribunal, the Tribunal affords no weight to this consideration.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 79 provides:
(1)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 submitted that she considers Australia to be her home now and that she has nothing to go back to in Ireland. The Applicant submitted that her friends, jobs and dreams are here in Australia.[102] Her partner gave evidence that they would have no financial means to survive in Ireland and would have no support network to guide them.[103]
[102] R2, G8, 66.
[103] A2, 3, page 21.
However, at the hearing the Applicant’s representative submitted that the Applicant does not claim that she would face any impediments if removed to Ireland. She conceded she had a strong family network there who could provide her with support on resettlement. She did not suggest that she was unfamiliar with Ireland or that there were any age, health, language or cultural barriers facing her on return to Ireland. This was consistent with responses reported in the Parole Assessment which notes she advised that if she were deported, she would reside with her parents and would be eligible for government financial assistance.[104]
[104] A2, 26, page 91.

The Respondent submitted that the Applicant faced no impediment to resettlement.

The Respondent contended that the Applicant’s evidence that she had very good employment prospects in Australia would similarly be the case in Ireland.[105] The Respondent submitted that the Applicant would not face any language or cultural barriers and she would likely be able to maintain the same living standards as she would in Australia. Further there was no evidence she would be unable to access the same social, medical and economic support as other citizens of Ireland.
[105] R1, page 10.
The Tribunal finds, on the evidence that the Applicant has a strong family network in Ireland. This includes her partner who is a dual citizen and who testified he would return to Ireland with her in the event she was removed. She is in close contact with her family members in Ireland, several of whom travelled to Australia for her initial trial. She lived in Ireland until she was 19 years old. She does not face any language or cultural impediments in Ireland. She is a young adult and while she has sought counselling previously to deal with the impact of the accident, there is no evidence she has any ongoing health issues which would present an impediment to her removal. In any event, as noted above, there is no evidence that she would not have access to the same health and social security supports available to other citizens of Ireland on return. She has trade qualifications as a hairdresser and good work references in the hospitality industry. The Tribunal finds she has good prospects for employment in Ireland. Her partner also has trade qualifications in the resources industry and has similarly good prospects for employment.
Impact of the COVID-19 pandemic
The Tribunal sought submissions on the impact, if any, the COVID-19 pandemic would have on the Applicant in the context of the matters before the Tribunal. The Tribunal notes the Applicant did not address this issue in submissions.
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to Ireland as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove her to Ireland. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] ‘[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides’.[106]
[106] See also Hood and Minister Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1123 at [172], Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002 at [126], cited by the Respondent, R1, page 10.
The Applicant’s Statement of Facts, Issues and Contentions and the Applicant’s Submissions in Reply did not address this issue.
The Respondent submitted that Ireland has entered Phase 3 of its ‘Roadmap for reopening’ which permits the arrival of passengers from overseas on the expectation that they restrict their movement for 14 days. The Respondent also notes that beauty and grooming services are now able to reopen.
The Tribunal appreciates that the prospect of further time in immigration detention may cause additional stress to the Applicant while she remains in detention. The Tribunal also accepts that the Applicant is likely to be subject to quarantine or self-isolation requirements on return to Ireland. The Tribunal also accepts that public health responses to COVID-19 may impact the Applicant’s capacity to access services or seek employment on return to Ireland. The Tribunal accepts this may extend the time it takes the Applicant to resettle in Ireland, increasing the stress of relocation.
The Tribunal accepts the Applicant and her partner would face a period of dislocation and reestablishment on return to Ireland and that they would need to find employment there. The Tribunal also accepts that circumstances surrounding the coronavirus pandemic may impact the Applicant’s removal from Australia and her resettlement in Ireland in the immediately foreseeable future. On balance, the Tribunal finds that the Applicant faces some impediments to removal which weigh slightly in favour of revocation of the Cancellation Decision. However, the Tribunal places limited weight on this consideration in the context of the Applicant’s circumstances.
CONCLUSION
Direction No 79 provides some guidance as to how a decision-maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), 8(4) and 8(5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The Applicant does not pass the character test under s 501(6) of the Migration Act. The Tribunal has therefore considered whether there is another reason why the mandatory Cancellation Decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including her previous conduct and offending and her risk of reoffending.
The Applicant’s circumstances present a challenge in the weighing exercise. She has committed a single offence. While that offence was undoubtably serious and resulted in devastating consequences for Ms Kelly and her family as well as others involved in the collision, the offending did not involve an intention to harm members of the community, but rather a reckless disregard for the safety of other road users. This is not to be treated lightly, as is reflected in the significant sentence the Applicant received. However, the protection of the community focuses not just on the seriousness of the offence but on the risk that it will be repeated. The Tribunal considers the risk in this instance to be so low as to reduce the weight afforded to this consideration substantially. The protection of the Australian community weighs only slightly in favour of non-revocation of the Cancellation Decision.
Other considerations similarly do not, in the Tribunal’s view, weigh heavily for or against. She has no children of her own. While she has a network of family and friends in Australia including children with whom she has bonds, she does not have parental responsibility for any of those children and there is nothing before the Tribunal to suggest they will suffer significant hardship if she is removed. However, she is part of those children’s support network and the Tribunal regards it would be in their best interest that she remain. The Tribunal finds that the best interests of the relevant minor children weigh slightly in favour of revoking the Cancellation Decision.
With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against revoking the Cancellation Decision. However, having regard to the Applicant’s otherwise unblemished record, her remorse, her very low risk of reoffending the Tribunal places less weight on this consideration in the Applicant’s circumstances.
In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revoking the Cancellation Decision. The Tribunal accepts she has made a home in Australia and has established herself as a valued member of the community.
The Tribunal has given consideration to the impact on victims and on Australian businesses and found those factors to be neutral in the Applicant’s circumstances. The issue of non-refoulement did not arise for consideration in submissions or on the information before the Tribunal.
The Tribunal has also found that there are no significant impediments to the Applicant’s removal to Ireland. The Tribunal accepts the Applicant may face a period of resettlement on return to Ireland and that quarantine and other responses to the COVID-19 pandemic may impact the Applicant’s ability to resettle there. However, the Tribunal does not regard these impediments as insurmountable and having regard to all the circumstances and in particular, the Applicant’s strong family support and job prospects in Ireland. The Tribunal gives little weight to this consideration.
The protection of the community and its expectations weigh slightly in favour of non-revocation of the Cancellation Decision. The best interests of children, the Applicant’s ties to Australia and, to a lesser extent, the impediments to her removal weigh in favour of revocation. The Tribunal notes that primary considerations will generally be given more weight than other considerations. The Tribunal is also mindful that, as Direction No 79 indicates, the Applicant’s visa was mandatorily cancelled for the protection of the community while her visa status is resolved. In carefully weighing all the considerations the Tribunal has determined that the balance of considerations weigh in favour of revocation and the matter should be resolved in the Applicant’s favour. Having considered all the relevant factors and material before it, the Tribunal is satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to set aside the Reviewable Decision.
DECISION
The Reviewable Decision is set aside and substituted with a decision that the cancellation of the Applicant’s Visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth), be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 166 (one hundred and sixty eight) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

........................[SGD]................................................
Associate
Dated: 8 September 2020

Date of hearing: 24 August 2020

Counsel for the Applicant: Ms Jessica Edis

Solicitors for the Applicant: Putt Legal

Counsel for the Respondent: Mr Tom Galvin

Solicitors for the Respondent: Minter Ellison

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124 at [42]-[43].
See also Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [56].

Date of hearing:	24 August 2020
Counsel for the Applicant:	Ms Jessica Edis
Solicitors for the Applicant:	Putt Legal
Counsel for the Respondent:	Mr Tom Galvin
Solicitors for the Respondent:	Minter Ellison