Midiana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1041
•8 January 2024
Midiana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1041 (8 January 2024)
Division:GENERAL DIVISION
File Number: 2023/7773
Re:Meisi Midiana
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date of decision: 8 January 2024
Date of written reasons: 13 May 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 16 October 2023 not to revoke the cancellation of the Applicant’s visa.
............[SGD]............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Papuan New Guinea (PNG) citizen – Class BB Subclass 155 Five Year Resident Return visa – failure to pass good character test –– criminal record – fraud – stealing – gambling – depression – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision not to revoke is affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 1
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Rana v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
13 May 2024
INTRODUCTION
Ms Midiana seeks review of the Respondent’s delegate’s 16 October 2023 decision not to revoke the mandatory cancellation of her Class BB Subclass 155 Five Year Resident Return visa (the Visa).[1]
[1] Exhibit R3: G2, page 7. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 14 and 15 December 2023. Ms Merrotsy of North Queensland Women’s Legal Service represented Ms Midiana. Mr Kyranis of Sparke Helmore Lawyers represented the Respondent.
On 8 January 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Ms Midiana is a 45-year-old[4] Papuan New Guinean citizen who first arrived in Australia on 16 July 1999.[5] Since that date, she has undertaken many trips from and to Australia.[6] She was granted the Visa on 29 April 2015 and has not left Australia since that date.
[4] Exhibit R3: G2, page 5.
[5] Exhibit R3: G13, pages 139-141.
[6] Exhibit R1: G14, page 143.
On 30 March 2023, Ms Midiana's Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act)[7] as she did not pass the character test because of her ‘substantial criminal record’.[8]
[7] Exhibit R3: G3, page 11.
[8] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
Section 501(7)(c) provides that for the purpose of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
On 1 September 2022, Ms Midiana was convicted of Fraud - dishonestly cause detriment value of at least $100,000 and sentenced to five years imprisonment, to be suspended for five years after serving 20 months.[9]
[9] Exhibit R3: G3, page 16 and G4, pages 31-32.
On 16 October 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation of Ms Midiana’s Visa (the delegate’s decision).[10]
[10] Exhibit R3: G3, page 11.
On 23 October 2023, Ms Midiana applied to the Tribunal for review of the delegate’s decision.[11]
[11] Exhibit R3: G1, page 1.
OFFENDING HISTORY
Ms Midiana’s offending history is summarised below:[12]
[12] Exhibit R3: G4, page 32.
Date
Event
Result
5 May 2017
Breath-tested while driving. Returned a blood alcohol concentration of 0.117%
Driver’s licence suspended
2 March 2018
Convicted on 2 charges of Assault or Obstruct Police Officer
Fined and disqualified from holding a driver’s licence for 4 months.
17 August 2021
Convicted of Obstruct Police Officer
Fined and disqualified from holding a driver’s licence for 4 months.
1 September 2022
Convicted of:
· Stealing By Clerks and Servants
· Enter Premises and Commit Indictable Offence
· Stealing By Clerks and Servants
· Fraud - Dishonestly Cause Detriment Value Of At Least $100,000 (Index Offence)
Sentenced to concurrent terms of imprisonment of 6 months, 12 months, 18 months and 5 years.
In the latter case the sentence was suspended for 5 years once Ms Midiana had served 20 months in prison.
Ms Midiana’s drivers’ licence was suspended on 5 May 2017.[13] She incurred two subsequent charges of drink-driving.[14] The last of these - resulting in a conviction for drink driving in 2021 - involved Ms Midiana returning a blood alcohol concentration of 0.141%.[15]
[13] Exhibit R1: Tender Bundle 3, page 45.
[14] Exhibit R1: Tender Bundle 1, page 7; Tender Bundle 1, page 20 and Tender Bundle 3, page 20.
[15] Exhibit R1: Tender Bundle 3, page 20.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act give the Tribunal jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), obliges the Respondent Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment. The character test is defined in s 501(6) of the Act.
Under s 501CA(4), the Respondent Minister may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation;[16] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[17] or
(ii)there is another reason why the original decision should be revoked.[18]
[16] Pursuant to s 501CA(4)(a) of the Act.
[17] Pursuant to s 501CA(4)(b)(i) of the Act.
[18] Pursuant to s 501CA(4)(b)(ii) of the Act.
MATTERS FOR CONSIDERATION
Ms Midiana’s Visa was cancelled on the basis that she had failed the character test once the delegate considered and applied Section 501(6)(d)(ii) to the facts of this matter.
The Tribunal’s first task is to consider whether Ms Midiana fails to pass the character test.
If Ms Midiana fails the character test, then the Tribunal’s second task is to consider the issue of whether, under section 501CA(4)(b)(ii) of the Act, it is satisfied of there being another reason to revoke the cancellation decision.[19] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[20]
[19] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[20] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
The Tribunal finds that Ms Midiana fails the character test as a matter of law.[21] As summarised above under her Offending History, she received a sentence of imprisonment of 5 years (and served 20 months) for her Index Offending. This means that she has a ‘substantial criminal record’. This record compels the Tribunal to find that she is a person who does not pass the character test.[22] [23]
[21] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
[22] Section 501(7)(c) of the Act.
[23] Section 501(6)(a) of the Act.
IS THERE ANOTHER REASON WHY MS MIDIANA’S VISA CANCELLATION SHOULD BE REVOKED?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving Justice Colvin’s reasoning in Viane,[24] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation….’
[24] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[25]
[25] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
THE DIRECTION
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[26]
[26] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[27]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[27] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[28] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[29]
EVIDENCE
[28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[29] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
Documentary evidence
The Tribunal received written evidence during the hearing, a list of which is attached to this Decision and marked ‘Annexure A’.
Witnesses
The following people appeared as witnesses and provided testimony:
·Ms Midiana.
·Mr Stephen Clark.
·Ms Elisa Mara.
The Tribunal’s assessment of the witnesses
The Tribunal observed Ms Midiana as she gave evidence. Her responses were guarded and appeared considered at times. She was however forthright and factual about her offending record.
Mr Clark and Ms Mara were both credible and provided much useful detail in relation to Ms Midiana.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Summarising Ms Midiana’s contentions as the Tribunal understands them:
·The delegate’s decision did not fully consider Ms Midiana’s mental health and addictions which led to the commission of her crimes. If these matters can be addressed with support services and rehabilitation there is a strong indication that she poses no significant risk to Australian society if there were a decision to set aside the delegate’s decision.
·Ms Midiana has lived in Australia for 24 years from the age of 29 years. Prior to this she had worked in PNG for 10 years and has no criminal history in that country.
·She acted out of character in seeking to self-medicate due to depression and sought respite in alcohol and gambling which lead to the deceit and the commission of the crimes over a 3-year period.
·She has taken responsibility for her crimes and is facing the consequences of those actions. She has lost her home, her husband and her close contact with Elisa Mara and Elisa’s son, GT, her culturally adoptive family.
·If revocation of the cancellation of the Visa was granted, Ms Midiana has been offered a place to stay with Ms Mara and GT. Ms Mara would welcome the support Ms Midiana could offer in helping to care for the children. Throughout her life Ms Midiana has always supported those around her, especially those who are vulnerable. This side of her character would be of benefit to Australian society.
·Ms Midiana is the sole beneficiary of her husband's estate. She will inherit full title to a farm/property in Greenvale which is a small community two hours north-west of Townsville. There is a nickel mine there which would offer potential employment to Ms Midiana. It is a small town of just over 200 people. The property would offer her the opportunity to grow food and have peace and quiet. There are no clubs and the community is small and supportive. It would offer her an ideal opportunity to begin her life afresh.
·Prior to relocating to this property, she would be able to enrol in the Lives Lived Well facility at Rockhampton which is a live-in facility allowing participants to address their alcohol and gambling addictions. Although it is not possible to enrol whilst incarcerated, the facility is very open to her enrolling if she were released and her Visa reinstated.
·She was suffering from depression and her actions were out of character. She has taken responsibility for her actions and is seeking counselling and support whilst incarcerated and planning to extend these if the Visa is reinstated.
·The primary consideration of close family (though non-kinship) ties in Australia is significant. The benefits of the support she would provide to her family outweighs the risks to Australian society.
·Ms Midiana will be a homeowner in a regional area in Australia and should be offered the opportunity to make a new start with the proper ongoing supports for her mental health.
Summarising the Respondent’s contentions in relation to the nature and seriousness of Ms Midiana’s criminal offending as the Tribunal understands them:
·Ms Midiana first commenced offending in Australia in 2017. On 30 December 2017, she committed two offences of assault or obstruct police officer. For these offences, she was sentenced in the Cairns Magistrates Court on 2 March 2018 and fined a total of $1,500 with convictions recorded.
·The Queensland Police court brief produced under summons records that these offences occurred after the applicant had been submitted to a roadside breath test (which ultimately returned a positive result).[30] She refused to exit her vehicle when requested to do so several times and resisted aggressively whilst police forcibly removed her from the vehicle. When police asked her multiple times to get to the rear of the police vehicle, she refused.
·When police started assisting her in sliding backwards in the police van, the applicant aggressively kicked out with both feet striking a police officer in the chest. The Minister contends that this is a violent offence, which is viewed very seriously by the Australian Government and Australian community (paragraph 8.1.1(1)(a) of Direction 99).
·She next appeared before a sentencing court on 17 August 2021 in the Cairns Magistrates Court when she was convicted of Obstruct Police Officer for her offending on 31 July 2021. She was fined $650 with a conviction recorded. The Queensland Police court brief produced under summons records that this offence occurred after Ms Midiana had again been intercepted by police whilst driving.[31] She was intercepted for the purpose of a breath test which returned a positive reading. Once she was detained for the purpose of further test, she became immediately aggressive towards police and was verbally abusive.
·On 1 September 2022, Ms Midiana was convicted in the Cairns District Court of Fraud – Dishonestly Cause Detriment Value Of At Least $100,000 and was sentenced to five years imprisonment suspended after serving 20 months. His Honour Judge Smith of the District Court of Queensland’s sentencing remarks identify that while employed as a sales representative with Air Niugini, she fraudulently used R & A Marine Services Limited (RAMS) credit card details to purchase flights from customers while taking cash from the customers.[32] The offending occurred over 17 months between April 2018 and September 2019 and involved 385 unauthorised transactions on RAMS’s credit card. The total amount of the fraud was approximately $133,000. The sentencing judge noted that there were a number of aggravating features of her offending: it was a significant sum of money taken over a lengthy period, it was a brazen and gross breach of trust and the money had not been recovered.[33]
·Whilst on bail for the Fraud – Dishonestly Cause Detriment Value Of At Least $100,000 offence, Ms Midiana was employed as a receptionist at a hotel and committed further offences in June 2022: Stealing By Clerks And Servants (two offences) and Enter Premises And Commit Indictable Offence. She was sentenced to 18 months and 6 months imprisonment for the stealing offences and 12 months imprisonment for the other offence. She entered the reception area and stole between $9,000 and $10,500 cash. After her employment was terminated, she then stole an access card for the hotel and six days later returned to the hotel and stole $500 from the float in the office safe. She tried to disguise herself by trying to disconnect the CCTV system and covering her face.
·The Respondent Minister contends that Ms Midiana’s fraud and stealing offending should be viewed as very serious given the lengthy period over which the fraud occurred, the amount involved, that she commenced reoffending by committing further dishonesty offences and noting that the categories of offences described in paragraph 8.1.1(1)(a) of Direction 99 is non-exhaustive.
·Ms Midiana also has a relevant traffic history in Australia, having driven with a blood alcohol concentration at the moderate level three times between 2017 and 2021. The Minister contends that these driving offences, which have the potential to injure and possibly kill innocent road users, are serious.
·Ms Midiana has been sentenced to multiple terms of imprisonment including a lengthy term of five years (paragraph 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
·Ms Midiana has committed seven offences over a four-year period which the Minister contends is frequent (paragraph 8.1.1(1)(d) of Direction 99). There has also been a trend of increasing seriousness since she commenced offending in 2017 by committing offences obstructing police which then escalated to committing serious fraud offences involving a large sum of money from 2018.
[30] Exhibit R1: Tender Bundle 2, page 11.
[31] Exhibit R1: Tender Bundle 2, page 20.
[32] Exhibit R3: G5, page 34.
[33] Exhibit R3: G5, page 34.
In terms of the risk Ms Midiana poses to the Australian community the Tribunal has summarised the Respondent’s contentions as follows:
·Ms Midiana’s varied criminal history means that a broad range of harms may befall members of the Australian community if she were to reoffend.
·If she were to reoffend by violent offences, the nature of the harm that may result includes physical harm. Offending that nature may also have ongoing psychological consequences for the victims and others. It will also have broader financial and other consequences to the justice and health systems.
·If she were to reoffend by committing dishonesty offences such as fraud and stealing, the harm that would flow from that offending is likely to be significant financial harm to Australian citizens and businesses.
·If she were to reoffend by committing further driving offences, the nature of the harm that may result includes serious physical harm, up to and including the possibility of the death, of other road users including drivers, passengers, pedestrians and cyclists.
·It is the Respondent Minister’s position that there is insufficient evidence to support a conclusion that Ms Midiana is now rehabilitated. The Tribunal should instead conclude that considering the seriousness of the potential harm, the risk of further offending by Ms Midiana is unacceptable. In this regard the following matters are relevant:
oThere is no expert evidence before the Tribunal providing any formal opinion as to her risk of reoffending.
oShe has a history of committing dishonesty offences in Australia. Her frauds have been committed over a lengthy period and have involved large sums of money. There has also been a level of sophistication in her offending involving her disguising herself and disconnecting CCTV to avoid detection. It is also concerning that she went on to commit further stealing offences whilst on bail after being arrested for a fraud offence.
oThe sentencing judge noted that Ms Midiana’s fraud offending occurred in the context of alcohol and gambling addiction and that she was also depressed.
oShe claims to have participated in Alcoholics Anonymous programs since February 2023 and engaged with a prison counsellor/psychologist. No independent evidence has been provided to support these claims.
oThere is no evidence indicating that Ms Midiana has undertaken any rehabilitation targeting fraud offending and gambling addiction. Ms Midiana has provided a letter from BlueKnot confirming her attendance at four telephone counselling sessions between August to November 2023.[34] This service provides trauma-informed counselling and it is not clear how this has any connection with her explanations for her offending. Furthermore, her rehabilitation has not been tested in the community where alcohol and poker machines are freely available.
·Limited weight should be placed on her character references as the support network did not prevent her from committing crimes in the past and there is no compelling evidence to suggest that the same support would be any more effective in the future.[35]
·This primary consideration weighs heavily against revocation.
Tribunal’s consideration: The nature and seriousness of Ms Midiana’s conduct.
[34] Exhibit A1.
[35] LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93].
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
On 2 March 2018 Ms Midiana was convicted on 2 charges of Assault or obstruct police officer.[36] These convictions relate to the following incidents that occurred on 30 December 2017:[37]
‘CHARGE 2.
The defendant immediately became un-cooperative with police and refused to comply with directions given. The defendant requested that she call her husband which police allowed. Police directed the defendant to exit her vehicle which she refused to do several times. Police warned the defendant that she was obstructing them and she continued to argue and be belligerent. Police forcibly removed the defendant from the vehicle. The defendant continued to resist aggressively, resulting in police placing her in hand cuffs. Police informed the defendant that she was obstructing them and that it was an offence to do so. Police told the defendant to get in to the rear of the police vehicle several times and she refused.
CHARGE 3.
Police assisted the defendant to get in to the rear of the vehicle. The defendant was sitting down facing police. When police started to assist the defendant in sliding backwards into the van, the defendant aggressively kicked out with both feet striking Senior Constable BRYSON in the chest area. Police informed the defendant that she had assaulted police by her actions.’
[36] Exhibit R3: G4, page 32.
[37] Exhibit R1: Tender Bundle 1, page 7.
Considering the combination of this paragraph of the Direction, her convictions and the above details, the Tribunal finds that Ms Midiana did commit violent crimes, albeit at the lower end of the scale in terms of the violence involved and that consequently her offending may be viewed as serious. This paragraph carries weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Ms Midiana has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is enlivened by Ms Midiana’s convictions for Assault or obstruct police officer.
The Tribunal considers and finds that Ms Midiana committed crimes against government representatives in the performance of their duties and that consequently her offending should be considered as serious.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion’.
The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Ms Midiana’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant as the evidence does not disclose any criminal conduct by Ms Midiana while she has been in immigration detention.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Ms Midiana for:
(iii)any violent offending that she may have committed against women or children;[38]
(iv)acts of family violence;[39] and
(v)any sentence she received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[40]
[38] Paragraph 8.1.1(1)(a)(ii).
[39] Paragraph 8.1.1(1)(a)(iii).
[40] Paragraph 8.1.1(1)(b)(i).
The summarised Offending History above provides that on 1 September 2022 Ms Midiana was sentenced to concurrent terms of imprisonment of six months, 12 months, 18 months and five years. In the latter case the sentence was suspended for five years once Ms Midiana had served 20 months in prison.
As the Respondent contends, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Ms Midiana’s five-year sentence, in company with the other lesser sentences, indicates the seriousness of her offending.
The Tribunal considers that this paragraph carries weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
The Tribunal has considered Ms Midiana’s convictions, her driving offending and details of her offences as described in the Queensland Police reports.[41] From these it appears that she started offending regularly (385 incidents in terms of the fraud offending) between April 2018 and September 2019[42]. Her 30 December 2017 offending set out above is also relevant. There are drink driving offences in July 2021 and then the theft offences in 2022.[43]
[41] Exhibit R1: Tender Bundle 3 and Tender Bundle 1, page 16.
[42] Exhibit R1: Tender Bundle 2, page 39.
[43] Exhibit R1: Tender Bundle 1, pages 21, 22, 25 and 26.
Considered in totality, the Tribunal finds that Ms Midiana’s history evidences a consistent and high frequency of offending between two very specific and delineated periods; between 2017 and 2019, and then again between 2021 and 2022.
Trend of increasing seriousness
The Tribunal considers that Ms Midiana’s fraud and theft offending can be viewed as commencing with serious crimes and then escalating to even more serious and sustained offending involving her brazen thefts from her employer in June 2022, demonstrating a trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Ms Midiana’s repeated offending.
Ms Midiana’s repeated driving offending has imposed costs – financial, emotional, psychological and social - on herself, her family and her friends and implicitly on the Queensland Police Service. Her violence and obstruction offences are likely to have added an unwanted burden on the police officers involved. Further, the totality of Ms Midiana’s repeated criminal offending has also imposed significant costs – financial, emotional, psychological and social - on herself, her family and her friends.
Her offending has imposed significant costs on the Australian policing and judicial systems in terms of money and resources expended in dealing with her offending.
The Tribunal considers that, from aggregating and considering these perspectives, the cumulative effect of Ms Midiana’s repeated criminal offending is significant and substantial.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether Ms Midiana has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending.
Ms Midiana admits to lying on her passenger cards on 15 August 2019 and 16 September 2019 about her criminal record.[44]
[44] Exhibit R3: G9, page 100.
This paragraph carries additional weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether Ms Midiana has re-offended since being formally warned about the consequences of further offending in terms of her Visa status.
In the absence of evidence from Ms Midiana or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Ms Midiana’s conduct.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of Ms Midiana’s conduct.
Tribunal’s finding: The nature and seriousness of Ms Midiana’s conduct.
The Tribunal has sought above to consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs considered above, the Tribunal finds that the nature of the totality of Ms Midiana’s repeated and cumulative criminal offending and other conduct, encompassing driving offences, assaults on police, obstructing police, fraud and stealing should be characterised as serious. This finding carries significant weight in favour of affirming the delegate’s decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk that Ms Midiana poses to the Australian community if she reoffends, taking into consideration the nature of any such harm and its likelihood.
Paragraph 8.1.2 (1) states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
(Emphasis added)
Paragraph 8.1.2 (2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing and considering the nature of the risk to the Australian community that any future recidivist behaviour by Ms Midiana could pose, the Tribunal has reviewed the evidence and the contentions made by both parties in relation to paragraph 8.1.2 of the Direction.
Tribunal’s consideration: The nature of the harm to individuals or the Australian community were Ms Midiana to engage in further criminal or other serious conduct.
The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both individuals and the Australian community arising from Ms Midiana’s past criminal conduct – whether involving driving, violence, fraud or theft - is both significant and substantial.
Consequently, it is likely that any future criminal or other serious conduct by Ms Midiana would cause similar harm, with particular focus on financial harm and loss, violence towards police officers and increased risk for other road users.[45] These impacts would strike across the entirety of the Australian community.
[45] SEE BARTLETT AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION (MIGRATION) [2017] AATA 1561.
In particular, her fraud offences, if repeated at the same scale as before, could jeopardise the financial well-being of an employer and subsequent insolvency.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Ms Midiana to engage in further criminal or other serious conduct.
The Tribunal finds that further future criminal conduct of the categories Ms Midiana has previously engaged in would result in serious and material financial, psychological and physical harm to the Australian community.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of Ms Midiana engaging in further criminal or serious conduct.
The issues surrounding the consideration of ‘likelihood’ under paragraphs 8.1.2(1) and (2) have been extensively considered by the Tribunal and superior courts.[46]
[46] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (Baker), at 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
[48] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Direction’s clear legislative intention is that the threshold is whether there is ‘a’ risk.[47]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[48]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[47] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’In Sabharwal the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[49] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, a finding that there was a risk of Mr Sabharwal re-offending.
[49] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (‘Sabharwal (FC)’).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (‘Guo’) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575):[50]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[50] QKVH and the Minister for Home Affairs (‘QKVH 2020’) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (‘Murphy’), where Her Honour noted:[51]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[51] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, applying the reasoning described in Baker, Sabharwal and Guo to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of Ms Midiana engaging in further future criminal or serious conduct.
A consideration of the risk or likelihood of Ms Midiana engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Conducting this analysis enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.
Factors that facilitate the risk
Judge Smith made the following comments when sentencing Ms Midiana:[52]
‘… it seemed to me you were using alcohol to deal with your depression and sleeping problems. That emanated from the breakdown of your marriage and that then led to an addiction to poker machines and gambling which led to the offending in this case.’
[52] Exhibit R3: G5, page 35.
Ms Midiana states that her offences were committed ‘during a dark time in my life, when I was struggling with severe depression, alcohol abuse and gambling addiction’.[53]
[53] Exhibit R3: G7, page 55.
The first record of Ms Midiana’s depression occurs in 2015.[54]
[54] Exhibit A8, page 105.
In 2020 this condition apparently became more florid between July and August.[55] She was evidently drinking alcohol prior to this based on her driving offending and her medical records. The 2020 reports suggest that a better characterisation of her condition is that it involves anxiety and panic attacks rather than depression.[56]
[55] Exhibit A6.
[56] Exhibit A6.
It is also worth noting that these medical records also show that she ceased attending booked appointments by late 2020, including 2 appointments with the Alcohol Tobacco and Other Drugs Service.[57] The Tribunal considers that Ms Midiana had some awareness of her mental health concerns from 2015 onwards but finds that she failed at times to fully take up offered support, assistance and treatment that may well have assisted her.
[57] Exhibit A6, page 91.
The Tribunal considers that Ms Midiana’s offending is driven and facilitated by the key risk factors of the state of her mental health, her drinking and her gambling.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here. Absent major intervention, these key risk factors are more likely than not to resurface and create a risk of offending.
Factors that hinder or retard the risk – responsibility, rehabilitation and remorse.
Ms Midiana states that she takes full responsibility for her offending.[58]
[58] Exhibit R3: G5, page 34 and Transcript, page 32, lines 11-12.
In a 16 August 2023 statement, Ms Midiana wrote:[59]
‘I fell apart between 2018 and 2021 and I'm desperately ashamed of the things I did during that time. I became extremely depressed, but I didn’t recognise it as a clinical depression, I just knew there was something very wrong with me, but my depression affected every area of my life. It affected my marriage, my relationships my work and my social life. I lost interest in the things I used to love and enjoyed doing. I had the desire to do the right thing, but I had lost the ability to carry it out.
I come from a culture where depression or any other mental health problems are not discussed or talked about openly. I did try to sort myself out, I went to ATOD, but the psychologist I spoke to seem to me to be too judgmental. It may have been my illness but when I felt judged by him, I felt unable to keep going to him and I seem to be locked it were terrible cycle. I not only drank, I began to gamble, and I committed fraud.
The evidence of how lost I was is in my crimes. Despite being caught I didn't tell anyone what was going on and I didn't stop. I cannot describe the shame I feel. I am so full of remorse and regret I cannot believe I did this to people particularly those who trusted me by giving me a job. I know my behaviour must have hurt my husband terribly and the fact that he became ill and has died is what has really broken my heart because I can't go back and take those times away.’
[59] Exhibit R3: G9, page 99.
Ms Midiana further writes:[60]
‘I have served 12 months in prison I have been receiving assistance and support from one of the prison counsellors and psychologist and the medical team with medication. I’m in a better frame of mind and in a different position today to where I was before. I still have family in Australia I have a lot of support I can succeed, and I know I will not offend again because now I have the skills and knowledge of how to prevent any mental health decline despite the terrible tragedy that has happened to me.’
[60] Exhibit R3: G9, page 100.
Ms Midiana writes in her Personal Circumstances Form that she has been attending alcohol rehabilitation counselling conducted weekly in prison by Alcoholics Anonymous.[61]
[61] Exhibit R3: G7, page 58.
Dr van Galen-Dickie states in a 17 August 2023 submission that Ms Midiana has completed literacy and numeracy courses and the pre-employment licence. She states that Ms Midiana is wait-listed for several courses and observes that there are no courses available in prison specifically aimed at gambling or fraud offences.[62]
[62] Exhibit R3: G9, page 94.
Dr Galen-Dickie states in the same submission that Ms Midiana offers a low risk of reoffending.[63]
[63] Exhibit R3: G9, page 95.
Risk management factors
Ms Midiana appears to have enjoyed a level of support from her husband (now deceased) and from her culturally adopted daughter, Ms Mara, and Ms Mara’s minor child. However, these protective factors were in place prior to Ms Midiana's offending and failed to act as a deterrent to her offending.
Employment and court orders do not appear to be a protective factor as she stole from her employer in June 2022 while on bail. She also committed further driving offences after her initial driving offending. This is particularly concerning in terms of the repetition of her drink-driving offence.
Risk analysis and consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal accepts that Ms Midiana is remorseful for her offending, accepts responsibility, and appears to have insight into the seriousness of her offending and the nature of her risk factors.
Without additional evidence, the Tribunal considers that Ms Midiana’s formal rehabilitation remains nascent and more aspirational than executed. In the absence of more detailed evidence, the Tribunal is only able to give the evidence regarding her rehabilitation limited weight.
She has lost her family support factors as Ms Mara has moved away from Cairns to Rockhampton and Mr Clark lives in Brisbane, although Ms Mara and Mr Clark have both offered to offer support if Ms Midiana is returned to the Australian community.
The Tribunal remains concerned about the risk of Ms Midiana reoffending. It considers that there is ‘a’ risk that she will resume drinking alcohol and gambling.
This risk goes directly to increasing the likelihood of Ms Midiana committing further offences or engaging in other serious conduct.
The nature of any further criminal or other serious conduct that Ms Midiana may engage in in the future is considered above.
A consideration of the likelihood of Ms Midiana engaging in further criminal or serious conduct should holistically encompass the factors that facilitate the risk or, conversely, hinder or retard the risks. Doing this enables the Tribunal to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”’ and paragraph 8.1.2(1)’s chapeau to the effect that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Synthesising the above and considering them holistically, the Tribunal concludes that Ms Midiana’s risk factors remain significant. If the risk that Ms Midiana may reoffend crystallises, it would result in serious and material financial, psychological and physical harm to the Australian community. Such a risk cannot be tolerated.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should Ms Midiana commit further offences or engage in other serious conduct both exists and is significant and material.
Conclusion: Primary Consideration 1: Protection of the Australian community
This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
Primary Consideration 2: Family Violence Committed by the Non-Citizen
Tribunal’s consideration
There is no evidence of family violence in this matter before the Tribunal.[64]
[64] Exhibit R1: G9, page 95 at [26] and R2, page 10 at [39].
Conclusion: Primary Consideration 2: Family Violence committed by the non-citizen.
This consideration carries a neutral weight.
Primary Consideration 3: The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Ms Merrotsy for Ms Midiana made the following arguments in her closing submission:[65]
‘I’d also like to talk about – that was raised by Mr Kyranis yesterday about that she was not born here in Australia, and she’s spent a lot of years back in Papua New Guinea. And that is very true. Now, with the early years that were spent in Papua New Guinea. However, when you look at the most recent time when she’s a 45-year-old woman, she really is building more to Australia. She did return many times back to Papua New Guinea, but those trips were short. And I believe her husband used to accompany her on those and – it’s about – they’re only, like, four, five days in length. So that would suggest that she’s steadfastly in Australia, she saw her home as Australia, as being in Australia; and to have to relocate and make new ties all over again is more difficult as your get older. I can attest to that.
And she sees this as her home. She has the ability to have the support when she is released with her son-in-law. Even though they are not very close, he feels an obligation to his father that he helps Meisi set things up. Particularly financially. He’s a businessman. He has a lot of experience running businesses, running finances and I believe that he would be of utmost importance to Meisi and give really good advice to her about how to go forward financially so that she doesn’t find herself in a position where she’s not financially able to support herself. She has her home in Greenvale open to her. It does sound like a lovely place where she can isolate herself after she’s perhaps gone through her attention to her addiction.’
and
‘She’s lost her husband and she’s lost physical contact with her family and Ellie and GT. That she really – that was her one and only family here.
And as you heard yesterday, not having children seems to have been quite a difficult thing for her to accept and these are like replacement children. So I would just ask that the tribunal consider that this is her second chance. Which, not everyone gets an opportunity to have. She’s made firm plans, as much as she can on the inside, with everyone’s assistance. And it would really – for her to relocate back to a country, even though it was out of the – it’s another place that she has lived in for many, many years, apart from visiting. She doesn’t have any real family there. She may not have the proper supports and the medication. And it’s unlikely that she will do very well if she is returned there.
And here, she – if she is removed, of course, she’s going to impact, as I said, the family that she considers her real family here.’
[65] Transcript, page 59, lines 1-22 and page 60, lines 29-45.
Summarising the Respondent’s arguments as the Tribunal understands them:
·Ms Midiana moved to Australia as a 29-year-old and has lived here for 16 years, although this not a case where the applicant has been ordinarily resident in Australia during and since her formative years (paragraph 8.3(4)(a)(i) of Direction 99).
·In respect of positive contributions to the Australian community (paragraph 8.3(4)(a)(ii) of Direction 99), she has declared employment in hospitality-type roles doing housekeeping between 2013 to 2014 and as a receptionist in hotels between 2012 to 2022. However, the weight given to this should be very limited given that it was in connection with her employment over an 18 month period between 2018 and 2019 that she committed fraud and then stole from her next employer in 2022.
·The Respondent Minister accepts that this primary consideration weighs in Ms Midiana’s favour but submits that it does not outweigh the first and fifth primary considerations weighing heavily against revocation.
The Tribunal will take each sub-paragraph in paragraph 8.3 in turn to assess and consider the evidence before it:
Paragraph 8.3 (1): Immediate family
From the evidence before the Tribunal, Ms Midiana’s immediate family in Australia consisted of her stepson, Mr Stephen Clark, and her customarily adopted daughter Ms Elisa Mara and Ms Mara’s minor son, GT. There is no formal adoption in relation to Ms Mara or GT.
Ms Midiana sets out in detail her relationship with Ms Mara and GT in her 17 August 2023 statement.[66] Much of this is corroborated and enhanced by Ms Mara’s statement and oral testimony.[67] The Tribunal notes that Ms Mara now resides in Rockhampton, some distance from Cairns.
[66] Exhibit R3: G9, pages 101-103.
[67] Exhibit A2.
Dr van Galen-Dickie states in a 19 April 2023 letter that Ms Midiana has: [68]
‘… listed [GT] as her adopted son. We wish the department to know that [GT] has been adopted in a customary familial adoption between relatives. [GT] and Meisi are related. He is the grandson of her cousin (who she refers to as her cousin brother).’
[68] Exhibit R3: G8, page 89.
The Tribunal considers that strong customary familial ties exist between them.
The Tribunal has considered the impact of non-revocation upon Ms Midiana's claimed immediate family in Australia and find that Ms Mara, GT and Mr Clark will likely experience emotional hardship if the Tribunal affirms the delegate’s decision. However, the weight afforded to this is tempered by the fact that Ms Mara and GT are not Ms Midiana's biological children and do not appear to have undergone a formal adoption process.
Paragraph 8.3 (2): Non-citizen’s ties to their children
Without evidence of any formal adoption of GT by Ms Midiana, Ms Midiana has no children covered by this paragraph. It carries a neutral weight.
Paragraph 8.3 (3): Family and social links
There is some evidence before the Tribunal as to the strength, duration and nature of any family or social links generally between Ms Midiana and Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
Ms Midiana states in her Personal Circumstances Form that she has two adult nieces living in Australia (in addition to Ms Mara).[69]
[69] Exhibit R3: G7, page 54.
The Tribunal has considered that the impact of non-revocation upon Ms Midiana's extended family members, including Ms Mara and GT, and find that they are likely to be upset, dismayed and disappointed by a decision affirming the delegate’s decision. Without further information regarding the impact on these family members, the Tribunal gives this some weight in Ms Midiana's favour.
Paragraph 8.3 (4): Other ties to the community
In her 16 August 2023 statement, Ms Midiana states that she completed college at the age of 19. Her first job was as an office clerk in a car mechanical workshop in 1997. She then met the general manager of the company, Mr Charlie Clark, an Australian citizen, and they commenced dating. She further states that they lived together in Port Moresby for five years before he returned to Australia in early 2000. She states they maintained a long distance relationship for a few years before she moved to Australia to be with him. They married in 2007 and were together for 25 years before his death in June 2023.[70]
[70] Exhibit R3: G9, pages 99-100 and 132.
Ms Midiana states that she commenced employment in Australia in 2005 'as soon as I was legally allowed to work here' and worked in several roles and occupations. She also states that in 2008 she was a volunteer at the Endeavour Foundation in Cairns, which helps people with Down Syndrome Attachment.[71]
[71] Exhibit R3: G7, page 57.
The Tribunal considers and finds that Ms Midiana has not spent any of her formative years in Australia.
The Tribunal considers and finds that while Ms Midiana has likely contributed positively to the Australian community through her employment, this is tempered by the evidence that shows that she used her employment to commit fraud and theft. This limits the weight accorded to this consideration.
Tribunal’s consideration
The Tribunal considers that Ms Midiana's removal will have an adverse impact on her immediate and customarily adopted family and on her extended family ties in Australia. She has contributed positively to the Australian community, although her offending tempers this. She was not resident in Australia during her formative years.
Having considered the strength, nature and duration of Ms Midiana's ties to Australia, the Tribunal finds that on balance, these weigh in favour of setting aside the delegate’s decision.
Conclusion: Primary Consideration 3: The Strength, Nature and Duration of Ties to Australia.
This consideration carries some weight towards setting aside the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
Primary Consideration 4: Best Interests of Minor Children in Australia Affected by the Decision
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.[72]
[72] The Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.4(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Direction requires that the Tribunal determine whether non-revocation under section 501CA is, or is not, in the best interests of each child in Australia who will be affected by the decision.
The initial point of the Tribunal’s analysis of the primary consideration is described by Justices Tamberlin, Keifel (as she then was) and Emmett in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs at [14]:[73]
‘The starting point adopted by the Tribunal is one which reflects an assumption generally held by members of the Australian community, namely that in most cases a child’s interests are best served by remaining with their parents. That view is a reflection of the various matters to which Allsop J referred to in Perez, relating to the various aspects of a child’s development. It seems to us that there would be no rational basis for denying the Tribunal the adoption of that assumption, at least initially. As the community would recognise, there may be factors which are to be weighed against that assumption…’
[73] SEBASTIAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS [2005] FCAFC 31.
The Tribunal has identified above that there is one minor child, GT, whose interests are relevant under this consideration.[74] [75]
[74] Exhibit R3: G7, page 52.
[75] Exhibit R3: G9, pages 101-103.
A 10 March 2023 letter from Queensland Corrective Services states that Ms Midiana has been approved to be an internal carer for the child of Tanya Richards.[76] No further information in relation to this child has been provided to the Tribunal.
[76] Exhibit R3: G9, page 103.
Summarising the Respondent’s contentions:
·Whilst the Tribunal may find that this factor weighs in favour of revocation of the cancellation (in that it is in GT’s best interests for the cancellation to be revoked), the Respondent Minister contends it does so only to a limited extent. That conclusion should be reached for these reasons:
oThe relationship between Ms Midiana and GT is non-parental (paragraph 8.4(4)(a) of Direction 99). GT lives with his biological mother who fulfils the parental role (paragraph 8.4(4)(e) of Direction 99).
oMs Midiana’s relationship with GT has been marked with a lengthy absence since she has been in jail and then immigration detention since September 2022 (paragraph 8.4(4)(a) of Direction 99).
oThere is no independent evidence of the effect that any separation would have on the child (paragraph 8.4(4)(d) of Direction 99). Nor is there any obvious impediment to Ms Midiana having contact with GT via electronic means.
Child GT
Dr van Galen-Dickie’s 19 April 2023 letter sets out the basis for Ms Midiana’s customary adoption of GT.[77]
[77] Exhibit R3: G8, page 89.
Ms Midiana states that she has raised GT from the age of ten months. She states that she and her late husband did not have any children of their own. She states that when GT came to live with them in 2017, her husband retired from work as he did not want GT in day-care and they changed their ‘whole life and home to commit ourselves to GT through love, nurturing, feeding, bath times, play times’.[78]
[78] Exhibit R3: G9, pages 99-103.
Ms Midiana states that she has a ‘very close bond’ with GT and ‘he is my world.’ She states that GT thinks of her as his mother and her late husband as his father. She states that the separation has had a big impact on him and she worries about him. She states that speaks with him weekly and hears the sadness and confusion in his voice when she speaks with him. She states that after she went to prison, GT returned to live with Ms Mara, and since that time, the family has been living between various family members and locations, including Cairns and Townsville. She states that because of this, GT did not have a stable home and routine, and this impacted on his schooling.[79]
[79] Exhibit R3:G7, page 51.
Ms Midiana states that it is one year since GT has seen her and her late husband, and ‘this has brought sadness and grief to my son GT of not being able to have some self-belonging and trying to adapt to his new routine and moving to different school.’ She states that she has also not been a part of his education and school events. In respect of her husband’s death, she is worried about GT ‘… not being able to go through this process of grief on his own without giving a kiss or cuddles to his Papa Charlie.’[80]
[80] Exhibit R3: G9, pages 99-103.
Ms Midiana states that GT is living in Rockhampton with Ms Mara and has started at a new school. She states that ‘although he is still missing his links in his life and I worry for his wellbeing as such a young person. Our telephone calls are what we both hold on to every day, where we share his moments and excitements and new things he has learnt in school.’ She also states that she misses GT and prays that she will be able to ‘hold him in my arms again.’[81]
[81] Exhibit R3: G9, pages 99-103.
Tribunal’s consideration
The Direction requires the Tribunal to treat the best interests of these minor children as a primary consideration.
The Tribunal will frame its consideration in terms of paragraph 8.4(4).
Paragraph 8.4(4)(a)
The nature of the relationship between Ms Midiana and GT, while non-parental and short, appears to have been deep, meaningful and emotional.
Paragraph 8.4(4)(b)
GT has approximately 12 years until he is 18. There is little evidence before the Tribunal to allow it to assess what positive role, if any, Ms Midiana can play in future in respect of GT beyond Ms Midiana’s evidence that she talks with him regularly by telephone. It is reasonably conceivable that she could act as a mentor.
Paragraph 8.4(4)(c)
There is no evidence before the Tribunal to allow it to assess and consider the impact of Ms Midiana's prior conduct and any likely future conduct and whether that conduct has, or will have, a negative impact on GT.
Paragraph 8.4(4)(d)
Based on both parties’ submissions and the evidence, it is likely that a physical separation between Ms Midiana and GT would have a negative effect, especially in emotional, and psychological terms, on GT.
Paragraph 8.4(4)(e)
Based on the evidence before it, the Tribunal considers that Ms Mara currently fulfils a parental role in relation to GT.
Paragraph 8.4(4)(f)
Ms Mara’s statement provides some hearsay evidence of GT’s views.[82]
[82] Exhibit A2.
Paragraph 8.4(4)(g)
There is no evidence before the Tribunal that GT was exposed to Ms Midiana committing acts of family violence, or that Ms Midiana abused or neglected GT in any way, whether physically, sexually or mentally.
Paragraph 8.4(4)(h)
There is no evidence before the Tribunal that GT has suffered or experienced physical or emotional trauma arising from Ms Midiana’s conduct.
Tribunal’s findings: Best interests of minor children in Australia affected by the decision.
The Tribunal finds, on balance, that setting aside the delegate’s decision is in GT’s best interests.
Conclusion: Primary Consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration and GT’s best interests carry strong weight in favour of setting aside the delegate’s decision to cancel Ms Midiana’s Visa.
Primary Consideration 5: Expectations of The Australian Community
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[83]
[83] FYBR (2019) 272 FCR 454 (‘FYBR’), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[84]
[84] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[85]
[85]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction.
The question for the Tribunal’s assessment and consideration is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
·The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
·In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
·The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
·In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay,’ as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
The Respondent contends that contends that this primary consideration weighs heavily against revocation.
Tribunal’s consideration
Ms Midiana’s Visa was a Class BB Subclass 155 Five Year Resident Return visa. This is a permanent visa.[86]
[86] Migration Regulations 1994 (Cth), Clause 155.511. Permanent visa permitting the holder to travel to and enter Australia for:
(a) if:
(i) subclause 155.212(4) applies to the applicant; and
(ii) the period of the Subclass 155 visa mentioned in that subclause is one year or less;
the period of the Subclass 155 visa; or
This implies that sub-paragraph 5.2(4)’s higher tolerance applies to an extent, acknowledging that Ms Midiana did not spend her formative years in Australia but has resided here for a significant period.
The Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the visa holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of Ms Midiana, she was convicted of assaulting a police officer, enlivening paragraph 8.5(2)(d).
The Tribunal has also found Ms Midiana’s offending conduct to be serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Ms Midiana poses a significant and material risk of re-offending.
The Tribunal is satisfied that Ms Midiana has breached the Australian community’s expectations by her criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow her to remain in Australia.
Conclusion: Primary Consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the delegate’s decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
3Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The Respondent contends that there is no claim, and otherwise nothing on the material to suggest, that Australia’s non-refoulement obligations are enlivened in respect of Ms Midiana.
The Respondent further contends, citing Senior Member Burford’s decision in Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[87], that while there will be legal consequences for Ms Midiana in terms of constraints and bars about her ability to apply for a visa, these consequences are not ‘another reason' why the Tribunal should set aside the delegate’s decision.
Tribunal’s finding: Other Consideration (a): Legal consequences of the decision.
[87] Rana v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327, at [209].
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant’s and Respondent’s contentions
Ms Midiana’s contentions acknowledged her health issues and that she has family in PNG.[88]
[88] Transcript, page 58, lines 39-40.
The Respondent contends that:
·Ms Midiana is 45 years old and has declared some health issues including depression and an overactive thyroid for which she is medicated. There is no independent evidence that she would be unable to obtain medication she requires in PNG. Despite a large volume of medical documents submitted to the Tribunal, her statement of facts, issues and contentions does not refer to any medical conditions she currently has other than depression.
·Whilst Ms Midiana may face some difficulty in re-establishing herself in PNG due to her recent residence in Australia, this would only present as a short-term hardship and would not preclude resettlement. There would be no cultural or linguistic hurdles for her to overcome since she spent the first 29 years of her life in that country. As a PNG citizen, she will have the same access to social, medical, mental health support and economic support as other citizens. Her employment history in Australia and most recently as a receptionist would also assist her in finding similar employment.
·She has declared that she has lost contact with her family in Papua New Guinea but there is nothing to suggest that she could not resume contact. In the medical documents provided to the Tribunal, reference is made to Ms Midiana visiting her family in PNG to attend her aunt’s funeral. She has also declared that her sister and four cousins live there.[89]
·In the result, the Respondent Minister contends that any difficulties Ms Midiana may face in re-establishing herself in PNG would be temporary.
·This consideration does not weigh either for nor against revocation and should be of neutral weight in the Tribunal’s decision.
[89] Exhibit R3: G7, page 54
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Ms Midiana, if removed from Australia to PNG, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Ms Midiana is 45 years old.
She has known health issues including high range depression and an over-active thyroid. She has also previously had issues with alcohol abuse. She is taking medication to address these issues and has maintained this medication regime.
The Tribunal concludes, after looking holistically at the available evidence of Ms Midiana’s general state of health and synthesising this evidence, that while she suffers from the above conditions, none of them are sufficient on the available evidence to currently impede her ability to re-settle and maintain basic living standards in Papua New Guinea.
Acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[90] the Tribunal considers and finds that Ms Midiana faces a risk that the stresses and emotional hardships that the Tribunal acknowledges in its consideration of impediments she will likely face if removed to Papua New Guinea may aggravate her depression.
[90] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Balanced against this risk and mitigating it are her remaining family in Papua New Guinea[91] and her ability to communicate electronically with Ms Mara, GT and Mr Clark.
[91] Exhibit R3: G7, page 54.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
Ms Midiana was born in Papua New Guinea and raised there until the age of 29 before moving to Australia.
The Tribunal finds that any cultural and linguistic difficulties Ms Midiana is likely to experience will be limited, given that she is fluent in her native language and English, and familiar with the culture in Papua New Guinea.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal must consider both Ms Midiana’s health as broadly construed, and any social, medical and/or economic support available to him in Papua New Guinea if he is returned there. To quote from Justice Colvin’s decision in Holloway:[92]
‘Used in the phrase “age and health”, the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’
and
‘The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties.’[93]
and
‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[94]
[92] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126. at [12].
[93] Ibid, at [13].
[94] Ibid, at [15].
The Tribunal considers that that Ms Midiana will have the same access to health services, treatment and welfare services in Papua New Guinea as do other Papua New Guineans, although the standard and ease of access may not be of the same standard and as widely available as those services are to Ms Midiana in Australia.
Given the evidence of Ms Midiana’s work history in Australia, her knowledge of Papua New Guinean languages and her family network, the Tribunal considers that she would be able to find work in order to economically support herself. The Tribunal accepts accept that those opportunities may be more limited than those available to her in Australia.
The Tribunal also considers, based on Mr Clark’s testimony, that it is possible that she may receive remittances in time from her late husband’s estate once it has been liquidated.
Based on her Personal Circumstances Form and other statements, Ms Midiana has extended family members in Papua New Guinea who can provide social support.[95]
[95] Exhibit R3: G7, pages 45-59.
The Tribunal considers that after a period of initial adjustment, Ms Midiana will not face insurmountable impediments to re-establishment in Papua New Guinea, although it will involve some short-term personal hardship for her.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Ms Midiana, if removed from Australia to Papua New Guinea, will face in establishing herself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
In particular, the Tribunal has analysed the interplay between Ms Midiana’s health, broadly considered in light of the evidence and Holloway, and the available care and conditions to which she is likely to be exposed if removed to Papua New Guinea. The Tribunal consequently considers that, if Ms Midiana experiences a repetition of the mental health issues she has in Australia, then treatment is available to her in Papua New Guinea as would be available for any other Papua New Guinean citizen.
Tribunal finding: Other Consideration (b): Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Ms Midiana would face a short-term level of emotional, practical, financial and medical hardship if she were returned to Papua New Guinea.
This hardship would be aggravated by the separation from Ms Mara, GT and Mr Clark in Australia and the likely short-term difficulties she would face in re-establishing himself in Papua New Guinea, ameliorated by her family network there.
While there are risks that these difficulties and hardship may affect Ms Midiana’s mental health, the Tribunal considers that her age, cultural propinquity to Papua New Guinea and possible support from her extended family in Papua New Guinea are other dynamic protective risk management factors that mitigate and manage these risks.
On balance, this Other Consideration (b) carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal finding: Other Consideration (c): Impact on victims.
There is no evidence before the Tribunal addressing this consideration.
The Tribunal finds that this Other Consideration (c) is neutral.
Other Consideration (d): Impact on Australian business interests if Ms Midiana cannot remain here.
Paragraph 9.4 (1) compels an assessment of Ms Midiana’s employment links to Australia with reference to any impact his removal may have on, ‘Australian business interests’, qualified by the words that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
There is no evidence before the Tribunal that the Ms Midiana’s removal from Australia would significantly impact Australian business interests or compromise the delivery of a major project or an important service in Australia.
Tribunal finding: Other Consideration (d): Impact on Australian business interests if Ms Midiana cannot remain here.
The Tribunal finds that Other Consideration (d) carries neutral weight.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a): Legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b): Extent of impediments if removed:
·This consideration carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c): Impact on victims:
·This consideration has neutral weight.
Other Consideration (d): Impacts on Australian business interests:
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[96]
[96] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Ms Midiana does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
Primary Consideration 2: Whether the conduct engaged in constituted family violence:
·This consideration carries neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries some weight towards setting aside the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration carries strong weight in favour of setting aside the delegate’s decision to cancel Ms Midiana’s Visa.
Primary Consideration 5: Expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
The Tribunal has also set out above the weight attributable to the other considerations.
The Tribunal has assessed and considered the weights it has applied, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[97]
‘The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[97] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the primary considerations and the other considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of the Applicant’s Visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Ms Midiana’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 16 October 2023 not to revoke the cancellation of Ms Midiana’s Visa.
I certify that the preceding two hundred and thirty paragraphs (230) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
............[SGD]...........
Associate
Dated: 13 May 2024
Dates of hearing: 14 and 15 December 2024 Solicitor for the Applicant: Ms Susan Merrotsy of North Queensland Women’s Legal Service Solicitor for the Respondent:
Mr Jake Kyranis of Sparke Helmore Lawyers
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT’S SUBMISSIONS
R1
Tender Bundle
Various
8 December 2023
R2
Statement of Facts, Issues, and Contentions
Various
8 December 2023
R3
G Documents
Various
31 October 2023
APPLICANT’S SUBMISSIONS
A1
BlueKnot Confirmation Letter
14 November 2023
20 November 2023
A2
Statement of Support – Eli Mara
N/A
20 November 2023
A3
Statement of Support – Steve Clark
31 August 2022
20 November 2023
A4
Statement of Issues, Facts, and Contentions
N/A
20 November 2023
A5
Hospital Discharge and Report
13 September 2021
17 November 2023
A6
Mental Health Plan and Hospital Records
Various
17 November 2023
A7
McLeod Street Medical History
Various
17 November 2023
A8
Patient Health Summary
9 November 2021
17 November 2023
0