Moore and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 888

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2005/394

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHOEBNA ANN MOORE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date13 September 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision to cancel the Special Category Visa (Subclass TY-444) of Shoebna Ann Moore and remits the matter to the Respondent with the direction that in the exercise of the discretion pursuant to section 501 of the Migration Act 1958 the said Visa should not be cancelled.

...............SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

IMMIGRATION – cancellation of Special Category Visa – substantial criminal record – further recent criminal convictions – past heroin addiction -  does not pass the character test – improvement in prospects in last two years – applicant currently heavily pregnant – supportive partner – applicant on drug abuse program – no support in New Zealand – partner has no family in New Zealand – discretion exercised in favour of applicant – decision set aside

Migration Act 1958: s499,501

REASONS FOR DECISION

13 September 2005 Deputy President Don Muller        

1.Shoebna Ann Moore is a citizen of New Zealand who has been residing in Australia since 23 January 1994.

2.On 2 July 1995 she was granted a Special Category Visa (Subclass TY-444).

3.Between mid-1995 and early 2001 Ms. Moore committed a number of criminal offences in Queensland.  She was convicted and sentenced to various terms of imprisonment.

4.On 1 June 2005, a decision was made by a delegate of the Minister to cancel Ms. Moore’s visa pursuant to s.501(2) of the Migration Act 1958 (the Act), on the ground that he did not pass the character test, due to her substantial criminal record.

5.Ms. Moore does not wish to return to New Zealand to live.

6.Ms. Moore seeks a review of the decision to cancel her visa.

7.At the hearing Ms. Moore represented herself and the Respondent was represented by her solicitor, Mr. Lo.

8.The material placed before the Tribunal consisted of the following documents:

(i)The G-documents, including a decision in previous AAT proceedings before Deputy President Breen, dated 19 May 2000;

(ii)Statement of Shoebna Ann Moore;

(iii)Sentencing remarks of Judge Morley, dated 18 April 1997;

(iv)Transcripts of previous AAT proceedings involving Ms. Moore, dated 15 and 16 March 2000 and 24 March 2000;

(v)Statement of Linda Margaret Hall, Career Development Co-ordinator, Borallan Correctional Centre;

(vi)Statement of Scott John Richard Smith, Ms. Moore’s younger brother;

(vii)Statement of Emmanuel Georgas, Ms. Moore’s de facto husband;

(viii)Statement of Diane Leslie Tapsell, Ms. Moore’s mother, who is a nurse at Borallan Correctional Centre;

(ix)Statement by Julie-Anne Reynolds, Workers Compensation Claims Administrator, next door neighbour of Ms. Moore;

(x)Statement of Lee Taylor, Ms. Moore’s parole officer;

(xi)Ms. Moore’s parole reports;

(xii)Further parole reports specifically marked by the Respondent’s solicitor.

(xiii)Statement by Alexander Yum, Clinical Nurse/Case Manager, Queensland Alcohol and Drug Service.

9.The Tribunal also heard oral evidence from Ms. Moore, Scott Smith, Emmanuel Georgas and Diane Tapsell.

10.The following matters are not in dispute and the Tribunal finds as follows:

(i)Shoebna Ann Moore was born in New Zealand on 13 April 1977.  She is now 28 years of age.

(ii)Ms. Moore first entered Australia on 12 December 1986 when she came to Australia with her aunt and uncle for a one month holiday.

(iii)Ms. Moore entered Australia on 22 September 1989 with her mother, step father and brother.  The family lived together in Melbourne for two years.

(iv)Ms. Moore had a one month holiday in New Zealand, with her father, between 8 January 1990 and 5 February 1990.  She also spent two weeks in New Zealand in the second half of June 1990.

(v)In September 1990, Ms. Moore and her brother were sent to New Zealand to live with their father.

(vi)Ms. Moore had a holiday in Australia for one month between 20 December 1992 and 24 January 1993.

(vii)On 23 January 1994, Ms. Moore and her brother returned to Australia to live with their mother and step father.

(viii)Ms. Moore has resided in Australia since 23 January 1994.  She has had two holidays in New Zealand, six weeks between 7 December 1994 and 25 January 1995, and two weeks between 16 June 1995 and 2 July 1995.

(ix)Between 1995 and mid 1998, Ms. Moore was convicted of a number of criminal offences.

(x)As a result of her criminal record, Ms. Moore was the subject of a decision by a Delegate of the then Minister for Immigration and Multicultural Affairs to deport her pursuant to section 200 of the Migration Act 1958.  That decision was made on 1 April 1998.

(xi)Ms. Moore applied to the Administrative Appeals Tribunal for a review of the decision to deport her.

(xii)The AAT heard Ms. Moore’s case during a six day hearing in March and May 2000.  The hearing was presided over by Deputy President Breen, as he then was.

(xiii)Deputy President Breen decided on 19 May 2000 as follows:

“The Tribunal sets aside the decision under review and in substitution therefore decides that the applicant, Shoebna Ann Moore, be allowed to remain in Australia.”

(xiv)On 31 January 2001, Ms. Moore was convicted of offences she committed between 14 October 2000 and 31 January 2001.  She was sentenced to imprisonment for two 2 year terms and one term of four months.

(xv)On 3 April 2003, Ms. Moore was convicted of robbery with actual violence, committed on 8 October 2000, and sentenced to three years imprisonment.

(xvi)On 1 June 2005, a delegate of the Respondent cancelled Ms. Moore’s Special Category Visa, pursuant to s.501(2) of the act, due to her substantial criminal record.

(xvii)Ms. Moore applied to the AAT for review of the decision to cancel her Visa.

11.Ms. Moore’s background and criminal record up until May 2000 were canvassed at length during the previous AAT hearing before Deputy President Breen, and is well covered in his reasons for decision.  The same material was placed before the Tribunal in this second review.  I adopt the findings of Deputy President Breen in relation to his analysis of Ms. Moore’s background and criminal history to May 2000.  In particular, I adopt the following passages from Deputy President Breen’s reasons for decision:

“The Applicant’s criminal history consists of:

1995    Break and Enter dwelling house with intent and stealing. This incident occurred when some of her boyfriend’s friends asked her and her boyfriend to assist them in recovering an alleged debt. They ended up taking property in lieu of the alleged debt. No conviction was recorded for this offence.

March 1996

Aggravated Assault on a Female. This offence occurred when in a state of drug psychosis she attacked a car and its female occupant, whom she thought had tried to run her over. Again, no conviction was recorded.

Steal with Actual Violence whilst armed with an offensive weapon and in company. This was the attack on a young woman as she walked home from the bus stop and involved the use of a screwdriver. She was sentenced to five years imprisonment, with 18 months to be served and the rest was suspended.

April–July 1996 Whilst on Bail the applicant committed a number of offences of stealing with violence in company and unlawful use of motor vehicle offences. These offences were in the form of stealing cash registers and/or their contents and using stolen motor vehicles to make their getaway.  She was sentenced to 4 years prison for these offences.

August 1997 Possession of a prohibited article. This offence related to a drug overdose in prison and resulted in an extra 2 months imprisonment and 4 months of her suspended sentence from 1996, being imposed.

March 1998 Shortly after release from custody, she was charged with aiding a prisoner to escape, unlawful use of a motor vehicle and stealing. This was after she found out that she was going to be deported and she and her boyfriend, another prisoner, decided to spend some time together before she went to New Zealand. She was sentenced to 3 years imprisonment, with a further three years of her suspended sentence activated.

….

12. Ms. Moore’s childhood can only be described as extremely dysfunctional. Her parents separated when she was seven years old. Within three years her mother had a new partner and they relocated from Auckland to Christchurch, with the applicant and her brother, Warwick. Both children were quite upset at leaving their father and somewhat resentful of Mr Smith, their mother’s partner. This escalated when in 1989 they all moved to Australia. Added pressures within the family, including unemployment and the finalisation of divorce proceedings, occurred during 1990. In September 1990 the children went to New Zealand on a holiday and towards the end of it, their father told them that they were staying there to live, as their mother didn’t want them any more. They lived there until 1994. Whilst Ms. Moore  excelled at school, she found her father extremely strict and resented her father’s de facto wife for trying to take her mother’s place. The relationship between both children and their father broke down and they moved out of his house towards the end of 1993. In early 1994 they returned to live with their mother and stepfather in Brisbane.

13.  This arrangement lasted only about six months. Ms. Moore and her brother moved out on their own and later Ms. Moore moved in with her boyfriend. It was through this relationship that she was involved in her first offence in 1995. Shortly after her then male friend returned to Taiwan, she was introduced to “speed”, the drug-world vernacular term for amphetamine drugs. Within four weeks she became addicted, increasing her intake from weekend use to four times a day.  Around March 1996 her brother Warwick introduced her to heroin and within a very short time she was supporting a $1000 per day habit.

14.  This habit continued whilst in prison, although to a substantially smaller degree. Whilst in prison, she developed a relationship with another prisoner, Peter Brennan. In August 1997 she overdosed, and her family, out of hurt and anger, cut all ties with her. As a result she came to depend further on Peter Brennan. In March 1998, Ms. Moore was given less than 24 hours notice of her release from custody. Her parents would not permit her to stay with them at that stage, because of her drug usage. Accordingly, it was arranged for her to move in with a Chaplain and his family, whom she had never met before. At this time deportation proceedings were on foot against her and the decision to deport, which is the subject of this review, was ultimately made on 1 April 1998. The stress of this news, together with her lack of family support, caused her to return to drugs and rely more on Peter Brennan. The two of them decided that they would spend her last few weeks in Australia together, which led to her arrest and conviction for aiding an escape in April 1998, she having assisted Peter Brennan to flee detention.”

12.At the AAT hearing before Deputy President Breen, a large amount of material was placed before the Tribunal to indicate that Ms. Moore was on the way to being rehabilitated.  It was said that she had benefited from drug counselling, she had begun studying a tertiary correspondence course, she had become a member of a prisoner advisory board, she assisted other prisoners with their legal matters and she was drug free.  Deputy President Breen decided to give Ms. Moore a second chance, he said, among other things:

“17.  It is the finding of the Tribunal that Ms. Moore’s  actual risk of recidivism is low, provided that she does not recommence drug usage. This was a fact conceded by the respondent. There is, however, a real risk, as with any drug addict, that she will relapse. When considering the impact of this particular risk on the protection of the Australian public, the Tribunal has taken the following factors into account. Ms Moore  is aware of this risk and the situations which elevate this risk; she has family support and a different attitude from that which she had when released in 1998; and her stepfather has assured the Tribunal that if Ms. Moore  were to relapse, he would be the first on the phone to the Police. The Tribunal considers Mr Smith to be a man of integrity, who will make tough decisions when he has to. Although he loves his stepdaughter, he has a young son whom he does not want exposed to drug usage. Given these factors, the Tribunal assesses the risk of recidivism as acceptably low enough to ensure the protection of the Australian Community.

…

19.  …. the expectation that she be deported is lessened by her extensive rehabilitation and the real likelihood that she will in time put back into the Australian community more than she has taken from it.

…

21.  If Ms. Moore remains in Australia, she has emotional and financial support from her family. She has an extended family network, including her Uncle and Aunt, Colin and Veronica Moore. They were a positive influence during the applicant’s early years and it is their evidence that they would have been there for Ms. Moore during her teens, but they were precluded from finding out her whereabouts by her father. Ms. Moore is currently enrolled in University and now has a trusting and open relationship with her counsellors.

22.  If Ms. Moore is deported to New Zealand she has less support available to her. Although it is likely that her father would support her financially, he has communicated with her only once in the last four years. Ms. Moore feels the relationship is such that she would not be comfortable residing with him. Ms. Moore brother, Warwick, is also in New Zealand and is still trying to re-establish himself there. There is some question as to the extent of his rehabilitation and his ability to provide financial and emotional support to the applicant. There are some other relatives in New Zealand, but given the evidence before the Tribunal, it is not clear whether such relationships, particularly with aunts and cousins, would be a positive influence on Ms. Moore. Ms. Moore would have to seek out new counsellors and support groups in New Zealand and it may take some time to establish the type of trust and rapport she has with those in Australia. Ms. Moore may be able to enrol in university in New Zealand and should be able to attain employment. However, this may be a more difficult task than in Australia, given the lower degree of support she will have there.

…

28.  As said at the outset, this has been a very difficult case.  The crimes committed are abhorrent and the descent into criminality quite rapid.  On the other hand, there is genuine and extensive rehabilitation by a young woman who has great family support here in Australia, and in all likelihood will become a positive contributing member of the community in the future.  Her risk of recidivism is low, provided she stays away from drugs.  Her attitude towards this is very realistic.  Ms. Moore is very aware of the fact that her criminal record remains with her forever, as does her liability to deportation.  These proceedings have served a very severe warning to Ms. Moore and she is also aware that if she transgresses her own family will alert the Police, to protect themselves and their community.

29.  As such, it is the Tribunal’s view that the Australian community is protected in this situation to such a degree as to allow Ms. Moore to remain in Australia;  and that given all the circumstances, community expectations would not require deportation, but rather allow for a second chance.  Such a second chance is not to be taken lightly.  Residence in Australia is a privilege and the slightest foot wrong will see Ms. Moore involved in a very speedy deportation, a fact of which Ms. Moore has been made very aware by me.”

13.Unfortunately, within five months after the AAT decision to give Ms. Moore a chance to prove her rehabilitation progress, she committed a criminal offence.  On 8 October 2000, she held up a small convenience store.  She was not sentenced for the offence until she appeared before Judge Newton of the Queensland District Court, Southport, on 3 April 2003.  Apparently the delay was caused by some administrative problem in the office of the Queensland DPP.

14.In between the commission of the offence on 8 October 2000 and the sentencing by Judge Newton on 3 April 2003, Ms. Moore committed other offences, for which she was convicted in the Inala Magistrates Court on 31 January 2001.  The offences were committed between 14 October 2000 and 31 January 2001 and involved stealing, fraud, failing to properly dispose of a needle and syringe, forgery and attempted escape by persons in lawful custody.  She was sentenced to various terms of imprisonment including two terms each of two years.

15.Consequently, Ms. Moore was already in prison when she appeared before Judge Newton on 3 April 2003.  Judge Newton’s sentencing remarks contain the following passages:

“Miss Moore, you have pleaded guilty to one count of armed robbery.  Shortly stated you held up a small store and threatened the person in the store with a knife and you took money from the till which is said to be in the order of $650.

The complainant during the hold-up in an attempt to either prevent you from taking the money or to apprehend you after you had taken the money is said to have grabbed your arm and punched you in the face some five times.  This caused you to bleed and after your escape the police swabbed the blood spots on the floor of the shop.  These later, after testing, were matched with a specimen of buccal cells from yourself.

…. notwithstanding the relatively low level of professionalism and low level of violence, at least from you, it calls for a sentence designed to deter both yourself and others from such conduct.

You have a very serious criminal history which includes offences of a like nature and this particular offence was committed whilst you were on a suspended sentence of which some six months remains to be activated.  It was also committed in breach of a parole order, I think you told me, Mr. Churchill, resulting from a Court of Appeal order in April of 1999.

I am told that your full time discharge date at the present time is the ninth of February 2004.  Your counsel has told me of your dysfunctional childhood and your significant history of drug abuse.  Notwithstanding that you have, it seems, a reasonable work history.  You have employment awaiting you in Western Australia as secretary in a family engineering business and the numerous certificates tendered by your counsel attest to the efforts that you have made towards rehabilitating yourself whilst in prison.

This matter ideally should have formed part of an order made when you were sentenced on the 31^st of January 2001, given that the order could not have then been made in the Magistrates Court.  Nevertheless, it seems to me that it is likely that had this matter been dealt with then you would have been sentenced to an effective head sentence of some four years.

Your situation is complicated by the need to avoid imposing a sentence today which will act as a crushing burden to you and extinguish any hope you have for release in a reasonable time-frame.  My intention is to do my best to have you released on post-prison community-based release as from the ninth of February 2005, thus adding a further 12 months to your sentence.

I order that you be imprisoned for three years.  That sentence is to be served cumulatively upon the sentence you are presently undergoing or, to use the terminology in section 156 of the Penalties and Sentences Act, the imprisonment imposed today is directed to start from the end of the period of imprisonment you have been sentenced to serve.  I recommend that you be considered eligible for post-prison community-based release as from the ninth of February 2005.”

16.In early June 2003, Ms. Moore applied for a re-opening of the sentence by Judge Newton on the grounds that the judge had been misinformed about various aspects of the sentences which Ms. Moore was then serving.  On 19 June 2003, Judge Newton varied the sentence by recommending for “post-prison community based release from 31 January 2003”.

17.Ms. Moore’s effective release date was 30 May 2006.

18.The legislation relevant to this review is contained in subsections 501(2), (6) and (7) of the Act.  They provide:

“s.501

(2)  The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test;  and

(b)the person does not satisfy the Minister that the person passes the character test.

…

Character test

(6)  For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));  or

..

(c)having regard to either or both of the following:

(i)the person’s past and present criminal conduct;  or

(ii)the person’s past and present general conduct;

The person is not of good character;  or

(d)in the event the person were allowed to enter or to remain in Australia, there is significant risk that the person would:

(i)engage in criminal conduct in Australia;

otherwise, the person passes the character test.

Substantial criminal record

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

….

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

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.”

19.There is no doubt that Ms. Moore has been sentenced to a term of imprisonment of 12 months or more.  She therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act.  She is therefore deemed by subsection 501(6) to not pass the character test.  Consequently, the delegate of the Minister was entitled to cancel Ms. Moore’s visa under subsection 501(2) of the Act.

20.However, notwithstanding the fact that the decision to cancel Ms. Moore’s visa was justified, section 501 allows for the decision-maker to exercise a discretion in each individual case.

21.The question for determination by the Tribunal is whether the discretion should be exercised in Ms. Moore’s favour.

22.Ms. Moore has produced material, witness statements and the witnesses mentioned in paragraphs 8 and 9 above to show that she has the intention of overcoming her drug addiction, which she submits led to her becoming involved in criminal activity.  A lot of the material has the same tenor and optimistic outlook as that material placed before Deputy President Breen in March/May 2000.  However, there have been some new developments and it is Ms. Moore’s case that she has made progress and she seeks another chance to get her life into an acceptable order.

23.Ms. Moore and her witnesses made the following points:

·     Whilst in prison Ms. Moore completed a number of programs designed to improve her ability to cope in the outside world.  The programs covered such topics as cognitive skills, relapse prevention, substance abuse, occupational health and safety, small business, advanced computer work, residential gardening and cooking.

·     Prison case officer reports indicate that while she was in prison her behaviour and work conduct were “excellent”.

·     Ms. Moore was placed on the methadone program while she was in prison.  She was later placed on the naltrexone program to combat her drug addiction.

·     In September 2003, Ms. Moore was approved for the work release program.  It took about two months to organise her naltrexone program.  In October/November 2003, she was transferred to the Helena Jones Community Correctional Centre at a Brisbane inner suburb.

·     On 19 January 2004, Ms. Moore obtained a job at a restaurant in one of the more elegant suburbs of Brisbane.

·     Ms. Moore successfully completed her work release and reintegration program and was then granted “home detention” on 28 May 2004.

·     She moved from the Helena Jones Centre to a house at Nerang, near the Gold Coast.  She obtained a car and drove to work each day, six days per week, from Nerang to Brisbane to work in the restaurant.

·     She had to continue with the naltrexone program and she was subject to random urine tests for drugs.

·     Ms. Moore successfully completed her home detention program and was granted parole on 28 August 2004.

·     She continued to work at the restaurant even though the hours were long and tedious.

·     Ms. Moore eventually completed her apprenticeship at the restaurant.  Her time as a cook in prison was also counted towards her training.

·     Ms. Moore is now a fully qualified chef.

·     Whilst working at the restaurant she became romantically involved with the son of the owner of the restaurant.  The son, Emmanuel Georgas, took an interest in Ms. Moore from about the first week she was employed at the restaurant.  However, initially Ms. Moore did not want him to know about her past and she told him that she was not the type of person he would want to associate with.  Eventually, Ms. Moore told Mr. Georgas about her past.  He did not believe her at first but when he realised she was telling him the truth it made no difference to his feelings towards her.  (Mr. Georgas’ father and brother knew about Ms. Moore’s past because  they were her employers, but they had not passed the information on to Emmanuel.)

·     Ms. Moore had a relapse in October 2004 when she used some “speed” and heroin.  She told her parole officer about the incident and was referred to a counsellor.

·     Ms. Moore moved back to Brisbane in January 2005.  She and Emmanuel obtained a house in a Brisbane inner suburb, and they started living in a de facto marriage arrangement.

·     Emmanuel has been very supportive of Ms. Moore.

·     In March 2005, Ms. Moore discovered that she was pregnant.  The baby is due on or about 24 October 2005.

·     Since being pregnant, Ms. Moore has been taken off the naltrexone program because her doctor is unsure of the effect of naltrexone on a foetus.  She has returned to the methadone program.  There are concerns that the baby will be born with a methadone addiction.

·     In March 2005, Ms. Moore obtained a job as a chef at an establishment at the Port of Brisbane.

·     On the morning of 23 June 2005 she was dressed in her chef’s uniform when she was taken into custody by officers of the Respondent.

·     She was placed in detention for a day or so and then released to her mother’s care.

·     Ms. Moore and Emmanuel have relinquished the lease on the house in which they were living together.

·     Ms. Moore has support in Brisbane from her mother, younger brother and Emmanuel.

·     Ms. Moore’s mother, Diane Tapsell, is a nurse by profession.  She has concerns for Ms. Moore’s baby.  She believes Ms. Moore will need a lot of support.

·     Ms. Moore has no support system in place in New Zealand.

·     If Ms. Moore has to return to New Zealand, Emmanual will go to New Zealand to live with her but it will be difficult for him.  Emmanuel has no family in New Zealand.  He knows no one there.  He would have to re-establish himself in a job from scratch.  He is 24 years of age.  He arrived in Australia with his parents from Rhodes, Greece, in 1984.

24.The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision-makers (including the Tribunal) are to take into account in exercising the discretion allowed for in section 501.

25.The Minister’s Direction 21 contains a large number of matters which a decision-maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled.  A number of the matters do not apply to Ms. Moore.  I regard the following matters as relevant to this review.

Protection of the Australian Community

26.The crimes which Ms. Moore committed are regarded by the Australian public as particularly repugnant.  The Australian community is entitled to be protected from non-Australian citizens who are likely to commit such offences.

27.The issue in this case is whether Ms. Moore is likely to re-offend.  If she can stay free of drug addiction there is a good chance that she will not re-offend.  If she falls back to drug addiction she will probably re-offend.

28.It has to be said in her favour that Ms. Moore’s behaviour since leaving prison in November 2003 has shown a determination to improve her life.  This is in stark contrast to the time before when she left custody in mid 2000 and was back to her old ways within a few months.

29.There are other differences too.  She now has a supportive partner in her life.  She is about to become a mother.  She has a professional qualification.  She is able to obtain a decent and rewarding occupation.

30.On balance it is likely that she will not re-offend.

Expectations of the Australian community

31.The Australian community is well known for its capacity to give people a chance to prove themselves.  Ms. Moore was given a second chance by Deputy President Breen in May 2000.  There would no doubt be a body of members of the Australian community of the opinion that giving Ms. Moore a third chance would be pushing the limit of tolerance too far.  However, it depends to a large extent, in my view, on whether Ms. Moore is to be regarded as a criminal who is yet to reform, or as a person who has been quite ill and is now recovering from that illness.

32.I believe that Ms. Moore has been unwell and I accept that she is motivated to recover.  Her recovery program is certainly more advanced now than it was in 2000.  I believe that in the circumstances of her case the Australian community would be prepared to give her more time to get back on her feet.

The best interests of children

33.Notwithstanding the fact that Ms. Moore is due to give birth to a child within about six weeks, there is currently no child to consider under this heading.

Other factors

34.I accept that Ms. Moore has no one in New Zealand to whom she could turn for ongoing support and assistance, other than Emmanuel if he was to accompany her there.  Contrasted with the New Zealand situation is her situation in Australia where she does have high quality family support.

35.Ms. Moore will soon give birth to a baby which will almost certainly have drug withdrawal problems.  This will create added stress for Ms. Moore.  I believe that to send a heavily pregnant woman, with a fragile mental makeup, to a country in which she has no proper family support, would be harsh and callous.

36.I am conscious of the fact that Ms. Moore has been previously given a second chance but I also believe that her situation is gradually improving and that there is light at the end of the dark tunnel.

37.The discretion allowed for under section 501 of the Act should be exercised in her favour so that her visa not be cancelled.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:          .....................................................................................
            R. Link Associate

Date/s of Hearing  19, 22 August 2005 
Date of Decision  13 September 2005
Applicant   Ms. Moore, herself
Solicitor for the Respondent      Clayton Utz solicitors