PBWY and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1123
•20 July 2017
PBWY and Minister for Immigration and Border Protection (Migration) [2017] AATA 1123 (20 July 2017)
Division:GENERAL DIVISION
File Number: 2017/2508
Re:PBWY
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:20 July 2017
Place:Perth
The Tribunal affirms the decision under review.
..........................[sgd]..................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35(3)
Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 13(2), 8(1), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(b) and (e), 14.2(1), 14.5(1)
CASES
NKWF and Minister for Immigration and Border Protection (Migration) [2017] AATA 813
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
20 July 2017
INTRODUCTION
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of parties to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so.
This matter raised issues that were traumatic for the Applicant and referred to a minor aged child of the Applicant. The Tribunal determined that it was appropriate to restrict the identification of the Applicant and her daughter. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “PBWY”. The name of PBWY’s daughter and the names of persons who provided letters of support have also been altered to ensure confidentiality.
PBWY is a 38 year old citizen of New Zealand. She arrived in Australia on 2 December 2010 as the holder of a TY Subclass 444 Special Category (Temporary) visa (the “visa”) (G22).
On 13 November 2015, PBWY was sentenced to two years’ imprisonment for the offence of Aggravated Armed Robbery committed on 6 June 2015 (G10 at 40).
On 28 October 2016, PBWY’s visa was cancelled pursuant to s 501(3A) of the Act (the “Cancellation Decision”) because it was found that she did not pass the character test by reason of her “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act (G20). Specifically, it was found that she had been sentenced to a term of imprisonment of 12 months or more and was also (at the time her visa was cancelled) 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 Territory.
On the same date, PBWY requested that the Minister for Immigration and Border Protection (the “Minister”) use his powers to revoke the Cancellation Decision (G11).
On 7 November 2016, PBWY was released on parole and subsequently detained in immigration detention under s 189 (1) of the Act (G22).
On 27 April 2017, a delegate of the Minister decided, acting under s 501CA (4) of the Act, not to revoke the Cancellation Decision.
PBWY was advised of the delegate’s decision on 28 April 2017 (G2 and G5).
On 1 May 2017, PBWY applied to the Tribunal for review of the delegate’s decision (G1).
This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA (4) of the Migration Act 1958 (Cth) (the “Migration Act”) to revoke the earlier decision to cancel PBWY’s visa.
ISSUES
The issues for determination by the Tribunal are:
(i)whether PBWY passes the “character test” as that term is used in s 501(6) of the Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Act should be exercised in PBWY’s favour such that the mandatory decision to cancel PBWY’s visa is revoked/set aside.
EVIDENCE
General
The matter was heard in Perth on 12 July 2017. PBWY appeared by in person and was represented by Ms Graziotti of Estrin and Saul Lawyers. The Minister was represented by Ms Ladhams from the Australian Government Solicitor. The Tribunal thanks Ms Graziotti and Ms Ladhams for their invaluable assistance both prior to and during the hearing of this matter. The Tribunal also thanks both lawyers for the respect and sensitivity they showed PBWY throughout the hearing of this matter. Others would do well to emulate the advocacy and interpersonal skills shown by both lawyers.
The evidence before the tribunal consisted of the following:
·A Statement of Facts, Issues and Contentions from the Minister dated 9 June 2017 (R1);
·A 202 page set of G documents ( G1 to G37) (R2);
·A Statement of Facts, Issues and Contentions from PBWY’s solicitor dated 3 July 2017 (A1);
·A Witness Statement from PBWY’s de facto partner dated 4 July 2017 (A2);
·A Witness Statement from PBWY dated 4 July 2017 (A3);
·Applicant’s Bundle of Evidence dated 4 July 2017 (A4); and
·Report from treating Psychologist for PBWY dated 4 November 2015 (A5).
The Tribunal also heard oral evidence from PBWY. It was clear that providing the evidence she did was emotionally difficult for PBWY. The Tribunal thanks PBWY for her courage in this regard.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i)Does PBWY pass the Character Test?
The Tribunal must first consider whether PBWY passes the “character test” as defined in s 501 of the Migration Act.
Section 501 of the Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that 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 (b) or (c); or
... 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 Territory.
Section 501(6) of the Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added].
Section 501(7) of the Act relevantly provides;
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added].
It is common ground that:
·as a consequence of receiving a sentence of imprisonment in excess of 12 months, PBWY has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Act. This arises because PBWY had been convicted in the Supreme Court of Western Australia of Aggravated Armed Robbery for which she was sentenced to two years’ imprisonment with eligibility for parole; and
·as PBWY was serving a sentence of imprisonment, on a full-time basis in a custodial institution, she was liable for mandatory cancellation of her visa pursuant to s 501(3A) of the Act.
On the evidence before it, the Tribunal finds that PBWY does not pass the character test as defined in the Act.
(ii)Should the Tribunal Revoke the Decision to Cancel PBWY’s Visa?
Having determined that PBWY does not pass the character test and was liable for mandatory cancellation of her visa, the Tribunal must now consider whether the mandatory cancellation of PBWY’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Act provides that the Minister (and Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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. [Emphasis added].
The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel PBWY’s visa.
When considering PBWY’s request to revoke the decision to cancel her visa, the Tribunal must comply with Ministerial Direction No. 65 (Direction No. 65) (as per s 499 (2A) of the Migration Act).
Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(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 501 CA. 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 No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 vulnerable members of the community such as minors, 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.
...(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) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No. 65 further states:
8. Taking the relevant considerations in account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(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 the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii.The best interests of minor children in Australia; and
iii.Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person'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 offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
…
[Emphasis added]
The evidence shows that PBWY has a criminal record that includes a crime of violence – specifically armed robbery. The Tribunal notes in that regard, the summary providedby His Honour Justice Hall dated 13 November 2015 (G10) which describes the circumstances of PBWY’s criminal offence as follows:
2.The facts are that on Saturday, 6 June 2015, you and your son …, and his girlfriend, formulated a plan to execute an armed robbery on a random service station near Busselton. You were aged 36 at the time, [your son] was aged 18 and his girlfriend was aged 23.
3.Together, you arranged clothing to conceal your identities, obtained weapons and drove around Busselton to identify a suitable target. Your objective was to steal money. You were driving the vehicle. Also in the car were [your son], his girlfriend and your then 11-year-old daughter.
4.The plan was for you and [your son] to commit the robbery whilst his girlfriend remained in the car with your daughter. You drove past a service station on Causeway Road in Busselton several times before parking the car in a street nearby. The time was approximately 7.40 pm.
5.You and [your son] covered your faces with the previously prepared clothes and armed yourself with weapons. [Your son] was armed with a machete and you were aimed with a claw hammer. You were also carrying an empty black sports bag that was intended to hold stolen property.
6.You and [your son] entered the service station and approached the service counter. [Your son] waved the machete towards the two attendants and demanded that they hand over cash and cigarettes. You then banged the hammer on the counter and placed the sports bag down. The two attendants, a male and female, feared for their safety and placed 14 packets of cigarettes into the bag.
7.You and [your son] then ran from the service station. As he was leaving, [your son] also stole a four pack of Red Bull energy drink. You both then ran back to the car and drove back to the caravan park where you were staying.
8.In the following days, the robbery at the service station was the subject of media coverage. Some of that coverage used CCTV footage from the service station. It was obvious to you that it was likely that you would be identified and apprehended for the robbery. Fearing this, you fled Western Australia with [your son] and his girlfriend and drove to Queensland. Whilst in Queensland, you became aware that police were seeking you and the others in respect of the robbery and you all subsequently returned to Western Australia. You presented yourself at the Busselton Detectives Office on 23 June 2015. You were arrested in relation to this matter and made full admissions when interviewed.
PBWY does not deny that she participated in the commission of this violent crime and stresses that she pleaded guilty at the earliest opportunity. In her representations to the Minister for the mandatory cancellation of her visa to be revoked, PBWY did, however, offer the following explanation for her conduct (G12 at 52):
I cannot take back what I have done and I have tried to do everything asked of me at the time of my offence I was under so much pressure. My only concerns were for my children. I was beyond depressed and had many unresolved issues that I’ve never dealt with before. I had just had a partial hysterectomy done and have never dealt with 8 pregnancies I had lost before. I was under pressure from my son as I had asked him to leave my house but he used that against me and I was suicidal at the time of this occurring.
In oral evidence before the Tribunal, PBWY again expressed remorse for her past conduct and sought to offer further explanations of her conduct. She explained:
·she was experiencing mental health issues as a result of being the victim of sexual, mental and physical abuse during her childhood;
·she had never sought medical assistance to resolve these mental health issues and instead abused alcohol and drugs in order to ‘medicate’ herself;
·she was experiencing extreme financial hardship as a result of quitting her job to recover from surgery;
·she had no means of obtaining financial assistance and had been ‘turned away’ by numerous welfare agencies from whom she had sought help; and
·she felt pressured into committing the Aggravated Armed Robbery by her son.
In relation to the seriousness of PBWY’s criminal conduct, the Tribunal notes submissions made on her behalf by her solicitor in a Statement of Facts, Issues and Contentions dated 3 July 2017:
48. [PBWY] recognises that her past conduct is a matter of concern to the welfare and safety of the members of the Australian community and is a serious nature for the purpose of paragraph 13.1.1 of the Direction.
49.Apart from one driving offence committed in New Zealand in 2000, [PBWY] has no other criminal history. The 2015 offence was committed in a period of exceptional distress for [PBWY] and was extremely out of character. She felt immediate regret upon its commission.
50. The Statement of Reasons states at paragraph 16 that “violent crimes are to be viewed very seriously.” [PBWY] accepts that the involvement of weapons and the threat of violence reflects the seriousness of her offence.
51.However, [PBWY] takes issue with the Respondent’s statement that the Applicant’s offence “involved vulnerable members of the community” (G7, p28). The offence was not committed against “vulnerable members of the community” as clearly envisaged by the Direction (such as minors, the elderly and the disabled) in paragraph 13.1.1(1)(b).
52.There is no evidence that the two workers in the service station were minors, elderly or disabled. All victims of crime are, by nature of being victims, vulnerable at some stage or another. However, the Applicant’s victims were not, by reason of their physical state or occupation, “vulnerable” for the purposes of paragraph 13.1.1(b) of the Direction. Therefore, this should not be a factor adding to the seriousness of the Applicant’s offence.
53.[PBWY] has not committed any offences against section 197A of the Act (see subparagraph 13.1.1(c) of the Direction). Her criminal history consists of one driving offence from 2000 and the 2015 offence. She is 38 years old. Her convictions do not point to a trend of increasing seriousness and the fact that these are the only two offences she has ever committed indicate the frequency of her offending (see paragraphs 13.1.1(d) and (e) of the Direction).
The representative for the Minister, in turn, in a Statement of Facts, Issues and Contentions, dated 9 June 2017, contended:
27.The applicant’s offence of aggravated armed robbery is a serious offence, and given that weapons were involved in the commission of the offence, the offence should be seen as violent and viewed as additionally serious.
28.In sentencing the applicant, Hall J said (G10, p39):
30. This was a serious example of armed robbery. The factors that make it serious are as follows: (1) the offending involved some level of planning; (2) the offence was committed in company, one of your co-offenders being your 18-year-old son; (3) you were both armed with weapons, your son with a machete, you with a hammer, which were clearly intended to, and did, instil fear in the store attendants; (4) the use of weapons and the statement made by your son contain express and implied threats of harm; (5) the offence was committed at night; and (6) the target was a service station.
29.The seriousness of the offending is also reflected in the sentence imposed, with imprisonment generally seen as a sentence of last resort. The applicant was sentenced to 2 years’ imprisonment, with the Court accepting various mitigating factors, such as the applicant's previous good character, that the offence appears to have been an aberration, remorse shown by the applicant, steps towards rehabilitation and an early guilty plea (G10, p39). Notwithstanding reductions that were made for these mitigating factors, the Court still saw fit to impose a custodial sentence and declined to suspend the sentence (G10, p40).
30.While the respondent acknowledges that the aggravated armed robbery is the applicant’s only conviction in Australia and that she does not have a lengthy criminal record, the offence is serious and consideration of the offence weighs in favour of the Tribunal affirming the decision under review.
In determining whether PBWY’s conduct should be viewed as serious, the Tribunal notes, the sentence imposed by the Supreme Court of Western Australia – in particular, the sentencing remarks of Hall J in relation to PBWY’s role in the Aggravated Armed Robbery (G10 at 39 and 40):
30.This was a serious example of armed robbery. The factors that make it serious are as follows: (1) the offending involved some level of planning; (2) the offence was committed in company, one of your co-offenders being your 18-year-old son; (3) you were both aimed with weapons, your son with a machete, you with a hammer, which were clearly intended to, and did instil fear in the store attendants; (4) the use of weapons and the statements made by your son contain express and implied threats of harm; (5) the offence was committed at night; and (6) the target was a service station.
31.Establishments of this type are often open long hours and are vulnerable to offences of this nature. General and personal deterrence are important factors in dealing with offences of this type. The penalties imposed must act as a real discouragement to others. In general, a term of imprisonment to be served is often the only appropriate penalty.
32.In your favour, you are a person with previous good character and this offence appears to have been an aberration. You have shown remorse and taken positive steps towards your rehabilitation. You pleaded guilty at the first reasonable opportunity and in consequence I will reduce the sentence I impose by the maximum allowable amount of 25%. I also take into account that you cooperated with the police by returning to Western Australia, voluntarily surrendering yourself and making full admissions. However, to some extent, the value of that cooperation is offset by the fact that you fled the state in an attempt to escape punishment for your actions.
33.In my view, the only appropriate sentence for this offence is one of imprisonment. I have carefully considered whether such a sentence can be suspended. However, in my view, whilst all the factors in your favour justify a marked reduction in the sentence that might otherwise be imposed, they do not justify the sentence being suspended. A suspended sentence would fail to reflect the serious nature of this offence.
PBWY was sentenced to two years imprisonment. Her son received a suspended sentence, with His Honour noting his young age, his difficult childhood and evidence that he had been pressured into committing the armed robbery (G10).
In a statement of reasons for decision under s 501CA of the Migration Act 1958 not to revoke a mandatory cancellation visa decision under s 501(3A) (G7 at 21) the delegate for the Minister said:
I gave significant weight to the very serious nature of the crime committed by [PBWY], that of aggravated armed robbery, which is of a violent nature, and involved vulnerable members of the community, and find that [PBWY] should expect to forfeit the right to remain in Australia.
In her closing submissions to the Tribunal, Ms Ladhams submitted that PBWY’s offence was committed against vulnerable members of the community pursuant to paragraph 11.1.1(1)(b) of Direction No. 65 and should therefore be viewed as more serious. She explained that vulnerable members of the community listed in this paragraph are listed after the word “includes” and hence is not closed or exhaustive.
The Tribunal agrees. The Tribunal notes the remarks of Hall J that “establishments of this type are often open long hours and are vulnerable to offences of this nature” (G10). The Tribunal also agrees with the the Tribunal’s findings in NKWF and Minister for Immigration and Border Protection (Migration) [2017] AATA 813 [at 53] that the list of vulnerable persons outlined in Direction 65 is not closed.
Applying the principles in paragraph 11.1.1 of Direction No. 65, the Tribunal agrees that late night service station attendants are indeed vulnerable members of the community. They often work alone, or at best in pairs, and on late night shifts. They should not live in fear of threat or injury by those who would exploit their vulnerable status. This is an aggravating factor going to the seriousness of PBWY’s offence of violence.
The Tribunal accepts that PBWY has demonstrated good character in the past and has no previous criminal record. She has also shown remorse for her actions and attempted to contact the victims of her violent crime. Previous good character is a mitigating factor and dispositions involving incarceration are a last resort in the sentencing hierarchy. However, even allowing for a discount for an early guilty plea, PBWY was sentenced to a significant term of imprisonment. This says a great deal about the seriousness of her offending in the eyes of the law as no other penalty but one of immediate, lengthy imprisonment was deemed appropriate by the courts.
Having viewed the evidence before it, PBWY’s conduct in the commission of the Aggravated Armed Robbery can be viewed objectively as premeditated, violent and hence extremely serious. The nature of PBWY’s violent offence, against vulnerable members of the community, evidences a degree of recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed. This weighs heavily against the revocation of the decision to cancel her visa.
(b)The risk to the Australian community should further offences be committed.
Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)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).
In relation to the risk to the Australian community should PBWY commit further offences or engage in other serious conduct, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 4 July 2017, PBWY’s solicitor, relevantly, contended:
56.The Applicant’s criminal history consists of one minor conviction in New Zealand and one in Australia. The Applicant’s personal circumstances at the time of offending and events in her past leading to her state of mind at the time of offending are relevant to the consideration of the risk of recidivism that she poses.
…
70.The Delegate acknowledged that the Applicant’s personal circumstances at the time of offending, including “moderate depression and high levels of anxiety”, “difficult relationship with her son and partner” and “the financial and emotional and physical hardship experienced by [the Applicant] at the time of offending” were “causal factors that go some way towards explaining the offending.” (G7, p24-5).
71.The Applicant’s sentencing judge, Justice Hall, stated in his remarks that the:
psychologist’s report states that testing indicates that you have a moderate level of depression which is likely to have been occurring over a number of years. There are also indications of a very high level of anxiety, although this may be at least in part related to your current circumstances. You were assessed as being a low risk of future violent related behaviour. [emphasis added] (G10, p37)
72. The Applicant’s partner has stated that the Applicant’s crime was completely out of character:
… and happened in the midst of what could be described as a breakdown. She wasn’t in her own mind because of all the turmoil she’d gone through around that time. She would not have done something like this in a million years if she was in her right mind.
…
Remorse
84. The Applicant has consistently expressed her remorse since commission of the offence. Her daughter states that after the offence:
[PBWY’s son] was really high on adrenaline but mum was freaking out. She was really upset and I think the reality of what she had done had started to hit her.
85. In her revocation request the Applicant stated:
I will never reoffend again in my life. I never want to put anyone through what I have done to my victims, my loved ones and family. I have been working through all my problems and no [sic] there are better options in life and ways to do things and there is help out there. (G12, p52).
86. To this day she struggles with how she felt at the time of offending, in the days and months after and still now, two years later. Following the offence, she states she was:
… going through so many emotions. I was depressed since the day this happened (and maybe way before that). I couldn’t sleep due to constant nightmares. I had panic attacks when I would leave the house. I just could not stop crying. I hated myself for what I have done to those two attendants. I just wanted to never wake up. I got in contact with victim support and wrote a letter to them both but there will never be enough sorries [sic] I could say to them to take all this away.
The Tribunal also notes that in a written statement dated 4 July 2017, PBWY, relevantly, wrote:
51.All I want is a chance to prove that I will never do anything like this again. Between being charged and going to jail I showed that I am willing and able to see a psychologist, to remain alcohol-free and to not reoffend….
…
65.I can’t change what I’ve done but I cannot prove to my family and everyone else that I deserve a chance to live a happy life if I am not given the chance. I know what the downfalls are if I should ever re-offend and that scares me more than life that’s why I can guarantee I won’t. I have a lot of people that have told me and written and said the chance is minimal to nil and that’s all I ask is to prove it.
66.I present no risk to the Australian community. I just want another chance to prove it and another chance to be with my family.
In oral evidence before the Tribunal, PBWY stressed again that at the time of her offending she had no financial or emotional support. She explains that these circumstances, together with relationship difficulties with her de facto partner and son and her childhood sexual abuse issues, go a long way to explaining her behaviour.
Evidence before the Tribunal shows that PBWY has undertaken a number of voluntary programs to assist with her rehabilitation. These include (A1 at 88):
·Pathways Program;
·CGEA;
·Alcohol [sic] Anonymous;
·Health in Prisons, Health Outta Prisons (HIP HOP) program;
·Cleaning – Infectious control course;
·OHS;
·Hospitality – Food Stars;
·Hospitality – Food Safety;
·Health and Fitness;
·Drug and Alcohol – PAST;
·STEP IN;
·Scrapbooking; and
·Brief Intervention Service.
PBWY has clearly shown a willingness to undertake rehabilitation programs and this weighs in her favour.
In her representations to the Minister, relating to her risk of reoffending, PBWY stated (G12 at 52):
I will never reoffend again in my life. I never want to put anyone through what I have done to my victims my loved ones and family. I have been working through all my problems and no there are better options in life and ways to do things and there is help out there. [sic]
PBWY also provided a written statement from her de facto partner provided 4 July 2017 which, relevantly, reads as follows:
14.[PBWY’s] crime was completely out of character and happened in the midst of what could be described as a breakdown. She wasn’t in her own mind because of all the turmoil she’d gone through around that time. She would not have done something like this in a million years if she was in her right mind. I do not think that the sentencing judge considered at all [PBWY]’s personal circumstances in the lead-up to the offence.
…
21.I believe that [PBWY] will not re-offend - as I’ve said above, this offence was exceptionally out of character for her and came from a series of extremely distressing circumstances. I do not think that she poses a risk to the Australian community if she was allowed to stay.
The Tribunal also notes PBWY’s solicitors closing submissions that while, given PBWY’s history of offending, there cannot be no risk of offending, PBWY’s risk of reoffending is “so low as to be negligible”.
It is noted that an immigration report also indicates that PBWY was well behaved in prison and she has not been involved in any adverse incidents in immigration detention (G29 at 177).
PBWY also undertook 6 counselling sessions in with a psychologist (discussed further below) between July and November 2015. She was offered further counselling sessions while in prison but declined this offer.
In a Statement of Facts, Issues and Contentions dated 9 June 2017, counsel for the Minister contended:
33.Other harm that could result from offences such as aggravated armed robbery includes physical harm to individuals if weapons are used, psychological harm and property damage and economic loss. Thus the nature of the harm to individuals or the community should the applicant engage in further criminal conduct could be significant.
34.The respondent acknowledges the comments in the sentencing remarks that the applicant was assessed as being of low risk of future violent related behavior (G10, p37). The sentencing remarks further suggest that the applicant had expressed remorse, paid some money by way of compensation and engaged with the victim mediation unit. The respondent further acknowledges the applicant’s evidence that she has completed some rehabilitation programs while in prison, including CGEA-Adult Education, Alcoholics Anonymous, Brief Intervention Service, Drug and Alcohol - past, Hip-Hop and OHS (G12, p52). There is no evidence available at present of the extent to which the applicant engaged in each of these programs and the benefits she derived from undertaking the courses.
35.The psychologist’s report referred to in the sentencing remarks suggests that the applicant needed to attend counselling for alcohol dependence. While it seems clear that some of the courses undertaken by the applicant are aimed at addressing alcohol dependency, there is limited evidence from which the Tribunal can draw conclusions as to the extent to which the applicant has addressed her alcohol dependency issues.
36.The respondent acknowledges the rehabilitation efforts made by the applicant and acknowledges that she was assessed as being of low risk of engaging in further violent conduct. However, there is insufficient evidence of the applicant’s rehabilitation to conclude that the applicant is of no risk of re-offending. Given the potential harm that could be suffered by the community and individuals within the Australian community if the applicant reoffends, the respondent contends that any risk of reoffending is unacceptable. The respondent further notes that the applicant has not yet been tested in the community since she was sentenced for committing aggravated armed robbery.
As noted above, prior to her sentencing, PBWY met with a psychologist who compiled a report dated 4 November 2015, which, relevantly, reads as follows:
Overall I am hoping to achieve a re-integration of [PBWY’s] fragmentation of her experiences past and present. This will involve assisting [PBWY] to move beyond the cognitive schemas that drive and maintain her emotional avoidance and behavioural reactivity. Moving her towards a place of acceptance rather than avoidance of strong emotions (past present and future) will make old suppression/denial behaviours redundant and should make volcanic anger and other harmful emotional explosivity a thing of the past.
…
While [PBWY] realises that her recent anti-social behaviour is reprehensible and deserves punishment, I have come to admire [PBWY]'s dedication to whatever it is she puts her mind to. Whether that has been providing for her children or her involvement in therapy, she shows a level of commitment and courage that is often absent in individuals coming from a chronic abuse background. Of most concern to her now is the welfare of her 12 year old daughter. It torments her that she might not be around to shelter her daughter from harm or provide the nurturing and guidance as her daughter develops into a young woman. For someone who is a survivor of sexual and emotional violation she is hyper-aware of how important "mothering" is and the ramifications of being unprotected and without the emotional and physical) proximity of the primary carer. I too am concerned about [PBWY’s daughter’s] welfare should the pair be separated for a significant length of time. [PBWY’s daughter] is only 12 years old, still very vulnerable to the loss of her primary attachment figure. At this point she is doing very well at school, has a good network of friends and peers, enjoys a healthy sense of self, and exhibits good life values and a strong moral code. At this point she is flourishing. [PBWY] has worked tirelessly to give her daughter what she never experienced herself and she has done extraordinarily well. I commend her for this and for all the other qualities I found in [PBWY] as I came to know her. Her pro-social values are strong. In my opinion it was the culmination of many issues long "survived" but never worked through that reduced [PBWY] to the criminal act for which she is being sentenced.
In her oral evidence before the Tribunal PBWY stated that she had been prescribed anti-depressants prior to her incarceration and was taking them regularly until she was imprisoned. She said that she stopped taking the anti-depressants while in prison and also refused to see a prison psychologist, despite acknowledging that psychological therapy and appropriate medication was assisting her with her mental health issues.
Like the Minister’s delegate before it, in considering whether PBWY represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.
The evidence before the Tribunal shows that PBWY has made considerable efforts to rehabilitate and address her offending behaviour and its causes. However, her conduct was serious and, should she reoffend, the result for the community would again be serious and unacceptable. An example of the nature of the harm to individuals that PBWY’s offending has already caused is set out in the sentencing remarks, where Hall J said (G10 at 37):
22.I should note that I have received a victim impact statement from the female attendant, who states that as a result of the offence she now experiences anxiety in the workplace and becomes nervous when discussing the incident. She has a heightened awareness of noise and readily becomes jumpy and anxious when working alone. She has trouble sleeping and is now suspicious of every customer.
It is also noted that PBWY’s explanation for her offending appears to be refuted by the following remarks of Hall J (G10 at 37):
19.You described to the psychologist that at this time you had ‘no money, no food, no friends and nowhere to go’. That appears to be something of an exaggeration because as I have noted earlier, you spoke at length to a friend the day before it occurred. She told you that you had places to stay and that others would support you and that you did not need to do anything stupid.
The Tribunal also notes that PBWY committed her offence despite the emotional and financial support offered by her friendship network. As explained by Hall J in sentencing PBWY to two years imprisonment (G10 at 35):
10.On the day prior to the offence, you spoke to a friend about your intention to rob a shop or service station. You told the friend how you were going to commit the robbery and it was obvious to her that you had put a lot of thought into it. You said that it would be easy and you were confident about getting away with it. Your friend tried to talk you out of it by pointing out that you needed to look after your daughter and that you were likely to be caught because and she said ‘everywhere has cameras’. She also told you a story about how a friend of hers had been the victim of an armed robbery and the effect it had had on that person.
This is of considerable concern to the Tribunal.
The Tribunal notes submissions made by PBWY’s solicitor that Tribunal should look favourably upon PBWY’s compliance with previous bail conditions and her considerable rehabilitation efforts as an indication that PBWY has the capacity to comply with the laws of the Australia. The Tribunal acknowledges this but accepts the position of the Minister that PBWY has not yet been tested in the community since she was sentenced for committing aggravated armed robbery.
The Tribunal also notes the comments made in PBWY’s psychological report which indicate that she is “hoping to achieve a re-integration of [PBWY’s] fragmentation of her experiences past and present” and her belief that with continued therapy PBWY should be able to make “anger and other harmful emotional explosivity a thing of the past”.
These comments reflect a lack of certainty about the extent to which PBWY’s therapeutic efforts have successfully tackled the issues that, in her own words, caused her to commit the violent offence for which she was convicted. PBWY’s psychologist concluded that “… it was the culmination of many issues long ‘survived’ but never worked through that reduced [PBWY] to the criminal act for which she is being sentenced.”
The evidence does not show that these issues have been sufficiently addressed. This leads the Tribunal to conclude that PBWY has not adequately resolved the psychological issues which contributed to her offending behaviour. This, in turn, raises concerns about the risk of reoffending.
Unfortunately, for the reasons outlined above, the Tribunal has reason to doubt the success of PBWY’s rehabilitation and therapeutic efforts. While commendable, on the evidence, the Tribunal finds that there is some risk that PBWY will engage in harmful behaviour if released into the community due to a lack of community and family support. This poses an unacceptable risk to the Australian community as there is a risk that she will then reoffend. Given the violent nature of her crime, this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel PBWY’s visa.
(ii)Best interests of minor children in Australia
PBWY is the biological mother of one minor child in Australia – a daughter, aged 13 years, who, on the evidence available, appears to now be living with PBWY’s former de facto partner.
As outlined in paragraph 13.2 of the Ministerial Direction, the Tribunal must make a determination about whether revocation of a decision to cancel a visa is in the best interests of PBWY’s daughter.
Paragraph 13.2(4) of Direction No. 65 sets out the factors the Tribunal must consider if relevant. They are:
(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 not 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 contact 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 any 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;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In relation to the best interest of PBWY’s daughter, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 4 July 2017, PBWY’s solicitor contended:
113.[PBWY’s daughter] was born in 2003 and is 13 years old. She is the Applicant’s biological daughter and holds a Special Category (subclass 444) visa. She lives with the Applicant’s partner, [PBWY’s de-facto partner], in Kalgoorlie and has lived in Australia for the past seven years.
114.She has occasional contact with her biological father … in New Zealand over the telephone, however considers [PBWY’s de-facto partner] to be her father figure. Her mother has always been her primary carer, up until November 2015 when she was incarcerated. She has no other female role models and while her mother has made a mistake, her efforts at rehabilitation demonstrate prosocial values and a willingness to be play a positive parental role in her daughter’s life.
115.There are no impediments to the Applicant and [PBWY’s daughter] resuming their close relationship upon the Applicant’s release from detention. This is the first time [PBWY’s daughter] has experienced extended separation from her mother since the day she was born.
116.The Applicant and [PBWY’s daughter] maintained contact through phone calls during her period of incarceration. Given that Kalgoorlie is a six-hour drive from Bandyup Women’s Prison, they did not meet as often as they would have liked. [PBWY’s de-facto partner] and [PBWY’s daughter] have also visited the Applicant at Perth Immigration Detention Centre and kept in contact with daily telephone calls and through Facebook.
117.The Delegate stated in the Statement of Reasons that: “I find that it is in the best interests of [PBWY’s daughter] for the mandatory visa cancellation to be revoked.” (G7, p. 26). This conclusion follows a consideration of the following factors:
(a) that [PBWY’s daughter] wants her mother in Australia;
(b) her father works long hours;
(c) that if the Applicant took [PBWY’s daughter] back to New Zealand it would be to a life of poverty, with nowhere to live and no financial support;
(d) that [PBWY’s daughter] has been in the Australian education system for seven years and has many bonds with Australia; and
(e) that their separation has been very hard mentally and emotionally.
118.Despite this, the Delegate found that they were “not satisfied that there is another reason why the original decision…should be revoked.” (G7, p29)
PBWY’s daughter provided a letter to the Department and to the Parole Board expressing her need and wish to have her mother with her (G15). PBWY indicated that she and her daughter have always been together until she was incarcerated (G12).
PBWY also referred to her daughter suffering mental health issues as a result of the Cancellation Decision. In her representations to the Minister for the mandatory cancellation of her visa to be revoked, PBWY stated (G12, p48):
[PBWY’s daughter] has been doing excellently at school, with high grades. Until recently when she was information of immigration and deportation she has started “Head Space” and has had ongoing counselling due to her wanting to self harm and commit suicide due to wanting her mother home. She has made many friends and formed close bonds and regards Australia as home and [PBWY’s de-facto partner] as her father.
The Tribunal notes, however, that no independent medical evidence has been provided concerning the state of PBWY’s daughter’s mental health since PBWY had gone into detention. On this basis, the solicitor for the Minister contended that the comments in relation to the daughter’s mental health should be given little weight. The Tribunal agrees, accepting, however, that it would be surprising if a 13 year old child was not deeply distressed by her mother’s detention.
In the Minister’s Statement of Facts, Issues and Contentions dated 9 June 2017, the Minister acknowledged that it is in the best interests of PBWY’s daughter for the Cancelation Decision to be set aside and PBWY’s visa reinstated. The Minister accepts this despite the fact that PBWY took her daughter with her in the car when the aggravated armed robbery was committed.
In her closing submissions, council for the Minister contended that although the best interests of PBWY’s daughter is indeed a consideration that weighs in favour of setting aside the Cancellation Decision, this consideration is outweighed by the other primary considerations – in particular, the protection of the Australian community and the expectations of the Australian community (discussed below).
The Tribunal agrees. Based on the evidence presented, the Tribunal accepts that it is in the best interests of PBWY’s daughter for the Cancellation Decision to be set aside and PBWY’s visa to be reinstated but that this conclusion weighs in PBWY’s favour. She would prefer to remain in Australia with her mother and would arguably have a more settled life here. However, the Tribunal notes that one or more primary considerations may outweigh other primary considerations and that this is the case here. The disadvantage that might arise to PBWF’s daughter (regardless of whether she remains in Australia or returns with her mother to New Zealand – a choice which, as discussed further below, is a choice that is entirely between PBWF and her mother and not imposed by law) is outweighed by the nature and seriousness of PBWF’s violent crime and the risk, however low, to the Australian community should PBWY reoffend.
(iii)Expectations of the Australian community
The third consideration listed in Direction No. 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
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 cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In relation to the expectations of the Australian community, the Tribunal notes submissions made on PBWY’s behalf by her solicitor in a Statement of Facts, Issues and Contentions dated 3 July 2017 (A1 at 16-18):
120.It is difficult to assess the expectations of the Australian community with any real certainty, as most situations involving criminal offending will attract strongly differing views.
121.On one hand, Australian society no doubt expects that the Applicant’s offence warrants serious punishment, not only to act as a personal deterrence but also as general deterrence to others. If the Applicant had an extensive criminal history, was not in the midst of desperate circumstances when she offended, had made no efforts at rehabilitation or expressions of remorse, or had few or no family ties in Australia, society would likely view removal a necessary and warranted consequence of her actions.
122.On the other hand, the Applicant’s daughter and partner are established in Australia. They will not accompany her back to New Zealand if she were unable to remain in Australia.
123.In addition, the Applicant has shown a strong desire to reform and a demonstrated commitment to rehabilitation, including by addressing her assessed treatment needs and abiding by all conditions placed on her. Her risk of reoffending is so low it cannot be considered “unacceptable” and the Applicant has no adverse record of behaviour in prison or any serious prior criminal history.
124. The Statement of Reasons at paragraph 47 states that:
Given the serious nature of [the Applicant’s] offence, I conclude that the Australian community would expect that [the Applicant] should not hold a visa.
125.There is no further discussion of this Primary Consideration. There is no discussion of the expectations of the Australian community in relation to a visa applicant whose offences involved an untreated mental illness, who has no prior criminal history to speak of, who committed the act amidst a series of distressing personal circumstances and who has a child and partner who live in regional Australia and who will not accompany her back to New Zealand.
126.Looking at Tribunal and Court decisions for guidance, Deputy President Constance in Van Rooyen and Minister for Immigration and Border Protection (Migration)7 recognised that:
the Australian community would take into account that Mr Van Rooyen has experienced time in prison and in immigration detention as a result of his past conduct and is likely to have learned from this experience.7 8
127.Similarly, the Tribunal in Do and Minister for Immigration and Border Protection stated that:
A decision-maker is, to some extent, required to guess at the community’s expectations...As I begin my deliberations, I assume the Australian community would be fair-minded and mature...The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
128.Numerous recent Tribunal decisions have found that Australian values and standards would favour giving applicants a second chance where there has been a demonstrated and genuine effort at rehabilitation, an assessed low risk of offending, no trend of increasing seriousness or multiple offences and family members in Australia who will be adversely affected by the decision.
129.The Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs at [36] stated that:
the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s501.
130.In Leha v Minister for Immigration and Multicultural Affairs Deputy President Mr B.J. McMahon stated that there is “a general expectation in the community that the Act would be administered fairly and humanely.”
131. Wallace J in R v Rowe stated that:
Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courses ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 32.13
132.An assessment of the expectations of the Australian community should take account of the best interests of the Applicant’s daughter, her lack of prior criminal history and her motivation to continue her rehabilitation and to never re-offend. Given her efforts at rehabilitation and self-improvement, the Australian community would consider the risk of the Applicant reoffending is very low, and would expect that she be given a second chance to be with her family in Australia.
133.The Applicant (by her own admission as well as that of her partner, daughter and the sentencing judge) has expressed regret and remorse about her offending since minutes after it was committed. Even if she had not subsequently experienced prison and immigration detention because of her offence, her personal feelings about the offence would have prevented her from ever committing a similar act again.
134.The Australian community’s expectation that the Applicant be punished for her crimes has been achieved through appropriate sentencing. Forcing her to leave Australia and the only real family she has will be viewed by the Australian community as a disproportionately harsh punishment that exceeds its expectations for punitive action.
135.In light of this, the Tribunal can make a comfortable finding that the Australian community expectations of the Applicant are far from visa refusal and removal and instead favour giving the Applicant a second chance in Australia.
136.On balance, this consideration weighs in favour of revoking the Applicant’s visa cancellation.
In turn, the solicitor for the Minister contended as follows (R1 at 8) :
The respondent contends that when the seriousness of the [PBWY’s] offending is considered along with the harm that could potentially arise if the applicant were to engage in similar conduct in the future and the risk, albeit a relatively low risk, that the applicant will reoffend, the Tribunal should conclude that the need to protect the Australian community is a consideration that weighs in favour of affirming the decision under review.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that:
·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
This matter raises a complex issue – that of the situation that will befall PBWY’s daughter if her mother is deported back to New Zealand. No Australian would want to see a child forcibly removed from her mother. That is not the situation here, however. PBWY’s daughter can return with her mother to New Zealand. She is not required to stay in Australia. If she stays, she does so because she and her mother concluded that this was the best course of action. This would inevitably be difficult, as, indeed, would returning to a country she hasn’t lived in for seven years. But any difficulty experienced by PBWY’s daughter, a difficulty made by choice, needs to be weighed against PBWY’s violent criminal actions and the expectations of the Australian community in that regard.
In the circumstances, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as PBWY, who committed a violent armed robbery against vulnerable service station attendants who are now socially traumatised should expect to lose her visa and forfeit the privilege of remaining in Australia. This is so despite any disadvantage that might be inflicted on PBWY’s daughter – who, it is stressed, does have the right to return to New Zealand and who is not being forced legally to separate from her mother.
(iv)Other considerations
Paragraph 14(1) of Direction No 65 provides:
14. Other considerations - revocation requests
(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.
Based on the evidence currently available, the other considerations that may be relevant in the present case are the strength, nature and duration of the PBWY’s ties with Australia and the extent of impediments to her if she is removed from Australia.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider PBWY’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(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).
In relation to this issue, PBWY did not formally address this consideration in any documentary evidence lodged with the Tribunal. The Tribunal does note, however, there is evidence before the Tribunal that PBWY does have ties to Australia. She has lived here since 2010, her daughter is currently resident here and she has been in a de facto relationship in Australia for approximately 5 years.
The solicitor for the Minister in a Statement of Facts, Issues and Contentions dated 9 June 2017 contended as follows:
50.The applicant has lived in Australia since December 2010 and had resided in Australia for less than 5 years at the time of her offence. Given that the applicant’s offending occurred relatively soon after her arrival in Australia, it would be appropriate for the Tribunal to give less weight to this consideration than would be the case if the applicant had lived in Australia for an extensive period prior to offending.
51.The applicant has been engaged in employment in Australia for most of the time from her arrival in Australia to her sentencing and has contributed to the community through her employment.
52.As indicated above, the applicant has a minor daughter in Australia who would be adversely impacted if the applicant were to be removed. The applicant also has an adult son in Australia, although there is no evidence as to their relationship following their respective sentencing for aggravated armed robbery.
53.In her representations to the respondent, the applicant has referred at length to her relationship with [PBWY’s de facto], and there is evidence to suggest that the applicant and [PBWY’s de facto] intended to marry (G12, p46). However, in an email sent to the Department on 4 January 2017, the applicant indicated that she is now separated from [PBWY’s de facto] (G34, p192).
54.It is not possible for the Tribunal to conclude on the basis of the current evidence the extent to which [PBWY’s de facto] and the applicant's son would be adversely impacted by the decision to cancel the applicant’s visa.
PBWY has spent approximately seven years in Australia, albeit two of them in incarceration, contributing to the community in various employment roles. Accordingly, the Tribunal finds that she has been making some contribution to the community.
The Tribunal has, however, given less weight to these considerations as PBWY started to offend relatively soon after arriving in Australia.
In these circumstances, while the Tribunal finds that PBWY does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of her ties with Australia outweigh the primary considerations referred to above.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if PBWY is removed from Australia as follows:
14.5 Extent of impediments if removed
(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.
In relation to this issue, in her Statement of Facts, Issues and Contentions dated 3 July 2017, PBWY’s solicitor contended as follows:
145.The Applicant left New Zealand seven years ago. She recognises that there was only a period of five years between her arrival and commission of the offence. During those five years she contributed positively to the Australian community by supporting her family emotionally and financially.
146.She left New Zealand in order to seek a better life for herself and her daughter, who has settled into life in Australia and does not want to be uprooted again. It’s likely that her daughter would remain in Australia if the Applicant were not permitted to stay.
147.The Applicant fears homelessness and a lack of support if she were to return to New Zealand. Due to a traumatic upbringing and tumultuous and dysfunctional relationship with her family members, she cannot rely on them for any meaningful support.
148.The Applicant has made concerted efforts at self-improvement since committing the offence. Before being incarcerated, she made positive progress in addressing her past with [treating psychologist] and hopes to continue with this treatment.
149.While she does not believe that she would reoffend if sent back to New Zealand, she fears her ability to cope with such a drastic change in her circumstances, particularly her permanent separation from her daughter in Australia. She fears that this will send her spiralling back into a depressive state and heighten her anxiety to its previous levels.
Counsel for the Minister in turn contended as follows:
55.The applicant has indicated that she has a mother and brothers in New Zealand but that she does not maintain contact with them due to a dysfunctional mother and past sexual, physical and mental abuse (G12, p49).
56.The sentencing remarks also suggest that the applicant has suffered from depression and anxiety. The applicant was seeking assistance from a psychologist for a time in 2015, but it is not clear from the present evidence the extent to which she has addressed her issues and benefited from her treatment with a psychologist.
57.There are unlikely to be any cultural or language barriers if the applicant returns to New Zealand.
During the hearing PBWY gave oral evidence that she has some contact with her eldest brother, who currently resides in New Zealand, and that he had sent her a birthday card while she was in detention. She also has contact with her daughter’s biological father. PBWY’s mother and other brothers also reside in New Zealand but that she does not anticipate having any contact with them if returned to New Zealand.
During her closing submissions, Ms Ladhams for the Minister contended that there were programs available to PBWY as a prisoner returning to New Zealand which would assist her to reintegrate into New Zealand society. This was not disputed.
In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal is not convinced that there are significant impediments to PBWY being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia. PBWY is a New Zealand citizen and will have access to basic social, medical and economic support in that country. Importantly, these services include psychological counselling of a sort that will assist PBWY rebuild her life and deal with the traumas of her past that caused her to offend in Australia. Further, the Tribunal considers that PBWY’s consistent work history both in Australia and New Zealand (prior to her immigration to this country) will be to her advantage in her home country.
Although it is clear that life will be challenging for PBWY, given that she has not lived in New Zealand since 2010 and has a fractured relationship with her family in New Zealand, the extent of the impediments that she will face if removed does not weigh heavily in favour of revocation of the Cancellation Decision. Importantly, the extent of any impediments that do exist does not outweigh the primary considerations discussed above.
Accordingly, the Tribunal finds that this consideration does not favour revoking the decision to cancel PBWY’s visa.
CONCLUSION
On 13 November 2015, PBWY was sentenced to two years imprisonment for armed robbery.
Having received a sentence of a term of imprisonment in excess of 12 months, PBWY has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Act. Further, as PBWY was serving a sentence of imprisonment on a full-time basis in a custodial institution, she was liable for mandatory cancellation of her visa pursuant to s 501(3A) of the Act. Her visa was mandatorily cancelled on 28 October 2016.
In determining whether there is any reason why the decision to cancel PBWY’s visa should be revoked, the Tribunal has attached significant weight to the fact that PBWY’s offending is violent in nature and was committed against vulnerable members of the community. The crime in question, armed robbery, was a serious crime and its commission must be viewed seriously.
In this regard, the Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction No. 65:
a)violent crimes are viewed seriously – noting that PBWY was convicted of aggravated armed robbery that left the female service station attendant traumatised; and
b)the sentence imposed by the courts for crimes – noting that in PBWY’s case a custodial sentence was ordered despite her early guilty plea and despite the fact that she had no prior offences.
In these circumstances, PBWY should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that PBWY may engage in further criminal conduct if she remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should PBWY engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of PBWY re-offending. PBWY’s prospects of avoiding further offending are highly dependent on her ability to deal with the mental and emotional trauma inflicted on her in the past. On the evidence, the Tribunal finds that while PBWY has undertaken some steps to address these issues, she still has considerable work to do in this regard and there is some risk that PBWY will engage in anti-social and harmful behaviour if released into the community. This poses an unacceptable risk to the Australian community as there is a risk that she will then reoffend. Given the nature of her crime this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke PBWY’s visa.
Given the nature of the crime committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that PBWY’s visa would remain cancelled.
There are considerations that weigh in favour of revocation of the decision to cancel PBWY’s visa. These include her ties to the Australian community and the best interests of her daughter. The Tribunal also accepts that PBWY may face some difficulties if she is returned to New Zealand.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of PBWY’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...............[sgd].................................................
Administrative Assistant
Dated: 20 July 2017
Date of hearing: 12 July 2017 Representative of the Applicant: Ms A Graziotti Solicitors for the Applicant: Estrin Saul Lawyers Representative of the Respondent: Ms A Ladhams Solicitors for the Respondent: Australian Government Solicitor
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