NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 364
•9 March 2023
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364 (9 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10079
Re:NHBK
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:9 March 2023
Place:Sydney
The Tribunal affirms the reviewable decision dated 6 December 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.............................[SGD].....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass character test – substantial criminal record – revocation under subsection 501CA(4) – whether there is another reason to exercise discretion to revoke – Ministerial Direction No.90 – expectations of the Australian community – protection of the Australian community – nature and seriousness of offending conduct – likelihood of reoffending – best interests of minor children – links to Australian community – strength, nature and duration of ties – decision under review affirmed
LEGISLATON
Migration Act 1958 (Cth)CASES
DLJ18 V Minister for Home Affairs [2018] FCA 1650
FYBR v Minister for Home Affairs [2019] FCAFC 185Potae v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(Migration) [2022] AATA 3731
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Uelese V Minister for Immigration and Border Protection and Another [2015] HCA 15SECONDARY MATERIALS
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
Emeritus Professor P A Fairall, Senior Member
9 March 2023
INTRODUCTION
The Applicant (NHBK) is a 43-year-old New Zealand citizen. On 10 June 2021, she was convicted and sentenced to 21 months imprisonment with a non-parole period of 13 months for an assault in company upon a woman occasioning actual bodily harm.[1] This resulted in the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa on 22 June 2021.[2] This is an application for review of the delegate’s decision not to revoke the decision to cancel her visa.[3]
[1] G8, 42.
[2] G2, 7.
[3] The decision was made on the delegate on 5 December 2022: G3, 9.
BACKGROUND
A threadbare account of the Applicant’s life story, taken from material provided to the Tribunal, is as follows.[4] She grew up in the Bay of Islands, around Whangarei.[5] Her parents separated when she was nine years of age. She came to Australia at the age of fifteen with her mother, stepfather, and brother.[6] In 1996, she returned to New Zealand to assist with the care of her sick grandmother. She came back to Australia in November 1997 to settle permanently.[7] She has lived here continuously since the age of eighteen. She started using drugs in her mid-twenties when she worked irregular hours in a bar, first cannabis and then methylamphetamine (ICE). In 2002, she gave birth to a son in Australia (JN), who is now twenty years of age. She was with her de facto husband, JN’s father, for about 15 years, but they are no longer together. She had another relationship that lasted about 6 years. In both relationships she claims to have experienced domestic abuse. Her mother died from cancer in early 2018. Her father died in late 2018 and she moved to the city in August. Her use of drugs escalated.
[4] Statutory Declaration dated 27 January 2023; Applicant’s Tender Bundle (ATB), 1; Personal Statement: G17. 91.
[5] G17, 91.
[6] G17, 88.
[7] See Movement Records: G29, 136.
Her criminal record is extensive, covering the period 2005 to 2020, as set out below. With one minor exception, it was conspicuously devoid of violent offending until 2 August 2020, when she committed an assault in company on a woman occasioning actual bodily harm. The sentence imposed exceeded 12 months, thus triggering the mandatory cancellation of her visa under subsection 501(3A) of the Migration Act 1958(Cth) (the Migration Act).
MANDATORY VISA CANCELLATION
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Migration Act and therefore does not pass the character test under paragraph 501(6)(a).
On 22 June 2021, the Minister cancelled her visa pursuant to subsection 501(3A) of the Migration Act.[8] She was transferred to the Immigration Detention Centre at Villawood (VIDC) at the end of her non-parole period. Unfortunately, the original notification did not comply with formal requirements, and she was re-advised on 22 December 2021 that her visa had been cancelled. She was invited to make further representations to the Minister about revoking the original decision to cancel her visa.[9]
[8] G11, 66-67.
[9] G14/76; G15/83.
By statutory declaration dated 18 January 2022, she stated:
Firstly, I would like to state that I have been living in Australia for 29 years with my family where I have made a life for myself in my family and have given birth to my only son at Blacktown hospital and have raised [JN] here his whole life and I also have custody of my Brother three children and I wish to continue to raise them in Australia. The chance of them actually being something will only happen here. I want that for them so they don't make the same mistake I have done throughout my life.[10]
[10] G19, 107.
On 19 January 2022, she completed and signed a Request for Revocation of a Mandatory Visa Cancellation form.[11] In the Personal Circumstances Statement (received by the Department of Home Affairs (the Department) on 16 June 2022), she stated that her brother’s three children were currently in her care, and she had custody of them since around April 2019. She identified the following children who were “just with Auntie until I’m released”:
a. ‘XI’
b. ‘TI’
c. ‘NI’[12]
[11] G16, 84.
[12] G17, 92.
She stated that she and her mother cared for the children because their birth mother abandoned them at birth and their father was incarcerated. She said that when she was not incarcerated the children lived with her and she received Centrelink benefits for them. She said they were already emotionally traumatised by her incarceration and there would be a huge impact upon the children because she had been their sole carer since her mother passed away.[13]
[13] G17, 93.
She listed at least nine other children by name and another ten children by gender as minor children who might be affected by an adverse decision relating to her visa status.[14]
[14] G17, 94.
She included a handwritten statement in which she expressed remorse for her offending and emphasised that she had lived in Australia since 1994, had given birth to a child here and was the carer of her brother’s three children.[15]
[15] G18, 104.
On 5 December 2022, a delegate of the Minister (delegate) decided not to revoke the mandatory cancellation decision (the reviewable decision).[16] This decision was conveyed by letter dated 6 December 2022 delivered by email.[17]
[16] G3, 9.
[17] G2, 7.
On 9 December 2022, she applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision.[18] She stated:
I believe the decision made was wrong and agree that a different decision should be made due to change of circumstances with my son JN and the passing of his father whilst in detention centre. Obviously the information I provided to yous have not taken in to consideration at all. My son's mental health and state of mind is at risk. I ask you please review the decision made.[19]
[18] G1.
[19] G1, 5.
THE HEARING
The Applicant was represented by Ms M. Mamarot, a Migration Agent, employed by Southwest Migration and Legal Services. The Respondent was represented by Mr C. Burke, a solicitor employed by Sparke Helmore Lawyers.
The application was heard over four days (1, 2, 10 and 27 February 2023), predominantly by videoconference, but the last day was in person. The Tribunal was required to finalise its decision by 28 February 2023, in accordance with the timeframe imposed by the Migration Act.[20]
[20] Subsection 500(6L).
The Tribunal heard from the Applicant and another witness, Ms AD, on the first hearing day, and from her son JN on the second day. The parties then made closing submissions.
I made a confidentiality order under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), that the name, address, or any other information tending to reveal the identity of the Applicant, her child, and any other minor children referred to in this decision must not be published, and other related orders.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a) Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 23 January 2023
(b) Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 27 January 2023
Applicant’s materials:
Applicant’s Tender Bundle (31 pages)
(b) Statutory Declaration by RS dated 2 June 2023
Respondent’s Materials:
Respondent’s Tender Bundle (580 pages)
(a)Respondent’s Further Tender Bundle (94 pages)
(b)Respondent’s Supplementary Submission on Best Interests of Minor Children Primary Consideration, dated 9 February 2023
(c)Discrete Facebook Pages
(d)Respondent’s Bundle of Documents (23 pages)
Documents filed under section 501G of the Migration Act (the ‘G docs)
FINDING ON THE CHARACTER TEST
According to the Nationally Coordinated Criminal History Check Report provided by the Australian Criminal Intelligence Commission (ACIC) dated 29 June 2022, the Applicant was sentenced in the Central Local Court of New South Wales on 19 June 2021 to 21 months imprisonment for the offence of assault occasioning actual bodily harm in company of others, with a non-parole period of 13 months.[21] The judgment of the sentencing magistrate dated 10 June 2021 is contained in the materials before the Tribunal.[22] The Applicant therefore fails the character test, by reason of the combined operation of paragraphs (6)(a) and (7)(c) of section 501 of the Migration Act.[23]
[21] G6, 28.
[22] G8, 42.
[23] G4, 11.
At the time her visa was cancelled, the Applicant was serving this sentence on a full-time basis, in Clarence Correctional Centre in New South Wales (NSW). The Minister was therefore required to cancel her visa pursuant to subsection 501(3A) of the Migration Act.
THE SOLE ISSUE
Subsection 501CA(4) of the Migration Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.I am satisfied that on 19 January 2022, the Applicant made representations to the Minister, in accordance with the invitation to do so, seeking revocation of the decision to cancel her visa.[24]
[24] G16, 84.
In determining whether the Tribunal is satisfied that ‘there is another reason why the original decision should be revoked’, it must consider the legal consequences of the decision.[25] Having regard to sections 189, 196, and 198 of the Migration Act, the legal consequence of not revoking the cancellation of the applicant’s visa is that the Applicant is liable to ongoing detention pending removal to New Zealand. This is an important consideration, given her lengthy period of residence in this country.
[25] DLJ18 v Minister for Home Affairs [2018] FCA 1650 at [5] (Flick J) and [28] (Bromberg J).
I turn to consider whether there is ‘another reason’ why the original decision to cancel her visa should be revoked.
exercising The Discretion Under Subsection 501CA(4)
Under section 499 of the Migration Act, the Minister may give written directions to a decision-maker about the performance of its functions and exercise of its powers. The Tribunal is required to comply with such directions.[26] The governing direction pertaining to the present decision, being made on 28 February 2023, is Direction No. 90 (the Direction).[27]
[26] Subsection 499(2A).
[27] Direction No. 90 – 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. As noted in the final part of this decision, Direction No.99 took effect on 3 March 2023, a few days after the final hearing day on 27 February 2023. There are significant differences between the two Directions, especially in relation to the treatment of long-term residence in Australia.
Part 1 of the Direction sets out certain formal matters and, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(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 measureable 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 noncitizens 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 noncitizens 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 measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction is entitled Exercising the Direction. There are four primary considerations (paragraph 8), and four ‘other’ considerations (paragraph 9) that must be considered ‘where relevant to the decision’. In the present case, relevant primary considerations include the protection of the community from criminal and other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The remaining primary consideration, family violence, is not engaged in this case. Other considerations include (but are not limited to) the extent of impediments if removed, and links to the Australian community.
The Direction also contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that a non-primary consideration may be dominant in a particular case.[28]
Primary Considerations
[28] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides that decision-makers should also 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 non-citizen’s conduct to date: paragraph 8.1(2)(a)
The Applicant’s New Zealand criminal record discloses two offences as a minor for which she was convicted and discharged. I note the lengthy passage of time that has elapsed since these offences were committed, the fact that she was a juvenile at the time, and the benign sentence imposed. I accord these offences minimal weight.[29]
[29] G7, 41. It is doubtful whether, strictly speaking, these convictions of a minor by a New Zealand Court fall within the purview of subsection 85ZR(2) of the Crimes Act 1914 (Cth). See Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23.
I turn to her Australian criminal record. Between 2005 and 2014, she was convicted in New South Wales of several offences which were dealt with by way of fine or licence disqualification. These included:
Driving offences
1)Take & drive conveyance w/o consent of owner-T2
2)Drive motor vehicle during disqualification period - 1st off
3)Driver or rider state false name or home address
4)Drive while under the influence of alcohol or other drugs
5)Drive motor vehicle during disqualification period - 1st off
6)Drive on road etc when licence cancelled
7)Drive vehicle with illicit drug present in blood etc-1st off
8)Use uninsured motor vehicle
9)Driver/rider state false name/address
10)Not stop at stop line at red light (not toll booth)-m/v
11)Drive on road etc while licence suspended
12)Use unregistered registrable Class A motor vehicle
13)Licence expired less than 2 years before-1st offence
14)Never licensed person drive vehicle on road-1st offence
Dishonesty offences
1)Goods in personal custody suspected being stolen (not m/v)
2)Dishonestly obtain financial advantage etc by deception-T1
3)Goods in personal custody suspected being stolen (not m/v)
4)Goods suspected stolen in/on premises (not m/v)
5)Goods suspected stolen in/on premises (not m/v)
Drug offences
Possess prohibited drug
Public Order
1)Use offensive language in/near public place/school
2)Assault officer in execution of duty
3)Resist or hinder police officer in the execution of duty
Administration of Justice
Fail to appear in accordance with bail undertaking
These offences were dealt with by way of fines, or disqualification, and in 2014, good behaviour bonds.
Her subsequent offending is described by the Respondent as follows:
5. From 2014, the applicant’s pattern of drug, theft and driving-related offending became increasingly more serious. On 29 January 2014, the applicant was sentenced to a two year section 9 bond for driving while disqualified, and on 26 February 2014 she was sentenced to a further twelve-month s 9 bond for Take & drive conveyance w/o consent of owner-T2 (G6/39). The applicant subsequently breached both of these bonds and was sentenced to one month’s imprisonment on 12 March 2015.
6. Only two years later, on 29 March 2017, the applicant was sentenced to a suspended term of seven months’ imprisonment for Possess identity info to commit etc indictable offence-T1 and stealing mail, as well as three months’ imprisonment for a litany of other theft-related offences (G6/38-39). On the same day, the applicant was yet again called up for breaching her previous bonds, for which she received a further a twelve-month section 9 bond (G6/38).
7. Less than a year after, on 20 March 2018, the applicant received an ‘initial’ suspended sentence (per the sentencing provisions of the Parramatta Drug Court) of 13 months’ imprisonment (sic) [30] for three theft and five fraud related offences, as well as numerous breaches of her bond conditions at the time of offending (G6/35-36). A ‘final’ sentence was imposed on the applicant of twelve months’ imprisonment with respect to these offences (G6/31-34).
8. Just a year later, on 11 April 2019, the applicant was sentenced to two months’ imprisonment for a theft offence (G6/31). The same year, on 4 October, she received a two-year community corrections order (CCO) for drug possession, which she subsequently breached (G6/31).
9. Only months later, on 28 February 2020, the applicant received a four-month intensive corrections order (ICO) for theft-related offences. On 29 July 2020, she received a further seven-month ICO for two counts of theft related offences and four counts of drug related offences, and an 18-month CCO for two further counts of theft related offences (G6/28-31). The applicant was sentenced to 2 months’ imprisonment on 10 June 2021 for breach of this CCO (G6/28). On the same day, she also received a term of 21 months’ imprisonment for Assault occasioning abh [Actual Bodily Harm] in company of other(s)-T2 (G6/28).[31]
[30] The initial aggregate sentence was in fact 14 months: see G10, 64.
[31] RSFIC, paragraphs 5-9.
Assessing the nature and seriousness of the Applicant’s criminal record
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending.
Violent crimes are viewed very seriously by the Australian Government and community. This includes crimes of a violent nature against women and children, regardless of the sentence imposed on the offender. Subject to this caveat, the Tribunal should take account of the sentence imposed by the criminal court, the frequency of the offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, and whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Her criminal record in Australia commences in 2005 and shows a steady escalation with increasing penalties, from fines to community corrections orders, and finally imprisonment.[32]
[32] Nationally Coordinated Criminal History Check Report, dated 29 June 2022: G6, 28.
Her dependency on drugs after her relationship failed in 2016 was a critical development. On 20 March 2018, she was sentenced in the Local Court jurisdiction of the NSW Drugs Court. The charges before the Court included six offences of dishonestly obtaining a financial advantage by deception, five counts of goods in custody, one count of possession of prohibited drug, one count of possession of identity information to commit an indictable offence and one count of receiving stolen property. The Court imposed an aggregate sentence of 14 months without a non-parole period.[33]
[33] G10, 64.
On 1 February 2019, she returned to the Drug Court for final sentencing. Senior Judge Dive stated:
There were extraordinary and quite dreadful circumstances within the family at that time, and I formed the view then and continue to do so that [the Applicant] was someone who tried very hard on the Drug Court program and I think perhaps has gained a great deal from the program, despite finding herself in custody today. It all came to an end badly when [the Applicant] did not return to court as planned. She tells us in evidence today she went looking for her missing 12 year old niece in Queensland. Family is a very important part of the Applicant life and her culture and I accept that that might have felt like being an essential task to address. So there was some good participation on the program and some good indications of working hard on recovery.
As to time in custody, there has been a lot of time spent in custody. The Applicant was in custody for 182 days prior to her initial sentence, has been bail refused for the last 74 days, making a total of 256 days, and the Crown has calculated and the defence agrees that any sentence imposed today could commence from 21 May 2018. I am prepared to set aside the initial sentence and adjust it slightly and the effect of the orders today, as I have already indicated, will be that [the Applicant] will be released to a period of parole today. I will announce the total terms firstly, because they are the most important.
[T]here is going to be a total non-parole period of eight months. That eight months will, in fact, commence from 2 June 2018 and is completed today, 1 February 2019. There will then be a four-month period of parole which will run to 1 June this year. …[T]he plan is for you to be released to parole for four months today.[34]
[34] G9, 55.
Unfortunately, her exposure to the Drug Court program was unsuccessful. She had three Local Court appearances in 2019, and four in 2020. Various sentences were imposed, including fines and community correction orders (18 months, 14 months). In her final appearance on 10 June 2021, she was sentenced to 21 months with a non-parole period of 13 months for the assault in company causing actual bodily harm. An appeal against sentence was dismissed by the District Court on 23 August 2021.[35]
[35] G6, 28.
Although this is the only offence involving serious violence,[36] it was a premeditated and brutal attack upon a defenceless woman and attracted a lengthy custodial sentence. The sentencing magistrate noted:
The victim was outnumbered by four to one with nowhere to retreat given it was a studio apartment. The assault was conducted by [the Applicant] and PD with DM and RF present, followed by DM cutting the victim's hair and RF looking for hair clippers to do the same. The Crown says that the cutting of the victim's hair was a degrading and humiliating act which the victim had to submit given she was outnumbered and had just been assaulted. I note in any event, the cutting of the hair is a continuation of the assault in company.
The act could not to be a lapsing judgment or spontaneous act noting that [the Applicant] said to the victim, "I told you you would get what was coming to you." The Crown describes the violence used as involving a high degree of ferocity and violence due to the manner in which it occurred. Aggravating factors include the fact that the offender [the Applicant] was on conditional liberty at the time of the offence. In relation to all offenders, the offence occurred in circumstances where the victim was staying at DM's premises for that evening...[37]
[36] The 2005 incident of assault police officer attracted a $250 fine: G7, 40.
[37] G8, 46.
This was a premediated act of violence which according to her evidence was intended to pay the victim a lesson because she apparently owed money. The Applicant denied that the money related to drugs. One of her co-offenders worked in the sex industry, as did the victim. Whether the money related to drugs or something else was not established at the hearing.
The victim was in such terror during the attack that she lost control of her bladder. She needed to go to hospital where she received three stitches to her lip and her nose was glued. Beating a trapped defenceless person is especially heinous, especially when carried out by a group.
When measured against the various factors in paragraph 8.1.1, the Applicant’s record of offending is very serious.
Failure to disclose offences
I also note that twice she failed to disclose various convictions on her immigration arrival card, on 31 October 2006 and 6 January 2009. On each occasion she failed to disclose her 1997 New Zealand convictions. By 2009 she had accumulated seven Australian convictions.[38] This non-disclosure is not a trivial matter and compounds the seriousness of her offending. She told the Tribunal that her arrival card was completed by someone else because of her literacy problems.[39]
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Paragraph 8.1.2
[38] G6, 40.
[39] G26, 127.
Under paragraph 8.1.2(1), in considering the need to protect the Australian community, the Tribunal 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.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by a non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
I note the extensive range of driving offences committed by the Applicant, especially in the period 2009 to 2014. Repeated breaches of rules designed to promote traffic safety puts the community at risk. The commission of dishonesty offences to fund a drug habit constitutes a significant harm not only to individuals but to the Australian community. The most recent offending involving an assault in company causing actual bodily harm is a very significant cause for concern. There are incident reports from Corrective Services and SERCO that underline this concern.[40] These occurrences suggest that the Applicant tends to resort to violence as a means of settling disputes.
Paragraph 8.1.2(2)(b): The likelihood of the non-citizen engaging in further criminal or other serious conduct...
[40] NSW Department of Corrective Services Incident Details, Report Date: Respondent’s Further Bundle, p 20; G25, 125.
In assessing the likelihood of the applicant engaging in further criminal acts or other serious conduct, the Tribunal is required to consider information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision.
There is no psychiatric material before the Tribunal which would allow a reasonable assessment to be made as to the Applicant’s prospects of making a successful recovery from what appears to be a serious substance abuse disorder.
There are however two Sentencing Assessment Reports (SAR) before the Tribunal, in 2019 and 2020, both of which assessed the Applicant at a medium to high risk of reoffending.[41]
[41] SAR dated 30 September 2019, Respondent’s Bundle; SAR dated 27 July 2020: TB8, 418.
As to remorse, the Respondent submits that the Applicant’s assertion that she hit the victim only once was an attempt to minimise her involvement and is inconsistent with a state of genuine remorse.
In sentencing the Applicant and two co-offenders on 10 June 2021, Magistrate Stewart stated:
In relation to [the Applicant], her longstanding drug addiction issues and the fact that this serious personal violence offence [occurred] only days after being placed on an intensive correction order for multiple offences raises concerns about her prospects of rehabilitation. She has 19 previous institutional misconduct matters during the occasion she has been imprisoned, including four whilst on remand for this offence; the last being as recent as 19 May 2021. Her expressed remorse to "such victims" is not at all specific to this offence or to this offence. I note past rehabilitation attempts have been unsuccessful. I am guarded about her prospects of rehabilitation and unable to find she is unlikely to reoffend.[42]
[42] G8, 50.
On a positive note, I also note that the Applicant has completed several courses in prison, including a Certificate II in Business, from TAFE NSW (March 2021),[43] a course offered by Corrective Services Industries Working Safely, a Guide to Safe Working Practises (June 2021),[44] and the Salvation Army Positive Lifestyle programme.[45] She completed the HIPU (High Intensity Program Unit) at Kempsey Correctional Centre. This program addressed drug and alcohol; anger issues; grief; domestic violence; and addictions. She says she attended a session every day over 4 months.
[43] G22, 113-115.
[44] G22, 111.
[45] G 22, 112.
Conclusion on PC1
The Applicant’s overall pattern of offending is extensive and intractable. At one level, the assault in company may be seen as somewhat out of character, or of a different nature to her previous offending. Alternatively, it presents as the culmination of a gradually escalating pattern of defiant criminal behaviour extending over 15 years. While recognising that it is the only serious act of violence in her criminal record (apart from the assault police in 2005 for which she received a nominal fine), the custodial sentence imposed was well over the threshold justifying mandatory cancellation. I have serious reservations about whether she is truly remorseful for the assault in company or has much insight into the harm she did to the victim.
I find that PC1 weighs heavily against revoking the mandatory cancellation.
Family Violence: PC2
This consideration has no relevance in this case.
Best interests of minor children in Australia affected by the decision: PC3
Paragraph 8.3 of the Direction states:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant identified the following children under 18 in her personal statement
a. [XI]
b. [TI]
c. [NI]
At the hearing, the Applicant’s relationship to these children and the carer role she claimed for herself was both contested and critical. In her Statement dated 27 January 2023, she stated:
My son, nephew & nieces (minor children)
52. I started caring of my brother’s children since my mother passed away on 22 February 2018. I am awfully close to them and I consider them as my own. They don’t have their parents, as my brother was deported before my mother passed away in 2018 and their mother abandoned them the children after the youngest one was a newborn.
53. My nephew, [XI] was born in 2013. He is currently in school and doing well. He attends WP School. He is highly active and enjoys playing soccer. He is a happy, fun, and easy going. He loves doing the Haka and he is very interest in his Māori culture.
54. My niece, [TI] was born in 2014. She loves to sing and is very affectionate and loving. She is interested in the Māori culture and she plays Netball. I believe she is a good player.
55. My youngest niece, [NI] was born in 2016. She has just started school. She is sweet and playful. She is a good singer and she is trying to play netball, but I don’t think she is ready for it.
56. Currently, my aunt takes care of them while I am in detention. They know that I am in detention. I often speak to them on WhatsApp. They use their computer, and we video call every week for about 1 hour.
57. They are very affectionate and open with me. They tell me about their day, ask me how I am, and when I will be coming back home. They also tell me that they miss me.
The care arrangements for the children, and whether formal or informal, was not clear on the evidence before the Tribunal. I therefore invited the Applicant to provide further material relating to the children, their current care arrangements, and their relationship to the Applicant. The hearing adjourned at midday. Later that day the Applicant’s representative filed a Statutory Declaration purporting to be a declaration made by RS on 2 February 2023. The document is dated “2/6/2023”. The declaration was not witnessed in compliance with the Statutory Declarations Act 1959 (Cth).
The document states:
6. My sister was the children's carer since they were babies. They were in nappies when she started looking after them. Before she passed away (early 2018) she asked me to promise her that her daughter - [the Applicant] would be the main and full-time carer of the children. I promised her that this would happen.
7. Following my sisters wish, if [the Applicant] is released and back on her feet John and I will support her in becoming the children’s full-time carer. This was always the plan.
8. The Applicant] has a very close and loving relationship with the children. They love her deeply.
9. If [the Applicant] is deported, then the children will be sent back to New Zealand, facing uncertainty of their new surrounding, with no family support, homelessness, and financial hardship.
10. I know that the Applicant had a long-term drug problem but has shown she is capable of her sobriety with the help and ongoing support from my husband and I, family and friends. I think its in the best interests of the children that they live with [the Applicant]. We will work together to make sure she has all the emotional and financial support she needs to keep a safe stable environment for the children's future.
The hearing resumed on 10 February 2023. Ms Mamarot informed the Tribunal that RS was available to give evidence. Mr Burke objected that the witness had not been properly identified. The Tribunal then directed that appropriate identification be provided to the Tribunal. The document provided fell short of satisfying any reasonable standard of identification. However, given the importance of hearing from this witness, I allowed her to be called. An attempt was then made to telephone her on the number provided. The call was not answered. Ms Mamarot then indicated that the Applicant had provided an alternative number. The Tribunal contacted the witness on the new number, and she was duly affirmed.
Ms Mamarot then proceeded to lead the witness through the introductory part of her evidence:
Can I please ask you to state your name and address for the record?--- RS, [a suburb] in New South Wales. Post code, xxxx. My date of birth is 14 – thank you.
Thank you. Senior Member, I – thank you. Just before we proceed in this matter, I don’t know how to approach it. My duty is first to the tribunal, and as such I would be – the voice that I hear now is not the same one that I interviewed or spoke to previously. So I think identity is an issue at this point. I wouldn’t be proceeding…
SENIOR MEMBER: Ms Mamarot, do you not wish to call this witness?
MS MAMAROT: Senior Member, I’m in the hands of the tribunal. I just think identity is the issue here.
There was some discussion with both representatives during which the line went dead. The hearing was adjourned and after seeking instructions from her client, Ms Mamarot indicated that she did in fact wish to call RS at the resumed hearing. She said that an explanation would then be given about this day’s strange proceedings. I declined a request from the Minister’s representative to direct the Applicant to provide a written explanation regarding her knowledge of these events. The Tribunal then adjourned to an in-person hearing on 27 February 2023. The Tribunal also issued a summons for RS to appear.
When the hearing resumed on 27 February 2023, the Tribunal was informed that the summons had not been served on RS as she was overseas. Ms Mamarot confirmed that RS was not contactable and would not be called to give evidence.
The Applicant was recalled. She was instructed by the Tribunal that she had a right not to answer questions that might result in self-incrimination. When asked directly whether she was aware of the identity of the person who had identified herself as RS at the hearing on 10 February 2023, she declined to answer.
I am satisfied that the person who attempted to give evidence to the Tribunal on the 10 February 2023, representing herself to be RS, was not in fact RS. Ms Mamarot indicated to the Tribunal that the voice was not the same as the person she had previously spoken to. My impression was that the voice was that of a young woman, not that of an elderly person. The witness did not respond to efforts to re-establish contact on the number provided.
Moreover, I am satisfied that the declaration dated 2 February 2023 purporting to be from RS should be given no weight at all. It was not witnessed or declared before an authorised officer. The Applicant agreed that the signature is quite different from that contained in the affidavit signed by RS and produced under summons.[46] There is no evidence that it was written or signed by RS.
[46] TB8, 463.
The Applicant confirmed in oral evidence that XI, TI and NI were her brother’s children, and that he was removed to New Zealand when his visa was cancelled, and that their birth mother had played no role in the children’s upbringing.
In her Statement dated 27 January 2023, the Applicant stated that she had cared for these children since their grandmother (her mother) died in early 2018, but I do not give this claim much if any credit. I note that she was sentenced in the NSW Drugs Court on 20 March 2018. At that time, she had been on remand for 182 days. She appeared before the court for final sentence on 1 February 2019. At that point she was bail refused for 74 days. In other words, she was in custody between 19 September 2017 and 20 March 2018, and again from 19 November 2018 until 1 February 2019. It appears that she was custody doing a Drug Court program when her mother died.[47]
[47] G8, 46.
The applicant stated that when her father died at the end of 2018, she “went off the rails” and not long after, went to prison. She was arrested following the incident on 2 August 2020 which was dealt with on 10 June 2021.
It appears that the burden of looking after these children fell mostly on RS. This is borne out by a statutory declaration by RS dated 5 August 2019 that was contained in summons materials before the Tribunal. It states:
My husband JS and I (RS) lease 2 properties in Kingswood NSW. Our Son LV, his partner MN and their 3 children reside in Kingswood. Our son HY boards with LV and MN in Kingswood too.
Both JS and I reside in Kingswood where we care for 3 foster children who live with us at this address. Our son DM also lives in our granny flat out the back.
In 2018 we agreed to have our niece [the Applicant] bailed to our address as part of her drug court conditions and in an effort to help her overcome her addiction issues. Her mother (my older sister) passed away after a short illness and we offered our support during this sad time. She was bailed to our home and did comply with the legal requirements and conditions for approximately 6 months. However she moved to the city in August 2018 with friends and as a consequence failed to maintain the conditions of the drug court. [The Applicant] was arrested in the city on numerous occasions because Police came to our property to arrest her. She continues to use our home address and yet she has not lived here for almost a year.
The problem we now have is while [the Applicant] lives and resides in the city she continues to use our address whenever she gets arrested. This means over a 12 month period and almost 15+ times, police have come to our home address to arrest her and have instead attempted to take MN (our daughter in law) into custody. This has continuously occurred causing stress to both her and the grandchildren aged 2,4 and 7. This has been a terrifying experience for them all.
I have telephoned and also visited probation and parole to ask them to remove both our addresses from her record as [the Applicant] does no longer live with us at any of these premises; they have done so however the address is still on her record.
I then visited the local police station to ask if [they could remove our address from her record and they said only the court has the authority 'to do this. I am therefore asking the Court to please remove both our addresses in Kingswood from her record. In addition we DO NOT give [the Applicant] permission to use either of these addresses in the future. [48]
[48] TB8, 463.
I note the reference to ‘3 foster children’. I take this to be a reference to the children XI, TI and NI.
The Tribunal is required to decide whether non-revocation of the mandatory cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.
I am satisfied that XI, TI and NI are minor children under 18 who may be affected by a decision to remove the Applicant. I also find that they are cared for in a family environment by their biological aunt (RS) and uncle (JS).
The Applicant has listed several other children who may be affected by a decision to remove her, but little information has been provided to the Tribunal about these children, their birth dates or relationship to the Applicant.
I am satisfied of the following facts. XI, TI and NI are the children of the Applicant’s brother. He was deported to New Zealand around 2017, leaving his three young children in his mother’s care (GM).[49] This arrangement continued until early 2018 when GM died. The children were then looked after by their aunt (RS) and uncle (JS) (GM’s sister) as part of a fostering arrangement – whether formal or informal is uncertain. On occasions, the Applicant lived at the same address. She says that she had primary care of the children and that they were cared for by RS while she was away (in custody), but this is not accepted by the Tribunal.
[49] GM is also the Applicant’s mother and of course, the children’s grandmother.
In written submissions, the Respondent contended that this primary consideration weighs lightly in favour of revocation of the cancellation decision, but after hearing the oral evidence presented at the hearing, submitted that it was neutral.[50] The Respondent submitted that the open for the Tribunal to find that the impact of non-revocation was neither positive nor negative but neutral.[51]
[50] SFIC, [58].
[51] See Uelese V Minister for Immigration and Border Protection and Another [2015] HCA 15, at [67].
I accept that such a finding is open to the Tribunal. However, as recently as 2017 a Community Corrections Report found that she was unsuitable for a community service order because she had unresolved substance abuse issues.[52] She admitted in oral evidence that she had been using cannabis and methylamphetamine for many years. The escalation of her recent offending is especially troubling.
[52] TB5, 243.
The Applicant is unlikely to add value to the upbringing of any child (especially her nieces and nephew) if she continues to abuse drugs such as ICE, and if she continues to offend. It is significant that on 5 August 2019 her aunt RS wrote in a statutory declaration that she and her husband did not give her permission to use their address.
On the evidence before the Tribunal, it appears that the Applicant has contributed little to providing a stable environment for these children.
I find that while PC3 does not weigh against the Applicant it should be given minimal weight in her favour.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The degree to which this consideration weighs against an applicant seeking revocation of a mandatory cancellation decision depends on the seriousness of their offending.[53]
[53] FYBR v Minister for Home Affairs [2019] FCAFC 185.
There are two aspects of the Applicant’s circumstances that stand out. First, the severity of the physical assault on the female victim, and second, the fact that her criminal record is intractable and extends over so many years. The Tribunal does not accept that her record should be mitigated by reason of her substance abuse. There is simply no evidence that her substance dependency is the result of psychiatric factors that are beyond her control.
The Respondent contends, consistently with the Direction, that crimes of a violent nature against women should be regarded as very serious.
For these reasons, I find that PC4 weighs firmly against her.
Other Considerations
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature, and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration has no application to this matter.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant spent her early years in New Zealand. She was fifteen when she first arrived in Australia and eighteen when she settled on a permanent basis.[54] She has lived continuously in Australia for more than 25 years. She made eight brief trips back to New Zealand prior to 2009, and none since.
[54] G29/136.
The Applicant is in her early forties. She has not presented evidence of any specific maladies, other than her dependence on drugs. She suffers from substance use addiction (mostly marijuana and methylamphetamine).
There are no substantial language or cultural barriers to her in returning to New Zealand. She has a proud heritage as a Māori woman. She describes the pride her niece and nephew have in their Māori heritage.[55] There is nothing to suggest that she is alienated from her Māori traditions and culture.
[55] Applicant’s Statement, 27 January 2023: ATB, [53]-[54.
I note that her brother was removed to New Zealand after his visa was cancelled. She did not think she could expect much help from him, because he was couch surfing and living on hard times. She also has a sister in New Zealand and has a good relationship with her.
The Tribunal was presented with evidence of an employment opportunity. Ms AD, a university student, gave evidence to the Tribunal that she owned a café business and that she was waiting for the Applicant to be released from detention to reopen the café after it had been closed during the COVID-19 pandemic. The Respondent tendered a document from social media which indicated that the café remained closed. The Tribunal was not persuaded that the offer of employment was genuine or fruitful, or that the Applicant could reliably manage a café given her past reliance on drugs as a coping mechanism.
There is nothing to suggest that her employment prospects will be worse in New Zealand than they are in Australia. The simple truth is that they are not strong in either place, but fundamentally will depend upon her ability to free herself from the shackles of drug dependency.
Nevertheless, the disruptive effects of a forced relocation during this time in the Applicant’s life cannot be underestimated. It will undoubtedly take its toll in many physical and emotional ways and the Applicant will experience hardship as a criminal deportee in being removed from her immediate family and friends in Australia.
I consider that OC2 weighs in favour of revoking the mandatory cancellation decision.
Impact on victims: OC3
The Direction provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to his consideration, which is therefore neutral.
Links to the Australian community, including:
(i) Strength, nature, and duration of ties to Australia: OC4.1
Paragraph 9.4.1 of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s first criminal conviction occurred in 2005, some eight years after settling permanently in Australia.[56]
[56] G/136.
Her employment record is patchy, and she appears to have been on Centrelink benefits since 2010.
In terms of immediate family, she has a son and a half-sister in Australia and other more distant relatives. As noted above, her parents both died in 2018.
She also gave evidence that she has multiple family members in Australia.
It is especially important to consider the impact upon her twenty-year-old son, JN, of a decision to remove her. He said that he depended on his mother for emotional support, and that his partner was expecting a child. He also had experienced the recent loss of his father, who died in November 2022. He said that he was aware of his mother’s offending although he was not aware of the details. He said that he needed his mother and would be excited if she was given a chance of stay in Australia. According to his statement he had been very sad and depressed since his father died. He states that he was admitted to his local mental hospital in Blacktown after a suicide attempt.
I find that the Applicant’s son JN will suffer a sense of profound loss should his mother be removed from Australia.
In the Applicant’s Statement dated 27 January 2023, she stated:
66. If released, I plan on living with my son JN. The kids will stay with me. I can provide for them, take good care of them, send them to school, and make sure all their needs are being met. Anything they need, I am willing to provide. I was able to provide all of this to my son and I know with the right help and support from my aunties I am much more capable of providing it to them.
67. My aunt has two houses next to each other. My cousin is staying in one house while I have the other. If I have to go to work, I have my cousins and other family members to take care of them. My aunt has been supportive of me. I can count on my family for love, support, and guidance. They are a good influence. Staying with them means I am away from drugs.
The family dynamic adds to the complexity of this case. It may be that proximity between the Applicant and her son will keep her on the right path. But she also intends to live close to her nephew and nieces. If she continues to use drugs and offend, she will not be a positive influence for these children.
The applicant has lived in Australia for over 25 years and may be regarded as a long-term resident of Australia. As I have previously remarked, this fact alone does not provide any guarantee that a person whose visa is cancelled because they fail the character test will be entitled to remain in Australia, as shown by numerous Tribunal decisions.[57] However, cases in which long term residents are removed invariably reveal a very bad offending record. The Applicant’s overall record is very bad but not in the worst category.
[57] The cases are referred to in Potae v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3731 at [98] et seq.
Given the very lengthy duration of her residence in Australia, and her relationship with her twenty-year-old son, I find that that OC4.1 weighs strongly in favour of revoking the cancellation decision.
(ii) Impact on Australian business interests: OC4.2
There is no evidence of any impact on the sort of Australian business interests referred to in the Direction. This consideration has no application.
CONCLUSION
The Applicant has experienced a good deal of personal tragedy, caused by family breakdown, and exacerbated by her own drug use. She has struggled to find a decent path. Her offending record is long and complex. Some allowance must be made for the addictive nature of substance abuse. But her present trajectory is not a good one. Unfortunately, her offending appears to have escalated as she has grown older. The Tribunal is at a loss to see any likelihood of change.
She has let her family down, especially her own son and her brother’s children. It is hard to imagine the pain inflicted on her mother, who died in early 2018 while her daughter, was in custody.
Moreover, no adequate explanation was provided to the Tribunal as to the identity of the person who claimed to be RS and sought to give evidence in support of the Applicant. It is hard to avoid an inference that the Applicant knew more about this subterfuge than she was willing to tell.
In weighing the primary and other considerations I note the following:
(a)Both the safety of the community (PC1) and the expectations of the community (PC4) weigh strongly in favour of not revoking the mandatory cancellation.
(b)As against this, the best interests of minor children in Australia (PC3) and the impediments to resettlement (OC2) weigh lightly in favour of revocation. Her links to the Australian community (OC4.1) weighs strongly in favour of revocation, chiefly because of the presence and needs of her son JN, and her long-term residence.
(c)No claims have been made in respect of other considerations, such as non-refoulement (OC1), family violence (PC2), impact on victims (OC3) or impact on Australian business interests (OC4.2).
In short, two of the primary considerations weigh strongly against the Applicant, and three considerations weigh in her favour, one strongly.
The removal of a woman from her home and the proximity of her family and especially her son is a very difficult decision for the Tribunal to make. It will fall heavily on the Applicant and on her son. Nevertheless, I am satisfied that the correct and preferable administrative decision under the Direction is to accord priority to the primary considerations of the safety and expectations of the Australian community.
THE RELEVANCE OF NEW DIRECTION 99
New Direction 99 came into effect on 3 March 2023. Under this Direction, the ‘strength, nature and duration of ties to Australia’ (paragraph 8.3) becomes a primary consideration. Paragraph 8.3(4) provides:
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
Under Direction 99, the fact that a non-citizen was ordinarily resident during or since their formative years should be accorded considerable weight, regardless of when her offending commenced. Under Direction 90, the Tribunal should consider how long the non-citizen has been in Australia, including whether the non-citizen arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia. Direction 99 marks a significant shift in emphasis. The Applicant has been resident in Australian during and since her formative years.
I am satisfied that the decision made on 28 February 2023 was the correct administrative decision to make under Direction 90, but I am also satisfied that this case may well have been decided differently a few days later under Direction 99, which is now in force. Assigning considerable weight to the fact that she has been in Australia since and during her formative years could well have made a difference. As noted above, her record is bad but not of the worst kind, despite the frequency of court appearances.
Direction 99 reflects a significant policy change by the Australian government in relation to non-citizens whose formative years were spent in this country. In my view, given this change, it is appropriate to recommend to the Respondent that consideration be given to the grant of a discretionary visa to the Applicant, despite the decision of the Tribunal affirming the reviewable decision.
Finally, I note that the Tribunal was required by the statutory framework to decide this matter in a rush. The hearing concluded on 27 February 2023, the day before the deadline imposed by the 84-day rule in subsection 500(6L) of the Migration Act. This did not allow much time for reflection and deliberation after the conclusion of the hearing. I have no hesitation in stating that the compressed time for decision making makes for sub-optimal decision-making.
Decision
The Tribunal affirms the reviewable decision dated 6 December 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.......................[SGD].......................................
Associate
Dated: 9 March 2023
Date(s) of hearing: 1, 2, 10 and 27 February 2023 Representative for the Applicant: Ms M Mamarot, Southwest Migration and Legal Services
Solicitor for the Respondent: Mr C Burke, Sparke Helmore Lawyers
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