NCHC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1840

NCHC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1840 (21 June 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2021/1931
GENERAL DIVISION  )

Re: NCHC
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Member R Bellamy

DATE OF CORRIGENDUM:            28 June 2021

PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:

1.the paragraph numbered ‘12’ on page 4 is replaced with ‘7’ and all subsequent paragraph numbers are amended accordingly;

2.the wording in the signature paragraph on page 54 certifying the preceding number of paragraphs in the decision is changed from ‘199 (one hundred and ninety nine)’ to ‘194 (one hundred and ninety four)’; and

3.The text on page 55  ‘Annexure A – Exhibit Lis’ be altered to read ‘Annexure A – Exhibit List’.

............................[SGD]...............................

Member R Bellamy

Division:GENERAL DIVISION

File Number:          2021/1931

Re:NCHC  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:21 June 2021

Place:Brisbane

The decision under review is affirmed.

...........................[SGD].............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – refusal of application for a Partner (Temporary) (Class UK) visa under section 501(1) - where the visa Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review affirmed

LEGISLATION

Criminal Code Act 1899 (Qld)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
HZCP v Minister for Immigration and Border Protection, [2019] FCAFC 202.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

21 June 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 32-year-old citizen of the United States of America (“United States”). She first arrived in Australia on 4 March 2016 as the holder of a Tourist (Subclass 601) visa.

2. On 29 September 2017, the Applicant made a combined application for a Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa (“Partner visa”).[1]

   [1] Exhibit G1, Section 501 G documents, G2, page 175.

3. On 17 June 2019, a delegate of the Minister (“the Respondent”) issued the Applicant with a Notice of Intention to Consider Refusal of the application for the Partner (Temporary) (Class UK) visa under section 501(1) of the Migration Act 1958 (“the Act”).[2]

   [2] Ibid, G2, page 72 to 75.

4. On 21 October 2019, the Applicant provided further material in support of the application.[3] On 3 March 2021, the Respondent exercised the discretion to refuse to grant the visa under section 501(1) of the Act on the grounds that the Applicant did not satisfy the character test.[4]

   [3] Ibid, G2, pages 229 to 243.

   [4] Ibid, G2, page 12.

5. On 30 March 2021, the Applicant sought review of that decision.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5] Ibid, G1, pages 3 to 8.

6. The hearing of this application proceeded on 10 and 11 June 2021. The Applicant gave evidence via videoconference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

7. Section 501(1) of the Act provides:

   “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

8. By the operation of s 501(6)(a) of the Act, the Applicant does not pass the character test because she has been sentenced to imprisonment for 12 months. Subsection 501(6) relevantly provides:

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

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

   …

9. Subsection 501(7) relevantly provides:

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

   …

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

   …

10. On 25 September 2017, the Applicant was sentenced to a term of imprisonment of 12 months to be suspended for two years. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[6]

    [6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

11. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test.

12. Accordingly, I must now consider whether to exercise the discretion to refuse to grant the visa.

    SHOULD THE DISCRETION TO REFUSE THE APPLICANTS VISA BE EXERCISED?

13. In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[7]

    [7] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

14. For the purposes of deciding whether or not to exercise the discretion to refuse to grant a non-citizens visa paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

15. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-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.

    (3)The 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 measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-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 8.4(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 measurable risk of causing physical harm to the Australian community.

16. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

17. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

18. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

19. I note that Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

20. As stated above, the Applicant first arrived in Australia on 4 March 2016 on a Tourist visa. On 3 April 2016 she departed Australia, returning on 1 July 2016.

21. In August 2016, the Applicant committed her first offence in Australia. She sent a facsimile to a court in the United States containing false and misleading information. She ultimately pleaded guilty to an offence arising from this conduct and the other offences discussed below. The facts of this offending are set out the Queensland Police Service Sentencing Schedule (“sentencing schedule”) [8] as follows:

    “Prior to leaving the USA the defendant was required to attend a court hearing in the Montgomery County District Court, Montgomeryville, Pennsylvania, USA in August 2016.

    This hearing was in relation to unrelated theft offences that occurred in US jurisdiction.

    On 16 August 2016 a faxed letter was received at the Montgomery County District Court. The fax was later traced as having been sent from the ‘Mantra Resort in Mooloolaba, Queensland Australia’.

    The letter purported to be from Dr [redacted]  from the ‘Sunshine Coast Haematology and Oncology Clinic’. The letter stated that the defendant was required to stay in Australia for another five months to receive cancer treatment and hence was not able to return to the USA and appear in court.

    Subsequent police checks show that the letter is a forgery. Dr [redacted] advises that at no stage did he ever produce such a letter and at no stage has he ever heard, or treated, the defendant.

    Further investigations have failed to find any record of the defendant having sought cancer treatment whilst in Australia.

    Checks with the Mantra Resort Mooloolaba show that the defendant was staying at the resort at the time of the letter being sent to the Montgomery County District Court and that staff recall sending a fax to the USA on behalf of the defendant.”

    (Errors in original)

    [8] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 13 to 14.

22. On 29 September 2016 the Applicant:

    ·departed Australia for New Zealand and her Tourist visa ceased;

    ·applied for a Work and Holiday (subclass 462) visa which was granted that day; and

    ·returned to Australia.

23. In October 2016, the Applicant impersonated a doctor in order to gain employment with a business called Medscribe. She continued the deception until she was caught in April 2017. The facts of the offending are set out in the sentencing schedule[9] as follows:

    [9] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 11 to 13.

    “Medscribe is a private company that operates in South East Queensland. The company employs trained persons to work alongside qualified medical practitioners in hospitals. The role of a ‘scribe’ is aimed at working alongside doctors to focus on the administrative tasks of taking patient notes and other clerical duties.

    The complainant company’s staff recruitment policy targets persons with medical knowledge such as third of fourth year medical students or like persons. Potential employees are required to have a sound base of medical knowledge and medical terminology. Given that ‘scribes’ are translating information such as medical history and required medication such knowledge is vital.

    In October 2016 the defendant applied for a job with Medscribe. At the time of applying the defendant provided a detailed resume to the complainants. Part of this resume included that she was a formally trained doctor and that she had undergone her studies at Temple University, Pennsylvania, USA.

    The defendants resume stated that she had obtained a ‘MD and PhD in Medicine and Molecular Biology’ having studied at Temple University from 2013 to 2016.

    The defendant subsequently went through the recruitment process with Medscribe where in various interviews she purported to be a US trained doctor. The defendant over the recruitment period provided false contact details for the university and personal referees.

    Subsequent checks and due diligence by the complainant company failed to verify the qualifications claimed by the defendant however she was none the less employed in the role of a Medscribe.

    The defendant was employed in a casual role and a received a fortnightly pay check. The complainants advised that over a period of time they noticed the defendant displayed a lack of medical knowledge that one might expect form a trained doctor.

    The complainants advised that when questioned the defendant stated that she was suffering from brain cancer and that her treatments left her with some short term memory loss that affected her medical knowledge recall.

    As such the complaints moved the defendant into a training and marketing role with the company. The defendant then trained other Medscribes for the company and undertook a role of expanding the company into other hospitals throughout Queensland and New South Wales.

    In this role the defendant met with, and communicated with, various hospital doctors and administrators. Throughout this period the defendant referred to herself verbally and in written communications as a ‘Doctor’.

    In total the defendant was paid some $6871.02 between 13 November 2016 and 2 April 2017.”

    (Errors in original)

24. On two occasions in November 2016, the Applicant purchased items and dishonestly obtained refunds for those items. The facts of the first of these offences, according to the sentencing schedule, are:

    “On 28 November 2016…the defendant…placed an online order with the complainant company and purchased a swimming pool and accessories. The total value of the items purchased was $1322.05. At this time the defendant used PayPal to complete and pay for the transaction.

    …On 29 November 2016 the defendant attended at the complainant company and picked up the ordered items…

    Some days later the informant was contacted by PayPal and advised that the amount of a $1321.40 had been removed from the complainant company’s bank account as PayPal had been contacted by the defendant and advised that she had not received the ordered goods from the complainant company.

    The informant then contacted the defendant via SMS message to ascertain what had occurred. In a series of SMS messages between the defendant and the informant the defendant was advised that she was on CCTV footage at the complaint store picking up the items.

    The defendant then changed her version and stated that the issue was between the informant and the ‘credit card’ owner and was due to ‘faulty materials’ being provided. The defendant refused to expand on this advised the informant that the matter did not involve her and that she had been advised to ‘stay neutral’. The informant then made a formal complaint to police.

    (Errors in original)

25. The facts of the second of these offences, according to the sentencing schedule[10], are:

    “… On 30 November 2016 the complainant sold a ’Vitamix 750’ blender via eBay to [the Applicant who paid] $1200.00 for the item plus a postage fee of $35.00.

    The defendant used PayPal to make the transaction. The complainant then sent the item to the defendant at the listed address via Australia Post registered mail…

    Some days later the informant was contacted by PayPal and advised that the amount of a $1235.00 had been removed from his bank account as PayPal had been contacted by [the Applicant] and advised that she had not ordered the stated items. A formal complaint was then made to police.

    [10] Exhibit R2, Respondent’s Summonsed Material, SM1, page 16.

26. In April 2017, the police began to investigate the Applicant, although it is not clear how this came about.

27. In relation to the facsimile the Applicant sent to the Montgomery County District Court, the sentencing schedule[11] indicates that:

    On 14 April 2017 QPS detectives executed a search warrant at the defendants address in relation to other matters. During the course of the search warrant police seized the defendants Apple laptop computer.

    At this time the defendant took part in a formal record of interview. During the interview the defendant denied ever sending the letter to the Montgomery County District Court and denied all knowledge of the offence.

    The defendant also denied ever faking her cancer diagnosis and claimed that she had been set up by her family and friends who had their own agenda.

    On 17 April 2017 the defendant was again further interviewed by QPS detectives. On this occasion the defendant changed her version and admitted that she never had never suffered nor been diagnosed with brain cancer.

    A later search of the defendant’s computer found an exact copy of the forged letter under the hand of Dr [redacted].

    The forged letter sent by the defendant was created in Queensland and was sent to the USA by the defendant whilst in Queensland.

    The defendant was later issued with a NTA.”

    (Errors in original)

    [11] Ibid, SM1, pages 13 to 14.

28. In relation to her impersonation of a doctor at Medscribe, according to the sentencing schedule[12]:

    “In April 2017 the QPS were advised by US law enforcement agencies that the defendant had never studied at Temple University, Pennsylvania and never received any other formal medical training.

    Police then contacted the complainants and the formal complaint was made. The complainants advised that the defendant’s purported medical degree was the basis for her employment.

    On 17 April 2017 the defendant took part in a formal record of interview with QPS detectives. During the interview the defendant admitted to gaining employment based on the false resume. The defendant admitted that she was not a trained doctor and had never attended Temple University.

    The defendant stated that she had made up these details in order to gain employment with the complainant company.

    An examination of the defendant’s computer located a copy of the false resume that she used to gain such employment.”

    [12] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 11 to 13.

1. In relation to the pool and accessories, the sentencing schedule[13] indicates:

   “On 10 May 2017 police executed a search warrant at the defendant’s address. At this time police located files and documentation relevant to the offence. The defendant took part in a formal record of interview in which she stated that she had picked up the pool equipment from the complainant company. The defendant then gave a version that he ex defacto in the United States had ordered the pool items for her and had used their joint PayPal account to pay for the goods.

   The defendant stated that when she picked up the items she later found them to be faulty and not in proper working order. The defendant stated that at no time did she do the PayPal reversal and that he ex defacto must have done so. The version given by the defendant during the course of the interview was inconsistent and at odds with known facts and documentation received from PayPal.

   This documentation shows that the order was placed by the defendant from within Australia and that the monies refunded went into the defendants bank account and accessed in Australia. As a result of other investigations into the defendant assistance has been sought from law enforcement agencies in the United States of America.

   Initial advice from those agencies is the defendant’s ex defacto denies any knowledge of the matter and denies ever ordering any pool equipment for the defendant. The defendant was later issued with a NTA in relation to this matter.

   RESTITUTION in the amount of $1322.05 has been paid to the informant/complainant…prior to the sentence.”

   (Errors in original)

   [13] Ibid, SM1, pages 14 to 15.

2. In relation to the Vitamix, the sentencing schedule[14] indicates:

   “On 10 May 2017 police executed a search warrant at [the Applicant’s] address. At this time police located files and documentation relevant to the offence including the Vitamix blender. The defendant took part in a formal record of interview in which she stated that she had ordered the item from the informant on Ebay as outlined.

   The defendant stated that she had never received the item and it had hence sought a refund. The defendant stated that the Vitamix located by the police during the search warrant was a new one that she had ordered it from the ‘Good Guys’ online. The item that police seized did not appear new and had a number of wear marks consistent with an older and used item.

   The defendant could offer no explanation why Australia Post documentation showed that the item had been delivered to her address and signed by her on the listed date. The defendant was later issued with a NTA. Nil restitution sought as item has been recovered.”

   (Errors in original)

   [14] Exhibit R2, Respondent’s Summonsed Material, SM1, page 16.

3. The Applicant pleaded guilty to the following seven offences on 27 July 2017, and her sentencing hearing was adjourned to a later date:[15]

   [15] Exhibit G1, Section 501 G documents, G2, page 56.

   ·three offences arising from her dealings with Medscribe, being:

   oforgery;

   outtering; and

   o‘fraud-dishonestly gain benefit/advantage by employee’;

   ·two offences arising from the forged letter that she sent to the Montgomery County District Court, being:

   oforgery; and

   outtering

   ·in relation to the two refunds she obtained for the pool and accessories and the Vitamix blender:

   o‘fraud - dishonestly cause detriment’ x 2

4. On 20 September 2017, the Applicant departed Australia and returned on the same day. The Applicant has remained in Australia since that date.[16]

   [16] Ibid, G2, page 122.

5. On 22 September 2017, the Applicant applied for a further Tourist visa (onshore).[17]

   [17] Ibid, G2, page 122.

6. On 25 September 2017, the Applicant was sentenced for the offences as follows:

   ·for the offences of ‘fraud-dishonestly cause detriment’ x 2, and ‘fraud-dishonestly gain benefit/advantage’, the Applicant was sentenced to imprisonment for 12 months, immediately suspended for a period of two years; and

   ·for the remaining offences, she was sentenced to imprisonment for nine months, immediately suspended for two years.

7. The sentencing remarks[18] of the learned Magistrate included the following:

   [18] Ibid. G2, pages 56 to 60.

   “At the outset, I’ll just indicate this to you, that ordinarily, the law in Queensland says that people should – if the offending of this nature, are to be sent to imprisonment as a last resort. The courts are supposed to impose some sort of a penalty that allows people to stay in the community. But in appropriate circumstances, certainly, imprisonment can be imposed. And to leave in no doubt at all, imprisonment is something squarely within my mind today…

   So it’s not one isolated one-off incident. There are three different types of incidents. So given that, I believe that imprisonment is not only within range, it’s certainly the most appropriate sentence to impose.

   …

   The two different matters with the PayPal offences where the charge backs had occurred with your knowledge but you didn’t do anything about that. And them (sic), certainly, the forgery of the letter sending to the United States in relation to that current court proceeding over there. That’s certainly something quite serious because that was well and truly with all cases of forgery. It’s something – it is dishonesty.

   …

   As submitted by the prosecutor, especially with the obtaining employment, with that, you knew you were going to be put in a significant position of trust and you’ve gone and abused that trust. Whilst you may have not been directly dealing with patients, the charges are not that you’ve gone and written down false information. The charges, as far as the Mediscribe goes, is that, firstly, you forged the resume with information about qualifications on there.

   Then you’ve gone and used that resume to be able to try to get a job. And then the final charge is that you’ve actually gained employment for yourself because of the incorrect information that was on that resume.

   …

   Whilst we may not – we no longer live in a society where a person’s handshake was their word and everything could be trusted, when things are reduced to writing, everyone still believes that that should be taken at face value and there shouldn’t be any great need to verify that,

   …

   Overall, as far as these matters go, whilst I’m of the opinion that serving actual time in custody is certainly within range in your circumstances, given the – and the prosecutor did indicate, that this is certainly a unique set of circumstances that bring these charges before the court, given the matters in mitigation raised on your behalf…where you have both apologised to the complainant, with Mediscribe – there’s been a public apology offered on your behalf in court today, there has been cooperation with the authorities, there has been an early plea of guilty, there has been a demonstration of remorse by you, and the amount of restitution that has been sought has been paid prior to sentence. And, indeed, the – your current employment, notwithstanding the charges against you, the dishonesty involved in these current charges, your current employer has not only continued your employment but has chose to support you today…”

   (Underlining added)

8. The learned Magistrate also took into account some evidence about the Applicant’s medical conditions and some character references.  

9. As can be gleaned from the sentencing remarks, the learned Magistrate stopped short of expressly stating that the Applicant has caused the PayPal refunds. The sentencing schedule contains strong evidence that the Applicant did cause the refunds. The Applicant admitted to this in the hearing before me. The offences that she was convicted of in relation to the refunds were “dishonestly cause detriment”, which is the short form of the offence in s 408C(1)(e) of the Criminal Code (Qld) that reads:

   A person who dishonestly—

   (e) causes a detriment, pecuniary or otherwise, to any person  commits the crime of fraud.

   Maximum penalty—5 years imprisonment.

10. I find that, despite the wording used by the learned Magistrate, the Applicant was convicted of the two PayPal offences on the basis that she caused the refunds. 

11. On 29 September 2017, the Applicant applied for the Partner visa.[19] Her Work and  Holiday visa ceased on 29 September 2017 and a Bridging visa A came into effect on 30 September 2017.

    [19] Exhibit G1, Section 501 G documents, G2, page 175.

12. On 18 April 2018, the Applicant’s application for a Partner visa was refused on the basis that she was not in a de facto relationship with her partner (“Mr W”). The Applicant sought review of this decision in the Migration and Refugee Division of this Tribunal (“MRD”).

13. On 13 July 2018, the Applicant’s Bridging visa A was cancelled.[20] On 19 July 2018, the Applicant lodged an application for a Bridging visa E.

    [20] Ibid, G2, pages 212 to 216.

14. The Applicant was taken into immigration detention on 2 August 2018.[21]

    [21] Exhibit G1, Section 501 G documents, G2, page 249 and page 403.

15. On 12 April 2019, a delegate of the Minister refused that application for a Bridging visa E on character grounds under section 501(1) of the Act.[22] On 23 April 2019, the Applicant applied to the General Division of this Tribunal for review of the decision to refuse her Bridging visa E on character grounds.

    [22] Ibid, G2, pages 217 to 228.

16. On 8 May 2019, the MRD remitted the Applicant’s application for the Partner visa to the Department with directions to the effect that the Applicant was in a de facto relationship with her partner. 

17. On 17 June 2019, the Applicant was advised that the Respondent was considering refusing the Partner visa on character grounds.[23]

    [23] Ibid, G2, page 72 to 75.

18. On 8 July 2019 the General Division of this Tribunal revoked the decision to refuse the Applicant’s application for the Bridging visa E and instead granted that visa. For ease of reference, I will refer to this decision as “the earlier Tribunal decision” and the corresponding hearing as “the earlier Tribunal hearing”.

19. The written reasons for the earlier Tribunal decision, the accuracy of which was not challenged by the Applicant, indicate that on 22 September 2017, when the Applicant applied for a Tourist  visa, in response to a question about her relationship status she said she was divorced but she did not disclose that she was in a de facto relationship. A week later, on 29 September 2017, the Applicant submitted her Partner visa application. In that application she claimed to be in a de facto relationship with her sponsor, Mr W. She said they met on 1 August 2006 and commenced a de facto relationship, defined on the application form as one in which they “committed to a shared life together to the exclusion of all others”, on 1 September 2016.[24]

    [24] Ibid, G2, pages 176, 185 and 193.

20. The Applicant admitted in the earlier Tribunal hearing that she provided deceptive information in her Tourist visa application on 22 September 2017 because a migration agent had indicated that she was unlikely to be granted that visa if she disclosed that she was in a de facto relationship with an Australian citizen. She admitted that she provided misleading information because she thought that if she disclosed that she was in a de facto relationship with an Australian citizen in Australia, she would not be granted the visa. She apologised for having done so and admitted that she had done the wrong thing to obtain a benefit.

21. The earlier Tribunal decision also describes multiple instances where the Applicant falsely denied many aspects of her offending. A few examples are set out below:

    (a)with respect to the Medscribe offences:

    ·     she said she did not give Medscribe a resume prior to being hired, nor did she represent at any time that she had completed a medical degree; and

    ·     she denied that when Medscribe determined that she appeared to lack the medical knowledge expected from a doctor she had claimed to be suffering from brain cancer and that her treatments left her with some short-term memory loss that affected her medical knowledge recall;

    (b)with respect to the refund for the pool and accessories, she had not created the chargeback, and her ex-partner must have been responsible; and

    (c)with respect to the refund for the Vitamix:

    ·     when she purchased it she understood it would arrive approximately three business days from the date of purchase and “after the period of no more than 14 business days” she contacted eBay to advise that she had not received the blender. She cancelled the order and ordered another identical blender from the Good Guys through eBay; and

    ·     on 6 December 2016 a blender was delivered to her address and she thought it was from the Good Guys.[25]

    [25] Exhibit G1, Section 501 G documents, G2, page 146.

22. In relation to the Applicant’s evidence about the Vitamix blender, the Tribunal noted that she had admitted that she did not have evidence of having purchased a blender from the Good Guys, nor did she have such evidence when her address was searched by police in early 2017. The Tribunal pointed out that, given (according to the sentencing schedule) the Applicant bought the original blender on 30 November 2016 , and three business days after that ended on 5 December 2016, unless the Applicant received the blender which she says she ordered from the Good Guys on the same day that she ordered it, she could not have waited three business days before cancelling the initial order and placing a new order with the Good Guys. The Tribunal also noted that it was implausible that she could not produce evidence of her claimed purchase from the Good Guys and that, if she had placed that order, why she did not receive a blender from the Good Guys. The Tribunal was alive to the fact that the Applicant’s evidence was not consistent with her pleas of guilty. The Tribunal concluded that the Applicant had “appeared to be dishonest before the Tribunal”.[26]

    [26] Exhibit G1, Section 501 G documents, G2, page 158, paragraph 124.

23. Dr Luke Hatzipetrou, clinical and forensic psychologist, had assessed the Applicant before the earlier Tribunal hearing. He interviewed her again and provided an updated report dated 24 February 2020 [27] for the purpose of the current proceedings. In that report, he addressed the fact that the Applicant had given evidence in the earlier Tribunal hearing that was inconsistent with other evidence. The Applicant told Dr Hatzipetrou that she was highly anxious and feeling panicky during the questioning in the earlier Tribunal hearing. She said that she was trying to respond to the questions and “provide the right answer”. Dr Hatzipetrou concluded that she had been attempting to appease the Tribunal member as she wanted to be released and returned to Cairns with her partner. He said:

    “However, [the Applicant] noted she did not readily monitor her responses and acknowledged her responses were likely to confuse the AAT member. Importantly, [the Applicant] noted she had been attempting to gain a positive impression from the Tribunal leader rather than intentionally attempting to be deceitful or unreliable.”[28]

    [27] Ibid, G2, pages 305 to 311.

    [28] Ibid, G2, page 309

24. Dr Hatzipetrou seemed to accept this explanation and he added that “Importantly, this pattern of responding was not indicative of a more sinister character trait such as pathological lying”.

25. The distinction the Applicant sought to draw between attempting to gain a positive impression and intentionally attempting to be deceitful seems illusory. Rather, it appears that she attempted to gain a positive impression by intentionally being deceitful. In the current proceedings, when it was put to the Applicant that she had deliberately said things that she knew were untrue in the earlier Tribunal hearing, she denied it and said she had been trying to respond to questions, giving the right answer in the form of self-protection, explaining:

    “You’re sitting there telling yourself no, this couldn’t have been me, no I couldn’t have done this, no I don’t accept any of it.”[29]

    [29] Transcript, page 80, lines 35 to 48.

26. The Applicant later said:

    “because if I’m sitting there saying no, it wasn’t me. No, somebody else did this to me. I’m the victim. That’s - and that’s truly what I’m believing is happening, it’s by no means a lie or intentionally being unreliable when you’re again giving the exact same answers.”[30]

    [30] Transcript, page 81, lines 5 to 8.

27. The Applicant’s second explanation - that she did not want to admit to herself what she had done -  differs from the explanation she gave to Dr Hatzipetrou, being that she was (innocently) trying to impress the Tribunal, which tends to undermine both explanations. Whatever her reason, I am satisfied that when the Applicant was denying certain aspects of her offending before the earlier Tribunal, she knew she was giving evidence that was untrue.       

28. On 23 August 2019 the Applicant was released from immigration detention.[31]

    [31]Exhibit G1, Section 501 G documents, G2, page 249.

29. On 21 October 2019, the Applicant provided further material in support of the Partner visa.[32] On 3 March 2021, the Respondent refused to grant the Partner visa under s 501(1) of the Act on the grounds that the Applicant did not satisfy the character test.[33] On 29 March 2021, the Applicant was notified of the decision[34] and taken into immigration detention. From 30 March 2021 she has been in hotel accommodation for medical reasons.

    [32] Exhibit G1, Section 501 G documents, G2, pages 229 to 243.

    [33] Ibid, G2, page 12.

    [34] Ibid, G11, page 438.

30. Although the MRD had decided the Applicant was in a de-facto relationship, prior to the hearing the Applicant indicated that there was uncertainty whether her partner remained committed to the relationship, and she was therefore unsure whether to proceed with the review of the s 501 decision. In a telephone directions hearing on 4 June 2021, I informed her that the two issues were separate and that to preserve her chance to have her visa granted she needed to continue her application for review of the s 501 decision. She decided to proceed with that application.

31. The Applicant has given varying accounts of the offending. In accordance with HZCP v Minister for Immigration and Border Protection,[35] in circumstances where the convictions and sentence gave rise to the decision-making power that I am exercising under s 501 of the Act, I must make findings about the offending that are consistent with the convictions and the findings of the learned Magistrate. Having reviewed the police accounts and the accounts given by the Applicant including in her oral evidence before me, I find the police accounts to be reliable and consistent with the convictions and the learned Magistrate’s findings, while I find the Applicant’s evidence to be less reliable (for reasons I will give below). I accept the facts of the offending as set out in the police sentencing schedule and the sentencing remarks.

    [35] [2019] FCAFC 202.

32. The Applicant is the subject of an indictment in the US alleging several dishonesty offences arising from her allegedly obtaining money from her father and step-mother, and raising money via a GoFundMe.com campaign and a fundraising event at a restaurant by falsely claiming that she needed money to travel to Australia for medical treatment for a terminal form of brain cancer. On 8 September 2020, the US Department of Justice issued a press-release detailing the allegation and the story was reported by the “Philly Voice”, presumably a news outlet in Philadelphia, that day.[36] The Applicant claims that she is innocent. As the only evidence I have before me are allegations which are denied by the Applicant, I make no finding about whether or not the Applicant engaged in the conduct alleged. I merely note that if the Applicant is returned to the US, she will likely be arrested, conveyed to Philadelphia and tried on indictment.                 

    [36] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result 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 in 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.

2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The Nature and Seriousness of the Applicant’s Conduct to Date

3. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)violent and/or sexual crimes;

   (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

4. The Applicant’s offences are offences of dishonesty. I am not limited to considering only proven offences. I am also required to consider “other conduct”.  There are aspects of the Applicant’s dishonest behaviour that are very serious. First, she sent a forged document containing false information to a court, and she knowingly gave untrue evidence to the Tribunal when she was under a legal obligation to tell the truth. Second, she was versatile with her dishonesty, including lying to a private business to secure employment, deceiving a business and an individual to effectively steal property, and lying to a Government department and a Tribunal to get a visa. Third, she told manipulative lies, claiming to have brain cancer, which tend to play on the goodness and compassion of others. Fourth, she perpetrated a prolonged fraud, deceiving Medscribe for seven months, consistently misrepresenting herself as a qualified doctor.

5. As the learned sentencing Magistrate pointed out with respect to the Medscribe offences, the Applicant knew that she would be put in a position of trust and she abused that trust. She was not competent to perform the job which involved writing down medical histories and required medication, which is clearly something that needs to be done competently.

6. The Applicant only stopped offending when she got caught. She then lied to the police and dishonestly blamed her ex-partner for the PayPal offences.  

7. In passing sentence the learned Magistrate acknowledged that a sentence of imprisonment is only imposed as a last resort, and concluded that the only sentence that would adequately reflect the seriousness of the offending was indeed a sentence of imprisonment.

8. The Applicant’s offending was frequent in that she committed the fraud on Medscribe, the fraud on a US court, and the two PayPal offences in a seven-month period.  There was not a trend of increasing seriousness as the more serious offences having been committed first.

9. The cumulative effect of her repeated offending was that members of the community were deceived and in relation to Medscribe, her repeated misrepresentations meant that there was an unqualified person performing a role within their business for an extended period.

10. As stated above, the Applicant deliberately failed to disclose her de-facto relationship with Mr W in her application to the Department for a Tourist visa.   

11. I do not consider factors (a), (b) or (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.

12. The relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily in favour of exercising the discretion to refuse the visa application.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

13. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.

14. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three 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;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and 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.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

15. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of her offending to date, including any escalation in her offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

16. The harm to individuals in the Australian community that would result from the Applicant committing further offences of dishonesty is difficult to predict given the versatility in her offending thus far. It includes, but is certainly not limited to, financial loss. It could also include, as it has, the provision of false information to important institutions. As was pointed out in the earlier Tribunal decision, if she were to falsely claim experience or qualifications to perform a job which could directly affect the health and safety of members of the community, such as being a surgeon on aeroplane pilot, the harm to individuals or members of the Australian community could be very great.

    Likelihood of engaging in further criminal or other serious conduct

17. The type of visa the Applicant has applied for is a Partner visa, and if it is granted, she intends to stay in Australia on a long-term basis.

18. In the hearing the Applicant was asked about all of her offending, her failure to disclose her de-facto relationship on her application for a Tourist visa and the incorrect evidence she gave to the Tribunal in the earlier hearing. 

19. With respect to the forged document that she sent to the US court, she said she was afraid to return to the US because of her abusive ex-partner “Mr C” who is a police officer there. She said in December 2015 she was wrongly accused of shoplifting. Around 10 minutes later the police department that Mr C worked for came and arrested her. She was arrested, photographed, and given a date to appear. She said the attending officer’s name was Jake and he was a good friend of Mr C. Over the next four months Mr C used the pending charges against her to teach her that she could not get away from him. One day he would say he was taking care of it and the charges were gone and another day he would say he did not fix the charges and that “Nothing has gone”.[37] She said around the end of July or beginning of August 2016 (while in Australia) she was notified by Jake that the charges were going ahead in August. She asked if she could appear remotely and was told she needed to return home. Jake told her that Mr C missed her very much and that everyone wanted to see them work things out.[38]

    [37] Transcript, page 25, line 45 to page 26, line 15.

    [38] Transcript, page 26, lines 15 to 21.

20. When she was asked her why she did not tell the court that she was in Australia and she was afraid of someone in America, she said she had had so many negative experiences with US law enforcement she did not think to raise the concern to the court.[39]  She later said, “I panicked, and I forged that letter and I sent it”.[40]

    [39] Transcript, page 26, lines 25 to 36

    [40] Transcript, page 66, lines 30 to 34.

21. While the Applicant blamed the PayPal refunds on Mr C, she did not tell the police that he was abusive or that she sent the forged letter to the US court because she was afraid of him. Nor did she mention him in her sentencing proceedings.  When asked why he was not mentioned in her sentencing proceedings, while the learned Magistrate was told about her abusive father and abusive ex-husband, she said she was told to only provide the relationships she could prove for example with a divorce certificate or a birth certificate. She said she did not know that she should include ex-boyfriends and that she was following the advice she was given.[41]

    [41] Transcript, page 55, lines 1 to 11.

22. The Applicant’s mother wrote a letter to the court in which she mentioned the Applicant’s abusive father and her ex-husband being an alcoholic, mentally abusive and very controlling. She did not mention an abusive ex-partner.

23. The Applicant was asked why she thought this letter did not mention Mr C. She said when she lived with Mr C, her mother had been asked to provide a reference on subjects that she could speak to and that she was not able to speak to her relationship with Mr C because she solely witnessed it over the holidays. She knew what the Applicant had told her but that was the Applicant telling her and not an independent observation.[42]

    [42] Transcript, page 54, lines 1 to 15.

24. I find these explanations implausible. It is apparent from the transcript of the sentencing proceedings that the proceedings were conducted as sentencing proceedings normally are in a Magistrate’s court, without undue formality or rigorous application of the rules of evidence. Further, there was other evidence put forward on behalf of the Applicant that was second hand, e.g. the medical report referred to below contained information that the writer had been given by the Applicant and was not drawn from the writer’s own observation or diagnosis or any documented diagnosis.   

25. The Applicant’s application for a Partner Visa, submitted on 29 September 2017, contained a section entitled “Previous Relationships”. That section included the details of the Applicant’s ex-husband and it said he was “an abusive partner and this relationship ended due to his physically and mentally abusive treatment” towards the Applicant. There was no mention of a second abusive relationship.[43] This application form contained the warning “Giving false or misleading information is a serious offence”[44] Therefore the Applicant was under an obligation to disclose all previous relationships.

    [43] Exhibit G1, Section 501 G Documents, G2, pages 196 to 197.

    [44] Ibid, G2, page 201.

26. A medical report dated 5 September 2017 and addressed to the Presiding Magistrate includes a section entitled “Salient social history” and the text in that section is “ex-husband and her father violent towards her in the past”.[45]  When asked to explain the absence of any reference to Mr C, the Applicant said she assumed that the person who wrote that did not understand that Mr C was her ex-partner and that she was speaking about him, not her ex-husband.[46] When asked why she only mentioned her father’s and Mr C’s abuse, and left out her ex-husband, she did not give a convincing explanation.[47]

    [45] Exhibit R2, Respondent’s Summonsed Material, SM1, page 28.

    [46] Transcript, page 52, lines 30 to 46

    [47] Transcript, page 53, lines 1 to 14.

27. In her revocation request form, dated 21 October 2019[48]  the Applicant said she was having therapy for traumas she had endured in her past including molestation, physical, and mental abuse as a young child and continuing abusive relationships through her “early twenty’s”[49] (sic) with ex-partners who excessively abused her physically, mentally and touched on all five of the forms of abuse.[50] Here she used the plural form of “ex-partner” which seems to be a reference to Mr C, although at the time when her relationship with Mr C became “turbulent”, being June 2013[51] she was not in her early 20s but was nearly 25 years old.

    [48] Exhibit G1, Section 501 G Documents, G2, pages 229 to 251.

    [49] Ibid, G2, page 246.

    [50] Ibid, G2, page 246.

    [51] Ibid, G2, page 288, lines 300 to 301.

28. The Applicant’s mother wrote a second letter which is undated and expressed to be in relation to the Applicant’s visa. In it, she referred to the Applicant’s abusive marriage and then said “When she entered another abusive relationship, it became almost too much to handle…When [the Applicant] told me that she was finally done with her ex-partner, her now second extremely abusive relationship, I was ecstatic”’. The letter went on to refer to the Applicant going to Australia and still struggling with her ex-boyfriend “always trying to contact her”. She said “… even months after she and [Mr W] were together he still was trying desperately to make things as hard for her as he possibly could… Her ex-boyfriend is as much to blame for these charges as she is”. The wording indicates that the Applicant’s mother was aware that the Applicant was in an abusive relationship with Mr C at the time of the relationship. It is curious then that she did not mention that, or her belief that Mr C was just as much to blame for the charges, in her earlier letter to the court. Despite describing Mr C as abusive, and blaming Mr C, the Applicant’s mother did not say the Applicant was afraid to return to the US because of Mr C.[52]

    [52] Ibid, G2, pages 350 to 351.

29. The Applicant’s mother gave evidence in the earlier Tribunal hearing. The decision in that proceeding noted that:

    “It was apparent from the Applicant’s mother’s answers in cross-examination that she knew very little about the nature of the Applicant’s offending and it appeared that her evidence was that the Applicant had told her that she had made mistakes, but she did not describe to her mother in any detail what the offences involved.”[53]

    [53] Exhibit G1, Section 501 G Documents,G2, page 150.

30. Given the Applicant’s mother was prepared to make assertions about the offending without knowing much about it, and relying solely on what little the Applicant told her, I do not consider her evidence in general to be reliable. I do not give any weight to the contents of her second letter as far as it asserts that the Applicant was in a second abusive relationship or that her ex-partner was equally to blame for the offending. 

31. There is a letter purportedly from a Herbert Bernstein Esq, that is undated and purports to have been written for the purpose of visa proceedings. The fact that the letter from a lawyer is undated strikes me as odd, however its authenticity was not challenged. Mr Bernstein purported to have been the Applicant’s neighbour when she was with Mr C. He said the Applicant’s “now ex-boyfriend was quite frequently both verbally and physically abusive” and he referred to being elated when the Applicant finally left after “years of remaining in a toxic relationship”.[54] While the letter referred to the Applicant’s offending in a general sense and said it was out of character, it made no mention of the Applicant committing the offences involving the US court out of fear of her abusive ex-partner.

    [54] Ibid, G2, page 339.

32. It may well be that Mr C was abusive to the Applicant in the US. However, if that is the case, it does not appear that the Applicant or her mother considered it to be relevant to the sentencing proceedings or that the Applicant considered it worth mentioning on some other occasions including for the medical report and on a visa application. I am not prepared to accept that the Applicant committed the forgery and uttering offences against the US court because she was afraid of Mr C. Rather, I find that she simply did not want to face the charges in the US.    

33. In relation to the Medscribe offences, the Applicant denied having any recollection of claiming that she was suffering cancer which affected her memory, and she appeared to cast doubt on whether she had done that. However, she also said that she had pleaded guilty which meant that she accepted it all.[55] She denied that she had ever represented herself to be a doctor in person (except to her employers) but accepted that she had done so in written communication.[56]

    [55] Transcript, page 59, lines 1 to 25

    [56] Transcript, page 61, lines 1 to 13.

34. I find it implausible that the Applicant could have forgotten something as significant as telling her employers she was suffering from brain cancer, particularly in circumstances where her deception was at risk of being discovered and therefore must have been stressful.

35. In relation to the PayPal offences, the Applicant initially continued to deny that she had caused the refunds. When asked if she was still maintaining that Mr C was responsible for them, she said “What I’m saying is that someone, or some organisation, whether it be the bank or whomever, reversed the charges.”[57]

    [57] Transcript page 23, lines 8 to 10.

1. When it was put to the Applicant that the question related to the trial being over and her being free to relocate anywhere in the United States far away from Mr C, and it was put to her that the media had shown a tiny bit of interest in her, in the form of a couple of articles, and she was asked why she thought Mr C would find out where she was, she said:

   “For the same reason I left the country to get away from him. Why would I ever put my life in that kind of jeopardy? It would be extremely foolish of me to leave, go to a different state and just hope that no one ever found out that I lived there.”[106]

   [106] Transcript, page 44, line 30 to page 45, line 6.

2. When the Applicant was asked why she thought Mr C had not come to Australia to find her, given his friend Jake knew she was in Australia and how to get in touch with her, she said she did not know but speculated that it is because he does not have any kind of clout in Australia as he does not work for Australian law enforcement.[107]

   [107] Transcript, page 45.

3. There is little reliable evidence that Mr C was abusive to the Applicant, however she was adamant that he was and I accept her evidence that it is difficult to prove historical abuse. I must assess the present risk of harm from Mr C. I only have the Applicant’s word that he poses a present threat to her if she returns to the United States. Her evidence about this was internally inconsistent and became fluid and weak when challenged. It is not sufficient to satisfy me that there is a real risk that Mr C poses any real risk of harm of any kind to the Applicant. 

4. The Applicant did not claim to fear harm due to possible imprisonment. There is no claim or evidence before me that there is a real risk of the kind of harm that would entitle the Applicant to protection as a refugee or to complementary protection.

5. This Other Consideration is neutral.

   (b) Extent of Impediments if Removed

6. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

7. The Applicant is nearly 32 years old. She suffers from complex PTSD, severe anxiety and borderline personality trait. She was not receiving treatment, except Valium, for those conditions in Australia until she was placed in immigration detention for the first time in 2018. According to Mr Ritchie the Applicant’s current circumstances have a lot to do with her symptoms and she is making progress in managing her psychological conditions. The Applicant received psychological and psychiatric treatment in the United States and there is no reasons to think she would not be able to access appropriate treatment in the future.

8. The Applicant also suffers from several medical conditions and she provided a list to the Tribunal along with the treatments for them.[108] In the hearing she was asked if there were any conditions that she was not able to fully treat she answered that the asthma and anaphylaxis were the only ones in that category at the moment.[109] She said she has always suffered from the listed conditions, and she was able to get treatment for them in America although the inhalers (for asthma) and EpiPen(for anaphylaxis) were expensive. She added that treatment in Australia is more preventative than in America.[110]

   [108] Exhibit A1, Applicant’s Further Documents.

   [109] Transcript, page 15, lines 3 to 7.

   [110] Transcript, page 15, line 22 page 16, line 14.

9. One of the Applicant’s conditions is a tumour on her pituitary gland. There is a letter before me from a medical practice in the United States stating that the Applicant was a patient there between 2005 and 2011, listing her history of various medical conditions including what was described as a pituitary disorder (Hyperprolactinemia) related to a pituitary tumour and that she took medication for that.[111] There is a letter from Mooloolaba Family Medicine, dated 25 September 2017, which says that the pituitary tumour causes headaches/migraines and can cause vision impairment times. The depression and anxiety, and symptoms relating to the pituitary tumour are well managed with medication and regular counselling.[112] In his first report Dr Hatzipetrou also noted, in relation to the Applicant’s pituitary adenoma, that the “current file notes indicate the presence of a micro adenoma”.[113] Given the Applicant was able to obtain treatment for her medical conditions when she lived in the United States, I am satisfied that she would be able to do so in future, although I note that the regular purchase of EpiPen’s and inhalers could be financially burdensome.  

   [111] Exhibit R2, Respondent’s Summonsed Material, SM1, page 23.

   [112] Ibid, SM1, page 25.

   [113] Exhibit G1, Section 501 G documents, G2, page 290.

10. I am not satisfied that Mr C poses any risk of harm to the Applicant and I am not satisfied that he has any current interest in her or would seek to create any problems for her.

11. The Applicant grew up in the United States and lived there while she was an adult. She speaks the language and is familiar with the culture. I am satisfied that she would not encounter any substantial cultural or language barriers.

12. I am satisfied that it is likely that if the Applicant is returned to the United States she will be arrested and tried on the indictment for the alleged fraud offences. She might be placed on remand in the interim. There might be some media coverage. This will likely be a very unpleasant experience which may be aggravated by her various medical conditions, particularly her severe allergies. If she is convicted, that could make it difficult to obtain employment.

13. The Applicant has family and some friends in the United States so she will not be without support. She gave evidence that she would not choose to live with her mother but she did not say her mother would not offer her accommodation. I am satisfied that she would not be without accommodation and other basic necessities. Further, there is low level government welfare available in the United States. 

14. While the Applicant will face some challenges re-entering American society, I am satisfied that these would be short term and certainly not insurmountable. I allocate some limited weight against visa refusal on this basis.        

15. While the Direction does not expressly require me to consider possible hardship associated with a prolonged period in detention prior to being removed, it is a matter that has some relevance. I am not aware of any reason why, if the Applicant is not granted a Partner visa, she would remain in immigration detention for a prolonged period, except that she may apply for a Protection visa and that process could take some time.

16. The Applicant gave evidence that her medical needs are not being adequately met in detention, detailing a number of alleged failings in the part of SERCO and IHMS staff. She said she had made over 50 complaints, notified her departmental case officer, and that the Human Rights Commission, the Ombudsman and the Red Cross are all investigating.

17. Some of the Applicant’s claims seemed far-fetched, for example she claimed that an IHMS doctor had refused to treat her after googling her and discovering that she had falsely represented herself to be a doctor. With only the Applicant’s “side” it is impossible to determine what is really going on. There does, however, seem to be reliable evidence that the Applicant has suffered some anaphylaxis while in detention which is concerning. More to the point, the Applicant appears to genuinely believe she is being treated very poorly, that some of it is malicious and/or negligent, and that her health and wellbeing is continually being put at risk. I am satisfied that any prolonged detention will result in at least some psychological hardship until her concerns are investigated and addressed by the relevant bodies. I allocate some limited weight against visa refusal on this basis.        

18. This Other Consideration (b) weighs to a limited extent against exercising the discretion to refuse the visa application.

    (c) Impact on victims

19. This Other Consideration (c) requires a decision-maker to assess 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.

20. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.

    (d)     Links to the Australian Community

21. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

22. The Applicant relocated to Australia as an adult and has lived in Australia for five years. She commenced offending almost immediately after relocating to Australia and therefore is entitled to no weight under paragraph 9.4.1(2)(a) of the Direction. Her very brief employment as a nanny affords her some limited weight under paragraph 9.4.1(2)(a) of the Direction. She has not done any voluntary work and I afford her no weight for her work for Medscribe which she obtained by fraud.

23. The Applicant does not have any family members in Australia and, according to her, her relationship with Mr W is tenuous. She said it had come under a lot of strain due to her periods in detention and it is not certain that they are still in a relationship or that he would go to the United States if she were deported.[114] While the letter of support he provided for the earlier Tribunal proceedings referred to him relocating to the United States should the Applicant be deported, the Applicant herself is uncertain that he would do that now. Mr W did not give evidence or provide a letter of support for the current proceedings, which suggests a lack of commitment. I am not satisfied that Mr W would relocate for the Applicant. Accordingly, it is likely that he would be adversely impacted if the Applicant is deported as he will be permanently separated from her and he will likely suffer some emotional hardship.

    [114] Transcript, page 37, line 32 page 38, line 41.

24. The letters of support before me indicate that the Applicant has some friends in Australia and therefore, she has some social ties to the Australian community.     

25. The Applicant’s social links, and the impact on her family of her removal from Australia, weigh to a limited extent in her favour under paragraph 9.4.1(2)(b) of the Direction. 

    Impact on Australian business interests

26. The Applicant does not claim that her removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Conclusion: Other Consideration (d)

27. Overall, I am satisfied that the Applicant’s links to the Australian community weighs to a limited extent in against refusal of the visa application.

    Findings: Other Considerations

    The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: neutral;

    (b)extent of impediments if removed: limited weight against visa refusal;

    (c)impact on victims: neutral; and

    (d)links to the Australian community: limited weight against visa refusal.

    CONCLUSION

28. I am now required to weigh all of the Considerations in accordance with the Direction. 

29. In considering whether the discretion to refuse the Applicants visa should be exercised I find as follows:

    ·Primary Consideration 1 weighs significantly in favour of visa refusal;

    ·Primary Consideration 2 is neutral;

    ·Primary Consideration 3 weighs to a very limited extent against visa refusal;

    ·Primary Consideration 4 weighs significantly in favour of visa refusal; and

    ·To the extent that Primary Consideration 3 and Other Considerations (a), (b) and (d) weigh against visa refusal, they cannot, even when combined, outweigh Primary Considerations 1 and 4.

30. Consequently, I exercise the discretion to refuse the visa application.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.............................[SGD]...........................................

Associate

Dated: 21 June 2021

Date of hearing:

10 and 11 June 2021

Applicant:

By videoconference

Solicitor for the Respondent

Mr Ingmar Duldig

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G11 pages 1 to page 438)	R	-	16 April 2021
A1	Applicant’s Further Evidence including:    i.   Report of Ian Ritchie, psychologist dated 4 June 2021      ii.   List of medication and medical conditions     iii.   ED Discharge Referral from Liverpool Hospital, dated 23 August 2019    iv.   ED Discharge Referral from Bankstown-Lidcombe Hospital dated 3 June 2021      v.   Discharge Summary from Westmead Hospital dated 3 June 2021    vi.   IHMS Mental Health Consultation dated 2 April 2019   vii.   Ambulance Electronic Medical Records dated 23 May 2019, 27 July 2019 and 13 August 2019.  viii.   IHMS response to complaint dated 1 April 2019    ix.   Serco Villawood IDC Complaints Response dated 22 October 2013      x.   Applicant’s action plan for anaphylaxis dated 12 October 2018    xi.   Photograph of the Applicant	A	-	7 June 2021
R1	Respondent’s Statement of Facts, Issues and Contentions including attachments: ·     Article, Michael Tanenbaum Philly Voice ‘Harleysville woman accused of faking cancer diagnosis in GoFundMe scheme’ dated 8 September 2020 ·     ‘Government Benefits’ USAGov, (Web Page, 24 May 2021)	R	25 May 2021	25 May 2021
R2	Respondent’s Summonsed Material (SM1 to SM2, pages 1 to page 87)	R	-	25 May 2021