MPML and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 807

MPML and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 807 (19 April 2024)
Division:GENERAL DIVISION
File Number: 2023/7386
Re:MPML
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:19 April 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
.............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory Visa cancellation – Malaysian citizen – Class WA Subclass 010 Bridging A Visa – failure to pass the character test – drug trafficker – drug possession - criminal record – whether there is another reason why the mandatory Visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision set aside and substituted with a decision revoking the original visa cancellation.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)

Cases
Bartlett and 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
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
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 and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
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
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and 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
19 April 2024
INTRODUCTION

MPML seeks review of the Respondent’s delegate’s 11 September 2023 decision not to revoke the mandatory cancellation of her Bridging (Class WA) visa (the Visa).[1]
[1] G documents (bookmarked G1-G22), G3, page 12. 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 15 January 2024. MPML represented herself. The Respondent was represented by Mr Kyranis, a legal practitioner with Sparke Helmore Lawyers. The hearing was assisted by a Malay interpreter.
The Tribunal is indebted to Mr Kyranis for his skilful and effective advocacy and his assistance in helping ensure procedural fairness during the hearing.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
MPML is 27-year-old Malaysian citizen who arrived in Australia on 11 March 2018.[2] [3]
[2] Exhibit G: G8, page 58.
[3] Exhibit G: G20, page 108.
On 16 June 2022, His Honour Judge Massey of the Western Australian District Court sentenced MPML to a term of imprisonment of five years and six months after her conviction on the charge of ‘Attempt to possess prohibited drugs with intent to sell or supply’ (the Index Offence).[4]
[4] Exhibit G: G6, pages 34 – 49.
On 12 July 2022, MPML’s Visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) [5] because she did not pass the character test given her ‘substantial criminal record’.[6]
[5] Exhibit G1:G3, page 17.
[6] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
On 16 July 2022, MPML made representations to the Respondent seeking to have the cancellation decision revoked under section 501CA of the Act.[7]
[7] Exhibit G1: G8, page 59.
On 27 June 2023 MPML departed Australia.[8] She is presently living in Malaysia.
[8] Exhibit G: G20, page 108.
On 11 September 2023, a delegate of the Respondent found that the power under subsection 501CA(4) of the Act to revoke the mandatory cancellation of MPML’s Visa was not enlivened.[9] Consequently MPML’s Visa remained cancelled.
[9] Exhibit G1:G3, page 15.
OFFENDING HISTORY
MPML’s offending is summarised chronologically below.

Date Offence Sentence

21 June 2022 Possessed drug paraphernalia in or on which there was a prohibited drug or plant. Fine of $300

21 June 2022 Possessed drug paraphernalia in or on which there was a prohibited drug or plant. Fine of $300

21 June 2022 Possessed a prohibited drug Fine of $750

16 June 2022 Attempt to possess prohibited drugs with intent to sell or supply’ (the Index Offence) Term of imprisonment of 5 years and 6 months

His Honour Judge Massey District Court’s 16 June 2022 sentencing remarks are pertinent and relevant sections relating to MPML are quoted in ‘Annexure B’.[10]
[10] Exhibit G: G6.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), oblige the 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. A person fails the test if they have a ‘substantial criminal record’ which is defined by section 501(7) 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;[11] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[12] or
(ii)there is another reason why the original decision should be revoked.[13]
MATTERS FOR CONSIDERATION
[11] Pursuant to s 501CA(4)(a) of the Act.
[12] Pursuant to s 501CA(4)(b)(i) of the Act.
[13] Pursuant to s 501CA(4)(b)(ii) of the Act.
THE CHARACTER TEST
The first issue for the Tribunal to consider is whether MPML fails to pass the character test.
MPML received a sentence of five years and six months’ imprisonment on 16 June 2022.[14]
[14] Exhibit G1:G4, page 31.
MPML’s Visa was cancelled on the basis that she did not pass the character test once the delegate considered and then applied section 501(6)(a).
On 16 June 2022, MPML received a sentence of a term of imprisonment of 5 years and 6 months. Consequently, the Tribunal finds that she has a substantial criminal record and fails the character test. Section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.[15]
[15]Sections 501(6)(a) and 501(7)(c) of the Act.
As MPML fails the character test, then the second issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[16] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[17]
[16] 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).
[17] 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).
IS THERE ANOTHER REASON WHY MPML’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,[18] 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….’
[18] 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 in its assessment of whether to revoke a cancellation of a person’s visa, s 499(2A) of the Act requires the decision-maker (in this case the Tribunal) 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).[19]
[19] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
THE DIRECTION
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[20]
[20] 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:[21]
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.
[21] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
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.
Paragraph 7(1) 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.’
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.[22] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[23]
[22] 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.
[23] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is a summary of the evidence tendered or adduced before the Tribunal including oral testimony.
Documentary evidence
The Tribunal received written evidence, a copy of which is attached to this Decision and marked ‘Annexure A’.
The Tribunal identified MPML’s statements within the written evidence as designated and described below:
·Request for Revocation of a Mandatory Visa Cancellation under S501(3A) dated 16 July 2022.[24]
·Personal Circumstances Form.[25]
·Letter dated 18 October 2022.[26]
[24] Exhibit G: G8, pages 60-61.
[25] Exhibit G: G9, pages 73 and 76.
[26] Exhibit G: G17, page 99.
Oral Testimony
MPML was the only witness.
THE TRIBUNAL’S ASSESSMENT OF MPML AS A WITNESS
The Tribunal has considered and assessed MPML’s oral testimony. Her testimony, via an interpreter, was useful in identifying and contextualising details of her offending and her actions that are difficult or impossible to ascertain by relying solely on the documentary evidence in this matter.
Rather than a relentless shifting of blame and an avoidance of responsibility, MPML took a nuanced approach that clearly differentiated between where she took exception to the characterisation of her offending as opposed to denying the fact of her offending and conviction. She presented as calm, measured, straightforward and candid rather than insincere and calculating. She was an articulate and competent advocate, particularly given the hearing’s circumstances and her lack of English.
Articulating the task before it, the Tribunal will now apply and consider the oral testimony, together with the documentary evidence and both parties’ submissions, against the Direction’s requirements.
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.
The nature and seriousness of MPML’s conduct
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.
Tribunal’s Consideration: The nature and seriousness of MPML’s conduct

The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction in addition to the documentary evidence and His Honour Judge Massey’s 16 July 2022 sentencing decision.
The Respondent contends that the Tribunal must find MPML's criminal history to be very serious based on the following:[27]
·The Minister contends that this offence should be viewed as very serious noting that the maximum available penalty was life imprisonment, the significant quantity of the drug involved, MPML’s role in the drug being imported, and observing that the categories of offences described in paragraph 8.1.1 (l)(a) of Direction 99 is non-exhaustive.
·MPML also appeared in the Perth Magistrates Court on 21 June 2022 and was issued with fines for possessed drug paraphernalia (two offences) and possess a prohibited drug (methylamphetamine).
·Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[28] 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. The fact that MPML was sentenced to a lengthy term of imprisonment with no prior criminal history demonstrates the seriousness of her offending.
[27] Exhibit R1: Respondent’s SFIC, [26] – [29].
[28] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The Respondent makes the following contentions in regard to the possibility of MPML reoffending or engaging in other serious conduct and the consequential risk to the Australian community:
·This is a case that the risk of harm is so serious that any risk of reoffending is unacceptable (paragraph 8.1.2(1) of Direction 99). As the sentencing judge pointed out about methylamphetamine, it is ‘responsible for a lot of misery’.[29]
·Further drug related offending MPML is likely to cause significant psychological, financial and physical harm to members of the Australian community. In the Final Report of the National Ice Taskforce, 2015, the effect of methamphetamine was described as follows:
‘Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.’ [30]
·According to the Australian Institute of Health and Welfare, there has been a rapid increase in the number of deaths involving methamphetamine and other stimulants with 2021 death rate four times higher than that in 2000.[31]
·This primary consideration weighs heavily against revocation.
[29] Exhibit G: g6, page 38.
[30] and Exhibit R2, TB3.
[31] Exhibit R2: TB2.
The Tribunal will now summarise MPML’s arguments as to the nature and seriousness of her conduct as it understands them from her statements and her testimony:
·She was young and naïve and was asked by her employer to do a favour without any knowledge of the contents of what was in the box. In her words.
‘On December 2019 my boss had asked me if I could assist him in picking up a parcel from the post office. As he was my boss I felt obligated to do so and also because he did not speak English very well at all. I asked what was in the parcel, he said it was brand-new raincoats for the workers on the farm. I was instantly pleased to hear was raincoats because that meant I would be getting one of the raincoats. Without being said, I agreed to assist him and picking up the parcel.
My boss picked me up from my house and drove me to the post office. As we arrived, he waited in the car and told me to go inside the post office to collect the parcel. Once I collected the parcel, I walked outside the post office and then towards a car. My boss got out of the car and opened up the boot and told me to lift up the tyre and place the parcel underneath. I merely felt something was not quite right because of the fact he mentioned to me earlier that it was raincoats, it may be question why couldn't I just hold the parcel in my hand in the car. Although feeling unusual, I just did as he asked
We left the Post Office only drop me off back to my house. Keeping in mind that was the first and only time I had touched, handled and physically send the parcel. I didn't even get to see the contents of this parcel as that was also the last time I had spoken to and see my boss.’[32]
and
‘Being 22 years of age at that time, I definitely feel that I was taken advantage of because I was gullible, naïve and had very little knowledge of anything like this. All I was doing with my time was working on the farm, trying to save up money.’[33]
·She had a lack of awareness as to what methylamphetamine could do to herself and to others. In her words:
‘I was very young and I even got caught up in a scene like no other I have experienced. I had a lack of awareness as to what this drug could do to myself and to others. I feel I had a severe lack of good judgement and had also developed a habit which led me to making rash decisions which I clearly regret.’[34]
·She felt that she suffered from a severe lack of good judgement and had developed a drug habit which led her to making rash decisions at the time of the Index Offence that she now regrets.
·She sought to qualify the offence of which he was found guilty. Stating that the charge was ‘Attempt to possess prohibited drugs with intent to sell or supply’ she claims that she never sold any drugs.
[32] Exhibit G: G17, pp 99-100, Statement dated 18 October 2022.
[33] Exhibit G: G17, page 100, Statement dated 18 October 2022.
[34] Exhibit G: G9, page 73, Personal Circumstances Form.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii), 8.1.1(b)
There is no evidence presently before the Tribunal which suggests that MPML’s offending enlivens these paragraphs.
The Tribunal considers that these paragraphs carry neutral weight.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on MPML for:
(i)any violent offending that he may have committed against women or children;
(ii)acts of family violence; and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
MPML was sentenced to a term of five years and six months’ imprisonment for an offence that allowed for a maximum penalty of life imprisonment.
When considering MPML’s offending through the lens of this paragraph, the Tribunal acknowledges Judge Massey's remarks that while he was satisfied that MPML’s role was 'towards the very bottom of the drug distribution network’, the fact that she was entrusted with a significant amount of methylamphetamine meant that he could not treat her offending as being at the lowest end of the scale of offending. He considered and assessed her offending as 'slightly below mid-range offending of its type’.[35]
[35] Exhibit G: G6, page 39.
The Tribunal also notes Judge Massey’s statement: ‘I am sentencing each of you on the basis that your involvement was to collect the package and then deliver it to a third party.’[36]
[36] Exhibit G: G6, page 38.
The Tribunal considers that this paragraph and MPML’s sentence carries some weight in favour of affirming the delegate’s decision not to revoke the cancellation of MPML’s Visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: it’s frequency and/or whether there is any trend of increasing seriousness.
Frequency
MPML’s offending can be divided in two:
·a period of prohibited and illegal drug use, evidenced by her convictions for possessed drug paraphernalia in or on which there was a prohibited drug or plant, and possess a prohibited drug (methylamphetamine); and
·her Index Offence which constituted drug trafficking
The Tribunal has considered the above and the evidence of MPML’s drug use and finds that there is an indeterminate frequency of her offending in terms of prohibited and illegal drug use.
Given a single instance of the Index Offence, the Tribunal finds that there is no frequency to this offending.
Trend of increasing seriousness
After considering MPML’s criminal history,[37] the Tribunal again differentiates and distinguishes her drug use from her involvement in drug trafficking for the reasons articulated below relating to the impact of methylamphetamine use on an individual’s judgment and cognitive functions.
[37] Exhibit G1: G4.
Treated separately, there is no trend in terms of drug use or drug trafficking. Each stand as singular instances of offending.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of MPML’s repeated offending, if any.
MPML’s offending consists of an indeterminate period of prohibited and illegal drug use, evidenced by her convictions for possessed drug paraphernalia in or on which there was a prohibited drug or plant, and possess a prohibited drug (methylamphetamine) and her Index Offence.
Neither constitute evidenced repeated offending. The closest approach to this is the mixed evidence as to how long MPML used drugs. The mixed and unreconciled evidence suggests that the period of her drug use fell between 2 months to 12 months in duration.
The Tribunal finds that this paragraph carries neutral weight.
Paragraphs 8.1.1(1)(f), (g) and (h)
There is no evidence presently before the Tribunal which suggests that MPML’s offending enlivens these paragraphs.
The Tribunal considers that these paragraphs carry neutral weight.
Tribunal’s finding: The nature and seriousness of MPML’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the applicable paragraphs addressed above, the Tribunal finds, after holistically synthesising the relevant evidence and considering MPML’s actual sentence as opposed to the maximum sentence, that the totality of MPML’s unlawful conduct in Australia should be characterised as serious.
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 consider and assess the risk MPML poses to the Australian community if she reoffends, taking into consideration the nature of any harm and its probability.
Paragraphs 8.1.2(1) and 8.1.2(1)
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.
Tribunal’s Consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In assessing the risk to the Australian community, the Tribunal has considered MPML’s oral testimony, the documentary evidence and MPML’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Respondent makes the following contentions in regard to the possibility of MPML reoffending or engaging in other serious conduct and the consequential risk to the Australian community:
·The Respondent contends that there is insufficient evidence to support a conclusion that MPML is now rehabilitated. The Tribunal should instead conclude that the risk of further offending by MPML is unacceptable. In this regard the following matters are relevant.
oThere is no psychological opinion providing any professional risk assessment of MPML’s likelihood of reoffending.
oMPML has demonstrated a lack of remorse and acceptance of her own wrongdoing. She pleaded not guilty to the drug offence and continues to deny the offending despite being convicted by a jury. She said in her representations to the Department that she was ‘wrongfully trailed’.[38] The sentencing judge agreed and said that ‘I don’t have any real evidence of remorse’.[39]
oAs an explanation for her offending, MPML said in her representations that she developed a drug habit which led to her making rash decisions. She does not appear to appreciate the significance of her drug habit since she told prison authorities in July 2022 that she does not have a problem with drugs and does not need any help.[40]
oMPML has provided several certificates for courses completed in jail, but most of those are for vocational courses and only one has been provided for drug addiction. This course was described as a ‘AOD brief intervention’ which she completed in April 2021. Her rehabilitation is in its early stages since she has only completed one relevant course especially in the context of a 12 month history of using methylamphetamine. The sentencing judge also pointed out that MPML claimed in a pre-sentencing report that there were benefits to her methamphetamine usage, which the judge considered demonstrated a need for further counselling in drug misuse. In any event, MPML’s rehabilitation has not been tested in the Australian community where drugs are more readily available.
oMPML has not identified any protective factors in the Australian community, such as friends or family members, who she could seek support from in order to avoid drug use and offending.
[38] Exhibit G1: G17, page 99.
[39] Exhibit G1: G6, page 42.
[40] Exhibit G1: G16, page 94.
The Tribunal now summarises MPML’s arguments as to the risk to the Australian community faces should she commit further offences or engage in other serious conduct as it understands them from her statement and testimony:
·She says that she has learned her lessons from this experience and returned to her faith. She claims to be very remorseful and ashamed of her actions:
‘I fully believe I have learnt my lesson from this one experience in my life. I have returned to my faith. I am practising good spiritual faith and healthy living. I am truly embarrassed about the situation I got myself into and very remorseful and ashamed of my actions.’[41]
[41] Exhibit G: G9, page 73, Personal Circumstances Form.
·She provided the following testimony under cross-examination:
‘Mr Kyranis: So the judge is talking about you. And then in the fourth paragraph commencing:
‘When you came to Australia, you initially lived in Melbourne but ultimately moved to Perth where you worked as a farm worker, sending some of your income to your family in Malaysia. You’ve had one significant relationship with a lady who accompanied you to Australia but you’re currently single. You were a user of methylamphetamine for approximately 12 months and you have no criminal record.’
So the judge is really talking about you when the judge said that you were using methamphetamine for 12 months.
MPML: Did you say 12?
Mr Kyranis: Yes, the judge said 12 months. So what I’m asking is how long were you using methamphetamine for when you were in Australia? Was it 12 months or was it one or two months as you said before?
MPML: Okay. I properly started using drugs or regularly started using drugs for a month or two. If you want to talk about the 12 months, people were trying to get me on it and showing me how to use it. But that would be 12 months, yes.
Mr Kyranis: In the one or two months that you say that you were using drugs regularly; how often were you using the drug?
MPLP: (Indistinct) every day. (Indistinct) once a day. (Indistinct). Yes, so once a day before I would go to work.
Mr Kyranis: In that paragraph that I just read out, the judge is saying that you were a user of methylamphetamine for approximately 12 months. The judge is not saying you were asked to use methamphetamine and did use it for a total period of 12 months. The judge is clearly saying you were using for 12 months, so do you still maintain that you’ve only used it for one or two months?
MPML: Yes. Yes, so I started – I started using drugs or playing with – playing around with drugs, yes, 12 months first.
Mr Kyranis: So is it the case that there was a 12-month period that you were using drugs but there was a one or two month period within that 12 month period that you were using it every day?
MPML: Yes, correct.’[42]
·She provided the following testimony in response to the Tribunal’s questions as to how she was endeavouring to avoid using drugs:
‘Tribunal: Thank you. Now, obviously in prison, you didn’t take drugs. Have you been offered drugs since you were back in Malaysia?
MPML: Okay, so I’ll make sure that I got this question correctly. (Indistinct) try interpret, and Member Cosgrave. Okay – okay, thank you. I (indistinct) with and constantly avoid these people that I know or used to hang out with that – that are in that sub-culture.
Tribunal: If you were allowed back into Australia and were offered drugs, what would you do to avoid them?
MPML: I’m going to not have anything to do with any of these people. There is no reason for me to even tell them that I’m back. There is no reason for me to communicate with them.’[43]
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were MPML to engage in further criminal or other serious conduct.
[42] Transcript, page 19, line 17 – page 20, line 15.
[43] Transcript, page22, lines 17 – 41.
In considering the nature of the harm, the Tribunal has recourse to its earlier differentiation between MPML’s drug use and her drug trafficking.
Assessing the evidence, the Tribunal considers and finds that if MPML was allowed into the Australian community and began to personally use methylamphetamine again, then it is likely it would result in both harm to her and create potential indirect adverse societal effects.[44]
[44] Exhibit R2: TB2 and TB3.
The Tribunal considers that the nature of the harm to individuals or the Australian community if MPML became involved in trafficking drugs again would be far worse and more widespread.[45]
Tribunal’s Finding: The nature of the harm to individuals or the Australian community were MPML to engage in further criminal or other serious conduct.
[45] Exhibit R2: TB2 and TB3.
If, in the future, MPML was allowed into the Australian community and offends or engages in drug use, the nature of the harm to herself would likely involve consequential physical, psychological and financial harm. The Tribunal finds the nature of the harm to individuals or the Australian community should MPML engage in drug use to be serious.

In contrast, if MPML was allowed into the Australian community in the future and offends or engages in drug trafficking, the nature of the possible harm to other individuals and the Australian community would be far worse, likely creating significant and widespread physical, mental and financial harm and imposing substantial costs on Australian society.
The Tribunal finds the nature of the harm to individuals or the Australian community should MPML engage in further drug trafficking in the circumstances of paragraph 8.1.2(2)(a) to be very serious.
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 and contentions before it that are relevant to assessing the likelihood of MPML 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], 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 MPML engaging in further future criminal or serious conduct.
In conducting this assessment, the Tribunal has the benefit of His Honour Judge Massey’s sentencing decision, the Australian Institute of Health and Welfare report and the National Ice Task Force’s Final Report.[52] [53] [54]
[52] Exhibit G: G6, pages 35-49.
[53] Exhibit R2: TB2.
[54] Exhibit R2: TB3.
A consideration of the risk or likelihood of MPML 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”.’
The Tribunal will also continue to distinguish between MPML’s drug use and her drug trafficking.
Factors that facilitate the risk
MPML gave evidence about her introduction to, and personal use of, methylamphetamine. The Tribunal considers that this personal use was a significant factor in her actions on 10 December 2019 in regard to her actions involving the package containing methylamphetamine.
She claims not to have used drugs while in prison or since she has returned in Malaysia. There is no evidence before the Tribunal to support or negate her claim.
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.
MPML used methamphetamine. It is unclear for how long she did this and with what regularity and under what conditions.
Methamphetamine is a highly addictive stimulant that has significant effects on an individual’s central nervous system. In making decisions, methamphetamine abusers will tend to choose an immediate reward at the expense of severe negative consequences in the future. The National Ice Taskforce’s Final Report supports these findings.[55]
[55] Exhibit R2: TB3.
The Tribunal has considered the evidence and information before it in this matter. It finds that it is likely that MPML’s methamphetamine use impaired her judgment and decision-making and contributed to her involvement in drug trafficking.
Factors that hinder or retard the risk – Rehabilitation and Remorse
MPML provided oral testimony about her renewed faith and spiritual practices, her renewed relationship with her girlfriend and her current work in Malaysia.
The Tribunal, having questioned MPML about her faith, considers that her renewal of faith is no mere shibboleth but is substantive and genuine. Her oral testimony evidences her regrets and remorse about her offending.
She provided oral testimony regarding her participation in rehabilitation courses whilst in prison:
‘Mr Kyranis: You completed a drug course in gaol called ‘AOD (indistinct) Intervention’ in April 2021; didn’t you?
MPML: I did – I did. Yes.[56]
Mr Kyranis: What did you learn from that course?
MPML: It was very good – It was very good. I learn from the course that nothing good is going to come out of taking drugs. It just destroys you and makes everything bad for you. (Indistinct.)
Mr Kyranis: How long did that course go for?
MPML: It was a three-day course – three days.’[57]
[56] Exhibit G: G14, page 90.
[57] Transcript, page 20, lines 17 – 30.
There was evidence of additional training undertaken by MPML whilst in prison:
·Statement of Attainment - SITXFSA001 USE HYGIENIC PRACTICES FOR FOOD SAFETY[58]
·Statement of Attainment - SITHFAB005 PREPARE AND SERVE ESPRESSO COFFEE[59]
·Statement of Attainment - APPLY BASIC COMPUTER SKILLS TO LANGUAGE LEARNING[60]
·Statement of Attainment - MANAGE PERSONAL BILLS[61]
·Statement of Attainment - USE RECIPES TO PREPARE FOOD[62]
·Statement of Attainment - CUAACD101 USE BASIC DRAWING TECHNIQUES[63]
·Statement of Attainment - PLAN HEALTHY EATING ON A BUDGET[64]
·Statement of Attainment - BSBWHS201 CONTRIBUTE TO HEALTH AND SAFETY OF SELF AND OTHERS[65]
·Certificate of completion One Star Food Safety and Hygiene Training[66]
·Certificate of completion Cognitive Brief Intervention Cognitive Skills[67]
[58] Exhibit G: G13, page 81.
[59] Exhibit G: G13, page 82.
[60] Exhibit G: G13, page 83.
[61] Exhibit G: G13, page 84.
[62] Exhibit G: G13, page 85.
[63] Exhibit G: G13, page 86.
[64] Exhibit G: G13, page 87.
[65] Exhibit G: G13, page 88.
[66] Exhibit G: G13, page 89.
[67] Exhibit G: G15, page 91.
Ms Johnson’s 24 February 2022 letter eloquently addresses MPML’s rehabilitation, her willingness to accept responsibility and other factors such useful employment that hinder risk.[68] [69]
[68] Exhibit G: G12, page 80.
[69] Transcript, page 22, lines 20-26.
The Tribunal has also considered the oral testimony quoted above where MPML explains how she seeks to avoid associating with individuals in the Australian drug sub-culture.[70]
[70] Ibid.
Risk Management Factors
The evidence identifies several static and dynamic risk management factors for MPML These include a network of family and friends, most especially her girlfriend and MPML’s desire to build a life with her, and the coping strategies that MPML has learnt and appears to have now applied to her life after her conviction and sentencing.
While these have not been tested in the Australian community, they were tested in prison and in Malaysia. There is no evidence before the Tribunal that they have been ineffective in either the qualified conditions of prison or in the general Malaysian community, although an absence of evidence does not prove a point.
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 Respondent contends that there is insufficient evidence to allow the conclusion that MPML is rehabilitated. However, the absence of a psychological opinion or professional risk assessment does not necessarily establish a lack of successful rehabilitation.[71] Her apparent lack of remorse as observed by Judge Massey can be placed in the context of her statement that she disagreed with the drug trafficking charge’s wording on the literal basis that she never sold drugs and the fact that English is not her native language.[72] [73] The Respondent cites MPML’s July 2022 statement that she does not have a problem with drugs and does not need any help as evidence of her lack of rehabilitation. Again, the lack of evidence in respect of this does not establish a lack of rehabilitation.[74] MPML’s earlier claims in her pre-sentencing report that there were benefits to her methamphetamine usage are now qualified or contested by her more recent oral testimony.[75] The Respondent does validly cite MPML’s lack of any protective factors in the Australian community such as friends or family members.
[71] CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [79].
[72] Exhibit G: G19, page 99.
[73] Exhibit G: G6, page 37.
[74] CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [79].
[75] Transcript, page 20, lines 24-26 and page 22, lines 36-41.
The Tribunal considers that there is ‘a’ risk that MPML will resume using drugs. While her employment in Australia appears to have been a driver of her drug use, the Tribunal will balance her evidenced rehabilitation efforts whilst in prison against this risk factor.
The Tribunal further considers that there is ‘a’ risk that MPML will engage in drug trafficking. Her drug use, with its impairment of her decision-making and judgment, appears to have been a driver of her offending in this respect, leading her to make risky choices for short-term gains and lower probability rewards. Balanced against this are the harsh lessons she learned from her conviction and imprisonment, her renewed religious belief and her renewed relationship with her girlfriend, both of which the Tribunal treats as positive risk management factors, as well as her avoidance of the drug sub-culture.[76] The key issue to managing this risk is MPML avoiding using drugs.
[76] Transcript, page 22, lines 36 – 41.
These two identified and separate risks – the risk of using drugs and the risk of trafficking drugs - can be dissected and analysed as the products of the nature of any further criminal or other serious conduct that MPML may engage in future if returned to the community and the likelihood of that criminal or other serious conduct happening.
The nature of any further criminal or other serious conduct that MPML may engage in in the future is considered above.
In considering the likelihood, and applying Guo, there appears to be a small likelihood that MPML will resume consuming drugs.
On this basis, there appears to be even a smaller likelihood of MPML resuming her involvement in drug trafficking.
A consideration of the likelihood of MPML 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”.’
MPML’s offending in terms of drug use seems related to her work in Australia and the people she worked for and with. Her involvement in drug trafficking arises from this context. Further risk factors include her youth, inexperience and naivety, along with the impairment effects of methylamphetamine, all of which are being or have been mitigated.
Her relationship with her girlfriend is a risk management factor but should be qualified on the basis that it did not stop her drug use in Australia.
She expresses remorse and the Tribunal acknowledges that her expressed shame may inhibit her from engaging in acts of remorse given her age, gender and circumstances in Malaysia.
Methylamphetamine use impairs decision-making and judgment. Methylamphetamine-dependent individuals have been found to exhibit maladaptive decision-making characterised by a preference for immediate gains over long-term consequences, leading to risky choices for lower probability rewards.[77] MPML’s demonstrated ability to cease using methylamphetamine is a strong risk management factor.
[77] Lake MT, Shoptaw S, Ipser JC, Takada S, van Nunen LJ, Lipinska G, Stein DJ, London ED. Decision-Making by Patients With Methamphetamine Use Disorder Receiving Contingency Management Treatment: Magnitude and Frequency Effects. Front Psychiatry. 2020 Feb 18;11:22. doi: 10.3389/fpsyt.2020.00022.
Synthesising the above and considering them holistically, the Tribunal concludes that MPML’s static risk factors remain as real but small risks, and that, in the case of her age, naivety and inexperience, are diminishing. Her static risk management factors such as her faith and her relationship are relevant but qualified given that they did not deter her drug use. MPML displayed a strong and consistent level of insight into why she offended, qualified by her literal differences with the Index Offence’s description.
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 there is a risk to the Australian community of MPML engaging in further criminal or other serious conduct.
Given the balance of static and dynamic risk and risk management factors, the Tribunal considers that this risk is small in terms of possible future drug use and smaller still in terms of becoming involved in drug trafficking.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs slightly in favour of affirming the delegate’s decision to not revoke the cancellation of MPML’s Visa but is not determinative.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Both parties contend that is not a relevant consideration in this matter.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration carries 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.

The Respondent’s contentions on this point are:
·MPML does not have strong ties to Australia. She did not declare in her personal circumstances form any family members living in Australia.[78] It appears that she has a brother and a sister living in Perth.[79]
·MPML moved to Australia as a 21-year-old and lived here for 5 years. She was not ordinarily resident in Australia during and since her formative years. She arrived in Australia in March 2018 and committed the serious drug offence in December 2019. The Minister contends that less weight should be given to her length of time in Australia given she began offending soon after her arrival. It is also noteworthy that she was serving a sentence in jail for 75% of the total time that she was in Australia.
·In respect of her positive contributions to the Australian community, she has declared employment in catering whilst in jail and has submitted a work reference to support that. Little weight, if any, should be given to this employment as evidence of a positive contribution since she was employed in jail whilst serving a lengthy term of imprisonment.
·The Respondent Minister contends that, at best, only slight weight should be given to this primary consideration in the applicant’s favour.
[78] Exhibit G: G9, page 72
[79] Exhibit G: G16, page 98. See Transcript, page 9, lines 24-40 – the individuals are not blood relatives but are considered to be cultural family members as they and MPML all come from the same Malaysian kampong.
Tribunal’s Consideration
The Tribunal notes that in addition to working whilst in prison MPML also worked in the general community from her arrival to her arrest.
While the two individuals in Perth are cultural, rather than blood, family members, MPML’s uncontested evidence, supported by the prison records, shows she was in contact with them while in prison.[80]
[80] Exhibit G: G16.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
This consideration carries some weight in favour of setting aside the delegate’s decision to cancel MPML’s Visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Both parties contend that is not a relevant consideration in this matter.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration carries neutral weight.
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 (FCAFC) 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.[81]
[81] 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’.[82]
[82] 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.’[83]
[83]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:
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 cancellations of a visa, However, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. 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) 8.4(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.
MPML’s offending does not enliven any of the specific sub-paragraphs of Paragraph 8.5(2).
The next question the Tribunal will consider is whether there are any factors which modify the Australian community’s expectations, as informed by the principles in paragraphs 5.2(4) to (6) of the Direction.
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.
MPML’s Visa was a Class WA Subclass 010 Bridging A visa. This Visa allowed its holder to remain in Australia temporarily.[84] Consequently, the Visa can be classified as a limited stay visa.[85]
[84] Reg 444.511 of Migration Regulations 1994 (Cth).
[85] MCGLONE AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2022] AATA 3202 AT [194]; WALKER V MINISTER OF HOME AFFAIRS [2020] FCA 909 AT [29].
MPML moved to Australia as a 21-year-old and lived here for 5 years.
This implies that sub-paragraph 5.2(4)’s lower tolerance does apply.
Tribunal’s Consideration
The Respondent contends that this primary consideration weighs heavily against revocation.
The Tribunal has found the totality of MPML’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 MPML poses ‘a’ risk of re-offending and that the risk is significant.
The Tribunal is satisfied that MPML 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 or return to Australia.
Balanced against this finding is the Tribunal’s earlier finding that MPML’s drug use impaired her decision-making.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs very slightly in favour of affirming the delegate’s decision not to revoke the cancellation of MPML’s Visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration (a): Legal consequences of the decision
MPML made an application for a protection visa. She withdrew her application on 9 June 2023 after a delegate refused to grant the visa.[86]
[86] Exhibit G: G19.
Her Visa was granted on 29 May 2018. The Visa would have ceased by operation of law 35 days after the applicant withdrew her protection visa application.[87]
[87] Clause 010.5ll(l)(b)(v) of Schedule 2 to the Migration Regulations 1994 (Cth).
MPML requested removal from Australia on 21 June 2023.[88] She departed Australia on 27 June 2023 and now lives in Malaysia. In her Personal Circumstances Form she did make a claim to fear harm from her father if she returned to Malaysia because she is a lesbian.[89] However, this statement was made prior to her removal from Australia. As she has since returned to Malaysia, non-refoulement obligations are not owed in this case.
[88] Exhibit G: G18 – the Tribunal notes that MPML’s oral testimony disputes that she requested removal.
[89] Exhibit G: G9, page 76.
There is no claim, and nothing on the material to suggest to the Tribunal that Australia’s non-refoulement obligations are enlivened in respect of MPML.
The Tribunal observes that it is unlikely, if the Tribunal sets the delegate’s decision aside, that MPML would be granted a new visa in the immediate future, especially in light of Judge Massey’s finding that she is a drug trafficker. A longer interval with evidence of abstaining from drugs and other criminal acts, together with enjoying employment and education in Malaysia may help MPML in any future visa application.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal finds 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.
Tribunal’s Consideration
Since MPML voluntarily returned to Malaysia in June 2023, and this consideration is directed to impediments if removed, the Respondent contends that this consideration is not relevant.
MPML is 26 years old and declared no diagnosed medical or psychological conditions.[90] She is unlikely to face any linguistic or cultural barriers since she was born in and grew up in Malaysia until her departure when she was 21 years old. As a Malaysian citizen, she has the same access to social, medical, mental health support and economic support as other citizens in terms of establishing herself and maintaining basic living standards. Any impediments that MPML may face in terms of establishing herself and maintaining basic living standards would likely have been temporary and would not be insurmountable.
[90] Exhibit G: G9, page 75.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
MPML is 26 years old.
There was no evidence of physical or mental ill-health before the Tribunal.
Having seen MPML give testimony by video and based on the evidence before it, the Tribunal does not consider that she suffers any major health problems at the current time.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal concludes based on the material before it that MPML would not face any substantial language or cultural barriers in Malaysian, especially based on her current residence and her oral testimony.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, as a Malaysian citizen, MPML has access to levels of healthcare and welfare in Malaysian commensurate with other citizens in that country.[91]
[91] Paragraph 9.2(c) of the Direction.
Tribunal’s Consideration
The Tribunal has considered the extent of any impediments that MPML, if removed from Australia to Malaysia, will face in establishing herself and maintaining basic living standards, taking into account each of the specific factors set out in paragraph 9.2(1) of the Direction.
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 MPML would not face any significant impediments in Malaysia.
As MPML is in Malaysia, the Tribunal will treat this consideration as neutral.
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 relevant evidence before the Tribunal addressing the impact of a decision under s 501 of the Act on members of the Australian community, including any victim of MPML’s offending.
Consequently, the Tribunal finds that this Other Consideration (c) carries neutral weight.
Other consideration (d) Impact on Australian business interests if MPML cannot remain here.
There is no relevant evidence before the Tribunal addressing this consideration. The Tribunal notes that MPML is in Malaysia.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if MPML cannot remain here.
The Tribunal finds that this Other Consideration (d) is not relevant and carries a 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:
oThis consideration is neutral.
·Other Consideration (b) - extent of impediments if removed:
oThis consideration is neutral.
·Other Consideration (c) - impact on victims:
oThis consideration is neutral.
·Other Consideration (d) – Impacts on Australian business interests:
oThis consideration is neutral.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[92]
[92] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no other additional considerations before the Tribunal in relation to this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, MPML 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:
oThis consideration weighs slightly in favour of affirming the delegate’s decision to not revoke the cancellation of MPML’s Visa but is not determinative.
·Primary Consideration 2 - whether the conduct engaged in constituted family violence:
oThis consideration carries neutral weight.
·Primary Consideration 3 - the strength, nature and duration of ties to Australia:
oThis consideration carries some weight in favour of setting aside the delegate’s decision to cancel MPML’s Visa.
·Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
oThis consideration carries neutral weight.
·Primary Consideration 5 – expectations of the Australian Community:
oThis consideration weighs slightly in favour of affirming the delegate’s decision not to revoke the cancellation of MPML’s Visa.

The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
Synthesising a comprehensive, holistic and integrated view of this matter, the Tribunal acknowledges that the evidence in this matter and its consequential findings are finely balanced.
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]:[93]
‘[21] 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).’
[93] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
When considered and assessed in their entirety, the findings of the primary considerations and the other considerations in the Direction favour on balance setting aside the delegate’s decision to not revoke the cancellation of MPML’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

I certify that the preceding one hundred and eighty-eight paragraphs (188) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

..........[SGD]..............
Associate
Dated: 19 April 2024

Date of hearing: 15 January 2024

Applicant: Self-represented litigant

Solicitor for the Respondent:

Mr Kyranis (Special Counsel)

Sparke Helmore Lawyers

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G

G-Documents (G1 to G22, paged 1 to 135)

T

Various

31 October 2023

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)

R

19 December 2023

19 December 2023

R2

Respondent’s Tender Bundle (TB1 to TB3, paged 1 to 275)

R

Various

19 December 2023

ANNEXURE B – HIS HONOUR JUDGE MASSEY’S 16 JUNE 2022 SENTENCING REMARKS – EXTRACTS
'As you know, you have each been convicted after trial of one count of attempting to possess methylamphetamine with intent to sell or supply to another. I entered judgments of conviction against each of you on 21 March 2022 after the jury returned verdicts of guilty.’[94]
[94] Exhibit G: G6, page 36.

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G22, paged 1 to 135)	T	Various	31 October 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	19 December 2023	19 December 2023
R2	Respondent’s Tender Bundle (TB1 to TB3, paged 1 to 275)	R	Various	19 December 2023

And
‘I heard the evidence during the trial and as a result of hearing that evidence I am in a position to make findings of fact. The facts that I find for the purpose of sentencing are as follows. On 8 December 2019, Australian Border Force intercepted a package originating from Malaysia which contained 485.5 grams of methylamphetamine at varying purities between 77 and 80 per cent. The package was addressed to Sari Binti Sharif at 20 Marangaroo Drive, Girrawheen, WA, 6064. The contact number of the consignee was recorded as being 0412-038-443.
Police were notified and took possession of the package. Police substituted an inert substance for the methylamphetamine, reconstructed the package and released it to the courier company, DHL. On 10 December 2019, DHL were to deliver the package to the nominated address at 20 Marangaroo Drive, Girrawheen but received a request at 10.38 am to re-direct the package to a BP service station on Koondoola Drive, Koondoola.
At around 11.07 you both entered the BP service station in Koondoola and requested the package. You were told that the package was yet to be delivered. Your attendance at the BP was captured on CCTV and this CCTV was tendered as an exhibit at the trial. At 12.44 pm the package arrived at BP Koondoola. At about 1.08 pm you both again entered the BP service station. During this time you, Ms Sharif, had a conversation with [MPML]. You, [MPML], engaged in conversation with the service station attendant while you, Ms Sharif, provided your passport as identification.
The package was handed over to you, [MPML], and you both then left the store. Again your attendance at BP Koondoola was captured on CCTV which was tendered as an exhibit in the trial. On 13 December 2019, police executed a search warrant at 22 Allanson Drive, Girrawheen which was your address, [MPML]. You were located in a bedroom with your partner.
A number of mobile telephones were located. You provided police with personal identification numbers for the telephones. Photographs of messages were tendered as evidence in your trial, as were photographs of messages found on the phone associated with Ms Sharif. I find that those photographs show communication between the two of you about the arrival of the package. Ms Sharif, you were also arrested on 13 December 2022 in the Clarkson area and your home at 7 Cherokee Gardens, Clarkson was searched by police. You also provided the code to your phone.
The prosecution contended at the trial that the two of you were conduits. I find that the role of each of you was to collect the package and then deliver it in its entirety to a third person whose identity I am not aware of. It's put to me on behalf of you, Ms Sharif, that I should find that you didn’t take physical possession of the package. Certainly it's the case from the CCTV you didn’t take physical possession of the package. Whether you did so afterwards I'm not in a position to say.
But in any event, it makes no material difference to sentence because you were both at the service station and in my view are equally culpable, given the respective roles you played. As I said to Mr Tehan, I think it's clear from the CCTV that you, [MPML], were communicating with the attendant because your English language skills were better but it was you, Ms Sharif, who handed over your passport.
Each of you continued to deny in both the psychological report in relation to you, Ms Sharif, and the pre-sentence report in relation to you, [MPML], that you knew the package contained a prohibited drug. I don't accept that.’ [95]
[95] Exhibit G: G6, pages 36-37.

And
‘I am unable to determine precisely how much you were to receive for your respective roles or whether you were to be rewarded in drugs or cash. It is clear from the messages that payment of some kind was expected but I am unable to determine the precise extent of that payment. I find ultimately that you were equally culpable, you each did all the acts which constituted the offence.
I also need to take into account in determining the seriousness of the offending, the circumstances of the commission of the offence and any aggravating factors, those are factors that make it worse, and any mitigating factors, those are the factors that are to your credit.
The effects of methylamphetamine in our society have been well-published. It’s responsible for a lot of misery and is also behind much of the offending we see in this court. The Court of Appeal have consistently pointed out how those who deal in drugs can expect to receive significant punishment and also pointed out just how serious dealing in drugs is.
In my view, the main aggravating factor here is the sheer weight of the methylamphetamine. This is a large amount of methylamphetamine. I am sentencing each of you on the basis that your involvement was to collect the package and then deliver it to a third party. That’s consistent with the way the State ran its case at trial. I have no evidence that either of you knew the precise weight of the drugs you were collecting. However, I am satisfied from the messages that you knew you were collecting a package containing a significant amount of methylamphetamine.
I am also not satisfied that you were receiving significant reward for your participation in this enterprise. As I said, you were receiving something, but I don’t find that it was significant. However, your participation played a crucial role in the arrival of a significant amount of methylamphetamine into Australia and its subsequent anticipated distribution into the community.
Criminal drug networks, as I said, I think, to Mr Tehan, rely on the participation of people such as the two of you, people who aren’t earning a significant amount of money, perhaps in your case as people who couldn’t work here legally, who need money to be able to live, to facilitate their criminal enterprises and to escape being detected themselves.
While I accept the two of you were both people who had relatively little. You were working for little remuneration. Both of you are supporting family members in Malaysia. You both had relatively poor English skills. Your job prospects were limited. I find that any reward for your participation must have been particularly tempting to you in all of those circumstances. But the reality is that the participation of people such as you allows the drug networks to flourish, allows those who control those drug networks to escape being detected themselves.
While, as I said to Mr Tehan, I am satisfied that you are towards the very bottom of the drug distribution network, clearly you were entrusted with a significant amount of methylamphetamine. And I think the sheer weight of the methylamphetamine means that I cannot treat this offending as being at the lowest end of the scale of offending. I would place this slightly below mid-range offending of its type, and I take into account all the circumstances.’ [96]
[96] Exhibit G: G6, pages 38-39.

And
‘In respect of you, [MPML], the pre-sentence report tells me that you reported to the author a period of illicit drug use, which is consistent with what Mr Burgoyne’s told me today. The report says it’s probable that your impaired judgment, adverse peer influences and a lack of awareness of the risks posed by you behaviour both to yourself and others played a role in your offending.
It says that you verbalised your regret for your poor decision-making. Although, given your denials of your offending, I can’t find this to be an expression of remorse for your offending, but more an expression of remorse as to where you’ve ended up. It also says you have a number of risk factors in respect of reoffending, including subsequent drug misuse, consequential thinking and negative peer influences.
The report also confirmed that the prison database confirms that you completed the alcohol and drug brief intervention on 27 April 2021 and the cognitive brief intervention program on 14 June 2021. According to the information provided, you demonstrated a sound understanding of the course content and communicated a new-found realisation of the destructive effects of illicit drugs. You also told the author that your current predicament has increased your motivation to remain sober.’[97]
[97] Exhibit G: G6, pages 39-40.

And
‘[MPML], you're now 25. On my calculation you were 22 at the time of the commission of the offence. You were born in Malaysia and you lived in Malaysia until you came to Australia in March 2018. You are one of eight children born to your parents and grew up in poverty, particularly after your father had a stroke and was unable to work.
You describe yourself as a good student, but left school after you completed the equivalent of year nine in Western Australia. You left school to obtain employment. You worked as a cleaner and shared your income with your family. When you were 18 you moved to Kuala Lumpur for more work opportunities and obtained jobs as a cashier for a petrol station and as a shop assistant. You moved back to your village to help to care for your father and worked as a golf caddy.
When you came to Australia you initially lived in Melbourne, but ultimately moved to Perth, where you've worked as a farm worker, sending some of your income to your family in Malaysia. You've had one significant relationship with the lady who accompanied you to Australia, but you’re currently single. You were a user of methylamphetamine for approximately 12 months and you have no criminal record.’ [98]
[98] Exhibit G: G6, page 41.

And
‘I’m going to turn now to matters which are to your credit or mitigating factors. The first of those - well, I’ll just go through - I can’t give you credit for pleading guilty. You took the matter to trial. That was your right and you’re not to be punished for doing so. However, what it does mean is that I can’t give you a discount on your sentence for pleading guilty. What I do take into account, however, is that both of you made admissions which assisted in the efficient conduct of the trial.
In terms of remorse, I don’t have any real evidence of remorse. You each took the matter to trial and continued to deny your offending to the authors of the reports I have.’ [99]
[99] Exhibit G: G6, page 42.

And
‘In relation to you, [MPML], I’ve read your expressions of remorse in the pre-sentence report. But again, given the denials of the offending, I find those an expression of remorse more because of the consequences and the circumstances in which you find, rather than a true expression of remorse for the criminal activity for which you’ve been convicted.
I do take into account that there was some cooperation by each of you and that you each provided your codes for the telephones to police. I’ll give you credit for that cooperation. You also come before the court, each of you, with no prior criminal record.
Taking everything that I've heard and read about you, I am prepared to treat this offending as being out of character for you, as being offending for which you agreed to participate in because of the temptation in all the circumstances you had: your low wages, the fact that you were trying to send money back to your families, each of you, in Malaysia and the living circumstances in which you found, as I say, I am prepared to treat it as an offence which is out of character for the two of you and borne out because of the particular pressures and circumstances in which you found yourselves in living in Australia.
Having said that though, if you're going to take methylamphetamine, it means that you start dealing with people who either use methylamphetamine themselves or deal in methylamphetamine and that's the way in which you got sucked into this offending. So although I give you credit for your - I will treat you as people of prior good character.
That is balanced a little bit by the fact that each of you were using methylamphetamine for a considerable period leading up to this offending and therefore committing offences through that period.
Other factors that I take into account to your credit is that each of you have good work histories, you seem to be devoted to your families. I'll give you credit for your prior good character.
In terms of youth, [MPML], as I said, you were 22 at the time of the commission of the offence. You were therefore a young person and I'll give you credit for your youth.’ [100]
[100] Exhibit G: G6, pages 43-44.

And
‘It's been put to me on both of your behalf that you've each taken steps towards rehabilitating yourselves. In terms of you, [MPML], you demonstrated insight into the wrongfulness of your drug usage and you've completed programs while in custody which should also assist in your rehabilitation.
On the other hand, the pre-sentence report speaks of you saying that there were benefits to your usage of methylamphetamine which perhaps demonstrates that there is a need for further counselling because in the long run, there can be no benefits to people from using methylamphetamine.
I've also had regard to the transcript which I've been provided with today of the various courses you've completed in prison. You've done courses in preparing and serving espresso coffee, conduct a project with guidance, apply basic computing skills to language learning, applied workplace health and safety concepts, use recipes to prepare food, manage personal bills, plan healthy living on a budget, hygienic practices for food and there's a couple of certificates for those and there's courses in safety of self and others as well as something I can't read but there's another course to do with some techniques which is blurred by the seal on the document.
But in any event, you've done a number of courses and I do take that into account as an expression of you wanting to improve your qualifications so that when you are released from prison, you are able to improve your prospects of obtaining employment and not end up back where you are because you're not earning a lot of money.
I also take into account in terms of your rehabilitation, [MPML], that you have had the rest of your life really where you haven't offended and as I said, there are perhaps a set of circumstances which led you prey to being tempted by those who would import this methylamphetamine.
All of that suggests that you are capable of being a productive member of society. All of that suggests to me that your prospects of rehabilitation are very good. I would therefore assess your prospects of reoffending as being relatively low if you continue on the path you seem to be on.
However, if upon your release you do start mixing with people who you shouldn't mix with or become involved in consuming drugs again then your chances of reoffending and ending back somewhere like you are now would be increased obviously.’[101]
[101] Exhibit G: G6, page 44.

And
‘You, [MPML], were younger, you've done more rehabilitation.’[102]
[102] Exhibit G: G6. page 47.

And
‘In my view, as I said, you are equally culpable in respect of this offending. Turning to the sentence I impose, it must be one that's commensurate or proportional to the seriousness of your offending. I mustn't use a more severe sentencing option unless I'm satisfied it's not appropriate to use any one of the less severe options available.
Imprisonment is a sentence of last resort. I must have regard to the purposes of imposing punishment, that is to punish each of you, and to stop both you and others from committing offences in the future as well as your respective rehabilitations.
In my view, the main sentencing considerations for offences of this kind are personal and general deterrence. In respect of each of you, while there is a need for personal deterrence, I am satisfied it is not a high one. I am satisfied on all the material I've read that your time in custody has been a lesson for you, and that even being charged with this offending has been a wake-up call, and each of you have attempted to ensure that it doesn't happen again.
There is though still a need for personal deterrence, but it is lessened because of those factors. Additionally, it's lessened because each of you have had long periods in your lives where you've not offended, which demonstrates that you are capable of living law-abiding lives.’[103]

[103] Exhibit G: G6, page 47.

And
‘When I take into account your respective roles in the offending, which, as I said, is at the lowest end of the scale of the drug distribution network, but also taking into account this is a significant amount of methylamphetamine, and taking into account the other factors that I've mentioned, including the more onerous time in custody for each of you because of your English language skills and the fact that you separated from friends and family, when I take into account all those matters, the terms I will impose in respect of each of you are five and a half years' imprisonment.
Because the term of imprisonment I've indicated is more than five years, I cannot suspend the term. Even if I could, I would not do so. It's certainly not put to me that I should suspend any term because the offending is simply too serious and the need for personal and general deterrence means that suspension would be inappropriate.’[104]
[104] Exhibit G: G6, page 48.

Date	Offence	Sentence
21 June 2022	Possessed drug paraphernalia in or on which there was a prohibited drug or plant.	Fine of $300
21 June 2022	Possessed drug paraphernalia in or on which there was a prohibited drug or plant.	Fine of $300
21 June 2022	Possessed a prohibited drug	Fine of $750
16 June 2022	Attempt to possess prohibited drugs with intent to sell or supply’ (the Index Offence)	Term of imprisonment of 5 years and 6 months