Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 88

Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 88 (30 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7426
Re:Clayton James Palmer
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:30 January 2020
Place:Perth

The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...............................[sgd]....................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – extremely low risk of reoffending – not unacceptable risk – grievous bodily harm by non-violent acts – other consideration – strength, nature and duration of ties – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 32, 65, 499, 499(1), 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Regulations 1994 (Cth) – reg 5.15A
Crimes Act 1900 (NSW)
Criminal Code Act Compilation Act 1913 (WA) – s 297(1)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Palmer v The State of Western Australia [2018] WASCA 22
Pinder and Minister for Home Affairs [2019] AATA 1398
R v Clarence (1888) 22 QBD 23
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Sach and Minister for Home Affairs [2019] AATA 5173
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Trang and Minister for Home Affairs [2019] AATA 4087
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13.1(2)(b), 13(2)(c), 13.1, 13.1(2), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 13.3(1), 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.1, 14.2, 14.2(1)(a)(i), 14.2(1)(b), 14.4, 14.5, 14.5(1), 14.5(1)(c), Part C
REASONS FOR DECISION
Deputy President Boyle
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent made on
6 November 2019 (R1, G4) not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa (the Applicant’s visa) under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa had been cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of her (the Applicant is transgender and identifies as female - R1, G3 at 8) substantial criminal record and because she was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review is made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.
THE ISSUE
The issue for determination is, therefore, whether the Tribunal should exercise the power in s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the Applicant’s visa.
It is not disputed that the Applicant does not pass the character test (Applicant’s SFIC para. 28). Accordingly, the only issue for determination is whether the Tribunal is satisfied that there is another reason why the cancellation decision under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
BACKGROUND
The Applicant is a 42 year old transgender person who identifies as a woman. She is a citizen of New Zealand who last arrived in Australia on 19 March 2010, aged 32 and was granted the Applicant’s visa at Kingsford Smith Airport (Sydney) in accordance with ss 32 and 65 of the Act and reg 5.15A of the Migration Regulations 1994 (Cth).
The Applicant first travelled to Australia for a three week period in June 2001, as a 23 year old.
The Applicant returned to Australia on 17 July 2006 (as a 28 year old), departing approximately 14 months later on 13 September 2007.
The Applicant returned two weeks later on 1 October 2007, departing approximately two and a half years later on 25 February 2010.
The Respondent accepts that the Applicant has been ordinarily resident in Australia from July 2006 (Respondent’s SFIC para. 9).
Criminal record
On 25 August 1999 the Applicant was convicted in the Wellington District Court, New Zealand, of driving under the influence of alcohol (Breath Alcohol Level over 400 Mcgs/Litre of Breath – Blood/Breath = 1090) on 12 August 1999, and was fined $1,100. The Applicant was also disqualified from driving for 9 months (R1, G7).
The Applicant’s criminal record in Australia is:

Court Court Date Offence Offence Date Court Result

Parramatta Local Court 16 June 2013 Never licenced person drive vehicle on road – 1st offence Fine $400

Downing Centre Local Court 12 July 2013 Possess prohibited drug Good behaviour bond without proceeding to

Perth District Court
16 February

2018
Grievous bodily harm Between 1 January 2015 and 31 August 2015
4 years’ imprisonment, to commence from 1

April 2017

On 13 March 2019 the Applicant’s visa was cancelled under s 501(3A) of the Act. This was the mandatory cancellation referred to at [2] above.
Following that cancellation the Applicant made representations seeking revocation of the cancellation.
On 6 November 2019 the delegate of the Respondent refused to revoke the cancellation decision (R1, G4/17). The Applicant was notified of this decision not to revoke on

7 November 2019 (R1, G2).
The Applicant sought review under s 500(1)(ba) of the Act on 14 November 2019

(R1, G1).
THE HEARING
The application was heard on 21 January 2020. The Applicant was represented by
Ms E Carlean instructed by HIV/AIDS Legal Centre and the Respondent was represented by Mr A Gerrard of the Australian Government Solicitor.
The following witnesses gave evidence at the hearing:
(a)The Applicant
(b)Dr Olga Patricia Martinez
(c)Aaron John Cogle
(d)Jules Kim
(e)Ms C
(f)Charles Kevin Treadway
(g)Ms S
The following documents were before the Tribunal:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 16 December 2019 (Applicant’s SFIC) (Exhibit A1);
(b)Applicant’s Submission in reply dated 13 January 2020 (Exhibit A2);
(c)Applicant’s Statutory Declaration dated 2 June 2019 (Exhibit A3);
(d)
Medical report of Dr Patricia Martinez, including professional resume, dated

10 January 2020 (Exhibit A4);
(e)
Letter from Mr Parwani to Dr Martinez requesting Medical Report dated

2 December 2019 (Exhibit A5);
(f)Department of Corrective Services Management and Placement – Sentenced, approved 22 March 2018 (Exhibit A6);
(g)Department of Justice Corrective Services Incident Summary Report with run date 9 December 2019 (Exhibit A7);
(h)
Expert Consensus Statement on the Science of HIV in the Context of Criminal Law, Journal of the International Aids Society accepted 21 January 2020

(Exhibit A8);
(i)Letter of Support of Mr Charles Tredway dated 14 January 2020 (Exhibit A9);
(j)G Documents and Supplementary Relevant documents (Exhibit R1);
(k)Respondents Statement of Facts, Issues and Contentions dated 6 January 2020 (Respondent’s SFIC) (Exhibit R2); and
(l)Extract from District Court Transcript for 19 January 2018 (Exhibit R3).
Prior to the hearing the Respondent consented to the admission of the witness statements and letters provided by Lena Van Hale (R1, G22), Ryan Oliver (R1, G27), Diane Lloyd (R1, G26) and Ms T (R1, G23) (all of which were included in the G documents - R1) without the need for the makers of those statements and letters to be called. The Tribunal thanks the Respondent for this concession which enabled the hearing of the evidence to be completed on 21 January 2020. Written closing submissions were provided by both parties on 23 January 2020.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA” (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. 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.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE EVIDENCE
The Applicant
The Applicant relied on her statutory declaration dated 2 June 2019 (A3: a less legible copy also appears at R1, G15). With a couple of minor corrections, the Applicant confirmed, under affirmation at the hearing, that the contents of that statutory declaration were true and correct (Transcript at 46).
The Applicant’s evidence was that:
(a)From a young age she exhibited feminine interests and traits. This was accepted by her family.
(b)She played girls sports at school and in her teenage years started dressing as a girl.
(c)She started teachers’ college in New Zealand, however, did not complete the course.
(d)In her early twenties she began taking female hormones under the supervision of an endocrinologist and since 2013 has been taking oral hormones on a daily basis.
(e)She admits that she was diagnosed with HIV in September 2014 but says that she entered into a state of denial.
(f)She was at that time addicted to methamphetamine and worked as a sex worker to pay for the drugs. She worked as a sex worker for a total of 7 years.
(g)If she was able to she would apologise from the bottom of her heart to the victim. There is a lifetime restraining order preventing her from contacting her victim.
(h)Her current health status is good. She diligently takes her prescribed anti-retroviral drug, Triumeq. Her adherence has been so good that about three to four weeks after she started taking Triumeq her viral load was undetectable.
(i)She appreciates now that she has an obligation to her sexual partners to ensure that her viral load remains undetectable. She intends to continue to take medication as prescribed and wants to live a normal, healthy life.
(j)She has established and wants to maintain her connections with multiple communities in Australia including those people living with HIV, transgender people and sex workers.
(k)
She has been clean from drugs since she was taken into custody in

February 2016. While she was on bail before the trial she was subject to conditions which included urine drug testing. She complied with all of the conditions of bail and passed all drug tests. She is free from illicit drugs, realises the negative impact that they had on her life, and is committed to permanently removing herself from their impact.
(l)While she was incarcerated she did not have access to any drug and alcohol courses but has made enquiries about programs that would be available to her on release including through Holyoake.
(m)Australia is where her chosen family is. Her biological family in New Zealand lacked security, love and understanding.
(n)She has managed to forge strong relationships with people in Australia and they provide support to her. She has bonded closely with Ms C’s son to whom she provided guidance when he was being bullied at school.
(o)
Since her arrest, she has been involved in Magenta, NAPWHA and

Scarlet Alliance. They have provided support and given her a new direction in life. She has worked with them to educate minorities across all the relevant intersections. Prior to her incarceration she was involved as a peer support officer.
(p)She has been offered board positions on the three above identified organisations.
(q)She has fears for her mental health if she is returned to New Zealand. Her step-father was a violent alcoholic and when she moved into a cousin’s home because of the violence in her own home, she was sexually abused by her uncle.
(r)Although she told her mother and step-father about the abuse by the uncle, they refused to do anything and still socialise with the uncle.
(s)Since she came to Australia she has ‘abandoned’ her family in New Zealand and since then has made, and maintained, strong relationships with people in Australia whom she now considers to be her family.
(t)
When she sought hormone treatment in New Zealand in her teens she found it hard to engage professionals. She understands that people living in

New Zealand with HIV have experienced significant discrimination by health care workers.
Dr Olga Patricia Martinez

Dr Martinez is a clinical immunologist. Her professional resume (included as part of A4) advises that she:
(a)graduated from the School of Medicine of the University of Western Australia (UWA) in 1982;
(b)has been employed by Royal Perth Hospital (RPH) since 1983;
(c)was awarded the Fellowship of the Royal College of Pathologists of Australasia (FRCPA) in October 1997;
(d)was awarded the Fellowship of the Royal Australasian College of Physicians (FRACP) in March 2000;
(e)was awarded a PhD degree by UWA in September 2004: Thesis: “The Importance of Complete Characterisation of Complotypes: MHC Genes – Systemic Lupus Erythematosus / Human Immunodeficiency Virus Infection”;
(f)has been a Clinical Academic since July 2000 – initially as Senior Lecturer (Level C) in the Pathology Department within the Faculty of Medicine and Dentistry UWA and Consultant Clinical Immunologist at RPH. Since 2009 she has been Associate Professor with the School of Pathology and Laboratory Medicine (PaLM) in the Faculty of Medicine, Dentistry and Health Sciences – UWA and worked as Clinical Immunologist and Immunopathologist at RPH; and for PathWest (RPH) until early February 2015, when she moved to the newly opened Fiona Stanley Hospital as PathWest FHS Network Head of Department – Immunology and as Clinical Immunologist;
(g)has attended numerous conferences and specialist meetings, has authored and co-authored numerous texts and papers, and taught extensively at university in immunology and related fields.
Dr Martinez provided two reports, the first dated 24 April 2019 (R1, G17) and the second with a dictation date of 10 January 2020 (A4).
The first report advised:
·Dr Martinez had been involved in the Applicant’s management since early 2016.
·At the time of her first referral there was no history of seroconversion illness and no history of hepatitis or other STI. She had no specific symptoms of immune deficiency and had not had any opportunistic infections.
·Her previous medical history included two spontaneous pneumothoraces, amphetamine use and gender dysphoria;
·She was commenced on medication in mid-April 2016 which she continued up to the time of the report;
·She has been reviewed for infection at Fiona Stanley Hospital regularly and at all times has been adherent with antiretroviral therapy and attained an undetectable viral load (less than 40 copies/ml) within a month of commencement of treatment.
·
She was last reviewed in March 2019. The then most recent blood test

(February 2019) showed a viral load of less than 40 copies/ml and an excellent immunological response;
·Provided she maintains the current level of good health and supressed viral load she “should not pose an increased risk to the Australian community” (R1, G17/140)
·At that time there was no reason to believe that she would not adhere to her therapy and seemed committed to maintaining good health.
·Support from family, friends and community services are an integral part of management of people living with HIV. Over the period of her treatment a good rapport has developed.
·Even if similar services were available in New Zealand it would take some time for the rapport and confidence to develop with a potential detrimental effect on her physical and mental health.
The second report repeated much of the first report and advised that the last clinical review (10 October 2019) indicated that she was well, without symptoms and that her most recent blood test (2 October 2019) showed a viral load of less than 40 copies/ml and a normal CD4 count of 29%. Dr Martinez stated that over the past three and a half years the Applicant had been taking her medications as prescribed and that there was no reason to believe that she would not continue to do so. She also opined that the Applicant has shown a desire to remain healthy and is aware of her public health responsibilities with regard to taking the necessary precautions to avoid transmitting HIV infection.
Charles Treadway
Mr Treadway provided a letter of support dated 14 January 2020 (A9). Mr Treadway’s letter advised that he was a person living with HIV having been diagnosed in Sydney in 2006. He advises in his letter that he returned to New Zealand in 2015. He is now back in Australia. He says that while treatment for his HIV condition was available in
New Zealand, it is not as good as that available in Australia. In particular, his medication in New Zealand consisted of five pills a day while the usual medication in Australia, like that taken by the Applicant, is a single daily pill. He says that the only one-pill-a-day treatment available in New Zealand listed under that country’s PHARMAC scheme is Atripla which has been globally disregarded as a viable front-line therapy choice due to a raft of associated health conditions.
Mr Treadway also stated in his letter that, although the treatment available to and the attitude of the community towards those with HIV in New Zealand have improved over recent years, they still remain behind Australia. He also gave similar evidence at the hearing (Transcript at 116). He was the chair of Body Positive NZ, which, at the hearing (Transcript at 111), he explained is the peak body in New Zealand for people living with HIV.
Aaron Cogle
Mr Cogle provided two letters of support, one dated 20 June 2019 (R1, G18) and the other dated 3 June 2019 (R1, G19). He confirmed under affirmation at the hearing that the contents of those two letters were true and correct (Transcript at 93). Mr Cogle is the Executive Director of the National Association of People With HIV Australia (NAPWHA). His evidence is that he has known the Applicant for about two years and that NAPWHA has been providing support for the Applicant. He says that while the Applicant was on bail before her trial in 2018, NAPWHA provided support for the Applicant to attend the national HIV conference in Canberra in 2017 to take part in a panel on HIV in custodial settings.
Mr Cogle stated in his letter of 20 June 2019 (R1, G18/143) that the medication that the Applicant is on, Triumeq , is not available in New Zealand via that country’s subsidised pharmaceutical scheme, PHARMAC and that the range of anti-retroviral drugs available in New Zealand is more limited than the range available in Australia.
Jules Kim
Ms Kim provided a letter of support dated 14 February 2018 (R1, G21). She is the
Chief Executive Officer of Scarlet Alliance, which describes itself as the Australian Sex Workers Association. She stated at the hearing (Transcript at 97) that the letter was provided at the time of the Applicant’s sentencing and raises concerns that Scarlet Alliance had of a lengthy custodial sentence. Accordingly, much of the contents of the letter is not relevant to these proceedings.
Ms C
Ms C provided a letter of support dated 3 May 2019 (R1, G24). She stated that she is, or was at the time of the letter, a single mother with two children, one 18 year old and a
10 year old boy. She said that she has known the Applicant for four years and that while she had been undergoing treatment for breast cancer, which included a mastectomy and removal of lymph nodes, the Applicant became her carer. This was in the period when the Applicant was on bail.
Ms C also advised in her letter that during that time the Applicant brought to her attention that there was ‘something different’ about her 10 year old child’s behaviour. With her consent the Applicant spoke to the child who revealed to the Applicant that he was being bullied at school. Ms C said that the Applicant was able to give good advice to the child because she too had been bullied at school. She said that the Applicant has become even more important to her family and the connection with her 10 year old boy ‘is unbreakable’. She says that the Applicant is ‘a great friend that [she has] come to rely on and trust’ and ‘will always have a home here with us’.
Ms C gave evidence at the hearing to the same effect as above.
Lena Van Hale
Ms Van Hale provided a letter of support which was undated (R1, G22). She describes herself as Manager of Magenta, which she described as ‘Western Australia’s sex worker project’. She says that the Applicant has been involved with peer education with her communities, speaking with sex workers and people living with HIV and that she hopes that the Applicant can remain in Western Australia to continue this work (R1, G22/154). She says that the Applicant has a standing amongst her communities because she ‘remains one of the only sex workers to contract the virus in Australia for many years, and [the Applicant] has become a widely respected community member’.
Ms Van Hale did not give evidence at the hearing.
Ryan Oliver
Mr Oliver gave an undated letter of support on the letterhead of Positive Organisation Western Australia (R1, G27) which he describes as a peer-led organisation for people living with HIV which provides advocacy and support. He says that the Applicant’s experience provides her with a unique understanding of HIV and the stigma associated with being HIV positive, and that she has expressed a desire to return back to the community through education and advocacy.
Mr Oliver did not give evidence at the hearing.
Diane Lloyd
Ms Lloyd gave a letter of support dated 8 May 2019 (R1, G26). She says that she did not know the Applicant before the media coverage of the Applicant’s trial. She says that she is a heterosexual woman with HIV. She says that she visited the Applicant while she was in prison and believes that she does not pose a risk to the community and that she has a lot to offer in educating her peers in the HIV community. Ms Lloyd did not give evidence at the hearing.
Ms T
Ms T gave a letter of support dated 3 June 2019 (R1, G23). She says that she has known the Applicant for eight years and during that time has become very close. She is of Maori extraction and as part of a Maori family it is normal to practice ‘whangai’ (adopt) others as extended family members forming special bonds and relationships. She and her family consider the Applicant as part of their family.
Ms T says that she has entrusted the Applicant with the responsibility of taking care of her children on a number of occasions and would have no problem in doing so again (R1, G23/157). As the Applicant is part of their family, they are committed to supporting her and ensuring her well-being so that she can reintegrate and seek employment.
Ms T did not give evidence at the hearing.
Ms S
Ms S gave a letter of support dated 20 May 2019 (R1, G25). In that letter she says that she is the Applicant’s cousin and has known the Applicant all her life. She says that the Applicant has expressed her remorse for what she has done. In the period leading up to the Applicant’s trial in January 2018, the Applicant lived with Ms S’s family. During this time the Applicant regularly looked after Ms S’s children aged two, three and 13.
Ms S gave evidence at the hearing. She was cross-examined on what support the Applicant might receive from her family if she were returned to New Zealand. Ms S said that she could not say (Transcript at 119)
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. This phrase, in turn is defined, relevant to this case, in s 501(7)(c) (See [22] above) 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”. That is clearly so in the Applicant’s case and the Applicant concedes that to be the case (Applicant’s SFIC, para. 28).
As the Applicant does not pass the character test, she cannot rely on
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a. The nature and seriousness of the non-citizen’s conduct to date; and
b. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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 subparagraph (b) above, the sentence imposed by the courts 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 the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
In June and July 2013, the Applicant was dealt with summarily by the Local Court of

New South Wales on drug possession and traffic offences (R1, G6/21). These offences are, as were the offence in New Zealand, on any characterisation, minor. Obviously the offending which is primarily relevant in the present case is that which gave rise to the Applicant’s conviction in the District Court of Western Australia on 19 January 2018. The Applicant was convicted, after a 5-day trial before Stevenson DCJ and a jury, of doing grievous bodily harm to another, contrary to s 297(1) of the Criminal Code Act Compilation Act 1913 (WA) (R1, G8).
On 16 February 2018 Stevenson DCJ imposed a sentence of 6 years’ imprisonment with eligibility for parole backdated to commence on 1 April 2017 (R1, G8/39). The Applicant appealed the sentence. The Court of Appeal (Palmer v The State of Western Australia [2018] WASCA 22) (R1, G9) (Palmer Appeal) reduced the 6 year sentence to 4 years.
The circumstances which gave rise to that charge were set out in Stevenson DCJ’s sentencing remarks (R1, G8 and R3) and were conveniently summarised in the Court of Appeal’s judgment at [21]-[26] (R1, G9/48-50) as follows (footnotes omitted);
21. On 19 January 2018, following the verdict of the jury, the trial judge made detailed factual findings with respect to the commission of the offence. On

16 February 2018, his Honour summarised those findings. The salient facts are as follows.
22. For some time prior to the commission of the offence, the appellant was a transgender sex worker. She was also using methylamphetamine intravenously. On two occasions in August 2014, she provided blood samples for analysis to a nurse, Ms Morgan. A blood sample obtained by Ms Morgan on 27 August 2014 tested positive to HIV. On 3 September 2014, Ms Morgan informed the appellant that she had tested positive to HIV. Despite this diagnosis, the appellant continued to conduct her sex work, which included engaging in unprotected anal sex.
23.On 5 November 2014, the victim, a male, made contact with the appellant after seeing one of her online advertisements in which she represented she was 'clean'. Shortly after they met, and in response to an enquiry made by him, the appellant confirmed she was 'clean' and that she underwent monthly checks for sexually transmitted diseases. At the time, the appellant knew that she was not 'clean' and had been infected with HIV.
24.Between 1 January 2015 to about the end of July or early August 2015, that is, over a period of about eight months, the appellant and the victim, on several occasions, engaged in unprotected anal sex. At no time did the appellant disclose to the victim that she was HIV positive. It was not disputed by the appellant, and his Honour found as a fact, that the victim would not have engaged in sexual activity with her had he known of her condition. The State's case at trial was that the appellant's conduct was criminally negligent. His Honour appears to have sentenced the appellant on this basis.
25In September 2015, the victim became ill. A blood test revealed that he had become HIV positive. His Honour found that the appellant transmitted the virus to the victim. On 25 September 2015, there was an exchange of text messages between the appellant and the victim. In these messages, the appellant, in effect, feigned ignorance of her HIV status. A further exchange of text messages on 29 September 2015 was to the same effect.
26.The appellant travelled to Sydney. She continued to advertise as a transgender sex worker until she was spoken to by police in Sydney on 5 January 2016. On 19 February 2016, she was taken into custody and later extradited to Western Australia. Her evidence at trial was that she did not know she was HIV positive until her arrest. This evidence was untrue and was plainly rejected by the jury.
The Respondent contends (Respondent’s SFIC) that:
(a)The gravamen of the offending was that the Applicant was criminally negligent in transmitting the HIV to the victim in circumstances where the victim did not know that the Applicant was HIV positive; and
(b)The maximum sentence for the offence is 10 years.
The Respondent points to Stevenson DCJ’s characterisation of the Applicant’s offending in sentencing referred to by the Court of Appeal at [27]-[30] of Palmer Appeal (R1, G9/60) wherein the Court of Appeal observed:
27.His Honour characterised the appellant's criminality as being 'at the upper end of the range of seriousness'. His Honour said that the appellant had a 'callous disregard' for the victim 'in the circumstances where as a sex worker [the appellant] [was] plainly aware of the seriousness of sexually transmitted diseases'.
28.His Honour said that the offending was significantly aggravated by the appellant's dishonesty in the representations she made to the victim.
29.His Honour observed that at the time of the commission of the offence, the appellant was addicted to methylamphetamine, and that this 'subjective need' overrode any care or concern about the victim and the risk or possibility of infecting him with HIV. His Honour also found that the length of time over which the appellant was prepared to engage in sexual activity with the victim without informing him of her HIV status was 'significant and aggravating'.
30.His Honour described the appellant as displaying 'a wilful and wanton disregard for the safety or welfare of the victim'.

The Respondent also referred to the Court of Appeal’s following observations (R1, G9/60) (footnotes omitted):
68. His Honour's characterisation of the appellant's criminality as being 'at the upper end of the range of seriousness' is an evaluative judgment on his Honour's part. It is a characterisation which explains why his Honour imposed the sentence he did. However, whether the sentence is manifestly excessive is to be determined by reference to the factors we referred to in [51] of these reasons. We will not repeat what we have already written about the facts and circumstances of the offence. Nor will we repeat the aggravating and mitigating circumstances identified by his Honour. Despite the fact that advances in medicine mean that, provided the victim maintains a regime of daily medication, he will live a normal life, the fact remains that he has been infected with a lifelong and potentially deadly virus. The appellant deliberately deceived the victim, claiming that she was free from sexually transmitted diseases. As a result of that deceit, the victim engaged in unprotected anal sex.
69.His Honour accepted that the attitudes of the Australian public towards people who are HIV positive has changed, and continues to change, and that the social stigma that once attached to those who were HIV positive is diminishing. However, that is not the victim's own experience, having regard to his particular cultural background. No challenge was made in the sentencing proceedings or in this court to the accuracy of the victim impact statement. It must be accepted that, from the victim's perspective, his HIV positive status has been a great burden. It has adversely and significantly affected his enjoyment of life and will continue to do so into the future, although it is hoped that in time those adverse effects will diminish.
70.Nevertheless, the sentence imposed upon the appellant was severe, having regard to the range of sentences customarily imposed for offences of grievous bodily harm. The sentence was beyond the post‑transitional range established for offences towards the upper end of the scale, recognising, of course, that the range of sentences customarily imposed does not dictate the upper or lower limb of a proper exercise of the sentencing discretion.
71. There were substantial mitigating factors. Two such factors stand out. First, it is uncontested that the appellant will serve the custodial portion of her sentence in a male prison, under protection, and will experience hardship beyond that experienced by mainstream prisoners. The second factor is that, by reasons of the steps taken by the appellant, the need to provide personal deterrence and public protection has been reduced.
72.Having regard to all relevant circumstances, we have been persuaded that the sentence of 6 years' imprisonment was manifestly excessive. In our opinion, having regard to all of the relevant facts and circumstances, the sentence that was imposed was, having regard to the maximum penalty, the seriousness of the offending, the range of sentences customarily imposed, the importance of providing an appropriate measure of punishment and deterrence, and having regard to all mitigating factors, the length of the term was unreasonable or plainly unjust.
The Respondent contends that the grievous bodily harm offence committed by the Applicant is evidently, and objectively, serious and that that characterisation of the offending is ‘supported by the findings of the sentencing judge and the Court of Appeal’…including their conclusion that the offence was “towards the upper end of the scale” of seriousness for offences of this kind’ (Respondent’s SFIC para. 42). While Stevenson DCJ did so characterise the Applicant’s offending, and the Court of Appeal referred to his Honour’s characterisation at [68] of its judgment (see [66] above), it is a stretch to say that the Court of Appeal also characterised the Applicant’s offence as being ‘towards the upper end of the scale’. As the Court of Appeal put it, that characterisation by Stevenson DCJ was ‘an evaluative judgment on his Honour's part…which explains why his Honour imposed the sentence he did’. The Court of Appeal held (at [70] of Palmer Appeal) that ‘[t]he sentence was beyond the post‑transitional range established for offences towards the upper end of the scale’. What could fairly be said is that the Court of Appeal, in setting aside the sentence imposed by Stevenson DCJ, did not reject Stevenson DCJ’s characterisation of the offence as being ‘towards the upper end of the scale’. The issue that the Court of Appeal had with the sentence of 6 years was that it was ‘beyond the post‑transitional range established for offences towards the upper end of the scale’.
In any event, the Tribunal agrees with Stevenson DCJ’s characterisation of the offence as being towards the upper end of the scale, a characterisation that was not disturbed by the Court of Appeal.
The Applicant in her SFIC (para. 45) ‘accepts that the sentence of 4 years imposed on her implies a level of seriousness’. She further accepts that the following factors increased the seriousness of her offence:
(a)The statutory maximum penalty of the offence of 10 years;
(b)The Applicant’s conduct of continuing sex work in denial of her diagnosis;
(c)The Applicant’s denial of having a communicable disease to the victim until after he had contracted HIV;
(d)The Applicant continuing to advertise as a sex worker until she was tracked down in Sydney;
(e)The Applicant pleading not guilty to the offence, insisting she was not aware of her HIV status until she was in a holding cell and testing the nurse’s evidence of whether the nurse informed her of her diagnosis when she in fact she had;
(f)The length of time that the Applicant engaged in sexual conduct with the victim while infected;
(g)The court’s finding of lack of remorse throughout the trial;
(h)The impact on the victim due to his culture; and
(i)The impact of social stigma on people living with HIV.
The Applicant, however, argues that the seriousness of the offence should be viewed in the context of the scientific developments that have been made in the care, treatment, prevention and management of HIV in recent years. It is undoubtedly the case that there have been massive advances in the treatment of HIV. The Applicant cited the

Australian Federation of AIDS Association summary of HIV as it stands today (Applicant’s SFIC para. 47) which included the following:
HIV stands for Human Immunodeficiency Virus and is a virus that attacks the body’s natural defence against disease known as our ‘immune system’. Today, thanks to HIV medication (known as treatments) living with HIV is vastly different to what it meant to a person’s ongoing health and life expectancy when the epidemic first began.
In Australia, it is estimated that there were 27, 545 people living with HIV in 2017, and globally there are around 36.7 million. Today, a HIV positive person who is on effective treatment can live as long and as healthy a life as a person who does not have HIV.
The factors to which the Tribunal must have regard in considering the seriousness of offending are set out in paragraph 13.1.1 of Direction 79 (see [60] above). The impact on the victim or victims of the offending is not specifically identified as a factor. That is not to say, however, that it is not a relevant factor under this consideration as the list of factors set out in paragraph 13.1.1 is not expressed to be exhaustive. The Applicant, at paragraph 51 of her SFIC, submits that it is in consideration of the advances in treatment that the seriousness of her offending should be viewed. While the current state of treatment would clearly be relevant to the second consideration identified in paragraph 13.1(2), the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, whether that is also a factor to be taken into account in considering the nature and seriousness of the conduct under paragraph 13.1.1 of Direction 79 is less clear.
On balance the Tribunal accepts that the consequences, particularly the easily foreseeable or inevitable consequences of conduct, are relevant in considering the nature and seriousness of the offending or other behaviour. While it is the case that, due to advances in medical science, infecting someone with HIV no longer has the dire, or even fatal, consequences that it once had, it is still, on any criterion, a serious offence or serious conduct. As the Court of Appeal put it in Palmer Appeal at [68] (see [66] above):
…Despite the fact that advances in medicine mean that, provided the victim maintains a regime of daily medication, he will live a normal life, the fact remains that he has been infected with a lifelong and potentially deadly virus.
In relation to the specific factors identified in paragraph 13.1.1 of Direction 79, in her SFIC that Applicant contends that:
43. ….her transmission of HIV to the victim was likely caused by sexual intercourse, it is contended that the nature of the offence was not inherently sexual or violent in nature, nor was the offence committed against women or children, other vulnerable members of the community or government officials or officials performing their duties.
44. Further, it must be noted that there was no frequency to the applicant’s offending in this manner, nor was there any increasing trend of seriousness or any cumulative effect of her offending. Additionally, this was not an offence committed after a prior warning from the Department and it was not committed in the context of her being in, escaping from or being brought back in to immigration detention.
The Tribunal notes the Applicant’s statement that the ‘transmission of HIV to the victim was likely caused by sexual intercourse’ (emphasis added). This ignores the consequence of the Applicant’s conviction. A necessary element of the offence of which the Applicant was convicted is that she did transmit HIV through sexual intercourse with the victim, not that it is likely that that was the case.
It is not contended by the Respondent that the offence of which the Applicant was convicted was a sexual crime (Transcript at 25-26). Although it was not contended in the Respondent’s SFIC, at the hearing Mr Gerrard submitted that the offence was a violent crime (Transcript at 25). In support of that submission Mr Gerrard cited the High Court decision in Aubrey v The Queen [2017] HCA 18 (Aubrey). Mr Gerrard conceded that the High Court in that case was primarily considering the meaning of ‘inflicts’ as that word is used in the Crimes Act 1900 (NSW). The majority (Kiefel CJ, Keane, Nettle and Edelman JJ) summarised the issue in that matter as follows:
1.The appellant was presented in the District Court of New South Wales on an ex officio indictment alleging one count of maliciously causing the complainant to contract a grievous bodily disease (namely, the human immunodeficiency virus ("HIV")) with the intent of causing the complainant to contract that grievous bodily disease, contrary to s 36 of the Crimes Act 1900 (NSW) ("Count 1"), and, in the alternative, one count of maliciously inflicting grievous bodily harm upon the complainant, contrary to s 35(1)(b) of the Crimes Act ("Count 2").
2.The Crown case was, in broad terms, that the appellant engaged in unprotected anal sexual intercourse with the complainant between January and July 2004 in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. The Crown did not allege "an application of direct and intentional violence" but rather that the appellant had inflicted grievous bodily harm upon the complainant by reason that "the complainant was infected with a grievous bodily disease (HIV) as the immediate consequence of the relevant act of intercourse".
…
4.On an appeal…[t]he Court accepted the Crown's contention that:
"the word 'inflicts' should not be given a limited and technical meaning which requires that the harm result from a violent act which creates an immediate result. That being so, the transmission of a disease which manifests itself after a period of time can amount to the infliction of grievous bodily harm
(footnotes omitted)
Section 297(1) of the Criminal Code Act Compilation Act 1913 (WA) provides:
Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
While the language of s 297(1) of the Criminal Code Act Compilation Act 1913 (WA) is different to that used in the New South Wales Crimes Act: the Western Australian legislation refers to someone who ‘does’ grievous bodily harm, while the

New South Wales legislation refers to someone who ‘inflicts’ grievous bodily harm, the Tribunal accepts that the reasoning in Aubrey is relevant to the present case. The court in Aubrey was not considering the specific issue of whether inflicting grievous bodily harm by the transmission of an infectious disease was inherently, or by its nature, a violent crime, however, various passages in the judgment of the majority indicate that grievous bodily harm can be inflicted or done in a non-violent way. In discussing ‘the course of authority’, which the court identifies at [10] as starting with R v Clarence (1888) 22 QBD 23, the Court observed at [24] that:
…Viewed in hindsight, a deal of the majority's reasoning in Clarence presents as based on a necessarily more rudimentary understanding of infectious diseases, a consequent fear of the unpredictability of what might be the consequence of recognising the spread of infectious disease as the infliction of serious bodily harm and, ultimately, what now appears as an unwarranted concern that it may prove impossible to define the demarcation between culpable and non-culpable non-violent acts that transmit infectious diseases.
(emphasis added)
The court in Aubrey accepted the concept of culpable acts, that is acts that would constitute the inflicting or doing of grievous bodily harm, could be done by ‘non-violent acts’.
The Tribunal does not accept Mr Gerrard’s submission that the Applicant’s grievous bodily harm conviction is one that is to be considered a violent crime for the purposes of paragraph 13.1.1(1)(a) of Direction 79. While the end result was that grievous bodily harm was done, the conduct which caused that harm was not violent.
As noted above, the Respondent has not sought to argue that the grievous bodily harm offence should be treated as a sexual crime for the purposes of paragraph 13.1.1(1)(a) of Direction 79. As also noted above, at the hearing Mr Gerrard confirmed that the Respondent did not seek to argue that to be the case and the Tribunal agrees that, although the circumstances surrounding the offence involved sexual acts, it was not a sexual crime for the purposes of that subparagraph of Direction 79.
Similarly the offence was not one that fell within paragraph 13.1.1(1)(b) of Direction 79. The fact that the Applicant’s offending does not come within the ambit of subparagraphs (a) or (b) of paragraph 13.1.1(1) of Direction 79, both of which direct that offences coming within the ambit of those subparagraphs are to be ‘viewed very seriously’, does not mean that the Applicant’s conviction for doing grievous bodily harm cannot be viewed as very serious. There is nothing in the wording or intent of Direction 79 that limits the upward extent to which the seriousness of offending is to be rated or what adverbial qualification is to be applied. As this Tribunal noted in Trang and Minister for Home Affairs [2019] AATA 4087 at [60], offending of any type, if the nature and circumstances of the offending warrant it, can be treated as very serious even if the offence does not fall within subparagraphs (a) and (b) of paragraph 13.1.1(1).
Although not specifically identified in paragraph 13.1.1(1), the Tribunal considers that a relevant factor in assessing the seriousness of a non-citizen’s offending, or other conduct, is the consequences that flow from the offending or other serious conduct. While the nature of the harm that would be suffered if the non-citizen were to repeat the criminal, or other serious conduct, is identified as a factor to be taken into account in assessing the risk to the Australian community under paragraph 13.1.2(1)(a) of Direction 79, that assessment is, by its nature, forward looking and is not addressing, directly at least, the seriousness of the non-citizen’s offending.
In the present case, while the Applicant’s relevant offence was not a violent or sexual crime (paragraph 13.1.1(1)(a)), and was not a crime against a woman or child (paragraph 13.1.1(1)(b)), the consequences of the Applicant’s offending have, as described by the Court of Appeal at [69] in Palmer Appeal (see [66] above), been dire for the victim. Further, such a dire consequence would have been clearly foreseeable by the Applicant. That, in the Tribunal’s view, together with the factors identified by the Applicant herself as set out in [69] above, put the Applicant’s grievous bodily harm offence and the conduct that gave rise to that offence at the high end of seriousness.
The Tribunal also considers that the sentence imposed (paragraph 13.1.1(1)(d)), the frequency of the offending conduct (paragraph 13.1.1(1)(e)) and the cumulative effect of the repeated behaviour (paragraph 13.1.1(1)(f)) add to the seriousness of the Applicant’s offending conduct. The Applicant seeks to argue (Applicant’s SFIC para. 44) that there was ‘no frequency to the applicant’s offending’ or any ‘cumulative effect’. The Tribunal disagrees. While it is the case that the Applicant has only one conviction for grievous bodily harm, there were, over the period from January 2015 to about the end of July or early August 2015, a number of occasions when the Applicant engaged in unprotected sex with the victim ([24] of Palmer Appeal - see [63] above). The fact that the victim could only be infected once and there could therefore be only one charge of doing grievous bodily harm, does not detract from the fact that the Applicant repeatedly engaged in the relevant serious conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account 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).
Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
56.... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 (BSJ16) Moshinsky J stated that, at [68]:
“...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring “... a rational and probative basis”.
This Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to offend or engage in the other serious conduct, namely unprotected sex, particularly as a sex worker, as she did in the past, is obvious and serious. As well as the physical and psychological harm which results from contracting HIV, there is also the broader financial cost to the community in treatment of those infected with HIV and lost productivity to the economy.
The impact on any future victims is likely to be similar to the impact on the Applicant’s victim which was graphically stated by the Court of Appeal in Palmer Appeal at [68] (see [66] above. The Court of Appeal (at [69]) also spoke to the stigma that still attaches to HIV, as did Stevenson DCJ in his sentencing remarks. The evidence put on by the Applicant also raised the issue of the stigma of HIV, a stigma that, it is fair to assume, would also apply to any future victim of the Applicant infected with HIV. In a letter dated
3 June 2019 (R1, G19), Mr Aaron Cogle, Executive Director of the National Association of People With HIV Australia (NAPWHA), said:
In NAPWHA’s experience the stigmatization associated with an HIV diagnosis can cause many people to react badly. Self-stigma is the experience of feeling low self-esteem, shame and guilt that people can experience in relation to their own diagnosis or HIV positive status. Complex mental processes mean that while a person may have been given an HIV positive diagnosis, fully understanding and accepting that information can take time.
Dr Martinez in her report of 24 April 2019 (R1, G17/140) stated (and repeated in her report dated 10 January 2019 – A4) that:
While I believe that the stigma and discrimination due to HIV infection has decreased to some extent in the general population, the effect of these, whether real or perceived, on an individual can be significant in relation to their mental health.
The Applicant herself talks about the stigma attaching to a diagnosis of HIV at paragraph 17 of her statutory declaration (A3). As the Applicant’s SFIC notes (para. 57), her feeling on diagnosis of HIV was that:
I already felt that I was judged because I was a transgender woman and a sex worker and did not want a third stigma.
The Tribunal finds that the harm to individuals and to the Australian community if the Applicant were to re-offend or engage in the serious conduct which gave rise to her previous victim being infected with HIV, could be significant.
The obvious qualification to this assessment is the fact that significant harm to any individual or to the community would only occur if the Applicant were to repeat the past behaviour and infect someone with HIV. The evidence establishes that since the time of her arrest in February 2016 the Applicant has undertaken treatment which has resulted in her viral load being at an ‘undetectable’ level. This is explained by Dr Martinez in her report dated 10 January 2020 as follows:
[the Applicant] has been reviewed in the infection and Immunity Clinic at FSH [Fiona Stanley Hospital] regularly (every 4 months), with the last clinic review having taken place on 10 October 2019. Sher has been 100% adherent to her medication at all times. She attained an undetectable viral load (<40 cpmL) within a month of commencing treatment.
At the last clinic review (10/10/19), she was well, without any symptoms at all. The most recent blood test on 02/10/19 showed viral load <40 cpmL, and a normal CD4 count of 29% (638 X 10⁶ /L).
As indicated previously, for the past 3½ years she has been taking her medication as prescribed and I do not have any reason to believe that she will not continue to do so. So far she has shown a desire to remain healthy and is aware of what this entails, with regard to HIV infection. Furthermore, in my opinion, she is aware of her public health responsibilities with regard to taking the necessary precautions to avoid transmitting HIV infection to anyone else.
In view of the above, I would expect her to have an excellent short and long term prognosis. Furthermore, provided she maintains the current level of good health and suppressed viral load, she should not pose an increased risk to the Australian community.
When questioned at the hearing about her use of the phrase ‘an increased risk’ in the above report (the same phrase appeared in Dr Martinez’s report of 24 April 2019 (R1, G17/140)), Dr Martinez said that what she meant was that the Applicant was not any risk. In other words, the words ‘an increased’ should be replaced by ‘any’ (Transcript at 90).
The meaning of an undetectable viral load was also canvassed at the hearing in the District Court and in the appeal. The Court of Appeal at [45] (R1, G9/53-54) summarised the evidence of Dr Nolan at the trial as follows (footnotes omitted):
45.Dr Nolan is a specialist clinical immunologist with particular expertise in HIV. He gave some general evidence concerning HIV and some specific evidence in respect of both the appellant and the victim. None of this evidence was materially challenged at trial or in the sentencing proceedings. It informed some of his Honour's findings of fact.
46.Left untreated, HIV is fatal to 95% of the population. Over the last 20 years there has been an 'incredible evolution of treatment' which Dr Nolan described as 'safe, very effective [and] long term'. The treatment requires the person infected with HIV to take daily medication for life. A person living with HIV under treatment has a similar life expectancy to members of the community who are not infected with the virus.
47.Dr Nolan explained that once a person has been diagnosed as being infected with HIV, a test is conducted to see how high the viral level is in the bloodstream. The result of that test reveals the person's viral load.
48.Dr Nolan explained that the most common way that people are infected with HIV is via sexual contact where the virus travels through a mucosal barrier. HIV crosses the lining of the rectum more easily than, for example, the vagina.

Dr Nolan described the rectal mucosa as being 'a much weaker barrier to viral infection'. A condom is a 'very effective' means of preventing HIV transmission.
49.Dr Nolan testified that, in the case of anal sex, receptive anal intercourse has a greater likelihood of transmission. Nevertheless, the risk of transmission is still high for insertive and receptive anal intercourse. Dr Nolan, as a 'ballpark figure', estimated that the rate of HIV transmission in the case of both insertive or receptive unprotected anal sex is in the order of one in a thousand per sexual act. There are factors which can affect this estimate.
50.As at 17 January 2018, when Dr Nolan testified at trial, both the appellant and the victim had viral loads of less than 40 copies per millilitre of blood. This result was considered to be a 'undetectable viral load', which means that the risk of transmission from them is as close to zero as condom use.
In his letter dated 20 June 2019 (R1, G18/142), Mr Cogle of NAPWHA also states that:
Further, the risk of HIV transmission via sexual contact in the presence of an undetectable viral load is effectively zero.
The Applicant’s evidence was that she was committed to adhering to the medication as prescribed. In her statutory declaration (A3) the Applicant said:
47.Since I began to take the anti-retroviral drug Triumeq in 2016 I have been diligent about adhering to the treatment plan for my HIV condition.
48.My adherence has been so consistent that around three weeks [the Applicant at the hearing corrected this to three to four weeks] after starting Triumeq, the viral load in my blood became undetectable.
49.I appreciate that I now have an obligation to myself and to any future sexual partners to take all reasonable precautions I now know that this includes always taking my treatment.
50.I understand that if I continue the anti-retroviral treatment as it has been prescribed to me, my HIV viral load is undetectable and I cannot transmit my condition to others.
The Applicant’s evidence at the hearing was to the same effect and was, in the Tribunal’s assessment, sincere and believable.
On the basis of the above, if the Applicant maintains her treatment to the extent that she has over the last four years since the commencement of her treatment in early 2016, she should pose no, or close to no, risk of transmitting HIV.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
Both the Applicant and the Respondent in their respective SFICs addressed the considerations under paragraphs 13.1.2(1)(a) and 13.1.2(1)(b) together. Understandably, given the facts of this case, both parties, in effect, addressed the nature of the harm which would be caused and the likelihood of a repeat of the relevant conduct in the one risk assessment. Critical to that risk assessment is the assessment of whether the Applicant will continue to adhere to her treatment. In that regard the Tribunal repeats [94] to [100] above and notes Dr Martinez’s assessment that, based on her contact with the Applicant over the last several years, she has no reason to believe that the Applicant would not continue to adhere to the treatment and maintain her viral load at undetectable (see [37]-[38] above). Dr Martinez was not cross-examined on this assessment.
The Tribunal also accepts the Applicant’s evidence that she is committed to maintaining her treatment (see [98] and [99] above).
The medical evidence, and the evidence of the Applicant herself, link the Applicant’s prior offending behaviour to her methamphetamine addiction. In her statutory declaration (A3) the Applicant explained that:
26.By this point [August 2014], my sex work and drug use had become heavily intertwined. I desperately needed the money so that I can fuel my addiction to cope with what I was going through and did not comprehend the consequences of my actions.
Dr Martinez in both of her reports refers to the Applicant’s previous use of methamphetamine, however, states that:
… this is an issue that I have not addressed and she has not expressed any insights in her previous drug use. I am not sure whether she has completed any specific programs. Nevertheless, I have not had any concerns during the time I have been involved in her case that she would relapse into drug use.
Dr Martinez was cross-examined on this point and her evidence at the hearing was:
Mr Gerrard: But can I ask you as a general comment, would it be of concern to you if the applicant was to commence using methamphetamine in terms of what that would mean in relation to adherence to her antiretroviral medication?
Dr Martinez: It would be of - it would be of concern if there was evidence that the use of the methamphetamine led to her not being adherent to her antiretroviral medication. I don’t know that that would necessarily be the case. I think it’s quite possible that if she were to use the methamphetamines from the point of view of the continuing to take the antiretroviral medication it is quite possible and quite likely I would think that she would continue to take her medications.
Of course there would be of concern from the point of view of what other effect the methamphetamines may have on her general health but not necessarily be in relation to whether she would continue to adhere to the antiretroviral medications or not.
The Applicant’s evidence on the issue of her returning to methamphetamine use is, insofar as it is set out in her statutory declaration (A3), summarised in [34] above. The Applicant was cross-examined on her methamphetamine use and the steps taken by her to address this issue as follows;
Mr Gerrard: Well, you were convicted once?
Applicant:Yes, I was convicted once.
Mr Gerrard: But you were engaged in unlawful drug use during this period?
Applicant:Yes.
Mr Gerrard: Have you undertaken any formal rehabilitation?
Applicant:Not as such, as it hasn’t been available to me while I’ve been incarcerated and also, while I’m at the detention centre. But I have looked at into a rehabilitation centre, after I leave the detention centre if my visa wasn’t revoked. It’s Holyoake in Victoria Park. But I have spoken to my counsellors about my addiction and my need for it to numb the pain and the trauma from what happened to me when I was a child. I understand now that my drug addiction came from numbing that pain that I couldn’t discuss or that I was struggling to deal with and cope with.
Mr Gerrard: So, much of your – so, you accept that you need substance abuse counselling when – if you were to be released into the community?
Applicant:Yes, I do, I accept that I’d need some form of coping mechanisms or drug and alcohol counselling.
Mr Gerrard: And you have approached – you’ve approached Holyoake?
Applicant:Holyoake, yes, that’s correct. They won’t set up a plan or see me until I’m out.
Mr Gerrard: And you’ve had, essentially a period of enforced abstinence being incarcerated?
Applicant:That is correct, but also, the drugs have been available to me in prison and in the detention centre and I have chosen not to participate in any drug use, as I understand now, the effect it had on me and essentially, contributed to me committing the crime.
The Tribunal accepts the Applicant’s evidence that she has not used methamphetamine since her arrest in 2016, notwithstanding that she was initially in the community on bail and then, while in prison and then immigration detention, had access to methamphetamine.
The Tribunal also accepts that the Applicant is committed to staying away from methamphetamine and also committed to continuing to take her anti-retroviral medication and maintaining her viral load at undetectable level. The Tribunal accepts the Applicant’s commitment not to engage in unprotected sex (Transcript at 72). The Tribunal also accepts that the Applicant is genuine in her commitment to turning her life around and positively contributing to the community through working with the groups with which she was involved before her incarceration and which have provided support to her through her incarceration. In the Tribunal’s view, the possibility of her working for one of those organisations lessens the likelihood of the Applicant re-offending, not only because that would obviously jeopardise her employment, but because it would give her an income. Her need for money was one of the causes of her offending in the first place.
The Respondent points to a lack of, or belated, remorse on the part of the Applicant. The Respondent notes the comment of Stevenson DCJ in sentencing that :
You contested your guilt throughout. That of course is your right. You do not receive any additional punishment for exercising that right. There is no demonstrative remorse by you, even now. As I understand it, you still maintain that you were not told by Nurse Morgan of the fact of your infection.
The way in which you were prepared to cling to this position in no doubt self-defence of your own self was very apparent in the way in which you attacked

Ms Morgan or her professional expertise in the course of the trial.
The Applicant was cross-examined at some length on this issue. The Applicant’s evidence (Transcript at 57-59) was that she was scared of going to a men’s prison. She accepted that she was not remorseful then, but is now a different person and has come to grips with the traumas, in particular her being sexually abused as a child, that were driving her behaviour then. She conceded that her ‘remorse’ only started after she was found guilty. The following exchange occurred at the hearing:
Mr Gerrard: At what point do you say you began to feel properly remorseful for your offending?
Applicant:After my conviction. So while I was incarcerated. I had lots of time to think about the impact I’d had on his life that (indistinct), and also my own life
The Applicant’s explanation is not particularly convincing and it would be easy to conclude that any expression of remorse now is the result of her being found guilty, with all of the consequences that flowed from that verdict, rather than any remorse driven by an acceptance and appreciation of the dire consequences of her actions to her victim. In the end, however, the Tribunal does accept that the Applicant is now genuinely remorseful for the harm that she has caused to her victim notwithstanding that in defending the grievous bodily harm charge she adopted a course that was inconsistent with acceptance of guilt and remorse.
Based on the above factors, the Tribunal assesses the likelihood of the Applicant re-offending as being extremely low.
Turning to the risk assessment exercise as outlined in CZCV and BSJ16 (see [86]-[88] above), it is this Tribunal’s assessment that the risk of the Applicant relevantly reoffending, or engaging in other serious behaviour, is extremely low, and while the consequences could be significant, which would require the Applicant to have ceased taking her medication and engaging in unsafe sex, the risk is not an unacceptable one. The Tribunal notes that the Prisoners Review Board assessment of the Applicant was that her ‘release in Western Australia does not pose an unacceptable risk to the safety of the community’ (R1, SG3).
The Respondent argues that even though the risk is low, the nature of the offence and the nature of the harm should similar offences be committed are such that no risk should be tolerated. The Tribunal assumes that this is a submission based, in part at least, on paragraph 6.3(4) of Direction 79 (see [29] above). Subparagraph 6.3(4) should only apply in the most extreme of cases. The Tribunal does not consider this to be such a case.
The Tribunal finds that this primary consideration weighs significantly in favour of the revocation of the cancelation of the Applicant’s visa.
Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)b))
Paragraph 13.2 of Direction 79 provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The Applicant in her SFIC identifies the 10 year old child of Ms C as a child whose best interests would be served by the Applicant remaining in Australia. The nature of the relationship between the Applicant and this child was set out in Ms C’s statement and in her evidence at the hearing (see [45] above). The Applicant says that the child’s best interests would be served by the Applicant remaining in Australia notwithstanding that there would be other means by which the Applicant and this child could stay in touch if the Applicant were to be removed to New Zealand and notwithstanding that the child does have a mother who provides for his needs.
Although the Applicant does not identify any other children as coming within the ambit of this consideration, the Tribunal notes that there were references to the Applicant’s relationships with other children in the evidence of a number of witnesses. Ms T’s evidence was that she had entrusted the Applicant with responsibility of taking care of her children on a number of occasions (see [53] above) and Ms S’s evidence was that Applicant regularly looked after her children aged two, three and 13 (see [55] above). There was, however, no evidence led, or even argument raised by the Applicant, that the best interests of these children would be served by the Applicant remaining in Australia.
The Respondent concedes that the best interests of Ms C’s child and the best interests of Ms S’s three children would be served by the revocation of the cancelation of the visa (Respondent’s closing submissions para. 28) but says that, having regard to the mandatory factors set out in Direction 79 (see [116] above), this consideration should be given less weight. In particular the Respondent points to the facts that, in each case, the relationship is not parental, the child is in the sole care of his or her mother, the length of the relationship has not been significant, there has been an enforced absence and the child is not financially reliant on the Applicant.
The Tribunal finds that it would be in the best interest of each of the identified children if the cancelation of the Applicant’s visa were to be revoked but agrees with the Respondent’s contention that, for the reasons identified in [119], only moderate weight should be given to this consideration.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1) 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 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. Non-revocation may be appropriate simply because the nature of the character concerns or 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.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [29] above).
The proper construction of paragraph 13.3 of Direction 79 and Justice Mortimer’s interpretation of that paragraph in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), have been the subject of much judicial analysis and, it would be fair to say, disagreement. The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs [2019] AATA 1398).
That debate as to which approach is correct appears to have been resolved by the

Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) delivered on 24 October 2019. The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman) (delivered 31 October 2019 – presently under appeal).
Justice Stewart in FYBR(FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth in FYBR (FC) notes that it is necessary to determine the context of the deemed expectation by reference to the paragraph itself rather than some factual inquiry. That task of the decision-maker is to identify the government’s view of community expectation and to have due regard to it. Her Honour notes at [73]:
...The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction.
The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Justice Charlesworth goes on to observe:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
As Member Burford put it in Rehman:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
Both parties in their closing submissions refer to FYBR (FC). The Applicant cites paragraph 8(3) of Direction 79 (see [32] above) and submits that it is open to the Tribunal to determine, in appropriate cases, that the expectations of the Australian community could favour revocation.
The Respondent contends that FYBR (FC) confirms that the provision is effectively a deeming provision and the Tribunal must find that the expectations of the Australian community are that where a non-citizen has committed a serious crime, they should not hold a visa. This consideration, according to the Respondent, should be given great weight in the present case.
The Tribunal rejects the Applicant’s argument. FYBR (FC) makes it clear that the effect of paragraph 13.3(1) of Direction 79 is to deem the expectation of the Australian community to be that, where a non-citizen has committed a serious crime, he or she should not hold a visa. The issue of whether, taking into account all of the considerations, primary and other, the visa should remain cancelled is a different issue. The determination of that issue requires each of the considerations, primary and other, to be given appropriate weight and an overall assessment made as to whether the non-citizen should hold a visa.
The Tribunal finds that the Applicant has committed a serious crime and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of her visa should not be revoked. This weighs against the revocation of the cancellation of the Applicant’s visa.
While this consideration must weigh against the revocation of the cancelation of the Applicant’s visa, the Tribunal does not consider that this consideration should be given, in relative terms, significant weight. The somewhat unusual, if not unique, circumstances of the Applicant’s relevant offence, the extremely low chance of her re-offending and the contribution that she could make to the community if she were allowed to stay operate against this consideration being given significant weight.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
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.
Non-refoulement obligations (14(1)(a))
As the Respondent notes, while the Applicant ‘somewhat obliquely raised the possibility of non-refoulement obligations’ (Respondent’s closing submissions para. 36), at the hearing Ms Carlean confirmed that the Applicant did not argue that there were any non-refoulement obligations or considerations (Transcript at 21) and she does not refer to this consideration in her closing submissions.
The Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant and that this is, therefore, not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has been a resident of Australia since 2006, some 14 years. It should be noted that the last two years have been spent in prison or immigration detention. Her first offending, which was relatively minor, occurred in 2013 and the conduct that lead to her grievous bodily harm conviction (unprotected sex with the victim) started around

January 2015. The Tribunal does not consider that paragraph 14.2(1)(a)(i) applies. The Applicant’s offending, particularly the commission of the serious offence, did not begin soon after her arrival in 2006.
The Respondent in his closing submissions says that the Applicant has resided in Australia for over 10 years and that there is evidence that the Applicant has community connections noting that the Applicant has provided evidence of support from organisations within the community including NAPWHA, Magenta and the Scarlett Alliance. The Respondent concedes that the Tribunal should afford ‘some weight’ to this consideration but that that is outweighed by the considerations of the protection of the Australian community and community expectations.
The Applicant in her closing submissions point to the letters of support as well as the oral evidence given by witnesses as evidencing the Applicant’s strong ties to the Australian community. The Applicant also refers to the high regard in which she is held by, and her potential to contribute to, the HIV positive community.
It is clear from the evidence presented that the Applicant has strong and relatively long-standing ties to the community. She seems to have built strong personal ties to those who gave evidence, in particular Ms S, Ms T and Ms C. It also seems clear from the evidence of the witnesses from various organisations that the Applicant has the potential to contribute materially to those organisations.
It is also clear that the effect of non-revocation of the cancelation of the Applicant’s visa would have a significant impact on a number of those who gave evidence in support of the Applicant. Ms C’s evidence in particular, indicates that it is likely that her raising her child, to whom the Applicant has previously provided counselling and with whom he appears to have a strong bond, would benefit from the revocation of the cancelation of the Applicant’s visa. The Tribunal appreciates that paragraph 14.2(1)(b) refers to the effect of non-revocation on the non-citizen’s immediate family in Australia, however, paragraph 14.1 of Direction 79 makes it clear that the considerations identified in paragraph 14 are not exhaustive and that the considerations ‘include (but are not limited to)’ those specifically identified.
Overall, the Tribunal considers that this consideration weighs significantly in favour of the revocation of the cancelation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
Ms Carlean advised that this was not a consideration that the Applicant raised (Transcript at 22). Neither party made any submissions on this consideration and the Tribunal finds that this consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1) Impact of a decision not to revoke on members of the Australian community, including the 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.
As this Tribunal noted in Sach and Minister for Home Affairs [2019] AATA 5173, the above paragraph directs the decision-maker to consider the impact of a decision not to revoke cancellation of the visa on members of the Australian community, including the victims. That is curious given that a decision not to revoke the cancellation of the visa would result in the non-citizen being removed from Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact victims, other than positively.
As noted above, however, the considerations listed in paragraph 14 of Direction 79 are not exhaustive and the Tribunal assumes, in any event, that the above paragraph was meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation. The Tribunal therefore considers that latter consideration.
The Tribunal understands that the Applicant’s victim is resident in Australia but that there is a lifetime Violence Restraining Order in place preventing the Applicant from contacting him (R1, SG2/235). Accordingly, it is difficult to see what impact there would be on the victim if the Applicant were allowed to stay in Australia.
In any event, there was no evidence put before the Tribunal as to what the impact on the victim of a revocation of the cancelation would be and neither party made any submission on this consideration. While the Tribunal cannot dismiss this consideration as not applying, in the present case, for the above reasons, no weight can be placed on it.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a. The non-citizen’s age and health;
b. Whether there are substantial language or cultural barriers; and
c. Any social, medical and/or economic support available to them in that country.
The Applicant in her closing submissions refers to an exchange between the Applicant’s counsel and the Tribunal in which the Tribunal indicated that this consideration was not an exercise in comparison between the level of care which is available in New Zealand compared to that available in Australia. The test is whether the Applicant would be able to access the same level of care generally available to other citizens of the country, in this case New Zealand.
The Applicant submits that on the evidence before the Tribunal, the Applicant ‘is not like ‘other citizens” of New Zealand’ (Applicant’s closing submissions para. 63) and has significantly more complex needs than other citizens and that the context of what is ‘generally available to other citizens’ cannot apply to the Applicant. The Applicant contends that:
64.As such it is submitted that the care and support available in New Zealand to transgender women of colour with HIV who are former sex workers and intravenous drugs users and those who have been the victims of child sexual abuse by a family member, may not be the same as the care and support available to other New Zealand citizens.

The Tribunal does not accept that submission. Firstly, it is, even as expressed, speculative in that it only submits that the level of care available in New Zealand to someone suffering the combination of conditions that the Applicant is identified as having “may not be the same as the care and support available to other New Zealand citizens”. While there was some evidence that some of the drugs available in Australia under Australia’s pharmaceutical benefits scheme are not available under the public funding scheme in New Zealand, there was certainly not evidence sufficient to establish the extremely broad proposition that the Applicant puts.
Secondly, the context in which the term ‘generally available to other citizens of that country’ should be read as meaning other citizens in the position of the Applicant. There was little or no evidence of the level of care generally available in New Zealand and certainly no evidence as to the ‘level of care and support available in New Zealand to transgender women of colour with HIV who are former sex workers and intravenous drugs users and those who have been the victims of child sexual abuse by a family member’. Accordingly, there is simply no factual or evidential basis for the proposition.
Thirdly, paragraph 14.5 requires the decision maker to consider impediments in the ‘non-citizen…establishing themselves and maintaining basic living standards’. While sub-paragraph (c) refers to social, medical and/or economic support available, it must be looked at in the context of the impact of those factors on the non-citizens ability to establish themselves and maintain a basic living standard. The fact that there might be more prejudice against or stigma attached to HIV positive people in New Zealand, in relation to which there was some evidence identified in paragraphs 66 to 68 of the Applicant’s closing submissions, is only relevant if there is also evidence as to how that would impede the Applicant establishing herself and maintaining basic living standards. Evidence to sustain that proposition was not before the Tribunal.
The Respondent contends that New Zealand is a country broadly analogous to Australia and that the Applicant, who spent the majority of her life in New Zealand, would have no cultural or language difficulties in establishing herself and maintaining basic living standards.
The Respondent says that the extent of the Applicant’s submission is that the particular medication she is currently prescribed, Triumeq, does not currently attract a government subsidy in New Zealand. The Respondent refers to the evidence of Dr Martinez that there is a range of antiretroviral medication which might be prescribed to a person. Such a decision is made by a consulting doctor. The Respondent points out that there is no expert evidence before the Tribunal that the New Zealand healthcare system is deficient in this regard.
The Respondent contends that the same can be said for both her mental healthcare and any further treatment arising from her gender transition. The Respondent notes that it was in New Zealand that the Applicant commenced her hormone replacement therapy.
The Respondent also notes that there was evidence that there are organisations that can support her. In that regard the Respondent notes the evidence of Mr Treadway who was formerly involved with Body Positive NZ and gave evidence that he would assist in putting the Applicant in touch with, at least, that organisation. Mr Tredway also gave evidence of other relevant organisations including New Zealand AIDS Foundation, Positive Women (which Mr Tredway said was an inclusive organisation who welcomed transgender women) and INA Foundation. Mr Tredway also advised that his organisation, the Institute of Many, provided an online hub with a global reach that provided information to persons affected by HIV including those in New Zealand.
The Tribunal does accept that if the Applicant were to be returned to New Zealand there would be a period of settling in and developing a rapport with her medical practitioners, and the Tribunal also accepts that there is unlikely to be any family support provided to the Applicant during that process. It is, however, difficult to give this consideration much more than marginal weight because of the lack of specific evidence to support or quantify the extent of any impediment in the Applicant establishing herself and maintaining basic living standards. Contrary to the Applicant’s submissions, it does appear that there are organisations that could assist her in establishing herself in New Zealand and that she would receive adequate medical treatment, for her HIV condition, her mental health and in her gender transition.
While the Tribunal accepts that there would be some impediments in the Applicant establishing herself, they are unlikely to be significant and unlikely to be any greater than would be faced by other New Zealand citizens in the same circumstances as the Applicant.
While the Tribunal accepts that this consideration weighs in favour of revocation of the cancelation of the Applicant’s visa, only marginal weight is to be given to this consideration.
Non-specific other considerations
As a separate consideration the Applicant raises the harm that she will suffer if returned to New Zealand. As the Tribunal understands the Applicant’s contention made in her closing submissions, she does not argue that she is owed non-refoulement obligations, but that she will, or may (it is not clear) face harm. She submits that;
77… It is likely that she will have to return to her family to settle herself in

New Zealand and that she would be expected to attend family gatherings where her abuser would be present. She expressed that this would bring back the trauma of her abuse as well as of the family’s response to her disclosure of it. She expressed that she may well contemplate suicide as a result.
She also argues that she will face stigma and discrimination in accessing healthcare and employment and this is likely to exacerbate her mental health.
It is difficult to see how the matters that have been raised by the Applicant under this head are distinguishable from the same factors that she raises under the head of the extent of impediments if she is removed.
Again, while the evidence is scant and the point sought to be made by the Applicant is not clear, the Tribunal accepts that there is a possibility that the Applicant will face more discrimination if she is returned to New Zealand than she would if she were to remain in Australia and that that may have an impact on her mental health. The Tribunal, however, considers that only marginal weight should be given to this consideration.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the

Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325.
Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
This Tribunal agrees with and adopts the approach outlined by Senior Member

Dr M Evans.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in [59]-[115] above, the Tribunal finds that the likelihood of the Applicant re-offending is extremely low and that the risk is not an unacceptable one. The Tribunal finds that in the present case this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
For the Reasons set out in [116]-[120] the second primary consideration, the best interests of minor children in Australia, weighs in favour of the revocation of the cancellation of the Applicant’s visa. The Tribunal is of the view that moderate weight should be given to this consideration.
The third primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the visa, which, as a result of the decision in FYBR (FC) (see [131] above), it always must, however for the reasons set out in [133] above the Tribunal does not give this consideration significant weight.
In relation to the “other consideration”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), including the impact that the Applicant’s deportation would have on Ms C, weighs significantly in favour of the revocation of the cancellation of the visa. The consideration of the impediments that the Applicant would face if she is returned to New Zealand also weighs marginally in favour of revocation as does the consideration of the harm, primarily psychological, that that Applicant would face if removed to New Zealand.
Having undertaken the weighing exercise, the Tribunal is of the view that the correct or preferable decision is that the cancellation of the visa should be revoked.
CONCLUSION
The Applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of her visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.............................[sgd]......................................
Associate
Dated: 30 January 2020

Date(s) of hearing: 21 January 2020

Counsel for the Applicant: Ms E Carlean

Solicitors for the Applicant: HIV/AIDS Legal Centre

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Court	Court Date	Offence	Offence Date	Court Result
Parramatta Local Court	16 June 2013	Never licenced person drive vehicle on road – 1st offence	Fine $400
Downing Centre Local Court	12 July 2013	Possess prohibited drug	Good behaviour bond without proceeding to
Perth District Court	16 February 2018	Grievous bodily harm	Between 1 January 2015 and 31 August 2015	4 years’ imprisonment, to commence from 1 April 2017

Date(s) of hearing:	21 January 2020
Counsel for the Applicant:	Ms E Carlean
Solicitors for the Applicant:	HIV/AIDS Legal Centre
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor