Ng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4149

Ng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4149 (8 November 2023)

Division:GENERAL DIVISION

File Number(s):      2023/6424

Re:Zhe Ping NG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:8 November 2023

Date of written reasons:        18 December 2023

Place:Sydney

The correct and preferable decision is that the reviewable decision of 24 August 2023 is set aside, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – the strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision set aside.

LEGISLATION

Migration Act 1958 (Cth) s 499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

18 December 2023

BACKGROUND

1. This review is in relation to a decision made by a delegate of the Minister dated 24 August 2023 not to revoke the mandatory cancellation of her Class BS Subclass 801 Partner visa pursuant to section 501CA4 of the Migration Act 1958. The application was made within the statutory time prescribed under section 500(6B) of the Act and as recognised at the hearing, the 84th day is 16 November 2023.

2. The Applicant is a citizen of Malaysia and was born on 13 October 1994. She arrived in Australia on 18 November 2013 at which time she was aged 19.

3. On 14 December 2016, the Applicant was fined for driving a vehicle while not having a licence.

4. On 26 April 2017, she was fined a second time for driving while unlicensed for which she was disqualified from driving for three years.

5. In December 2017, the Applicant was fined for driving whilst disqualified.

6. On 28 October 2018, the Applicant failed to disclose her driving convictions on her incoming passenger card.

7. The Applicant was convicted on 5 August 2020 of driving a vehicle with illicit drugs present in the blood. She was fined and disqualified from driving for three months.

8. On 15 June 2021, she was convicted of a number of offences:

   (a)supply and a prohibited drug – a small quantity;

   (b)having goods in personal custody suspected of being stolen;

   (c)two counts of deal with property with proceeds of crime and supplying a prohibited drug – indictable commercial quantity; and

   (d)possessing prohibited drugs.

9. The Applicant, as a result, was sentenced to two years imprisonment. On 3 August 2021, the Applicant was notified that her Class WE Subclass 050 Bridging visa was cancelled under section 501(3A). On 24 November 2021, the District Court on appeal varied the Applicant’s sentence to 20 months imprisonment.

10. On 18 July 2022, a delegate of the Minister revoked the decision dated 5 August 2021 to cancel the Applicant’s Bridging visa and issued a warning letter to the Applicant.

11. On 14 February 2023, the Applicant was convicted of supplying prohibited drugs – indictable commercial quantity and was sentenced to 12 months imprisonment.

12. On 22 March 2023, a delegate for the Minister cancelled the visa Applicant’s visa under section 501(3A). On 20 April 2023, the Applicant sought revocation of the cancellation decision and on 24 August 2023, the delegate decided not to revoke the mandatory cancellation.

13. The Applicant then applied to the Tribunal on 31 August 2023 for review of the delegate’s decision.

    ISSUE

14. As the parties agreed that the Applicant does not pass the character test, the issue before the Tribunal is whether there is another reason why the original decision should be revoked, pursuant to section 501CA(4B)(ii) of the Act.

    LAW AND POLICY

15. Turning to the law, the Tribunal is required to have regard to Direction 99.

16. The principles governing Direction 99 are set out very clearly in the Respondent’s statement of Facts, Issues and Contentions and I adopt that as part of this decision.

    EVIDENCE

    Oral evidence of the Applicant

17. Turning now to the evidence, the Applicant gave evidence that she had tried to get assistance both in prison and detention for her drug use and a number of other issues but for a variety of reasons, none of the programs had been made available to her.

18. When in prison, the Applicant said that that the majority of her time had been spent in remand, and she had been moved to different facilities which interfered with her position on the medical wait list.

19. She said that when she was serving her sentence, no drug or alcohol courses had been included as part of her sentence and her evidence was that she had been prevented from accessing such programs in prison as a result.

20. When she was in the community, the Applicant said that her work in a brothel had meant that she finished work at odd hours and that it was very difficult to engage with community services that may have been able to help her. She slept primarily during the day.

21. In relation to referrals she had received from her parole officer for drug and alcohol and gender counselling, the Applicant’s evidence was that she was given specific advice to access counselling services but that no specific services were recommended.

22. Her evidence was that even though she had tried to abstain from drugs when she was previously released from the immigration detention, her visa conditions prevented her from working or studying and it was not long before she associated with old friends and fell back into drug use.

23. She said that when using drugs, she no longer thought or cared about anything.

24. The Applicant’s evidence was that her offending had hurt her mother and that she wanted to become clean and stop disappointing her mother. She said that she was nearly 30 and if she didn’t cease her drug use, she was worried about her future.

25. The Applicant said that a successful recovery from drug use would take some time and thought her environment was a critical factor for her chances of successfully abstaining from drugs.

26. When questioned about the possibility of returning to Malaysia, the Applicant was concerned that her extended family would not help her and that she would not be able to support herself. She said that her family would not approve of her transgender status or her drug offences and that her grandmother had already made it clear that she would not provide accommodation were the Applicant to be returned.

27. If she were returned to Malaysia, the Applicant did not think her mother should accompany her. She thought that returning to Malaysia would cause her mother financial issues.

28. The Applicant expressed remorse for her offending and for the possibility that her offending could have harmed others. She said that at the time of her offending, her drug addiction had driven her actions and had crowded out any thoughts of whether or not her actions were wrong.

29. She said that she did not intentionally misrepresent her offences on the incoming passenger card, but rather thought that driving offences without jail time were not considered criminal offences.

30. In relation to her offence of May 2020, the Applicant said the drugs she had been in possession of were not hers. She had pled guilty in order to go to the drug court. In relation to the offences of June 2020, the Applicant denied she was aware that the pills found by the police were drugs and that the $1,600 in cash was leant to her by her mother to pay for rent. She said that a friend had provided pills to her, but she did not know they were illegal.

31. The Applicant said that she recognised breach of bail was a serious matter but at that time she was under the influence of drugs and did not care.

32. When it was put to the Applicant that she had promised to cease drug use previously, the Applicant acknowledged that it would be hard for people to trust her not to stop using drugs.

33. The Applicant said that despite long delays in being provided with support services, she had recently been able to access some psychological services and the SMART Recovery program. She said that SMART Recovery program was particularly helpful in gaining insight into her offending behaviour and helping her find resources she could access to support her.

    Oral Evidence of Ms Aoh

34. The Applicant’s mother, Ms Aoh, affirmed her statement of October 2023. She said that she had come to Australia in 2011 in part because the Applicant’s father had been an abusive husband. Her evidence was that she had a close relationship with the Applicant.

35. Ms Aoh said that if the Applicant were to be removed from Australia to Malaysia, the question of whether she would return to Malaysia to support the husband was a very difficult one, as she would be forced to choose between her current husband and her child. She was also concerned that she would face financial difficulties in Malaysia, and she did not have any work experience in that country for at least the past 12 years.

36. She thought the Applicant would have great difficulty finding work because of her transgender status.

37. The Applicant’s mother said that her husband was also supportive of the Applicant. She said that the Applicant had made very bad decisions because she had been around bad influences but, as parents, they would help her to change her behaviour and support her in every way.

38. When questioned about family members in Malaysia who might be able to provide support, Ms Aoh thought that they would be unlikely to provide financial support, Ms Aoh thought that they would be unlikely to provide financial support as they have their own families and their own financial stresses. She gave evidence that she would provide accommodation and help her daughter find employment in Australia and that she would also monitor the Applicant’s behaviour and watch thoroughly to counter any relapse into drug use. She said she would monitor the Applicant very strictly and conduct regular drug tests.

    Oral Evidence of Ms Dombrowski

39. Ms Dombrowski had written a psychological report assessing the Applicant’s likelihood of offending in May 2023. She had forensic psychological experience spanning 27 years and was experienced in providing assessments to courts and tribunals.

40. Her evidence was that she had specific experience with sexual assault, drug abuse and domestic violence and that the transgender community, while small, commonly presented with these issues.

41. When speaking about the reliability of the self-appraisal questionnaire on which her report was based, Ms Dombrowski said that this method of assessment had a high level of predictive validity and was better than many other tools which were focused more on categorising the subject of the assessment.

42. Ms Dombrowski assessed the Applicant as having a low to moderate risk of reoffending on the basis of both the dynamic and static risk factors that the Applicant had presented at the time of the assessment. Ms Dombrowski’s assessment was that the Applicant had an approximately per cent chance of reoffending and she felt that any reoffending would most likely be drug related.

43. Despite the Applicant’s assessment indicating anger management issues, Ms Dombrowski’s opinion was that it would be unlikely that the Applicant would graduate to violent crime and raised the possibility that the Applicant’s unsupervised use of transgender hormones may have amplified the Applicant’s presentation in this area.

44. Ms Dombrowski’s opinion was that the stress and anxiety stemming from the Applicant’s transgender status and associating with drug users and sex workers would increase her likelihood of using drugs.

45. When presented with documents that indicated that the Applicant had used drugs both before and at the time of writing the report and that the Applicant had misrepresented her level of drug use at the time, Ms Dombrowski’s evidence was that offenders who struggle with substance abuse often try to hide their drug use and fail to fully comprehend the challenges of long term abstinence.

46. Her evidence was that a relapse into drug would not surprise her given the environment and the difficulty in accessing treatment programs.

47. In Ms Dombrowski’s opinion, the Applicant required substance abuse treatment support and for a variety of possible reasons, was naïve in relation to substance abuse and mental health, which gave the Applicant limited insight into her offending.

    DECISION

48. Turning now to the relevant considerations under direction 99.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

49. The first primary consideration, protection of the Australian community.

50. In considering this primary consideration I have had regard to paragraph 8.1 of direction 99.

51. There are two aspects to this consideration;

    (e)the nature and seriousness of the conduct of the non-citizen; and

    (f)the risk to the Australian 45 community should the non-citizen reoffend.

    The nature and seriousness of the Applicant’s conduct

52. Turning now to the nature and seriousness of the offending. The Applicant is 29 years old and has been in Australia for approximately 10 years.

53. The Applicant’s offences must be regarded as serious. In particular, I note that they fall within the provisions of clause 8.1.1(3) of Direction 99.

54. The Applicant was warned by the department of possible visa cancellation but went on to commit further criminal offences.

55. It is reasonable, on the evidence, to make a finding that the seriousness of the Applicant’s offending increased over time.

56. The Applicant’s offending also commenced very shortly after she arrived in Australia.

57. The Applicant explained her behaviours by saying that she was taking and dealing drugs at the time and that she was associating with a bad crowd and that her work made it difficult for her to access services which may have been able to help her.

58. The Applicant failed to take advantage of many opportunities offered to her by the criminal justice system and continued to offend whilst on bail and on parole.

59. Overall, the Applicant’s offending must be regarded as extremely serious.

    The risk of the Australian community should the Applicant re-offend

60. Turning to the question of risk to the Australian community should the Applicant reoffend.

61. Ms Dombrowski assessed the Applicant as being at low to medium risk of reoffending. She said that in her opinion, it would not change her assessment even if the Applicant had used drugs whilst in detention. The Applicant’s relapses into drug use underscored the need for the Applicant to be able to access proper treatment.

62. The Applicant also had issues with anger management which Dr Dombrowski said were related to gender dysphoria and the unsupervised use of hormones. Ms Dombrowski did not see the Applicant as being a high risk of committing violent crimes. In her opinion, any reoffending would be more likely to be drug related.

63. I find the Applicant’s mother to be a protective factor for the Applicant in relation to reoffending. Clearly, Ms Aoh loves her daughter very much and wants to do all she can to help her.

64. The Applicant recognised the effect of her behaviour on her mother and expressed a desire to do better.

65. The Applicant has made some attempts at rehabilitation and it was acknowledged that it had been very difficult for her to access appropriate counselling services.

66. The Applicant said that she would try to avoid her former associates and her mother said that she would supervise the Applicant very closely.

67. I note that the Applicant’s period of abstinence from drug use has been relatively short, approximately five months, and that previous periods of drug abstinence had been relatively short.

68. In light of all of the relevant evidence, I find that the Applicant is at low to moderate risk of reoffending.

69. Overall, I give this first consideration heavy weight in favour of non-revocation of the delegate’s decision.

    PRIMARY CONSIDERATION 3 – THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

70. Turning now to the strength, nature and duration of ties to Australia.

71. The Applicant came to Australia at the age of 19 and started to offend shortly thereafter.

72. The Applicant’s mother is her closest family member and she lives in Australia. I have found her to be a protective factor in relation to the Applicant falling back into her old lifestyle, including drug use.

73. The Applicant’s mother will provide the Applicant with housing and also with a job.

74. The evidence was also that the Applicant’s stepfather and stepbrother were very supportive of her and would accept her. The Applicant also felt accepted in the Australian community as a transgender person.

75. I find that the Applicant’s mother is critical to her future and that the Applicant would be at grave risk without her mother’s love and support.

76. It is unlikely that Ms Aoh would be able to assist her daughter, at least to anything like the same extent, if her daughter were not present in Australia.

77. The Applicant has started to access counselling in Australia and is likely to be the recipient of important counselling and medical services in relation to her gender dysphoria and efforts to keep away from drugs if she remains in Australia. Those services are unlikely to be available to her, at least to any reasonable degree, if she were not to be in Australia.

78. Overall, I give heavy weight to this consideration in favour of revocation of the delegate’s decision.

    PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

79. Turning now to the expectations of the Australian community.

80. Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185 where the court decided by majority that it was not for the decision-maker to assess the expectations of the Australian community for the purposes of applying this consideration. Rather, the expectations of the community for the decision-maker are set out in direction 99 at paragraph 8.5.

81. The Applicant’s offending is serious and she first commenced offending shortly after arriving in Australian.

82. The Australian community has very little tolerance for dealing in drugs. As noted previously, the Applicant started offending shortly after arriving in Australia as an adult. Her offending became more serious over time.

83. In considering the weight to give to this consideration, I take into account the Applicant’s gender dysphoria which may account, at least in part, for her feelings of alienation and anxiety and depression which may have played a part in her drug use.

84. In looking at all of the evidence however, particularly the fact that the Applicant commenced her offending so soon after arriving in Australia, ignored warnings on a regular basis and failed to respond to the opportunities offered to her through the criminal justice system, I find that this consideration weighs heavily against revocation of the delegate’s decision.

    OTHER CONSIDERATIONS

    Legal Consequences of the decision

85. It was raised that the Applicant is able to apply for a Protection visa.

86. This Tribunal is not in a position to make any decision in relation to whether or not such an application would succeed. It is an option that would be available to the Applicant.

    Extent of impediments to removal

87. Turning now to the question of impediments to the Applicant being removed from Australia,

88. it is quite clear from the evidence that the Applicant is very unlikely to receive treatment for her gender dysphoria in Malaysia. Further, she faces very serious discrimination if she were to be removed to that country. It is unlikely that she would be able to access drug counselling and support in the same was she is able to access these services in Australia.

1. Very importantly, the Applicant would not have the moral support of her mother. She would return to Malaysia with nowhere to live and it is highly unlikely that she would be able to find a job.

2. In short, it is likely that the Applicant would be left in Malaysia isolated, without any family support other than perhaps some moral support, but certainly no financial support and no support in relation to accommodation.

3. She is likely to be isolated and lonely. In such a scenario her mental health issues, her anger and her and feelings of alienation are likely to be greatly increased as is the likelihood of her returning to drug use.

4. It is also likely that if the Applicant were to reoffend she would be brought to the attention of the Malaysian police and the Malaysian justice system and be subjected to very harsh penalties indeed.

5. In short, the Applicant’s access to all of the factors which would support her are effectively available only in Australia.

6. In light of all of the evidence, I give this consideration heavy weight in favour of revocation of the delegate’s decision.

   CONCLUSION

7. I found this a very difficult case. On the one hand the Applicant was guilty of serious offences. There was doubt as to whether she would be able to maintain her abstinence from drugs, although I accept as sincere her statements that she was determined to try and do so. I also accept that the Applicant wishes to try and regain control of her life in a positive way for the sake of her mother.

8. There were instances during the Applicant’s evidence where I wondered about the veracity of some of her answers. But that may simply have been due to language difficulties or to nervousness.

9. The Applicant has a number of protective factors. She has been assessed at low to moderate risk of reoffending by Ms Dombrowski. And I have accepted that assessment.

10. The Applicant is likely, with the support of her mother, to make significant progress if she is released into the Australian community.

11. Although a fine balancing act I find that, taking into account all of the evidence and relevant considerations, the correct and preferable decision is that the decision under review be set aside and in substitution, the cancellation of the Applicant’s visa be revoked.

I certify that the preceding 99 (ninety - nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 18 December 2023

Date(s) of hearing:	7 & 8 November 2023
Solicitors for the Applicant:	Mr Jeremy Szeto
Solicitors for the Respondent:	Ms Qi Qi Ren