O’Dowd and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 225
•7 January 2021
O’Dowd and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 225 (7 January 2021)
Division: GENERAL DIVISION
File Number: 2020/6434
Re:Taryn O’Dowd
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Andrew McLean Williams
Date of Decision: 7 January 2021
Date of Written Reasons: 25 January 2021
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 8 October 2020 not to revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa.
.........................[SGD]..................................
Member Andrew McLean WilliamsCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (Subclass 444) visa – where applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Mitchell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 937
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION MADE ON 7 JANUARY 2021
Member Andrew McLean Williams
25 January 2021
INTRODUCTION
Taryn Elizabeth O’Dowd (‘the applicant’), a citizen of New Zealand aged 41, comes before the Tribunal seeking a review of a decision by a delegate of the respondent (‘the Minister’), as was made on 8 October 2020, wherein the delegate determined, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not to revoke a decision made on 10 December 2019, thereby cancelling the applicant’s Special Category (Class TY) (Subclass 444) visa, pursuant to s 501(3A) of the Act.
Movement records[1] reveal that the applicant first arrived in Australia on holidays on 2 March 1988 (when aged 8), accompanied by her parents and older brother. The O’Dowd family stayed in Australia until 22 March 1988, before returning to New Zealand. The applicant and her family then arrived in Australia on a more permanent basis on 25 October 1989. At this stage, the applicant was aged about 10.[2]
[1] Exhibit G1, s501 G Documents, G28, page 164 to 165.
[2] Exhibit G1, s501 G Documents, G28, page 164.
Since 25 October 1989, the applicant has left Australia on four occasions: in 1994, 2005, 2006, and in 2012. On only one of those occasions (in 2012), did the applicant return to New Zealand. Each departure from Australia was for only a few weeks. The most recent visa granted to the applicant, upon her re-entry on 18 February 2012, was a Special Category (Class TY) (Subclass 444) visa (“visa”).[3]
[3] Exhibit G1, s501 G Documents, G23, page 143.
As will be discussed in further detail later in these reasons, the applicant’s criminal history reveals a number of criminal convictions pre-dating 13 March 2018. Yet, it is presently relevant to note that on that date the applicant was convicted and sentenced in the Magistrates Court at Innisfail as follows:
Stealing:[4] 3 months, imprisonment
Contravention of a domestic violence order (aggravated offence):[5] 6 months, imprisonment
Wilful Damage:[6] 12 months, imprisonment
Assault or obstruct police officer – domestic violence offence:[7] 4 months, imprisonment
Enter dwelling with intent by break damages property:[8] 18 months, imprisonment
Breach of Probation: conviction recorded, yet
no further punishment
[4] Queensland Criminal Code s.398.
[5] Domestic and Family Violence Prevention Act (2012) (Qld) s.177(2)(a)
[6] Queensland Criminal Code s.469(1).
[7] Police Powers and Responsibilities Act (Qld) s.790(1) & 47(9).
[8] Queensland Criminal Code s. 419(1) & (2) & (3)(b)(iv).
First Mandatory Visa Cancellation, and First Revocation Decision
On 24 April 2018, and because of the 13 March 2018 convictions, a delegate of the Minister mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Act, on the basis that the applicant did not pass the character test.
The applicant then made representations seeking revocation of that mandatory visa cancellation.[9] On 29 June 2018, and after consideration of the applicant’s representations, a delegate of the Minister determined to revoke the mandatory cancellation, under s 501CA(4) of the Act (“first revocation decision”).[10]
[9] Exhibit G1, s501 G Documents, G21, pages 96 to 139.
[10] Exhibit G1, s501 G Documents, G22, pages 140 to 142.
For reasons that will soon become apparent, it is also important to record that the written notice of the first revocation decision contained the following caution to the applicant:
“Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.”[11]
[emphasis in the original]
[11] Exhibit G1, s501 G Documents, G22, page 140.
On 29 October 2019, the applicant was convicted in the Magistrates Court at Innisfail, and was sentenced to concurrent terms of imprisonment for the following further offences:
Breach of community service order
(given for assault/obstruct police on 3 April 2018): 1 month, imprisonment
Enter premises and commit indictable offence by break:[12] 9 months imprisonment
Failure to appear at court on an undertaking:[13] 1 month, imprisonment
[12] Queensland Criminal Code s.421(2) & (3).
[13] Bail Act (Qld) s.33(1).
Second Mandatory Visa Cancellation
On 10 December 2019, a delegate of the Minister again cancelled the applicant’s visa pursuant to s 501(3A) of the Act, again on the basis that the applicant did not pass the character test: by reason of her having a ‘substantial criminal record’ within the meaning of s 501(6)(a) and s 501(7)(c) of the Act, (this by reason of the applicant having previously been sentenced to a period of 18 months imprisonment); and because of the applicant now serving a further full-time custodial sentence, after her having received more convictions, on 29 October 2019.[14]
[14] Exhibit G1, s501 G Documents, G23, pages 143 to 149.
On 24 December 2019, the applicant lodged her request for revocation of the 10 December 2019 mandatory visa cancellation (“second revocation request”),[15] and made representations in support of that.[16] Various documents[17] were submitted by the applicant. These include two further letters to the respondent, dated 12 and 19 December 2019,[18] querying the correctness of the second mandatory visa cancellation, asserting that the applicant considered this decision to be one based on erroneous information; and that having her visa cancelled for a second time like this was something “akin to double jeopardy”. Whilst the applicant acknowledged that she was in fact incarcerated at the time of her letters, she was not incarcerated as a result of a sentence of imprisonment of over 12 months: by reason that the terms imposed on her by the Magistrates Court at Innisfail were cumulative, rather than concurrent, and did not amount to 12 months.[19]
[15] Exhibit G1, s501 G Documents, G10, pages 60 to 63.
[16] Exhibit G1, s501 G Documents, G2, page 7.
[17] Exhibit G1, s501 G Documents, G11 to G20, pages 64 to 95.
[18] Exhibit G1, s501 G Documents, G12, pages 79 and 80.
[19] However, see s.501(7A) of the Migration Act, which has the effect that, for purposes of the character test, concurrent terms of imprisonment are to be considered as if they were cumulative.
On 23 December 2019, the respondent replied to the applicant’s letters of 12 and 19 December 2019, advising that it had been found that the applicant was liable for mandatory cancellation (for a second time) by reason that she was serving a new sentence of imprisonment, separate from the sentence that had formed the basis of the original visa cancellation decision of 24 April 2018.[20]
[20] Exhibit G1, s501 G Documents, G24, page 150.
On 22 May 2020, and prior to the respondent making any determination on the second revocation request, the applicant was convicted and sentenced to additional terms of imprisonment, this time by the Supreme Court at Cairns, for offences which had occurred on 7 August 2019. These further convictions were:
Possessing dangerous drugs
(crystal methylamphetamine, commercial quantity):[21] 18 months, imprisonment
Failing to properly dispose of needles and syringe,[22]
& Possess property suspected of being used inconnection with a drug offence (digital electronic scales):[23] 1 month, imprisonment[21] Drugs Misuse Act (Qld), s9(1) & (b).
[22] Drugs Misuse Act (Qld), s.10(4A).
[23] Drugs Misuse Act (Qld), s10A(1)(B).
On 8 October 2020, the respondent decided not to revoke the second mandatory visa cancellation (‘the refusal’).[24] The statement of reasons[25] for the refusal included reference[26] to the fact of the applicant’s most recent drug convictions, as imposed by the Supreme Court at Cairns on 22 May 2020.
[24] Exhibit G1, s501 G Documents, G2, pages 3 and 4.
[25] Exhibit G1, s501 G Documents, G2, pages 7 to 23.
[26] Exhibit G1, s501 G Documents, G2, pages 10 and 11, paragraphs 24 to 26.
The applicant then lodged an application in this Tribunal for review of the refusal, on 15 October 2020.[27] The Tribunal has jurisdiction to review the refusal, pursuant to s 500(1)(ba) of the Act.
[27] Exhibit G1, s501 G Documents, G1, page 1.
The hearing of this application for review took place on 9 and 11 December 2020.
At the hearing, the Tribunal received oral evidence via video conference from the applicant (who was incarcerated in the Townsville Women’s Correctional Centre); from the applicant’s former partner (‘D’); and from each of the applicant’s mother, and father; all of whom gave their evidence by telephone.
The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure A” to these reasons.
FACTUAL BACKGROUND, and offending History
As is indicated at the outset of these reasons, the applicant was born in New Zealand, remains a New Zealand citizen, and moved to Australia when 10 years of age. The applicant’s parents are small crop farmers and had at that stage decided to relocate to the Bundaberg District, in Queensland. In her evidence before the Tribunal, the applicant described the circumstances of her family moving to Australia in these terms:
“I believe that my parents - yes, so I came with my mum and dad. I think - I think, you might want to ask Mum and Dad, but I believe that GST had just been introduced into New Zealand and my mum, my uncle, he was living in Australia. We came over for a holiday a few years earlier to visit with my uncle, and then Mum and Dad just loved Australia and things were so much cheaper, so they packed us all up and moved us over to Australia.”[28]
[28] Transcript Day One, page 11, lines 34 to 40.
The applicant attended the latter part of primary school near to her parent’s farm, and then did her secondary schooling at the Gin Gin State High School, where the applicant completed year 12, doing quite well academically.[29] After secondary schooling, the applicant attended TAFE in Bundaberg, completing a two year Diploma in Early Childcare and Education; before moving on to studies at the Central Queensland University, there completing a Bachelor in Learning Management, all whilst working in the child care industry.[30]
[29] Transcript Day One, page 11, line 43
[30] Transcript, Day One page 11 to 12; see also G11, page 68.
The applicant says that despite completing her degree, she had, by this stage, decided that a career in early childhood education was not for her. Between 2001 and 2009, the applicant explored a range of alternate careers, including jobs in real estate, as a tourism tour guide, and jointly owning a sugar cane farm.
In about 2007, the applicant moved to Brisbane and took up a job managing corporate events.[31] Whilst in Brisbane, the applicant also met her former partner D, who is now the father of her two children.
[31] Transcript, Day One, page 11, lines 1 to 9; G11, page 75.
On 30 June 2003, when aged 24, the applicant was convicted of her first offence, at Proserpine, one of ‘assault or obstruct police officer’. The applicant was fined, and no conviction was recorded. During the giving of her oral evidence, the applicant explained this offence as having arisen in the following context:
“Applicant: A group and friends and I had just too much to drink and I was belligerent towards the police. I wasn't very polite, so I was charged with obstruction because I didn't want to go home.
…./
Mr McLaren: Okay. And, look, obviously from what you've said you weren't a big drinker pre, say, 2013, so pre-Mission Beach, basically?
Applicant: Correct.
Mr McLaren: And so that would've been, I suppose you would say, an aberration then to have had such a big session leading to a charge like that?
Applicant: Correct. So, at that time, my - not my ex-partner, [D], I did touch on earlier that I used to own a cane and (indistinct) farm with a previous partner, Ben. We had just finished for the season and we'd flown up to Airlie Beach with a group of backpackers, because we were young also at that time, and, yes, it was definitely a - out of character for me to even be really drinking on a night out. I note don't have - I've never been a big social drinker or one that goes even to clubs or pubs or anything like that.”[32]
[32] Transcript, Day One, page 41, lines 31 to 47; page 42, lines 1 to 2.
Other than to note the fact of its occurrence, this youthful incident bears no relevance to matters now under deliberation, and it will not be considered further.
In around 2007, the applicant met her ex-partner (‘D’) in Brisbane.[33] The applicant and D subsequently moved in together and, in August 2008, their first child, a girl, (‘P’) was born.[34]
[33] Transcript, Day One, page 116, lines 10 to 18.
[34] Transcript, Day One, page 12, lines 9 to 12; G11, Personal Circumstances Form, pages 67 and 68.
In 2009, the applicant and D moved to Melbourne so that D could further his career in the transport logistics industry. Here, the applicant initially worked as an office administrator for the transport company D was then managing.[35] Subsequently, the applicant found work in human resources and was responsible for rostering and staffing at the Port Phillip Prison, stating: “I absolutely loved that job. It was just an incredible experience and I really did love that job”. The applicant and D appeared to live a stable and contented family life at this stage, with D also describing that time as being, in his view, “perfect”.[36]
[35] Transcript, Day One, page 12, line 13.
[36] Transcript, Day Two, page 116, lines 42 to 43.
Whilst in Melbourne, the applicant fell pregnant with their second child, a son, (C) who was born in August 2012.[37]
[37] Transcript, Day One, page 12; G11, page 69.
When D was offered a well-paid job in Far North Queensland, and whilst the applicant was still pregnant with C, the applicant and D decided to move their family to Mission Beach.
Upon moving to Mission Beach, the applicant’s life commenced to unravel. In her evidence, the applicant described the relocation in these terms:
“…I fell pregnant with my second child, [Child C]. [D], at this time, was offered a job up in Tully which is where [Redacted] Transport is located and because I was having another child we thought – [D] and I are both from the country, so we decided that we would pack up and move to Mission Beach to give our children a - a wholesome upbringing, but I had no idea that Mission Beach was such a small town, and that Cairns was - I sort of thought Cairns was a lot closer. I became deeply depressed.
…
…obviously after I moved to Far North Queensland - also I should probably point out at this stage one of the other reasons, and I do do this. I do try to deflect the bad things that have happened, and I am - have learnt now that I’m taking responsibility and I’m much more able to talk about the negative things in my life. So, another reason that we moved from Melbourne, and [D] was actually having an affair with one of the women that he worked with. So, obviously when [D] was offered the job in Tully it was, you know, a good decision, I felt, only there was no work for - for me, and - and obviously because I did love my job so much at Port Phillip, there was just - there was nothing transferrable in Innisfail or Cairns, and I was just very depressed. Some people have alluded to the fact that I might have had post-natal depression. I - I’m not sure if this is true, but I - I did start drinking and I – it unbelievably took over me like nothing ever before. Like, if some had have told me a year before that I would be an alcoholic it would have seemed like something so far removed from myself. Up until then I was moving to Mission Beach, I really was a social drinker. I would very, very rarely even consume alcohol then.”[38]
[38] Transcript, Day One, page 12, lines 19 to 25; page 12, line 35 to page 13, line 5.
Thus isolated, with no work, lacking social support, and with her partner working long hours, depression overtook the applicant. Within weeks of moving to Mission Beach the applicant began her bouts of drinking, apparently in an effort to cope.[39] The move and change in circumstances thus appears to have become the catalyst for the applicant spiralling into alcohol abuse, and subsequently, related criminal offending.
[39] Transcript, Day One, page 12, line 47.
In her evidence, the applicant described her circumstances at this point in these terms:
“I didn't know anyone at all, and I had also, because I had had - just had my second child, I put on a lot of weight. I just was very unhappy with myself. I missed my friends terribly. I’ve never been one for having big social circles at all, so my best friend, [name redacted], I missed her dreadfully. I missed my job most of all. My job was - as much as I love being a mother, like, I really felt valued when - when I got the job [at Port Phillip Prison], and I did, I excelled in that position, it was - it was - I couldn't cope with being, and obviously being from Melbourne, it was, you know, such a vibrant city. There's always things going on. You can always go somewhere in Melbourne and something’s happening, whereas Mission Beach, everyone was saying, ‘You’re so lucky to live there’, and I thought, well, you can only go to the beach so many times, and obviously I was already quite depressed, and I just felt terribly alone. I - the women, I felt because I went from Mission Beach, I felt very much on the outside, so I was just very lonely, I was depressed. I didn't feel good about myself...[40]
…D was never home. Like, he would be gone at 6 o'clock in the morning and he wouldn't return home until 7 o'clock at night, and this was purely working hours. Like, D was always at work, and because of the nature of transport, D always had his telephone on him. He was always distracted. He was - I - I really felt that we - just still very alone because D was just never really there. I was raising two children with no family, no friends, no support, and I - I feel like D and I just drifted further and further apart during the time that he was working so much. He just didn't understand how much I missed my job, and he would say things like, ‘Why can’t you just be happy to be a mother and a wife?’, and I mean for some women that is a huge achievement and I don’t want to diminish that it an amazing thing to be a mum, but having gone from being such a high powered work person to having absolute stillness and quiet in my life, it was very difficult for me, and D just could never understand that.”[41]
[40] Transcript, Day One, page 14, lines 5 to 19.
[41] Transcript, Day One, page 14, line 36 to page 15, line 2.
The applicant’s descent into alcohol abuse is noteworthy for both its speed, and intensity. Initially, and within only a few weeks of her first arrival in Mission Beach, the applicant commenced drinking wine socially. Yet, according to her own evidence, this quickly transformed until the applicant was drinking from “the minute I woke up. I would be drinking from – until I was not conscious any more.”[42]
[42] Transcript, Day One, page 15, lines 9 to 39.
Criminal Conduct
The applicant’s notable criminal history does not commence until 11 December 2013 when aged 34, and culminates in the applicant’s appearance before the Supreme Court at Cairns on a significant drug offence, on 22 May 2020. Between those two dates the applicant made 15 separate appearances before Queensland sentencing courts, on a multitude of charges.
An examination of the applicant’s criminal and traffic history from 11 December 2013 onwards also makes clear that the applicant’s offending has been, in most instances, directly referable to her alcohol abuse.
Between December 2013 and June 2014, the applicant was caught committing a number of traffic offences, as follows:
·On 11 December 2013, the applicant was charged at Wongaling Beach with ‘drive motor vehicle tram train or vessel whilst over the middle alcohol limit’, ‘vehicles used on roads must be registered’ and ‘drive uninsured’. A police court brief referable to that event states that at 2:00pm the applicant had been pulled over by the police for the purpose of a random breath test. At the time, the applicant had a two year old infant, (C), in the rear passenger seat of her car. Her blood alcohol concentration (BAC) was found to be 0.107. Yet, the applicant told police that she had consumed only one glass of wine, over lunch. According to the applicant, this event more or less marked the beginning of the ill-effects of her alcohol abuse.[43]
·Approximately one month later, on 29 January 2014, the applicant was again caught drink-driving, with her BAC being recorded on this occasion as 0.053. The applicant was also charged with driving a motor vehicle without a driver licence.[44] At the time, both of the applicant’s children were also in the car.
[43] Transcript, Day One, page 38, lines 25 to 43.
[44] Exhibit R1, pages 150, 159 and 472.
On 26 June 2014, the applicant committed the further offences of ‘drive motor vehicle tram train or vessel whilst over the middle alcohol limit’; ‘failing to comply with a court order whilst on a restricted licence’; and ‘driving a motor vehicle without a driver licence’. On this occasion, the applicant’s BAC was 0.0116. The applicable police court brief records that when the applicant was questioned in relation to her consumption of liquor, she had stated that she had only consumed three quarters of a bottle of wine between midnight and 3am.[45]
[45] Exhibit R1, pages 130 and 131.
The applicant explained to the Tribunal that during this time she “wasn’t an honest person”, and would often seek to lessen the seriousness of her drinking. She also said her drinking had become so bad by this stage that she would start drinking when she first woke up in the mornings, because if she didn’t, she would become ill.[46]
[46] Transcript, Day One, page 40, lines 31 to 36.
It is a further feature of this case to note that between 2015 and 2018, several domestic violence orders (DVOs) were taken out against the applicant by her partner D, in an effort by him to prevent her from being present in the family home when intoxicated. The applicant does not appear to have ever engaged in acts of violence towards D that may have been the impetus for D to seek those orders, and the conditions imposed by the DVOs appear to have been framed in a manner only so as to preclude the applicant from being present in the home, if intoxicated; or if written permission was not first obtained by her, from D. In this sense, at least, the DVOs appear to have had a primarily ‘therapeutic’ intent, aimed at protecting the applicant from herself, rather than being for the protection of others.
D explained his seeking the DVOs in these terms:
“Ms Van Galen Dickie: Okay. You took out a number of domestic violence orders against Taryn. Can you explain to the tribunal why you had to do that?
D: Because I felt that after Taryn’s drinking problem developed, I couldn’t see – I couldn’t get help from anyone as in anyone in this sort of field. I didn’t know where to turn. I didn’t know where to go. So then I sort of saw a corridor where if I’ve got a domestic violence order put against Taryn she’d have to go and stay at her mum and dad’s which means that would, like I said before, benefitted her and us. I saw no other way of trying to keep Taryn off alcohol.
Ms Van Galen Dickie: What was her relationship like with her children during this time?
D: Which time is that, sorry?
Ms Van Galen Dickie: When you were taking the DVOs out against her?
D: Yes. Yes.
Ms Van Galen Dickie: That really bad time in your life?
D: Yes. What was Taryn’s relationship like with the kids? Taryn’s relationship with the kids is perfect when she’s sober. Taryn – after Taryn moved out she didn’t associate with the kids when she was drunk. So – you know – she only saw them when she was sober. So her relationship with the kids were fine. Obviously not (indistinct) – isn’t good for anyone but - - -
Ms Van Galen Dickie: So when she was living with her parents she still saw the children?
D: Yes, of course. Yes. The kids would go and stay at their house.”[47]
[47] Transcript, Day Two, page 119, lines 12 to 34.
Very many of the applicant’s numerous court appearances relate to instances wherein the applicant has breached these DVOs, or has committed offences against police officers whilst in a state of intoxication in circumstances where those officers were responding to calls for police assistance because of the applicant’s arrival at the family home when intoxicated, in breach of the terms stipulated in the DVOs.
In around 2015, the applicant moved out of the family home and moved in to live with her parents, who had, by this stage, moved up to Mission Beach from their farm at Gin Gin.
Between 2015 and when the applicant’s visa was cancelled for the first time, the applicant maintained and on-and-off relationship with D, stating they “still remained, to a degree, together.” The relationship dynamic appears to have been complex:
“Ms Van Galen Dickie: Okay. So [D] took out several DVOs against you during this time when you’d moved out to prevent you going back home while you were drunk. Is that correct?
Applicant: Yes. Correct.
Ms Van Galen Dickie: And then he also cancelled them when he thought they (sic) were better?
Applicant: Yes.
Ms Van Galen Dickie: So, does this reflect what you’ve just described to us, that your drinking was sporadic or that your relationship was sporadic, or was it a bit of both going on? Well, I absolutely think that - like, I do believe - like, [D] and I, like, there's no denying that [D] and I had a lot of ups and downs even prior to my drinking, but I - I do think, yes, that, because when I’m not drinking, I am an eloquent, lovely person. I - the things that I do when I am - have been drinking are just so far removed from the person and I’m not, and I guess [D] has known me for the majority of our relationship to be a non-drinker. So, I guess he was still maybe in love with the person that I was, or that he thought that there was hope for me because I did have continued periods of sobriety.
Ms Van Galen Dickie: Okay. So, did [D] see other women during the time that you were separated, living away from him?
Applicant: The first time we broke up at Mission Beach, I - well, I think there's one of the police reports that says I went to the house and that he was - he was already with someone else, so, yes, he - he’s been in a number of relationships when we’ve been together and separated.
Ms Van Galen Dickie: All right. And did you see other men during this time?
Applicant: No.
Ms Van Galen Dickie: Okay, so at this point in time, you were trying to - well, no, were you trying to get back together or what was your view of the relationship?
Applicant:Well, I think in my mind I - even though [D] and I weren’t living together, when I was sober I would be with [D], so we were still continuing - throughout this whole period we have pretty much remained, even when he’s been with other people, we have still remained to a degree together. We were still in a sexual relationship together.
Ms Van Galen Dickie: Okay?
Applicant: So, I guess I was always holding on to the hope that things would get better and magically somehow that we would be together as a family. [D] would always say that, you know, ‘When things are good, we are good’, so I’ve always held on to that hope that things would get better.”[48]
[48] Transcript, Day One, page 17, lines 4 to 42.
…./
“Mr McLaren: So, you were fighting about his drinking but were you - about your drinking, I should say, but were you fighting about anything else?
Applicant: Um, to be honest, I was very resentful at that time having moved so yeah, I would blame him for me having no job and for not being happy because I basically blamed him at the time because it was his affair because we had to move so at that time I was blaming [D], I guess. ”[49]
[49] Transcript, Day One, page 39, lines 14 to 19.
Mr McLaren: And I mean, what underlied this - - -?
Applicant: I just – I’m sorry, there’s a bit of feedback. So at this time, I had found out that – [D] and I weren’t together at this time but I did find out that he was sleeping with a good friend of mine and they were together in a relationship so it was quite upsetting. But I don’t excuse my behaviour, I shouldn’t have been there, I knew I – I mean, obviously my alcoholism was not great and I knew I shouldn’t have been there but that was the – what I was doing at that stage. I would drink and then I would want to talk to [D], it was – yes. It was not a good place at that time.
Mr McLaren: You obviously don’t want me to – or need you to answer, or to provide a name, but you say [D] was sleeping with a good friend of yours, was this somebody that was a friend from Mission Beach?
Applicant: It was actually the next-door neighbour, so yes.
Mr McLaren: Okay. So – no the only reason I ask was because I understood your evidence earlier that you didn’t really make friends in Mission Beach so I was just trying to clarify if it was someone else?
Applicant: So sorry, yes, it wasn’t a good friend, it was more the next-door neighbour.
Mr McLaren: Sure, sure?
Applicant:But it was someone that I would, sort of, talk to. It was probably the closest thing that I did have to a friend in Mission Beach which made it all the more, sort of, devastated. And she live – yes.
Mr McLaren: So can I just ask, just for clarification, you blew a blood alcohol reading of 0.234 per cent at this time, which is fairly significant, I think it’s fair to say, how were you getting to [D] place to visit him or to - - -?
Applicant: So, at this point I was living in [street name redacted] when these incidents occurred so I actually asked a neighbour to drive me. But also, Mission Beach is – like where I was living on [street name redacted] and [D] was living on [Street name redacted] […], it’s a walkable distance”[50]
[50] Transcript, Day One, page 44, lines 26 to 47; page 45, lines 1 to 11.
On 3 September 2015, while living with her parents, the applicant was convicted of ‘assault or obstruct police officer’. The applicant was fined, and no conviction was recorded.[51] On this occasion it is reported in the police brief that the applicant had consumed about 300ml of medicinal rubbing alcohol. When the police attended, the applicant became uncooperative and refused to get off the toilet to accompany police and Queensland Ambulance Service officers. The applicant indicated to the Tribunal that she did not recall this incident, however, nor does she deny that it probably happened.[52]
[51] Exhibit G1, s501 G Documents, G3, page 34.
[52] Transcript, Day One, page 43, lines 17 to 20.
Some two months later, on 12 November 2015, the applicant was convicted of offences that occurred between September and November 2015, involving five counts of breach of bail condition; three counts of ‘contravention of domestic violence order’; two counts of ‘assault or obstruct police officer’ and one count of ‘assault or obstruct police officer in public place while adversely affected by intoxicating substance’. The applicant was convicted of all these charges in the Tully Magistrates Court, and then sentenced to two concurrent periods of imprisonment totalling five months, to be suspended for 18 months, together with probation for a period of two years; and 40 hours of community service.[53]
[53] Exhibit G1, s501 G Documents, G3, pages 33 and 34.
In relation to the October 2015 offending, it is the case that:
·On 27 October 2015, the applicant breached her bail conditions when returning a reading of 0.119% BAC. She then resisted police, and would not comply with directions. The applicant told police that she had consumed six alcoholic drinks over an 18 hour period.
·On 29 October 2015, while attending the Tully Magistrates Court the applicant was unable to get out of the car due to her being highly intoxicated, despite the fact of her having a court appearance that morning. Police at the courthouse conducted a breath test, and the applicant returned a reading of 0.046%, again in breach of her bail conditions.
By way of explanation for the contraventions of the domestic violence orders, the applicant stated that she and D were separated at the time, however, during the time of their separation, the applicant and D still maintained some degree of a relationship, stating that D “would often ring me and invite me to come over…and then I would find out he was sleeping with someone else and then I would get drunk and then I would go over and confront him and it was a very difficult time.”[54] At the time of this offending, the applicant was living on her own and stated that “things definitely escalated when I was on my own there.”[55]
[54] Transcript, Day One, page 46, lines 8 to 15.
[55] Transcript, Day One, page 45, line 18.
On 21 December 2015, the applicant was admitted into a rehabilitation centre in Cairns, yet was released at her own request just over one week later, on 29 December 2015.[56] When asked why she had left the rehabilitation centre, the applicant explained that she was the only resident at the centre for alcohol addiction, and that everyone else was admitted due to drug addictions. The applicant says that she did not feel safe, so she left.[57]
[56] Exhibit R1, page 410; Transcript, Day 1, page 89, lines 43 to 45.
[57] Transcript, Day One, page 90, lines 1 to 10.
Less than six months later, the applicant appeared before the Innisfail Magistrates Court on 11 January 2016 in relation to offences committed on 10 January 2016. The applicant had been found at the home of D, asleep inside the downstairs bedroom wardrobe. The applicant had a BAC of 0.153. The applicant then refused to walk with police or to get in the police vehicle. Then, whilst being placed in the vehicle, the applicant proceeded to kick out, and to jam her feet into the door of the police vehicle.[58]
[58] Exhibit R1, page 83.
The applicant was convicted of ‘contravention of domestic violence order (aggravated)’, ‘trespass – entering or remaining in dwelling or yard – domestic violence offence’, and two counts of ‘assaulting or obstructing police officer’. A conviction was recorded, and the applicant was also fined. In addition, the applicant was convicted of being in breach of the probation and community service orders that had been previously imposed in November 2015, resulting in fines. Previously imposed suspended sentences were also extended, by one month, in each instance. [59]
[59] Exhibit R1, pages 83 and 92; G3, page 33.
Evidence before the Tribunal shows that there were periods in 2016 where the applicant resided with D and their children. The applicant also participated in a relapse prevention program conducted by Alcohol Tobacco and Other Drugs (‘ATODS’), and re-engaged with a psychologist that she had previously been consulting, back in 2015.[60]
[60] Exhibit R1, pages 364, 372-379, 383, 384, 388; Transcript, Day One, pages 88 and 89.
Despite some clear effort towards rehabilitation in 2016, there were in that year also multiple instances where the applicant attended the premises of D and her children whilst intoxicated, in further breach of the conditions imposed on her by the domestic violence orders. The convictions for which the applicant was sentenced in 2016 largely arise out of the same circumstances: the applicant attending the address of D whilst intoxicated and then resisting arrest; or her failing to comply with police instructions:
·On 11 August 2016, in the Tully Magistrates Court, the applicant was convicted and sentenced in relation to ‘contravention of domestic violence order’ on 10 March 2016; ‘contravention of domestic violence order (aggravated offence)’ on 1 June 2016; ‘assault or obstruct police officer in public place while adversely affected by intoxicating substance’ on 1 June 2016; ‘breach of community service order’; and ‘breach of probation order’. The applicant was convicted on all these charges, and a conviction was recorded. The applicant was also sentenced to 100 hours of community service, and to further extensions of the applicant’s previously imposed suspended sentences.[61]
·Some two months later, on 7 October 2016, the applicant appeared in the Innisfail Magistrates Court and was convicted of two counts of ‘contravention of domestic violence order (aggravated)’. A conviction was recorded, and the applicant was sentenced to two months imprisonment. The applicant was also convicted for ‘assault or obstruct police officers – domestic violence offence’, with a conviction being recorded and the applicant being sentenced to one month’s imprisonment to be served concurrently with other terms of imprisonment.
[61] Exhibit G1, s501 G Documents, G3, page 32.
On 17 November 2016, the applicant appeared before the Tully Magistrates Court and was convicted of having breached the probation order and community service order imposed on 12 November 2015. In consequence of these breaches, the applicant was fined. [62]
[62] Exhibit G1, s501 G Documents, G3, page 31.
In 2017, there was a period of several months wherein the applicant did not commit any offences. At this stage, it appears that the applicant was again taking steps in an effort to deal with her alcoholism. At the beginning of the year, the applicant reported that she was enrolled in university; had by now completed ‘Step4ward Relapse Prevention Plan’ with ATODS; and was in the process of applying for work.[63] She had also recommenced living with D and her children at Mission Beach, reporting a good and stable relationship with her partner.[64]
[63] Exhibit R1, pages 336, 344 and 345.
[64] Exhibit R1, pages 342 and 337.
However, by about September 2017, it appears the applicant relapsed into alcohol abuse, and resumed offending. In consequence the applicant and D separated once more.
In October 2017, the applicant was remanded in custody for a period of about three weeks before being released on bail to reside at Gindaja Rehabilitation Centre.[65] The applicant then resided at Gindaja for some three months thereafter.
[65] Exhibit R1, page 306; Transcript, page 59, lies 27 to 31.
Ultimately, it is to be noted that after this period at Gindaja, the applicant resumed offending and the consumption of alcohol. When giving evidence before the Tribunal the applicant sought to explain the lack of improvement after her time at Gindaja, in these terms:
Ms Van Galen Dickie: … you’ve explained in your written submissions that you’re unable to access any courses, or cognitive behaviour therapy in prison the first time you went there - but we can see that you attended a centre at Yarrabah for three months, quite intensive, and then I think a twelve month sort of outsourcing; and that you saw a psychologist. This contradicts what you’re saying. So can you explain what the program at Yarrabah was?
Applicant: In all honesty, the program at Yarrabah is not set up for someone like me - and I mean no disrespect to Gindaja, the rehabilitative place - but it is more of a drying out facility for Aboriginals - I was the only white person there. They were actually going through a change of staff at that point. The only real program that I did at Gindaja rehabilitation centre was I attended about a fifteen minute thing in the morning, which was called thought for the day - which is an Alcoholics Anonymous thing - which was just a sheet of paper that was read out. Pretty much the rest of the time was filled with going for walks and things like that. I didn’t actually see a psychologist or anything through Gindaja; or any rehabilitative courses.
Ms Van Galen Dickie: Were you a resident for the whole time, or did you go in and out during the day, or weekends?
Applicant: They would actually take me to Gordonvale on the Friday morning, where I would get on a Greyhound bus and go down to Mission Beach for the weekend. Then I would catch that bus back on a Monday. ”[66]
[66] Transcript, Day One, page 25, lines 11 to 36.
On 13 March 2018, the applicant was convicted of various offences that had been committed in September 2017, as follows:
Stealing:[67] 3 months, imprisonment
Contravention of a domestic violence order (aggravated offence):[68] 6 months, imprisonment
Wilful Damage:[69] 12 months, imprisonment
Assault or obstruct police officer – domestic violence offence:[70] 4 months, imprisonment
Enter dwelling with intent by break damages property:[71] 18 months, imprisonment
Breach of Probation: conviction recorded, yet
no further punishment
[67] Queensland Criminal Code s.398.
[68] Domestic and Family Violence Prevention Act (2012) (Qld) s. 177(2)(a)
[69] Queensland Criminal Code s.469(1).
[70] Police Powers and Responsibilities Act (Qld) s. 790(1) & 47(9).
[71] Queensland Criminal Code s. 419(1) & (2) & (3)(b)(iv).
The ‘stealing’, ‘wilful damage’ and ‘enter dwelling with intent by break damages property’ offences occurred between 6 and 15 September 2017. The court brief with respect to these matters outlines that the applicant had broken into a private dwelling, also cutting herself in the process, thus leaving extensive blood stains at the entrance. The applicant then appears to have damaged that property by way of her defecating in several locations, then smearing faeces on a multitude of surfaces throughout the dwelling, ultimately causing an estimated $27,500 damage. The applicant also appeared to have emptied or consumed several bottles of wine whilst inside those premises, which were found smashed on the floor.[72]
[72] Exhibit G1, s501 G Documents, G7, pages 47 to 48; R1, pages 41 to 45.
The ‘contravention of a DVO’ and ‘assault or ‘obstruct police officer – domestic violence offence’ involved another occasion where the applicant had attended at the address of D whilst grossly intoxicated. The applicant then became belligerent towards police, refusing to get into the police car, and initially also refusing to submit to a breath test.[73]
[73] Exhibit G1, s501 G Documents, G7, pages 49; R1, pages 51 to 55.
Next, on 3 April 2018 and at a time when by now already imprisoned serving sentences imposed for prior offending, the applicant was convicted of a further offence, ‘assault or obstruct police officer in public place while adversely affected by intoxicating substance’, an offence that had transpired in February of that year. The applicant received 40 hours community service. [74]
[74] Exhibit G1, s501 G Documents, G3, page 30.
On 24 April 2018, following those convictions recorded on 13 March 2018, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Act, such that the applicant was transferred from prison to immigration detention.
The applicant then made representations seeking revocation of the cancellation.[75] On 29 June 2018, a decision was made to revoke the visa cancellation.[76] The applicant was then released from immigration detention, and immediately returned to Mission Beach, and resumed living with D.[77]
[75] Exhibit G1, s501 G Documents, G21, pages 96 to 139
[76] Exhibit G1, s501 G Documents, G22, pages 140 to 142.
[77] Transcript, Day One, page 68.
The applicant then also enrolled in TAFE to study a Diploma of Alcohol and Other Drugs, and a Diploma of Mental Health. The applicant stated that she thought that these courses would be of benefit to others, as well as to be likely to afford herself with a far better insight into the addiction process.[78]
[78] Transcript, Day One, page 87.
Despite these good intentions, on 17 October 2018, the applicant was involved in a further drink driving incident. On this occasion the applicant had an argument with D, took off in their car while under the influence of alcohol, and then crashed the vehicle.[79] It appears this was an intentional act of self-harm by the applicant.[80] Her BAC was reported as 0.175 at the time. The applicant was given a notice to appear in the Tully Magistrates Court, yet subsequently failed to appear at Court in Tully. The applicant explained that she and D had permanently separated immediately after the incident in which she had crashed D’s car, whereupon she left Mission Beach and had moved to Townsville.[81]
[79] Exhibit R1, page 280.
[80] Transcript, Day One, page 68.
[81] Transcript, Day One, pages 79 and 85; Exhibit A5.
In Townsville, the applicant claims that she “began to really turn [her] life around”.[82] The applicant stopped drinking; was attending job interviews; and would travel back to Mission Beach frequently to visit her children.[83] D stated in a letter of support that “During that time, I witnessed Taryn turn her life around, she had stopped drinking and was working part time…”.[84]
[82] Transcript, Day One, page 69.
[83] Transcript, Day One, page 69.
[84] Exhibit A5.
However, the applicant also disengaged from probation and parole and the services linked to her parole conditions, such as her psychologist, upon her move to Townsville.[85] In relation to this breach of parole the applicant explained that D had told her that “the parole was looking for me and I had to return to prison and that also immigration had contacted him and that I was being deported, that's why I didn't re-engage at the beginning, because I was terrified of returning back to prison.”[86] In cross-examination, when it was put to the applicant that she had absconded from parole and probation for about nine or ten months, between October 2018 and August 2019, the applicant acknowledged that to be the case.[87]
[85] Transcript, Day One, page 86.
[86] Transcript, Day One, page 80.
[87] Transcript, Day One, pages 68 and 80.
Despite her commitment to changing her behaviour, at the back of the applicant’s mind, she was aware that she was breaching her parole conditions and she started drinking again. Her evidence was that by December 2018, she had “hit rock bottom”.[88]
[88] Transcript, Day One, page 69.
On 29 October 2019, the applicant was convicted of ‘enter premises and commit indictable offence by break (between 21/02/2018 and 24/02/2018)’ and ‘failure to appear in accordance with undertaking (on 01/11/2018)’. Arising from this, the applicant also breached the community service order that had been imposed on 3 April 2018. This break and enter offence was committed by the applicant immediately after having been released from police custody, with the applicant forcibly breaking into a nail salon, and stealing $900.[89] The applicant explained that she had been released from police custody in the very early hours of the morning, and found herself more than 45 minutes (by car) away from Mission Beach with no of transport, no phone, no money, nor any shoes, and was concerned to find a safe place to stay for the night.[90] The failure to appear charge dealt with on 29 October 2019 related to the applicant having failed to appear in November 2018, during the time of her disengagement from probation and parole.[91]
[89] Exhibit R1, page 33; Transcript, Day One, page 79.
[90] Transcript, Day One, pages 78 and 79.
[91] Transcript, Day One, page 80.
The applicant’s offending history ultimately culminates in an incident in August 2019, where the police had attended D’s premises at Mission Beach in search of the applicant, because her parole had been suspended nine months earlier. Although living in Townsville at the time the applicant had come down to Mission Beach for the weekend in order to visit her children. When the applicant was apprehended by the police in Mission Beach, the police also found a quantity of the drug ‘ice’ (methylamphetamine) together with various drug-related items in the applicant’s possession, including a set of electronic digital scales, hypodermic syringes, and needles. The police also located numerous clip-seal bags, including a clip-seal bag wrapped in brown masking tape, inside of which were three smaller clip-seal bags containing white crystal and two handwritten notes stating “2x8 balls” and “quatz”. The gross amount of the methylamphetamine seized by the police from the applicant was 13.123 grams, and the pure weight was 10.124 grams. This is a commercial quantity. [92]
[92] Exhibit G1, s501 G Documents, G4, 35 to 37; R1, 21 to 25.
Before the Tribunal, the applicant sought to explain this drug offence by claiming that she had merely been holding these drugs, on behalf another (unnamed) woman, whom the applicant had met, whilst in prison. The applicant said that the drugs and various drug utensils had been in her possession since the prior Friday (around five-six days in total), and she was holding the drugs as part of an effort to help the other woman, by “removing them from temptation”, lest her unnamed friend relapse into drug use. Although the applicant denied to the Tribunal having been a drug user, it is salient to note that the applicant had admitted to the arresting officers at Mission Beach that she had used some of these drugs when these first came into her possession on the Friday preceding her arrest, and had used them again, on the night immediately prior to the arrival of the police that morning.[93] These admissions were included in the police brief of evidence presented in the Supreme Court at Cairns, and must be taken to comprise an element of the facts to which the applicant pleaded guilty.
[93] Exhibit G1, s501 G Documents, G4, 35 to 37; R1, 21 to 25; Transcript, Day One, pages 70 to 76.
On 22 May 2020, the applicant was sentenced in the Supreme Court at Cairns to the following terms of imprisonment:
·18 months imprisonment for one count of possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4; and
·one month imprisonment for one count of fail to properly dispose of needle and syringe and one count of possess property suspected of having been used in connection with the commission of a drug offence.
On 10 December 2019, the applicant’s visa was again mandatorily cancelled, under subsection 501(3A) of the Act.[94]
ISSUES
[94] Exhibit G1, s501 G Documents, G23, 143 to 149.
Revocation of the mandatory cancellation of visas is a matter governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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
that there is another reason why the original decision should be revoked.
As indicated above, the applicant made representations in the manner required by s 501CA(4)(a) of the Act. Thus, the issue becomes whether the discretion to revoke the mandatory cancellation of the applicant’s visa can be exercised.
In Minister for Home Affairs v Buadromo[95] the Full Court of the Federal Court of Australia observed that:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[96]
[95] [2018] FCAFC 151.
[96] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues for consideration before the Tribunal:
·whether the applicant passes the character test; and
·whether there is ‘another reason’ why the decision to cancel the applicant’s visa should be revoked.
If the applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the applicant’s visa must be revoked.[97]
[97] Ibid.
Does the applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. Importantly, what matters for present purposes is the term of imprisonment to which a person has been sentenced, and not the amount of time they have actually served.[98]
[98] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
During final submissions, and in light of the applicant having been sentenced to a term of imprisonment of more than 12 months, and on more than one occasion, the applicant’s representative, Ms Van Galen-Dickie rightly conceded that it would now be “impossible”[99] to argue that the applicant satisfies the character test.
[99] Transcript, Day Two, page 106, line 12.
In all the circumstances the Tribunal determines that the applicant does not pass the character test. In these circumstances the applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.
Is there ‘another reason’ why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) 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. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Ministerial Direction”) has application.[100]
[100] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
The Ministerial Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, the Ministerial Direction provides that:[101]
(1)…a decision maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[101] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Ministerial Direction. Paragraph 13(2) of the Ministerial Direction provides the three Primary Considerations that the Tribunal must take into account. These are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Ministerial Direction provides that decision-makers must take into account the Primary and Other Considerations, relevant to the individual case.
The Other Considerations are then provided in a
non-exhaustive list, set out in paragraph 14 of the Ministerial Direction. These are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Here, the Tribunal notes and emphasises the importance of the aforementioned considerations being seen to “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[102]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[102] [2018] FCA 594 at [23].
Paragraph 6.3 of the Ministerial Direction sets out a number of principles, that should inform the decision-maker’s consideration of these matters. These principles are:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph 13.1(1) in the Ministerial Direction provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, the paragraph stipulates an expectation that non-citizens are, and have been, law abiding, that they will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 13.1(1) in the Ministerial Direction also provides that mandatory cancellation without notice of certain non-citizen detainees is consistent with the principle identified in the paragraph, by ensuring that serious offenders remain in either criminal or immigration detention, while their immigration status is resolved.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Ministerial 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
Between December 2013, (when aged 34) and May 2020 (when aged 40), the applicant has appeared before criminal sentencing courts in Queensland on at least 13 discrete occasions. Whilst the preponderance of the offending resulting in these court appearances has been at the ‘low end’ of seriousness, there are however other offences within the totality of the applicant’s offending history that are objectively far more serious. In light of those convictions, the applicant does now have what is termed a “substantial criminal record”, within the meaning given to that expression by s 501(7)(c) of the Act.
The most objectively serious offences in the applicant’s criminal history include those of:
· Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4: 22/05/2020 – 18 months
· Wilful damage – 13/03/2018 – 12 months
· Enter dwelling with intent by break - damages property – 13/03/2018 – 18 months
Each of these offences resulted in the applicant being sentenced to a custodial term of at least 12 months, such that the applicant has, by definition, a substantial criminal record.
Application of Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Ministerial Direction specifies that decision-makers ‘must’ have regard to a range of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that a crime committed while a 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 is serious, as is an offence against section 197A of the Act;
Sub-paragraph (a) of paragraph 13.1.1 (1) expresses the principle that, without limiting the range of offences that may be considered ‘very serious’, violent and/or sexual crimes are to be viewed ‘very seriously’. Here, there is no indication of the applicant having engaged in either acts of overt violence, or of offences of a sexual nature.
Despite that, the respondent submits[103] that the applicant’s numerous breaches of domestic violence orders should still be considered as ‘very serious’ in the context of subparagraph (a), ‘[because] they involve breaches of orders that are explicitly designed to protect persons from exposure to the type of behaviour that the applicant continued to engage in in breach of those orders’.[104] As well, the respondent submits that the applicant’s numerous instances of assaulting police or obstructing police should also be considered in the context of subparagraph (a), ‘as they show a clear disrespect for the important law enforcement role undertaken by Police’.[105] Further, the respondent submits that ‘having regard to the particular facts of the offences of the offences, the applicant’s wilful damage, stealing, entering dwelling with intent by break damages property, enter premises and commit indictable offences by break, possessing dangerous drugs, and driving under the influence of liquor offences should [also] be considered serious’,[106] again in the context of sub-paragraph (a).
[103] Exhibit R2, paragraph 31.
[104] Exhibit R2, paragraph 31.
[105] Exhibit R2, paragraph 31.
[106] Exhibit R2, paragraph 31.
Offences against police officers in the execution of their duty are matters more properly considered under subparagraph 13.1.1(1)(c). As such, these aspects of the applicant’s offending will be considered by the Tribunal thereunder, and not here, in the context of subparagraph (a).
As to the domestic violence offending, in this case, domestic violence orders have been taken out against the applicant by her former partner D primarily in an effort to ensure that the applicant was not in the presence of either D or their children whilst intoxicated. There does not appear to be any evidence of the applicant having been domestically violent in the conventional sense towards either D, or their children, and D appears to have been content to allow the applicant access to their home - and the children - at any time, if sober.
In one sense then, these domestic violence orders have been used as part of a therapeutic effort to protect the applicant, from herself, albeit ultimately unsuccessfully. In these circumstances, the Tribunal considers that the applicant’s breaches of domestic violence orders are unable to be considered as qualitatively the same as so much of the domestic violence that is routinely assessed by this Tribunal for purposes of sub-paragraph 13.1.1(1)(a). Hence the Tribunal is not prepared to categorise the specific conduct by the applicant in breach of these domestic violence orders by means of the descriptor ‘very serious’ as is now contended for by the respondent.
Some negative determinative weight must however still attach to the frequency of the applicant breaching these orders, and her regularly appearing at the home of her children and former partner when intoxicated, no matter that it may be acknowledged that alcoholics in the full grip of their addiction do not always act sensibly. There is no escaping either that these instances also often led to other offences, particularly assault/resist police in the execution of their duty and, in several instances, the offences inherent in the breaches of the domestic violence orders; and that these instances also exposed the applicant’s children, on occasion, to appalling behaviour by their own mother.
The Tribunal accepts that the applicant’s offences of ‘wilful damage’, ‘stealing’, ‘entering dwelling with intent by break, damages property’, ‘enter premises and commit indictable offences by break’, ‘possessing dangerous drugs (commercial quantity)’ are all matters that are now aptly categorised as ‘very serious’.
Having considered sub-paragraph 13.1.1(1)(a), the Tribunal conclude that the applicant has committed a number of offences of a type that must be viewed as ‘very serious’ in the context of the required assessment of the nature and seriousness of the applicant’s overall conduct.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Ministerial Direction provides that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. In this case the applicant has not committed any crimes of a violent nature against either women or children, such that paragraph 13.1.1(1)(b) is not applicable.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Ministerial Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”
In this case the applicant has committed a multitude of offences against police officers in the performance of their duties, as is evidenced by her receiving convictions for ‘assault/obstruct police officer’ on each of 3 September 2015, 12 November 2015, 11 January 2016, 11 August 2016, 7 October 2016, 13 March 2018, 3 April 2018 and 29 October 2019. The Tribunal can only now conclude that those offences are squarely within the contemplation of sub-paragraph (c) and, as such, must be viewed by the Tribunal as ‘serious’.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for the crimes of a non-citizen. The imposition of a custodial term is an option of last resort for sentencing courts in Australia, and should thus be viewed as a reflection of the objective seriousness of an applicant’s offending.[107] In this case the applicant has been sentenced on a number of occasions to terms of actual imprisonment, as well as, on other occasions, periods of suspended imprisonment. The imposition of suspended imprisonment is also to be regarded as a very serious form of punishment in the hierarchy of sentencing options.[108]
[107] See: Mitchell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 937 at [74] (Member Bellamy).
[108] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33 at [115] (Rares J).
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending, and to consider whether there is any trend of increasing seriousness.
Up until the age of 34 years the applicant had what can only be assessed as an essentially unremarkable criminal history. Yet, over the ensuing approximately five-year period the applicant then engaged in recurrent offending. There is also an observable trend of increasing seriousness in that offending, given that by the time of the applicant’s court appearance at Innisfail on 7 October 2016, an actual term of imprisonment was imposed - presumably by reason that non-custodial sentencing options had, by then, been assessed by the court as exhausted. Then, by the time of her appearance in that same Court on 13 March 2018, multiple concurrent terms of actual imprisonment totalling 40 months (18 months concurrent on multiple offences) were ordered for a whole range of offences including: ‘stealing’; an ‘aggravated contravention of a domestic violence order’; ‘wilful damages’; ‘assault/obstruct police’; and ‘enter a dwelling with intent by breaking and damaging property’. Ultimately, on 22 May 2020, the applicant was sentenced in the Supreme Court at Cairns on serious drug charges - involving a commercial quantity of methylamphetamine - to a further period of actual imprisonment, of 18 months, to be served after the end of the applicant’s existing term of imprisonment.
In light of same, the Tribunal can only conclude that the applicant’s criminal history does reveal a very concerning upward trend, in terms of the objective seriousness of the applicant’s offending behaviour, over time.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The applicant’s criminal history reveals a number of offences often times involving repetitive (or at least highly similar) forms of conduct, on multiple occasions, including numerous breaches of domestic violence orders, assaulting or obstructing police, and breaches of probation orders and parole conditions. Although less negative determinative weight should attach to the applicant in respect of her several breaches of the domestic violence orders - for those reasons already given by the Tribunal - ultimately, the benefit of that concession is still not enough for the Tribunal to conclude other than the applicant’s overall offending behaviour must be categorised as ‘very serious’.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Ministerial Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The Tribunal determines that this sub-paragraph is not relevant in this case.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Ministerial Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending, in terms of the impact of same on the non-citizen’s migration status.
The applicant was officially warned as to the consequences of further offending on her migration status by the Department of Home Affairs on 29 June 2018, when the applicant was advised of the first revocation decision. Despite that warning, on 17 October 2018, the applicant was again apprehended by the police after crashing D’s car, which she had taken after an argument. When apprehended, the applicant had a reported BAC of 0.175. The applicant was given a notice to appear in the Tully Magistrates Court in relation to those offences, yet failed to appear before that Court. On 29 October 2019, the applicant appeared in the Innisfail Magistrates Court in relation to a breach of a community service order. In relation to that breach the applicant was resentenced for the original offence and sentenced to one month of imprisonment. On the same date the applicant was also sentenced to 9 months concurrent imprisonment for an offence of ‘breaking and entering premises’ and ‘stealing’ $900, as well as an offence under the Bail Act referable to her failure to appear in accordance with an undertaking on 1 November 2018 for which the applicant was sentenced to a further month of imprisonment, also to be served concurrently. It was these offences that gave rise to the second mandatory cancellation of the applicant’s visa under subsection 501(3A). Then finally, on 22 May 2020, the applicant was convicted in the Supreme Court in Cairns of possessing dangerous drugs, as well as possession of property used in conjunction for drug offences and failing to dispose of used needles and syringes in August of 2019.
Thus, it becomes clear that the applicant has continued to engage in further criminal offending, even after having been warned of the potential consequences of same for her visa status. The Tribunal concludes that substantial negative determinative weight must necessarily attach to the fact of offending after the official warning given to the applicant by the department on 29 June 2018.
It is also relevant to note that, previously, in her representations to the department in 2018 that lead to the first revocation decision, the applicant was adamant that she would not re‑offend, in the event that her visa cancelation was revoked. At that time, the applicant represented that:
“I 100% do not believe I would re-offend [as] I have attended rehab. As previously mentioned, I want to become a drug and alcohol counsellor. I believe my alcohol problem is behind me, being incarcerated and being away from my children has been a massive wake-up call. I never want to be away from my children. I want to be a productive member of society as I have been for the majority of my life.
…I have attended 3 month live-in rehabilitation at Gindaja to deal with my alcohol problem. Prior to incarceration I had enrolled at TAFE Cairns North to do a dual diploma in mental health & alcohol & other drugs, not only to help myself but to help others. 3 months incarceration at TWCC has also given me time to reflect. This is not the direction I want my life to take. I have made mistakes and I am ready to give back to the Australian community to make amends for my past actions.”[109]
[109] Exhibit G1, s501 G Documents, G21, page 103.
Despite those strongly worded and confident assurances, the applicant did re-offend. The applicant’s assurances have been shown by events to have been aspirational, rather than actual. That affords an important backdrop against which any subsequent assurances by the applicant must now be assessed.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. In this instance there is no evidence of the applicant having committed any crimes whilst in immigration detention, such that sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, the Tribunal concludes that the totality of the applicant’s offending conduct warrants a ‘ very serious’ characterisation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following, on a cumulative basis:
·The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm should the applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community in the event that the applicant were to engage in further criminal or other serious conduct, is a matter that 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 Ministerial Direction which stipulates that the Australian community’s tolerance for harm becomes lower, as the seriousness of the potential harm increases.
In the event that the applicant were to remain in Australia, and were to re-offend, the nature of the harm that may arise in consequence of that may include:
(a)In the event of further property-based offences, the applicant may cause loss or damage to property, as well as inconvenience and related expense for her victims;
(b)In the event of further breaches of domestic violence orders, the applicant may expose others (particularly her own children) to behaviours that are expressly prohibited by the terms of those orders. Harm may include emotional trauma and other concerning developmental impacts on her children;
(c)In the event of further offences of assault/obstruct police in the execution of their duties, the applicant may impede the police in the performance of their duties; take up a disproportionate amount of an already finite and over-stretched public resource; and potentially also cause injury or other harm to police officers, and damage to police equipment, which is funded by the community;
(d)In the event of further driving offences, such as driving under the influence of liquor or driving whilst unlicensed, the applicant may cause significant injury to herself or others, damage to property, and expense to others or the community as a whole that is unable to be recouped from the applicant, or the applicant’s insurer; and
(e)In the event of further drug offences, the applicant may cause harm to herself or to others and to the broader community, particularly in terms of compounding the types of harm already experienced by drug-addicted persons; increasing the rate of drug overdoses and/or the rate of other offences related to drug use, such as property theft; and further burden to the community as a whole in terms of the costs caused by illicit drug use.
This factor weighs against revocation.
13.2(4)(f) Known views of the child
Unfortunately, in this case there is no direct evidence of the known views of either P or C, as might have been recorded (for example) in a report prepared by a psychologist or social worker after having had the opportunity to interview the children to ascertain these matters. Nonetheless, the evidence before the Tribunal from each of the applicant, D, and the applicant’s parents has been to the effect that the children wish to be re-united with their mother. There is no evidence in relation to the views of the applicant’s nephews.
This factor weighs in favour of revocation.
13.2(4)(g) Evidence that the non-citizen has abused or neglected the child in any way
Other than some evidence that the children were on some occasions occupants of motor vehicles being driven by the applicant whilst intoxicated, there is no evidence that the applicant has abused or neglected either of her children, or her nephews.
This factor is attributed neutral weight by the Tribunal.
13.2(4)(h) Evidence that the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct
There is no direct evidence that either Child P or Child C have suffered from any physical or emotional trauma arising directly from the applicant’s prior criminal conduct. There is some evidence that P and C were present on some of the occasions when the applicant was dealt with by police whilst also intoxicated.
This factor is attributed neutral weight by the Tribunal.
Summary of 13.2(4) factors in respect of other children B and K.
Because of clause 13.2(3), the best interests of each minor child do require discrete consideration. Nonetheless, in light of clause 13.2(4)(a), less weight should generally be given where the relationship between the non-citizen and the subject child is non-parental.
The respondent submits[119] that the applicant does not play a parental role in the case of her nephews B and K and, whilst the best interests of each of B and K weighs in favour of revocation of the mandatory cancellation decision, no weight, or at least only very limited weight should now attach on account of the best interests of the applicant’s nephews.
[119] Exhibit R2, Respondent’s SIFC, paragraphs 51(d), 52.
The Tribunal attaches some, yet only very limited weight to the interests of nephews B & K in favour of revocation.
Conclusion: Primary Consideration B
Having regard to the relevant paragraphs in paragraph 13.2(4) of the Direction, the Tribunal determines that the best interests of the applicant’s minor children in Australia weigh strongly in favour of revocation of the mandatory visa cancellation decision. Nonetheless, the weight attributed by the Tribunal to Primary Consideration B does not outweigh the very heavy weight that the Tribunal has attributed to Primary Consideration A.
PRIMARY CONSIDERATION C – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 13.3(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or in circumstances where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Clause 13.3(1) also provides that non-revocation may be appropriate simply because of the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs,[120] when dealing with paragraph 11.3(1) of Direction 65 (a direct analogue of paragraph 13.3(1) in the current Ministerial Direction), Flick J concluded that the principles reflected in clauses 6.3(5) and 6.3(7) were necessarily incorporated into the primary consideration of expectations of the Australian community in the Ministerial Direction, as factors that may be taken into account when determining whether to give more or less weight to a deemed community expectation of visa refusal, arising because of character concerns regarding the non-citizen, or the nature of their offending. Charlesworth J came to a similar conclusion, expressing that:
“In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.[121]
[120] [2019] FCAFC 185 at [22]. On 24 April 2020 special leave was refused by the High Court, see: FYBR v Minister for Home Affairs & Anor [2020] HCA Trans 56.
[121] [2019] FCAFC 185 at [77].
Clauses 6.3(5) and 6.3(7) in the Ministerial Direction are expressed in these terms:
“5Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
7The length of time a non-citizen has been making a positive contribution to the Australian comm unity, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
As previously indicated in these reasons, and in light of her having been sentenced to actual terms of imprisonment exceeding 12 months, as the applicant has now conceded,[122] the Tribunal is not satisfied that the applicant meets the character test, and the Tribunal has so found, accordingly. It follows therefore that this primary consideration weighs against revocation of mandatory visa cancellation.
[122] Transcript, Day Two, page 106, line 12.
Yet, the applicant submits that the principles identified in each of clauses 6.3(5) and 6.3(7) in the Ministerial Direction, when correctly applied, substantially reduce the weight that can be attributed to this primary consideration. In this regard, the applicant submits that the following rehabilitative and protective factors should be assessed by the Tribunal as matters that ‘tip the balance’ in favour of revocation of the mandatory visa cancellation decision:
·The applicant arrived in Australian at the age of 10 and has lived in Australia for the majority of her life. In these circumstances, clause 6.3(5) suggests a higher level of tolerance for the applicant’s past criminal or other serious conduct than would be the case had the applicant not lived in Australia from such a young age.
·In terms of the higher level of tolerance invited by clause 6.3(5), the applicant points to the following factors as matters that might give rise to greater confidence[123] that she will not engage in further offending behaviour:
[123] See also Transcript, page 26, lines 5 to 47; & page 27, lines 1 and 2.
-The applicant is no longer in a relationship with D, and now has no intention of ever attempting to reconcile with D. The applicant says that this is important, given that so much of her prior offending was interconnected with difficulties arising within that relationship.
-The applicant is not returning to live in Mission Beach, and will instead move to live in Gin Gin, with her parents.
-Time in prison has enabled the applicant to undergo various rehabilitative programs and courses, including the SAMI, and SSI programs.
-Time in prison has given the applicant the necessary time to reflect on the consequences of her actions. Imprisonment has made the applicant accountable for her actions.
-Upon her release, the applicant will be subject to parole conditions, which will include a requirement that she abstain from alcohol.
-The applicant has developed a renewed interest in health and wellness and has studied, and now wishes to work in the health and fitness industry. As such, the applicant has no wish to engage in further destructive or harmful behaviours involving intoxicants.
-The applicant has now ‘accepted her label’ as an alcoholic, and has come to terms with the fact that she cannot ever drink again.
·In terms of clause 6.3(7), the applicant submits that she has made a positive contribution to the Australian community, particularly when reference is had to the fact that her criminal history only really commences at age 34, and the fact that the applicant was in gainful employment throughout her adult life up to the time of her relocation to Mission Beach. Furthermore, the applicant submits that the consequences of non-revocation of mandatory cancellation for the identified minor children and other immediate family in Australia would be devastating.[124]
[124] Exhibit G1, s501 G Documents, G21, pages 114 to 124; Transcript, Day One, page 7.
Ultimately, the Tribunal concludes that the clause 6.3(5) and 6.3(7) matters raised by the applicant do carry certain weight in favour of the revocation of the mandatory visa cancellation decision. Unfortunately, the applicant’s resolve to abstain from her past behaviours upon her release from prison is a matter that is still untested, and is a matter for assessment in the shadow of the applicant’s past track record of further offending and alcohol abuse even after the giving of strong assurances in the past that she was a reformed person who would not ever do these things again.
In an overall sense, the Tribunal concludes that the expectations of the Australian community (Primary Consideration C) require that a strong measure of weight be given in favour of non-revocation.
Other Considerations
It is necessary to look at the Other Considerations listed as sub-paragraphs (a), (b), (c), (d) and (e) in paragraph 14(1) of the Ministerial Direction.
(a) International non-refoulement obligations
A non-refoulement obligation, as listed in sub-paragraph 14(1)(a), and then elaborated at paragraph 14.1(1) – (6) inclusive, is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Here, the applicant has not made any claims in relation to non-refoulment obligations. The Tribunal concludes therefore that Other Consideration, 14(1)(a), is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The impact of the applicant’s existing ties to Australia is a matter nominated in paragraph 14(1)(b), and then elaborated at paragraph 14.2. Examination of paragraph 14.2 reveals three aspects for consideration: 14.2(1)(a)(i); 14.2(1)(a)(ii); and 14.2(1)(b).
Paragraph 14.2(1)(a)(i) of the Direction
The applicant was born in New Zealand. She moved to Australia on 25 October 1989 when aged 10, and has, save and except for 4 short periods of a few weeks in each of 1994, 2005, 2006 and 2012, exclusively resided in Australia since the date of her arrival. The applicant is currently aged 41 years. She has therefore spent the predominance of her life in this country. The applicant’s offending commenced in June 2003, some 14 years after her arrival. Her first offence is a matter of inconsequence in these deliberations and it was not until December 2013 that any offending of consequence for these deliberations started. This was some 24 years after the applicant’s first arrival in Australia. Accordingly, no adverse weight against the applicant can be allocated to paragraph 14.2(1)(a)(i) of the Direction.
Paragraph 14.2(1)(a)(ii) of the Direction
A stronger measure of weight in favour of the applicant can be found via an application of paragraph 14.2(1)(a)(ii) of the Ministerial Direction, which speaks of the need to attach weight to the time the non-citizen has spent contributing positively to the Australian community. Here, it is clear from the available evidence that the applicant has made positive contributions to the Australian community during the course of her life in this country.
In her Personal Circumstances Form the applicant responds as follows to the directive stated as “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. ……
“I was a visitors information officer at Mission Beach (volunteer) I was also a Disposition Officer (Human Resources) at Port Philip Prison. I work with Nippers SLSC, & volunteer at my children’s school events.”[125]
[125] Exhibit G1, s501 G Documents, G21, page 104.
It is clear from the material that the applicant has spent the major portion of her life contributing positively to the Australian community. The Tribunal therefore concludes that a strong level of weight is attributable to the applicant pursuant to this paragraph of the Ministerial Direction.
Paragraph 14.2(1)(b) of the Direction: Strength, nature and duration of ties to Australia
A measure of weight is also attributable to the applicant pursuant to this Other Consideration (b), by reference to paragraph 14.2(1)(b) thereof. Initial reference should be made to the applicant’s Personal Circumstances Form wherein she lists the following immediate family in Australia;
·her two children, and their father, D, her former partner with whom the applicant remains on reasonable terms;
·her mother;
·her father;
·her brother (and his wife); and
·her two nephews.
In light of these family connections, it can be contended that the applicant does have, what are for her at least, significant ties to Australia. She has resided here since the age of 10. As will be noted from the abovementioned list of immediate family members, all of these persons reside in Australia. While not necessarily determinative of the basis of the allocation of weight pursuant to this paragraph 14.2(1)(b), the applicant’s level of connectivity to Australia is underscored by the reality that her two biological children were born and reside in Australia.
Contentions of the respondent
In relation to those matters listed in paragraph 14.2 of the Ministerial Direction the respondent acknowledges[126] that this consideration favours revocation of the cancellation decision. However, the respondent also submits that the consideration should not attract significant or overwhelming weight and does not outweigh the primary considerations of ‘protection of the Australian community’[127] and ‘expectations of the Australian community’[128] each of which the Tribunal should find now weigh heavily in favour of non-revocation of the cancellation decision.[129]
[126] Exhibit R2, page 15, paragraph [62].
[127] Primary Consideration A.
[128] Primary Consideration C.
[129] Exhibit R2, paragraph 40 to 47 and 53 to 58.
The level of the strength, duration and nature of the applicant’s family/social links with members of her immediate family in Australia, is clearly of a substantial nature. The Tribunal concludes therefore that a strong measure of weight is attributable to the applicant pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the applicant’s visa would have an impact on Australian business interests, and the applicant has not made any claims in relation to same. This consideration is therefore not relevant to determination of this application.
(d) Impact on victims
Paragraph 14.4(1) of the Ministerial Direction provides that it is necessary to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The only evidence referable to this criterion comes in the form of various letters written by D, which express the following:
“We need her in our lives, she is a loving and caring mother to Payton and Chase….. Taryn has been a very good mother to them and I can't continue to raise them on my own, we all need Taryn here in our lives.”[130]
“As I work full time I have a very difficult meeting all of the demands of our children, I need Taryn home so that she can be a mother, something that she is extremely good at, I can not describe to you how much myself and the children need Taryn…I feel that if Taryn is detained much longer that I will be unable to cope with raising our two children as we have no family living in North Queensland, I will have to consider moving to New South Wales to be closer to my family which I feel would be very unsettling to our children and also to myself as I have a good job here in which I earn $100 000 + a year. It would not be for the best if we had to relocate.”[131]
[130] Exhibit A4.
[131] Exhibit G1, s501 G Documents, G21, page 127.
Although it is to be noted that D is generally supportive of the applicant being allowed to remain in Australia, the practical and other difficulties as described by D in the letter excerpts (above) are matters that were raised by D prior to the applicant’s most recent imprisonment. Events have now moved on somewhat as the applicant and D have permanently separated and the nominated factors will continue to exist, even in the event that the applicant were to remain in Australia, given the applicant’s expressed plans to now move firstly, to the Bundaberg District, and subsequently, to Cairns. This factor is assessed as carrying only neutral weight in these deliberations.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Ministerial Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin, and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(i)the non-citizen’s age and health;
(j)whether there are any substantial language or cultural barriers; and
(k)any social, medical and/or economic support available to that non-citizen in that country.
At the conclusion of evidence on the first day of the hearing, and shortly after the conclusion of the applicant’s own evidence, an exchange took place between the Tribunal and the applicant’s representative, as follows:
“Member: All right, what about impediments if she were to be required to be relocated in New Zealand. You haven’t really touched upon that in your case.
Ms Van Galen Dickie: No.
Member: I raised the issue - - -
Ms Van Galen Dickie: You did.
Member: Are you press that point or not?
Ms Van Galen Dickie: No, I don’t believe that they’ve given very strong weight at all.”[132]
[132] Transcript, Day One, page 106 and 107 (line numbers omitted).
In her evidence before the Tribunal, the applicant also said the following:
“Member: Just before we move to cross-examination, Mrs van Galen Dickie, do you want to ask your client any questions in relation to other consideration 10(e), that being the extent of impediments if removed? I haven’t heard any oral evidence from your client in relation to that issue. She’s talked about the obvious difficulties for her if she can’t see her children because she has to go to New Zealand. But what about impediments to her re-establishment in New Zealand? Do you wish to ask any questions of your client in relation to that?
Ms Van Galen Dickie: Well, I think we should. So Taryn, you heard what the Member’s asked. Do you think there’s any impediments regarding you having to move across to New Zealand?
Applicant: Obviously, I think it is important to note that because I moved over here as a young child, I don’t actually know anyone in New Zealand. I’m not close to any family members - although I am aware that I do have some family members in New Zealand, but I don’t know them. So I do feel that I would be socially isolated as well from any sort of family support. I really don’t know anything much about New Zealand, such as how a tax file number would work - but I understand that there are probably ways to find out. But I do think that the biggest impediment to me going to Australia [sic] would be that I don’t know anyone - I don’t know the country, I don’t have any friends or family over there that I would be able to seek out in terms of asking for support. I don’t feel that it would be the best for my mental wellbeing. It would be very difficult for me. Also, my parents have not been in good health - my mum had bowel cancer and was operated on by Dr Jayant Patel from Bundaberg, and my dad has chronic health issues as well. I’m very close with my mum, so that would be difficult for both of us as well.
Ms Van Galen Dickie: Do you consider that if you’re put back into a situation of social isolation, your mental health and your ability to cope might decline? Or are you confident that you have the skills now to cope?
Applicant:I do believe that I am confident that I have the skills to cope, but I do feel that it would take some bouncing back. I don’t think it would be an automatic - I think (indistinct) for anyone, given the circumstance. I do feel that I’m capable but it just would be very difficult.”[133]
[emphasis included]
Contentions of the respondent
[133] Transcript, Day One, page 32, lines 40 to 47; page 33, lines 1 to 25.
In relation to paragraph 14.5(1) of the Ministerial Direction, the respondent submits as follows:
“The applicant is an adult and is apparently in good health generally, other than having an issue with respect to, a ruptured breast implant. There is also some suggestion of the applicant having mental health difficulties, although the evidence in relation to this is quite sparse. There is no evident language or cultural barriers for the applicant in New Zealand, given its broad social, political and economic similarity to Australia. There is nothing to suggest that the applicant would not have available to her in New Zealand the equivalent social, medical or economic support available to other citizens. Further, while somewhat limited, the applicant does have some family remaining in New Zealand (G11, 73).
While it may be accepted that there may be some short-term difficulties for the applicant in adapting to life in New Zealand, the Minister submits that this consideration should attract only minimal, if any, weight in the applicant’s favour”.[134]
[134] Exhibit R2, pages 15 and 16, paragraphs [64] and [65].
Extent of impediments if removed – An Assessment
The applicant is a physically healthy woman of 41 years of age. The applicant’s Personal Circumstances Form is dated 13 December 2019.[135] In response to question 12 of the form, the applicant denied having any diagnosed medical or psychological conditions.[136] Similarly, when asked to list any medications she was taking, the applicant left this section blank. She was also asked in her Personal Circumstances Form: “If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.” The applicant responded with ‘Currently have a ruptured breast implant, my surgeon is here in Australia and has all my implant details’.
[135] Exhibit G1, s501 G Documents, G11, pages 60 to 78.
[136] Exhibit G1, s501 G Documents, G11, page 76, question 12.
In her written statement now before the Tribunal (dating from 19 October 2020) the applicant says the following about her health:
“…if I were removed from my family in Australia my mental state would be in such a state of disaray (sic) that I would be unable to function effictivley (sic)…I do not believe I would cope emotionally…I feel I wouldn’t manage at all emotionally away from my children.”[137]
“I have had extensive counselling and am in an excelent (sic) frame of mind and continue to be positive about my future.”[138]
[137] Exhibit G1, s501 G Documents, G21, page 121.
[138] Exhibit G1, s501 G Documents, G11, page 74.
The Tribunal does not consider that the applicant’s ruptured breast implant is a condition that could not be dealt with within the public health system in New Zealand. Similarly, the Tribunal is satisfied that the applicant has no other health conditions that would be unable to be treated in New Zealand.
Having regard to the totality of the evidence referable to this Other Consideration (e), and in particular, the reality that the applicant would appear to have only peripheral familial contacts in New Zealand, the Tribunal concludes that Other Consideration, (e), is of only very minor weight in favour of revocation.
Miscellaneous Considerations Raised by the Applicant
The applicant submits that her parents are in poor health and would therefore be unable to travel to New Zealand. However, as against this the Tribunal does note that the applicant’s parents did travel to New Zealand in early 2020. Given the fact of reciprocal Medicare arrangements as between Australia and New Zealand, and the fact of the international flight being only some three hours duration, even persons in poor health are less likely to be deterred from travel to New Zealand in the manner that may arise in the case of other destinations at greater distance from Australia.
The applicant also raises the concern that mandatory cancellation of her visa will have an adverse emotional impact on her parents (particularly her mother), and this may have adverse health consequences for her parents. Some modest weight is attached to this factor in favour of revocation of the mandatory visa cancellation decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength, nature and duration of ties: heavy weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral weight;
·extent of impediments if removed: very minor weight in favour of revocation; and
·health concerns for the applicant’s parents: modest weight in favour of revocation.
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is ‘another reason’, pursuant to the Ministerial Direction, to revoke the cancellation. As noted above, the applicant does not pass the character test, such that the application for review of the mandatory cancellation decision falls for determination on the question as to whether there is now ‘another reason’ for revocation of that visa cancellation decision.
In considering whether there is another reason afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations referred to in the Direction, and now finds as follows:
·Primary Consideration A weighs very strongly in favour of non-revocation;
·Primary Consideration B weighs strongly in favour of revocation;
·Primary Consideration C requires a strong measure of weight in favour of non-revocation;
·In proceeding paragraphs the Tribunal has outlined the weight attributable to the relevant ‘Other Considerations’, specifically:
o Other Consideration (b) weighs heavily in favour of revocation, and
o Other Consideration (e) is of very minor weight in favour of revocation;
·The Tribunal therefore finds that the cumulative weight attributed to Primary Considerations A and C result in a globally determinative level of weight in favour of non-revocation.
The Tribunal concludes therefore that a holistic view of the considerations in the Direction therefore favours non-revocation of the mandatory cancellation of the applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 8 October 2020 not to revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa.
I certify that the preceding 195 (one hundred and ninety-five paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean-Williams
………………[SGD]………………………
Associate
Dated: 25 January 2021
Date of hearing: 9 and 11 December 2020 Solicitor for the applicant:
Ms Marianne van Galen
Sisters Inside
Solicitor for the respondent Mr David McLaren
Minter Ellison
Annexure A - EXHIBIT REGISTER
File No: 2020/6434
Between: Taryn O’DOWD (applicant)
And:MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (paged 1 to 198)
-
30 October 2020
R1
Respondent’s Supplementary Documents
(paged 1 to 654)-
27 November 2020
R2
Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)
27 November 2020
27 November 2020
A1
Applicant’s Statement of Facts, Issues and Contentions (three pages)
11 November 2020
13 November 2020
A2
Applicant’s Submissions (four pages)
19 October 2020
21 October 2020 and 11 November 2020
A3
Letter of support from Applicant’s Mother (one page)
13 July 2020
12 November 2020
A4
Letter of support from Applicant’s former Partner
(one page)14 July 2020
12 November 2020
A5
Letter of support from Applicant’s former Partner
(three pages)22 October 2020
11 November 2020
A6
Letter of support Applicant’s former Partner (one page)
10 November 2020
13 November 2020
A7
Photos of the Applicant and her children (14 images)
-
13 November 2020
A8
Letter of support from Applicant's Parents (five pages)
11 November 2020
13 November 2020
A9
Applicant’s reply (two pages)
3 December 2020
4 December 2020
A10
Certificates of completion and attainment (five pages):
· Certificate II in Sport and Recreation, dated 2 March 2020
· Statement of Attainment certificate, dated 6 February 2020:
o Provide cardiopulmonary resuscitation
o Provide basic emergency life support
o Provide first aid
· The College of Health and Fitness – Statement of Results, dated 2 March 2020
· Statement of attainment, dated 6 December 2019:
o Provide cardiopulmonary resuscitation, achieved 6/12/19
o Provide first aid, achieved 6/12/19
· Certificate of Completion: Substance Abuse Maintenance Intervention Program, awarded
7 April 2020-
4 December 2020
A11
Epilim Consumer Medicine Information Sheet
(five pages)-
4 December 2020
A12
Naltrexone Information Sheet (four pages)
-
4 December 2020
A13
Seroquel Consumer Medicine Information Sheet
(five pages)-
4 December 2020
A14
Patient Health Summary of the Applicant’s Father
(two pages)3 December 2020
4 December 2020
A15
Patient Health Summary of the Applicants Mother
(two pages)3 December 2020
4 December 2020
A16
Letter from Applicant’s child (one page)
-
4 December 2020
Annexure B – Decision dated 7 January 2021
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/6434
General Division )
Re: Taryn O'Dowd
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member Andrew McLean-Williams DATE: 7 January 2021 PLACE: Brisbane DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 8 October 2020.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
....................................[sgd]..........................
Member Andrew McLean-Williams
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Appeal
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