Peek and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2361

Peek and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2361 (20 June 2024)
Division:GENERAL DIVISION
File Number: 2023/4434
Re:Nadia Ana Lorraine Peek
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 20 June 2024
Date of written reasons: 10 July 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 19 June 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.......................[SGD]..............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – repeated domestic violence offending – Tribunal finding risk of recidivism as real and unacceptable – where factors against revocation outweigh factors in favour – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Khalil v Minister for Home Affairs (2019) 271 FCR 326
PNLB v Minister for Immigration and Border Protection [2017] AATA 1561
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
TABLE OF CONTENTS
Introduction
Procedural history
Legislative framework
Primary Consideration 1: Protection of the Australian community
Primary Consideration 2: Family violence
Primary Consideration 3: The strength, nature and duration of ties to Australia
Primary Consideration 4: The best interests of minor children in Australia
Primary Consideration 5: Expectations of the Australian community
Other Considerations
Conclusion
Decision
Annexure A
Annexure B
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 July 2024
INTRODUCTION

Ms Nadia Ana Lorraine Peek (‘the Applicant’) is a 33-year-old citizen of New Zealand born on 22 January 1990. She first arrived in Australia on 14 May 2004 as a 14-year-old. Thereafter, her movement history in and out of Australia looks like this:[1]
·departs on 24 October 2004, returns on 5 July 2005: absent from Australia for nine months; and
·departs on 30 July 2005, returns on 9 September 2007: absent from Australia for two years and two months.
[1] R1, p 90.
Therefore, since her initial arrival in May 2004, the Applicant has spent something like three years out of Australia. In turn, this means that since May 2004 she has spent about 17 years in Australia which equates to 51 percent of her life in Australia.
PROCEDURAL HISTORY
The Applicant’s visa history in Australia has transpired in these terms:
·26 July 2022: the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’) was, pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), mandatorily cancelled;[2]
·2 August 2022: the Applicant sought revocation of the abovementioned mandatory cancellation decision;[3]
·19 June 2023: a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’), decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision.[4] For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·23 June 2023: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;[5]
·8 September 2023: this application was ventilated in this Tribunal (differently constituted) on 30 August 2023 and on 8 September 2023, that same Tribunal (differently constituted) affirmed the Decision Under Review;[6] and
·20 February 2024: the Full Federal Court of Australia remitted the Tribunal’s decision of 8 September 2023 for reconsideration according to law.[7]
[2] R1, pp 91-96.
[3] R1, pp 97-98.
[4] R1, pp 10-31.
[5] R1, pp 1-7.
[6] R1, pp 841-862.
[7] R1, pp 863-864.
This proceeding thus comprises the second ventilation of this application before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for present purposes. However, this second ventilation is a hearing de novo or a hearing anew. The Tribunal’s task is, by definition, a stand-alone merits-based review of the totality of the evidence adduced at the first ventilation in this Tribunal and now in this second one.
The instant hearing proceeded before me on a hybrid basis[8] on 4 June 2024

(‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[9] which is attached to these Reasons and marked ‘Annexure A’. The Respondent did not call any oral evidence. The oral witnesses for the Applicant comprised:
·the Applicant herself; and
·the forensic and clinical psychologist, Dr Luke Hatzipetrou.
[8] That is to say, the representative of both sides appeared before the Tribunal in person while the Applicant appeared on video. The expert, Dr Luke Hatzipetrou gave evidence by telephone.
[9] Transcript, p 3, lines 19-35.
Both the previous ventilation of this matter and the instant ventilation before me were conducted during the currency of Ministerial Direction 99.[10] On 7 June 2024 the Respondent signed a new Ministerial Direction 110 which was stated to take effect on and from 21 June 2024. Given this change in the Ministerial Direction I caused a short-form decision to be duly published to the parties on 20 June 2024 such as to ensure this Tribunal made a decision pursuant to the prevailing Ministerial Direction that applied during both ventilations of this application before this Tribunal.
[10] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Attached to these Reasons and marked ‘Annexure B’ is a true and correct copy of that short-form decision. Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326,[11] I now publish my detailed written reasons within a reasonable time after publication of my short–form decision.
[11] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and if not
·whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[12] She received a head custodial term of imprisonment on 9 June 2022 in the amount of 12 months. She thus meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[12] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa pursuant to section 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[13]
[13] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
The extent of the offending
Any assessment of the nature and seriousness of this Applicant’s unlawful conduct in Australia is best informed by a fulsome understanding of the actual scope and extent of that offending. Her unlawful activity in this country involves the following conduct:
·number of offences committed: 87;
·number of sentencing episodes: 32;
·length of the offending history:
oin terms of sentencing episodes: June 2009 to September 2022 which amounts to circa 13 years;
oin terms of dates of commission of the offences: May 2009 to June 2022 which amounts to circa 13 years;
·nature and range of sentences:
o‘no conviction recorded’ notation (x1);
ofines (x18) – totalling $6,850;
oorders for restitution (x2) – totalling $75.49;
ocustodial sentences (x18) – total head custodial time: six years and 17 days; and
oprobation orders (x5) – each order imposed for 12 months.
The parties’ respective positions
During closing submissions I asked the Applicant’s representative whether the Applicant’s offending should be characterised as ‘serious’ or ‘very serious’. The representative replied with ‘It is serious’.[14] This position appears to have derived from written submissions filed on behalf of the Applicant for the instant proceeding. Those written submissions take issue with the delegate’s finding in the Decision Under Review that the offending has been ‘very serious’. Those submissions say the following:
‘The Delegate in their assessment of the seriousness of the Nadia’s offending gave no real heed to the Applicant’s complex mental health conditions and medical conditions when determining that Nadia’s conduct was “very serious” [internal citations omitted]. Nor did it meaningfully consider the manner in which her complex and compounding medical circumstances including her mental health, cognitive difficulties and addiction were impacting on all facets of her life including her offending.’[15]
[14] Transcript, p 44, line 32.
[15] A1, pp 7-8 [39].
The Respondent’s position on the level of seriousness attributable to the Applicant’s offending is expressed in more formulaic terms having regard to the applicable sub-paragraphs appearing at paragraph 8.1.1(1) of the Direction. The Respondent concludes that ‘…the applicant’s offending can only be viewed as very serious.’[16] That finding is grounded in the following paragraphed elements appearing in the Direction:[17]
·the Applicant’s offending includes crimes of a violent nature against a woman thus engaging the auspices of paragraph 8.1.1(1)(a)(ii) of the Direction;
·her offending has involved acts of family violence pursuant to paragraph 8.1.1(1)(a)(iii) of the Direction;
·she has convictions for offending against police officers pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction;
·the nature of the sentences imposed by sentencing courts for the Applicant’s offending point to it being very serious in nature (pursuant to paragraph 8.1.1(1)(c) of the Direction);
·the Applicant’s offending has been frequent (paragraph 8.1.1(1)(d) of the Direction);
·the cumulative effects of her offending inherently speak to level of its seriousness (paragraph 8.1.1(1)(e) of the Direction); and
·the Applicant’s frequent breaches of orders lawfully imposed on her ‘….aggravates the seriousness of her offending’.
[16] R2, p 8 [33].
[17] See generally, R2, p 9 [34]-[38].
This Tribunal’s assessment of the nature and seriousness of the Applicant’s offending
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    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;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)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).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The Respondent’s SFIC[18] neatly summarises the factual basis of the Applicant’s offending giving rise to her convictions.[19] The chapeau to paragraph 8.1.1(1)(a) of the Direction refers to the ‘very serious’ descriptor that is to be applied to three specific categories of offending. It is surely beyond argument that the Applicant has convictions for (1) violent crimes;[20]

(2) crimes of a violent nature against a woman;[21] and (3) acts of family violence.[22] On these three grounds alone a finding can safely be made that the Applicant’s unlawful conduct in this country has been of a ‘very serious’ nature.
[18] Denoting, ‘Statement of Facts, Issues and Contentions’.
[19] See generally, R2, p 6 [26]-[32].
[20] Pursuant to paragraph 8.1.1(1)(a)(i) of the Direction.
[21] Pursuant to paragraph 8.1.1(1)(a)(ii) of the Direction.
[22] Pursuant to paragraph 8.1.1(1)(a)(iii) of the Direction.
The chapeau to paragraph 8.1.1(1)(b) of the Direction refers to the ‘serious’ descriptor that can be applied to four specific categories of offending. That conduct is particularised in sub-paragraphs (i)-(iv) of that paragraph. It would appear that the Applicant’s unlawful conduct engages only one of those four sub-paragraphs. The three sub-paragraphs it does not engage are 8.1.1(1)(b)(i), (iii) and (iv). Those non-applicable sub-paragraphs respectively relate to (1) whether the Applicant caused a person to enter into or become a party to forced marriage; (2) whether the Applicant has committed any conduct forming the basis of any finding about her not passing the character test that is dependent on my opinion; and (3) whether she has committed any crime while in immigration detention.
The applicable sub-paragraph of paragraph 8.1.1(1)(b) of the Direction is sub-paragraph (ii) it relates to crimes committed against vulnerable members of the Australian community and government representatives or officials in the performance of their duties. This Applicant has 15 convictions for offending against police officers and a further conviction against a ‘staff member’ whom the material describes as a ‘Corrective Services Officer at the Brisbane Women’s Correctional Centre’[23]. I am satisfied that a police officer and a corrective services officer both comprise ‘government representatives’ for the purposes of sub-paragraph 8.1.1(1)(b)(ii) of the Direction. I am further satisfied that the Applicant offended against these government representatives ‘…in the performance of their duties’. This offending thus comfortably meets the threshold of being, at the very least, serious although I think it can be readily characterised as very serious.
[23] R1, p 301.
The auspices of paragraph 8.1.1(1)(b) of the Direction are also engaged by the Applicant’s convictions because she has been twice been convicted (on 23 and 30 January 2020) of ‘serious assault person over 60 domestic violence offence’[24]. I am satisfied that the victim(s) of these crimes was a vulnerable member of the community (such as an elderly person) and that such conduct surely attracts a descriptor of (at the very least) serious to the Applicant’s offending and more likely one of ‘very serious’.
[24] Pursuant to section 340(1)(g) of the Criminal Code 1899 Act (Qld).
I will pause here to mention and resolve any perception of double counting in these Reasons. It is of little or no moment – and it is certainly not double counting – for this Tribunal to suggest (and find) that a single episode or episodes of the Applicant’s offending may engage multiple components of the Direction. Out of an abundance of caution, I will refer to the High Court authority of Ismail[25] and I will find that it is not ‘repetitious weighing’ (or double counting) for this Tribunal to find, for example, that the factual circumstances of the Applicant’s offending can safely be found to constitute (1) a violent crime; (2) a crime of violence against a woman; and (3) an act of family violence. Likewise, it is not repetitious weighing or double counting for this Tribunal to find that a single episode of offending involved crimes against the police as well as vulnerable members of the community such as an elderly person.
[25] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
I will now look at the remaining paragraphs of paragraph 8.1.1(1) of the Direction to arrive at an ultimate descriptor for the nature of the Applicant’s unlawful conduct in this country. The first of those remaining paragraphs is paragraph 8.1.1(1)(c). It looks at the sentences imposed by the courts for the crimes committed by this Applicant. In making this analysis, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[26]
(ii)acts of family violence;[27] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[28]
[26] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[27] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[28] Paragraph 8.1.1(1)(b)(i) of the Direction.
I am thus precluded from taking into account the sentences received for any offence of violence against a woman or child and any acts of family violence. Even if one discounts the sentences she received for the precluded offending, this Applicant has received a multiplicity of custodial terms for offending that can be taken into account for the purposes of paragraph 8.1.1(1)(c) of the Direction. Stated succinctly, those custodial sentences comprised the following:
·serious assault against a police officer (x3): six months’ head custodial time;
·assault or obstruct police officer (x1): two months’ head custodial time;
·enter premises and commit indictable offence by break (x1): six months’ head custodial time;
·obstruct police officer (x1): four months’ head custodial time;
·commit public nuisance (x1): three months’ head custodial time;
·possessing dangerous drugs (x2): 22 days’ head custodial time;
·possessing dangerous drugs (x1): six months’ custodial time;
·breach of probation order (x1): nine months’ custodial time.
It should also be noted that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[29] The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offending involved.
[29] PNLB v Minister for Immigration and Border Protection [2017] AATA 1561 at [43].
In addition, of the 18 occasions on which fines were imposed on the Applicant, 17 of them were for non-precluded offending. In short order, the totality of fines she has received for her non-precluded offending, amounts to $6,550. In addition, the two restitution orders imposed on her were also imposed for non-precluded offending.
I am therefore comfortably satisfied that the sentences imposed on this Applicant for her non-precluded offending volubly speak to the very serious nature of her offending.
The next paragraph referrable to the analysis of the nature and seriousness of the Applicant’s conduct is paragraph 8.1.1(1)(d) of the Direction. This paragraph poses two questions. First, has the Applicant’s offending been frequent? Any history involving the commission of 87 offences dealt with at 32 sentencing episodes across an offending history of 13 years can be found to be nothing other than frequent. I so find. Second, is there a detectable trend of increasing seriousness across the history of the Applicant’s offending? In usual circumstances, an offender’s pattern of unlawful conduct has involved convictions for relatively minor and inconsequential offences during its early and middle phase. There usually follows a crescendo of seriousness from the mid or two thirds point onwards of a given criminal history.
That is not the case with this Applicant’s offending. As mentioned, she has compiled convictions for 87 offences. As early as the second, third, fourth, fifth, sixth and seventh of this sequence of 87 convictions, the Applicant committed unlawful conduct that was charged as:
·‘obstruct police officer’ (x2);
·‘wilful damage of police property’ (x1); and
·‘serious assault police officer’ (x3).
I am comfortably satisfied that the Applicant’s offending has been very serious from its outset. There is no other way to describe such very serious offending against the instrument of the state (i.e. the police) having responsibility for keeping the community safe. This pattern of significant seriousness persisted throughout the Applicant’s offending history and crystallised into other very serious conduct in the realms of (1) property offending; (2) further offending against police officers; (3) breaches of bail and orders for probation; (4) drug offending; and (5) quite significant offending in the realm of domestic or family violence.
This paragraph 8.1.1(1)(d) of the Direction thus volubly speaks to a finding that this Applicant’s conduct has been of a very serious nature.
The next paragraph to address for the assessment of the nature and seriousness of the Applicant’s conduct is paragraph 8.1.1(1)(e) which requires identification of any cumulative effect(s) of the Applicant’s repeated offending. Such is the scope and extent of this Applicant’s offending history that the following cumulative effects can be readily identified from it. First, despite over a decade of sentencing courts applying respective sentencing regimes aimed at deterring the Applicant from further offending, it appears she has experienced little or no deterrent effect during that sentencing journey. Non-custodial terms had no deterrent effect on her. It would seem that despite the plethora of custodial terms imposed in the final third of the Applicant’s offending history, even custodial terms have not succeeded in deterring her from committing further offences.
Second, and perhaps most significantly in terms of it being a cumulative effect, this Applicant appears to neither have, nor purported to develop, any measure of respect whatsoever for the lawful authority governing the Australian community which she now seeks to re-enter. Her offending against the police has been wantonly appalling and it has been a feature of her offending for its virtual entirety. She does not appear to understand and has repeatedly breached lawfully made instruments such as an order for bail or a probation order imposed as a means of regulating her conduct.
Third, an offending history involving (1) convictions for 87 offences; (2) dealt with at 32 sentencing episodes; (3) resulting in total head custodial time of six years and 17 days is, beyond question, conduct that has well and truly consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. Across her offending history of about 13 years, she has committed an average of six to seven offences per year and has been dealt with by sentencing courts at an average of two to three sentencing episode for each year of that offending.
Fourth, to whatever extent it may now be said that the Applicant’s conduct may be said to have its roots in predispositive factors deriving from her psychopathology, it is patently obvious that any such predispositive factors remain live, current and unresolved in the context of her pattern of offending. I will have more to say about predispositive factors behind her offending later in these Reasons when talking about recidivist risk. But for present purposes, the inescapable reality is that whatever has caused her to offend between 2009 and 2022 remains unaddressed and unresolved.
I am satisfied that the abovementioned four cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that her offending in Australia has been ‘very serious’.
The next paragraph to address for the assessment of the nature and seriousness of the Applicant’s conduct is paragraph 8.1.1(1)(f) which requires a response to a question whether the Applicant provided false or misleading information to the Respondent’s Department, including by not disclosing prior criminal offending. I have earlier referred to the Applicant’s movement history in and out of Australia. There are two re-entry points after her initial arrival. Those re-entry points occurred during respectively, 2005 and 2007. She did not commence offending in this country until 2009. This paragraph should be put to one side and rendered neutral for present purposes.
The material does not contain any reference to the Applicant receiving any formal written warning about the consequences of further offending and how it could impact her migration status to remain here.[30] As best as I comprehended the material, it does not disclose the commission or conviction of any other offence by this Applicant in another country.[31]
[30] Paragraph 8.1.1(1)(g) of the Direction.
[31] Paragraph 8.1.1(1)(h) of the Direction.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant’s criminal history is one of offending in the realms of (1) illicit drugs; (2) violent offending against both law enforcement officers and members of the public; (3) repeated failures to observe lawfully made instruments such as bail, probation orders and domestic violence orders; and (4) significantly violent acts of domestic or family violence.
It is not at all a stretch of the evidence to suggest and find that in terms of identical harm from the Applicant’s future offending:
·continued offending in the realm of drug possession would represent its own contribution towards the proliferation of illicit substances in the community;
·offences of violence against the police, members of the public and a domestic partner would realistically result in physical, psychological and, quite conceivably, catastrophic harm to victims;
·continued failures to observe lawfully made orders involving bail, probation and the prevention of domestic violence, will consume an undue amount of the community’s law enforcement, judicial sentencing and custodial resources.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending convicted as (1) violent offending against the Police or members of the public; and/or (2) domestically violent offending, is so serious that any risk of its recommission would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s evidence
The Applicant provided oral evidence at the previous iteration of this matter in this Tribunal and also at the instant Hearing before me. At the previous hearing during her
evidence-in-chief, the Applicant was asked why the Tribunal should accept that she is not likely to offend in the future. Her response seemed incomplete and incoherent. She spoke of doing some part-time work if returned to the community. She also spoke about obtaining a ’white card’ in construction and of obtaining some type of rehabilitation for her illicit drug use via participation in a ‘substance intervention program’:
‘DR VAN GALEN-DICKIE: Yes. Good. That’s good. So if we’ve got this history of offending, the tribunal’s trying to figure out why they will believe that you won’t offend again. So can you explain to the tribunal why your life has changed, why you won’t offend again?
APPLICANT: (Indistinct.) We have same interests. (Indistinct) go back and do a little bit of part-time work (indistinct). And I was – I’m aware that you can earn 1,000 points while still having that income.
DR VAN GALEN-DICKIE: Okay. That’s good?
APPLICANT: (Indistinct) get back into that, (indistinct) every year or two years of my life. I’m good around the house.
DR VAN GALEN-DICKIE: Yes?
APPLICANT: (Indistinct) and with the siblings, which I don’t have children myself but I’ve looked after them. (Indistinct.) Yes. (Indistinct.)
DR VAN GALEN-DICKIE: Have you done any training at - - -?
APPLICANT: (Indistinct.)
DR VAN GALEN-DICKIE: What about in prison? Did you do any courses in prison?
APPLICANT: (Indistinct) yes.
DR VAN GALEN-DICKIE: Yes?
APPLICANT: (Indistinct.)
DR VAN GALEN-DICKIE: Yes?
APPLICANT: I’ve got a certificate in (indistinct) services.
DR VAN GALEN-DICKIE: Good?
APPLICANT: First aid, white card, (indistinct) some courses with assistance.
DR VAN GALEN-DICKIE: Yes?
APPLICANT: Yes. Drug course.
DR VAN GALEN-DICKIE: So that’s - - -?
APPLICANT: Substance intervention program. That’s probably (indistinct).
DR VAN GALEN-DICKIE: But that’s a big difference. You’ve never done those courses before?
APPLICANT: (Indistinct.)
DR VAN GALEN-DICKIE: And the white card is construction – helps you with construction, and the antiviolence and drug courses. Yes. Have they changed the way you feel about yourself?
APPLICANT: (No audible response.)
DR VAN GALEN-DICKIE: That’s good. Is there anything else that you’d like to tell the tribunal?
APPLICANT: (No audible response.)’[32]
[My emphasis]
[32] R3, p 12, lines 39-47; p 13, lines 1-28.
In the SFIC filed on behalf of the Applicant as part of the previous Tribunal proceeding, the core of the submission around her recidivist risk was said to reside in the contention about a lack of adequate or appropriate mental health rehabilitation. It was said in that SFIC that the deficiency in mental healthcare afforded to the Applicant ‘…is the responsibility of the Australian governments both at a State and Federal level’.[33] This asserted delinquency in the provision of mental healthcare, it was contented, is demonstrated by the fact that the Applicant’s ‘…history and her mental health and cognitive abilities have been before the authorities since 2012.’[34] The corollary of this contention was propounded on the basis that while ‘the authorities’ assessed her mental health condition as serious enough to qualify her for a disability pension, those ‘authorities’ are somehow now culpable for a failure to escalate her mental healthcare to the level ‘she needs to address her chronic issues’.
[33] R1, p 658 [42].
[34] R1, p 658 [42].

The SFIC filed on behalf of the Applicant in the current proceedings contains a number of inaccuracies. I will refer to paragraph 47 of that latest SFIC which is cast in these terms:
‘47. The remittal bundle contains the findings of the first AAT review. The Tribunal concludes that Nadia is “plainly in need of extended treatment to free her from her drug and or alcohol addiction and to treat her schizophrenia and cognitive impairment” The Tribunal goes on to say that “she has received this treatment in the past and this has not assisted her to desist from offending. [internal citation omitted]”’[35]
[35] A1, p 9 [47].
With due respect to those representing the Applicant, the earlier Tribunal did not say in its decision of 8 September 2023 the things attributed to it in the above quoted paragraph. In the second sentence of the above-quoted paragraph, the commencing words ‘The Tribunal’ should be replaced with ‘The Delegate in the Decision Under Review’.[36] In the third sentence in the above-quoted paragraph, the earlier Tribunal did not go on to say those quoted words. The commencing words to that third sentence should change from ‘The Tribunal’ to ‘The Delegate in the Decision Under Review’.[37] The decision of the earlier Tribunal does not contain any of the words purportedly attributed to it in the above-quoted paragraph. The Applicant’s latest SFIC conflates what the delegate in their decision of

19 June 2023 and what the earlier Tribunal found in its decision of 8 September 2023. This conflation is evident from footnote 25 in the Applicant’s latest SFIC which purports to reference the delegate’s decision of 19 June 2023 as a decision of the earlier Tribunal. This is, of course, incorrect.
[36] See R1, p 21 [73].
[37] See R1, p 21 [73].
It is, with respect, unsustainable for the Applicant to now suggest that blame or responsibility for a failure to rehabilitate or treat whatever mental health symptomatology may have predisposed her to offend is something that should be attributed to ‘the authorities’. As best as I understood the Applicant’s position around factors disposing her to offend, it comes down to the following things:
·her difficulties with illicit substance and alcohol abuse are predispositive of her offending;
·her difficulties with illicit substance abuse are due to psychological factors that emerged earlier in her life and which are now said to be also predispositive of her offending; and
·the failure to address either or both of her (1) substance abuse issues and (2) mental health symptoms is squarely the fault of ‘the authorities’ who are said to be ‘Australian governments both the State and Federal level’ who had apparently known of these issues since 2012.
At the Hearing before me, the Applicant did not give oral evidence-in-chief but she was briefly cross-examined. She was initially asked whether she could recall questions put to her at the previous Tribunal hearing which related to her criminal offending. She replied that she could recall those questions. She was then taken to certain events described in the material that have occurred since the previous Tribunal hearing.
The Applicant confirmed that she had been in immigration detention on a continuous basis since the previous Tribunal hearing. The basic thrust of the questions in cross-examination related to a couple of incidents that are reported to have occurred during her time in immigration detention since the last hearing. The first of those incidents is reported to have occurred on 13 November 2023 which involved her addressing detention officers in profane terms and which also involved her flipping over two tables near a basketball court. She confirmed that she recalled this incident but had little further to say about it.
The second incident to which she was taken occurred in January 2024 which again is reported as an incident where she picked up multiple tables, chairs and gymnasium equipment and started to throw that equipment around the precincts. The relevant document in the material also records that detention centre officers were asking her to cease her behaviour but that these urgings and requests were ignored by her. She said in cross-examination that although she recalled specifically throwing a table and chair, she did not recall throwing any gym equipment because ‘…there’s no gym equipment out in the compound.’[38] Finally in her cross-examination, it was put to her that there have been other occasions, other than the two referred to above, in which she has been aggressive towards detention centre officers. She accepted that this was correct but offered no further explanation about it.
[38] Transcript, p 11, line 37.
In a written statement of the Applicant dated 24 July 2023 comprising part of her written evidence for the previous Tribunal hearing, she spoke about her offending in these terms:
‘I am not proud of my record. There have been a couple of times where going to jail has saved my life because I was in danger, through my actions and the people I was mixing with. I accept my behavior has made it hard for Home Affairs to give me back my visa. I spent my last stint in jail making sure I did everything right. I have been able to reach out to my brother, my cousin and my friends and I am working hard to make sure I keep my health and can move forward.’[39]
[39] R1, pp 669-670
A theme of the Applicant’s life thus far appears to have been one of isolation and of feeling that those around her did not care for her or want her around them. For example, in this statement she says ‘My childhood was not a happy one. I was passed around by my family and don’t feel they wanted me. My father was an alcoholic and he had a criminal history.’[40] She speaks of her period of removal from the community and looks forward to a return to that community in a ‘loving caring relationship’:
‘Detention has been harder than jail. The center [sic] has been good to me but there are different routines and different rules and people. I find it a struggle here but know if I can make it in here and stay healthy I can make it when I am outside in a loving caring relationship.’[41]
[40] R1, p 668.
[41] R1, p 670.
She also spoke of the love she felt for her mother but, at the same time, feels let down by her. She spoke of doing some remunerative work in Australia but that her diagnosis with schizoaffective disorder in 2012 curtailed her capacity to work. In this statement she says both of her parents have died and that her mother’s death by suicide particularly upset her resulting in her becoming extremely depressed:
‘I loved my mother and had some good times with her, however I feel that in some ways I was let down by her. My parents separated when I was young and my mother left me with my alcoholic father and came to Australia without me.
I have worked in Australia and at one point worked in the same place as my mother but my mental health began to affect my ability to work. I was diagnosed with schizoaffective disorder in 2012.
My parents have died. My mother's suicide particularly upset me and I became extremely depressed. [42]
[42] R1, p 669.
The clinical evidence
I have identified five specific pieces of clinical evidence in the material referrable to the Applicant’s psychopathology. There is only written evidence from the first four of those clinicians. The fifth, Dr Luke Hatzipetrou, provided both written and oral evidence to the instant Hearing. I will address each of these five pieces of evidence based upon their chronological sequence.
Mental Health, Fitness and Soundness Assessment Court Liaison Service Report, 23 March 2018: Ms Bella Plowman was, at the time of this report, the Senior Mental Health Clinician attached to the relevant Queensland Government instrumentality that provided an assessment of the Applicant to a court in Toowoomba that had to try the Applicant on a range of charges comprising: ‘breach of bail (x1)’, ‘common assault (x2)’, ‘serious assault of person over 60 (x1)’, ‘wilful damage (x1)’ and ‘commit public nuisance (x1)’.[43]
[43] R1, p 539.
Ms Plowman’s report made findings that the Applicant was a person then currently fit for trial and that she ‘….was of sound mind for all charges’.[44] Ms Plowman noted that the Applicant ‘…is diagnosed with schizophrenia and is currently treated in the community under a treatment authority as an involuntary patient.’[45] Ms Plowman’s report further notes that the Applicant ‘first had contact with mental health services when aged 22, her first presentation for psychosis was in 2013 and she was first placed on a[n] involuntary treatment order in April 2013.’[46]
[44] R1, p 538.
[45] R1, p 538.
[46] R1, p 539.
In terms of illicit drug use, Ms Plowman noted the Applicant ‘…has a reported history of illicit drug use, commencing at the age of 11 years old, which has historically complicated the course of her illness. She reported daily substance use at times in her life and reported that she has reduced her substance use recently’.[47] Under the heading ‘UNSOUNDNESS OF MIND AT THE TIME OF ALLEGED OFFENCES’, Ms Plowman found that (1) the Applicant was suffering from a mental disease at the time of the alleged offences then before the court; (2) the Applicant was suffering from a ‘natural mental infirmity‘ at the time of the alleged offences; and (3) the Applicant’s actual diagnosis at the alleged offences was ‘Schizophrenia’.[48]
[47] R1, p 540.
[48] See generally, R1, pp 544-545.
Ms Plowman opined that on the balance of probabilities, the Applicant was not deprived of any capacity to (1) understand what she was doing in relation to the offences; (2) control her actions in relation to the offences; and (3) know that she ought not to do the conduct giving rise to the offences.[49] Ms Plowman’s report concludes with a finding that the Applicant was fit to be tried on the then-current charges proferred against her. Ms Plowman rationalised this finding on the basis that ‘Ms Peek has a diagnosis of schizophrenia, despite this diagnosis she meets the standard for fitness for trial.’[50] Ms Plowman’s report does not otherwise make any further forward-looking assessment about the Applicant’s level of recidivist risk or her capacity to be able to do or not do something.
[49] R1, p 545.
[50] R1, p 546.
Report of Clinical Nurse, Hong Wang, 27 May 2020. Nurse Hong Wang is a clinical nurse trained as a Mental Health Transition Clinician who works at the Prison Mental Health Service (‘PMHS’) which is attached to the West Moreton Health facility of the Queensland Government. Nurse Hong Wang’s report appears in the material.[51] It was provided pursuant to a request from the Applicant’s then-legal representatives in anticipation of a forthcoming court date. The Report notes that the Applicant ‘…has been a client of the PMHS for the duration of his [sic] incarceration.’[52]
[51] R1, pp 556-557.
[52] R1, p 556.
The report notes that the PMHS’s psychiatric registrar, Dr Yamini Samay ‘…has diagnosed Ms Peek with Schizoaffective Disorder’.[53] The report describes the medication then prescribed to the Applicant and it notes that she has been adherent with her medication. The report also talks about the Applicant being referred to and accepted for the ‘Transition Co-ordination Program offered by PMHS.’[54] This program is intended to assist people such as the Applicant in transitioning back into the community. The report notes:
‘This transitional support is completed by working alongside the client to help develop plans for release which can include referral back to community mental health services. General Practitioners, private psychologists, drug and alcohol supports services, Centrelink, and any other relevant services identified by the client and PMHS.’[55]
[53] R1, p 556.
[54] R1, p 556.
[55] R1, p 556.
The report also notes that the Applicant:
‘…has also been referred and accented to the Recovery-Support Program offered by Richmond Fellowship Queensland (RFQ). This program provides post release and transitional support to clients of the PMHS who are released from custodial facilities across South East Queensland. Richmond Fellowship Queensland provides up to six months of psychosocial support post-release for those in the program.’[56]
[56] R1, p 556.
Finally nurse Hong Wang’s report notes that:
‘If released from custody Ms Peek will be referred for ongoing management of her Depot by her GP, in the past, she has been declined by case management of Local District Mental Health Service due to her history of poor engagement.’[57]
[My emphasis]
[57] R1, p 557.
There is surely nothing to cavil with the proposition and the finding that the Applicant’s history of poor engagement with rehabilitation continued after the date of this report. She compiled something like 20 convictions after the date of this report which preceded a return to the community. Indeed, after the date of this report the Applicant committed some of her most significant domestically violent offending and she continued with her drug offending.
Information Notice Parole Board Queensland, 29 June 2020. The material contains an information notice issued to the Applicant by the Queensland Parole Board presumably in relation to a certain court-ordered parole order granted to the Applicant on 18 June 2020. In short order, the Parole Board ‘…decided to confirm the decision to indefinitely suspend the court ordered parole order.’[58] The Parole Board appears to have taken this decision consequent upon the Applicant’s commission of further offending comprising ‘Contravention of a domestic violence order (aggravated offence) on 23 June 2020’ which resulted in the Applicant being remanded in custody. The Parole Board noted ‘There is a link between your use of dangerous drugs and your offending.’[59]
[58] R1, p 563.
[59] R1, p 563.
The Parole Board also noted:
‘[The Applicant] are supported by the Richmond Fellowship[60]. Your presentation at your induction interview on 19 June 2020 was poor, Your support worker who attended your induction with you had seen you the previous day and informed Community Corrections that they believed that you was [sic] under the influence of illicit substances…’[61]
[60] Is a charitable institution dedicated to the provision of professional recovery-oriented psychosocial services throughout Queensland.
[61] R1, p 563.
The Parole Board concluded as follows: ‘Accordingly, the Board reasonably believes that you pose an unacceptable risk of committing an offence and that you pose a serious risk of harm to someone else.’[62] [My emphasis]
[62] R1, p 563.
Dr Carolina Ceron, 23 September 2020. Dr Ceron is a Consultant Psychiatrist who, in September 2020 prepared a report for the West Moreton Health facility that is part of the Queensland Government. Dr Ceron’s report appears in the material.[63] It was prepared at the request of the Applicant’s then-legal representative who was scheduled to make a bail application on behalf of the Applicant at that time. Dr Ceron noted the Applicant ‘…had a prejudicial childhood leading to early alcohol and illicit substance abuse from early adolescence’.[64]
[63] R1, pp 566-567.
[64] R1, p 566.
In terms of the Applicant’s psychiatric history Dr Ceron noted the following:
Ms Peek’s contact with public mental health services is documented from 2013. She is well known to the Toowoomba MHS, having had nine psychiatric admissions since, usually with psychotic symptoms in the context of illicit substance use and non- adherence to treatment. She has also had psychiatric admissions due to suicidal ideation (and one suicidal attempt in 2015) and in the context of homelessness and acute grief. Sadly, Ms Peek’s mother died by suicide in 2017. Ms Peek has an established diagnosis of Schizoaffective disorder documented since 2014 and has been case managed and treated under Involuntary Treatment Orders for long periods including from 2013-2016 and from 2017-2019. Her illness has been complicated by polysubstance use, poor insight and disengagement from services. She did not engage well with more assertive forms of community case management like the mobile intense rehabilitation team (MIRT). Her last admission occurred in April 2020 (she had a relapse of psychotic symptoms in the context of substance use), however, she was not case managed due to her prior history of poor engagement.’[65]
[My emphasis]
[65] R1, p 566.
In terms of ongoing illicit substance use, Dr Ceron noted ‘Ms Peek admitted to regular methamphetamine and cannabis use in the community and appeared pre-contemplative regarding change.’[66] In terms of then current diagnoses for the Applicant, Dr Ceron noted ‘Schizo-affective disorder-in remission’ and ‘Cannabis and methamphetamine use disorder’.[67] Dr Ceron’s report concludes with these findings:
‘She remains at high risk of deterioration of her mental state due to ongoing illicit substance use in the community, however, is not currently unwell and thus does not meet criteria for psychiatric admission or use of the MHA involuntary provisions.’[68]
[66] R1, p 567.
[67] R1, p 567.
[68] R1, p 567.
Dr Victoria Barclay-Timmis, 13 November 2020. Dr Barclay-Timmis is a registered clinical psychologist and her report, dated 13 November 2020, appears in the material.[69] Her report was prepared for the Applicant’s then-legal representatives who were representing the Applicant on a charge of ‘Contravention of Domestic Violence Order’ committed on 24 June 2020. Dr Barclay-Timmis found the Applicant to be ‘not a good historian’[70] and found it difficult to establish a timeline of relevant events for recording in her report. In terms of generalised findings, Dr Barclay-Timmis said the following:
‘While Ms Peek was unable to provide a clear or coherent account of her background history, she indicated a childhood characterised by transience, instability of carers, early substance abusing, and exposure to violence and neglect. Ms Peek’s intellectual limitations were evident during interview and confirmed by the results of formal testing. Indeed, Ms Peek’s performance on the WAIS-IV[71] indicated that her cognitive abilities were likely to place her in the bottom 0.5% of her peers.’[72]
[69] R1, pp 190-195.
[70] R1, p 192.
[71] Denoting, ‘Wechsler Adult Intelligence Scale’.
[72] R1, p 194.
In terms of a specific finding about recidivist risk, the report of Dr Barclay-Timmis contains the following findings:
‘Risk of Reoffending/Danger to Community: After careful consideration of the specific factors of this case (as outlined herein), a high risk of recidivism was identified. This was based on Ms Peek’s mental health conditions, substance abusing behaviour, impaired insight and judgement, and limited support network. For important lifestyle issues to be actioned, and risk reduced, Ms Peek will require professional assistance (see recommendations contained within the paragraph above).’[73] [My emphasis and underlining]
[73] R1, p 194.
Those professional assistance recommendations referred to in the immediately preceding quoted paragraph are expressed by Dr Barclay-Timmis in these terms:
‘It is strongly recommended that Ms Peek is referred to a rehabilitation facility so that she can be supported to cease her substance abuse. Of significant concern is the fact that Ms Peek is currently homeless; she will require support to find appropriate housing. The chronic nature of Ms Peek’s mental health conditions and intellectual difficulties evidently have a significant functional impairment; she will likely require ongoing support-worker assistance. It is possible that this support could be funded via the National Disability Insurance Scheme (NDIS), if Ms Peek is supported to make an application.’[74]
[My emphasis]
[74] R1, p 194.
Dr Chrystal van de Belt, 14 March 2023. Dr van de Belt is a psychiatrist who, in March 2023, prepared a report for the West Moreton Health facility that is part of the Queensland Government. Dr van de Belt’s report appears in the material.[75] Dr van de Belt says she has ‘…managed [the Applicant] from 19 July 2022…’[76] Dr van de Belt recounts that the Applicant ‘…has a history of psychotic symptoms since at least 2012.’[77] She notes the Applicant’s previous diagnoses comprising paranoid schizophrenia, bipolar affective disorder or schizoaffective disorder. Her report notes that the Applicant was then being treated for schizoaffective disorder.
[75] R1, pp 197-198.
[76] R1, p 197.
[77] R1, p 197.

Dr van de Belt notes a further diagnoses of ‘Borderline Personality Disorder which developed from [the Applicant]’s traumatic childhood experiences…characterised by transience, parental alcohol abuse, childhood sexual abuse, exposure to violence and neglect, instability of carers, early onset substance use (at 7 years of age) and adult victimisation.’[78] Dr van de Belt noted the Applicant ‘demonstrated deficits in general knowledge of words, abstract reasoning and ability to deal with abstract social conventions, rules and expressions.’[79]
[78] R1, p 197.
[79] R1, p 198.
Dr van de Belt was of the opinion that these cognitive impairments of the Applicant ‘…in addition to her chronic mental health issues were thought to result in a significant functional impairment and that [the Applicant] required a high level of community and specialized professional support.’[80] Dr van de Belt found the Applicant ‘…has been compliant with long-acting injectable antipsychotic medication in custody and I have been unable to illicit any symptoms of Schizoaffective disorder.’[81] [My emphasis]
[80] R1, p 198.
[81] R1, p 198.
Dr Luke Hatzipetrou, 24 July 2023. Dr Hatzipetrou is a forensic and clinical psychologist in private practice whose report appears in the material.[82] Dr Hatzipetrou recorded a Relevant Social History of the Applicant including her family circumstances, education and vocational/non-vocational history. Dr Hatzipetrou also made a summary of the Applicant’s relationships including those with her family, her peers and any intimate relationships. He also summarised the Applicant’s medical history, drug and alcohol history, forensic history and psychiatric history.
[82] R1, pp 671-687.
Dr Hatzipetrou conducted a mental state examination on the Applicant and made the following findings:
‘On the balance of the findings, Miss Peek had referred to a pattern of symptoms consistent with schizoaffective disorder currently in remission. As opined by Dr van de Belt, Miss Peek did present with a pervasive pattern of behaviours and emotional responses consistent with cluster B personality traits (borderline personality traits). To this end, Miss Peek’s exposure to adverse events, insecure attachments and unstable living circumstances were likely to be traumatising and impacted on the personality structure. As such, Miss Peek presents with a pattern of a fragile self-identity, marked impulsivity and a fear of abandonment and rejection. Moreover, Miss Peek reacts excessively to threats and/or actual rejection or slights in her character. Miss Peek experiences marked levels of distress and/or episodes of emotional and behavioural dysregulation within close relationships.’[83]
[83] R1, pp 680-681.
In terms of assessment of the Applicant’s recidivist risk, Dr Hatzipetrou applied the HCR-20v3[84] testing methodology to evaluate the Applicant’s risk of violent recidivism. He concluded that ‘Considering the current risk factors, Miss Peek’s estimate of violent recidivism is high. The risk of imminent violence is moderate, while the risk of causing serious harm to others appears to be low to moderate.’[85] In terms of ongoing risk factors, Dr Hatzipetrou thought:
‘…[the Applicant]’s offending behaviour appears to be affected by the confluence of a serious mental health disorder (psychotic disorder), protracted polysubstance dependency disorder, impulsivity and poor reasoning abilities associated to her cognitive impairment, exposure to violence and abuse during the early stages of childhood development and, more so, exposure to traumatic events.’[86]
[84] Denotes, ‘Historical Clinical Risk Management-20, Version 3’.
[85] R1, p 684, lines 583-585.
[86] R1, p 684, lines 590-594.
In terms of management of these risk factors Dr Hatzipetrou thought:
‘These risk factors can be managed through the access to mental health services, which include psychiatry and psychology/counselling, completion of a residential-based drug and alcohol program with compliance to random drug tests, supports provided by disability services, continued access to programs regarding self-regulation, as well as improving her understanding of relationships and boundaries. Importantly, Miss Peek had accessed some of these services in past, yet her propensity to re-offend was also affected by factors such as ineffective coping responses, cognitive distortions, impaired understanding of relationships, unstable living circumstances and ongoing relapses in drug use. Miss Peek did not appear to have access to the requisite treatments and services required to manage these risk factors.’[87]
[My emphasis]
[87] R1, p 684, lines 595-603.
Finally, Dr Hatzipetrou made reference to the Applicant’s expressed future plans. He thought the Applicant’s understanding and description of those plans presented a ‘considerable concern.’ He thought the Applicant’s:
‘…future plans were simplistic and lacked planning and organisation. Considering Miss Peek’s current clinical presentation and cognitive abilities, the lack of sophistication in future plans is not unexpected. To this end, this response reflects the severity and complexity of Miss Peek’s presentation and impairments. Without an effective support system, this presents as a considerable concern in light of the cancellation of the Visa.’[88]
[88] R1, p 686, lines 697-700.
Dr Hatzipetrou also provided oral evidence at the instant Hearing. During cross-examination he was taken to his findings about the extent to which treatments or management strategies might reduce the Applicant’s level of recidivist risk. He agreed that the psychopathological factors predisposing the Applicant to offend have not been adequately managed in the past. This is what transpired between Dr Hatzipetrou and the Respondent’s representative:
‘MR FREEBURN: Right. You’ve mentioned a couple of times that there are – or it’s possible that treatments or management strategies might reduce the risk of recidivism, rather?
DR HATZIPETROU: Yes.
MR FREEBURN: But it’s the case, isn’t it that, I think in your report, you talk about that Ms Peek has accessed limited amounts of such supports. Is that right?
DR HATZIPETROU: Yes. You know, and I suppose one of the features that pops up is the (indistinct) is sort of – it’s fragmented. You know, there’s periods where she gets it, periods where she doesn’t, probably not affected by – you know, not helped, I suspect, by, you know, the lifestyle, the, you know, the lack of effective sort of supports around her, but her level of treatment would’ve been better in the past.
MR FREEBURN: So it’s not as if, to a substantial degree, these issues that you identify have been managed. It’s not the case, is it?
DR HATZIPETROU: That they haven’t been management to a significant degree?
MR FREEBURN: Sorry ?
DR HATZIPETROU: Yes, probably not as – not as well as it should’ve been.’[89]
[89] Transcript, p 23, lines 21-39.
There followed several questions from me that I put to Dr Hatzipetrou. The first of those related to his finding or recommendation about the Applicant receiving rehabilitative treatment on an ongoing basis. I specifically asked Dr Hatzipetrou about why the Applicant continued to offend even though she had been under the care of at least some clinicians during her period of offending. As best as I understood his evidence he was of the view that the Applicant required then, and continues to require now, a higher level of rehabilitative support than had been the case during her period of offending:
‘SENIOR MEMBER: So when you talk about essentiality or the very great importance of the applicant receiving treatment on an ongoing basis, when you – when you note the fact that she was treated by Dr van de Belt for her schizophrenia and associated conditions in 2012 when incarcerated and yet came out to reoffend, the level of that management, care and control has to be at a very high level, doesn’t it, to effectively speak to her recidivist risk now?
DR HATZIPETROU: Well, it does, and I do – I think, in the last proceedings, it talks – I mention that it wasn’t as high – it didn’t meet the need that she had, and there may be, you know, reasons like we talked about before, and she wasn’t always compliant. And so, right at this juncture, she would need a higher level of support. Yes.’[90]
[90] Transcript, p 26, lines 34-44.
I then took Dr Hatzipetrou to the risk assessment he arrived at. That assessment or estimate is put in these terms:
‘Considering the current factors, Miss Peek’s estimate of violent recidivism is high. The risk of imminent violence is moderate, while the risk of causing serious harm to others appears to be low to moderate.’[91]
[91] R1, p 684, lines 583-585.
He agreed that his estimate of the Applicant’s risk of violent recidivism is high and remains so. But I sought to clarify a difficulty I had with the next group of words in his finding which were expressed as ‘The risk of imminent violence is moderate…’ I sought to explain my difficulty in trying to understand the relationship between, on the one hand, his assessment of a high level of violent recidivist risk with, on the other hand, a moderate risk of imminent violence. Dr Hatzipetrou explained this apparent disparity in these terms:
‘SENIOR MEMBER: I just have trouble understanding those two concepts next to each other. So the concept in the first sentence is the violent – the estimate of violent recidivism is high, and then you say the risk of imminent violence is moderate?
DR HATZIPETROU: Yes
SENIOR MEMBER: How do those two aspects sit together?
DR HATZIPETROU: Well, when I assessed her, she was in the detention centre. She wasn’t using drugs. She was getting treatment for her mental health disorder. She had supports wrapped around her in the actual detention centre. So, you know, some of those risk factors were already – you know, were being – were moderating those risk factors. So the way the tool is set out - - -
SENIOR MEMBER: But it’s this, isn’t it - - -?
DR HATZIPETROU: I understand what you’re saying.
SENIOR MEMBER: It comes down to this, that the only way to understand those two concepts is to accept what – that you say, or I understand that you say, the violent – the risk of violent recidivism is high, and then you counterpoint that in the next sentence by saying the risk of imminent violence – that is, violence over the next two or three days – is moderate. Is that what you’re saying? So her immediate risk is moderate?
DR HATZIPETROU: Yes.
SENIOR MEMBER: but overall, looking into the future, six, 12, 18 months ahead, the risk remains high?
DR HATZIPETROU: Yes. High.
SENIOR MEMBER: That’s the best way that I can reconcile those two phrases. Is that so?
DR HATZIPETROU: That’s how it’s supposed to, yes, be understood.’[92]
[92] Transcript, p 27, lines 42-45; p 28, lines 1-21.
The next query I had for Dr Hatzipetrou was how the concepts of (1) his estimate of a high risk of violent recidivism sits with (2) his finding of a low to moderate risk of the Applicant causing serious harm to others. My query devolved into a question along these lines: how can someone be found to be of a high risk of violent recidivism yet only represent a low to moderate risk of causing serious harm to others? Dr Hatzipetrou sought to explain this apparent disparity in his findings in these terms:
‘SENIOR MEMBER: I think what you’re saying – and please correct me if I’m wrong – is – just putting aside the temporal element, because that’s clear from your use of the word ‘imminent violence’. I understand that?
DR HATZIPETROU: Yes.
SENIOR MEMBER: What you’re saying is that, if she’s put out into the community, there’s not much of a chance that she’s going to be violent towards someone in the next two or three or four days. But I think the only way to read those – the two concepts – and those two concepts are, first line, ‘estimate of violent recidivism is high’, the second concept is ‘risk of causing others serious harm appears to be low to moderate’ – I think what you’re saying is that, if she commits an act of violence over, let’s say, the next six or 12 months, you’re saying that, in committing that violent act, the risk of serious harm to others is low or moderate. So let’s get down to an example?
DR HATZIPETROU: Yes.
SENIOR MEMBER: Serious violent offending involves putting a knife to someone and slashing them with it. That’s very violent, very serious. Less serious violent offending is walking up to someone and pushing them – pushing them in the shoulder backwards. They might fall to the ground, but they’ll certainly go backwards. The second example is not as seriously violent. You’d agree?
DR HATZIPETROU: Yes.
SENIOR MEMBER: All right. So what you’re saying is that, if she comes back into the community and commits violent offending, her prospects of causing serious harm to others – that is, slashing them with a knife to use my example - - -?
DR HATZIPETROU: Yes.
SENIOR MEMBER: - - - that risk resulting from her violent recidivism is low to moderate. Is that what you’re saying?
DR HATZIPETROU: That’s what I’m saying. Yes.’[93]
[93] Transcript, p 29, lines 8-35.
Are there are any demonstrated protective factors against recidivist risk?
I looked through the transcript and sought to ascertain whether any individual represented either a protective factor or could facilitate access to a protective factor to assist this Applicant to lower her recidivist risk. In her evidence-in-chief to the previous Tribunal, Ms Michelle Williams (the Applicant’s partner) spoke of providing ‘support’ to the Applicant in terms of the Applicant engaging with counselling. But this evidence goes no higher than Ms Williams saying ‘I have been talking to an Aboriginal health team to about doing counselling. I was going to get Nadia to come to the counselling sessions with us together to different lots of counselling through the indigenous people.’[94]
[94] R3, p 27, lines 33-36.
When cross-examined at the previous Tribunal, it emerged that any initiative towards counselling by either or both the Applicant and Ms Williams was largely an aspirational one and yet to have occurred. The evidence of Ms Williams goes no higher than her suggesting that ‘…we had all these [counselling sessions] planned before….’[95]. And further, that in terms of actually causing the Applicant to engage with a counsellor or psychologist, the evidence of Ms Williams went no higher than ‘I am just waiting to hear back from them – I just rang the hospital again and waiting to hear back from the (indistinct), you know, from (indistinct). My doctor said he can get (indistinct), you know what I mean, yes.’[96] In response to the specific question about when she started making enquiries about sourcing rehabilitative services, she said ‘I’ve been making them for a while, yes. You know, I – to tell you the honest truth, I find it hard to trust people I talk to like counselling and that, but I know that I need it and so does Nadia. And, you know, (indistinct) I’ve done it before and I’ll do it again.’[97]
[95] R3, p 29, lines 35-36.
[96] R3, p 29, lines 46-47; p 30, lines 1-2.
[97] R3, p 30, lines 5-8.
I am not satisfied that Ms Williams, whether as the relationship partner (i.e. in terms of emotional support) of the Applicant or in terms of whatever approaches she may have made to rehabilitate services on behalf of the Applicant, now represents any sort of protective factor against the Applicant’s recidivist risk.
The remaining question is whether the Applicant’s cousin, Mr Edwin Peek now represents any kind of preventive factor against the Applicant’s recidivist risk. In his statement of July 2023, he says the following:
‘27. She's told me she wants to get better, I said to her, this is the only way forward, I 'm not doing this to be made a fool. I'm doing this because I love her and want her to know. she [sic] still has love and support here in Australia...whether it's me, her partner or her brother!
28. I'll personally make more of an effort with her even if it's a call or a catch up.
29. I'm sure she'll do anything to have that opportunity.’[98]
[98] R1, p 691 [27]-[29].
Mr Edwin Peek’s evidence in cross-examination given at the previous hearing gives rise to significant misgivings about what he said in his written statement. He told the previous hearing that he last saw the Applicant when they were both back in New Zealand and that he has never seen her in Australia. The Applicant has never met Mr Peek’s partner. In these circumstances, it is very doubtful that Mr Peek would be in any position to offer any kind of supportive or protective factor against the Applicant’s risk of recidivism.
What does the Respondent say
The Respondent’s primary contention is that ‘…there is insufficient evidence to support a conclusion that the applicant is now rehabilitated’.[99] And further, that the Applicant represents an unacceptable risk of further offending for these reasons:
[99] R2, p 10 [41].
·Dr Barclay-Timmis’ opinion that the Applicant represented a high risk of reoffending due to her unresolved mental health condition(s), her issues with illicit substances, and alcohol, her impaired insight and judgment and her limited support network;
·Dr Hatzipetrou’s assessment of the Applicant representing a high risk of further violent offending;
·whatever rehabilitative support and treatment the Applicant has received has been in the context of a custodial environment and that such treatment ‘…must be considered in the context of the historic failure of the Applicant’s treatment in the community’;[100]
·the present state of the Applicant’s sobriety from illicit substance abuse is unclear. There is evidence of her taking methamphetamine while in criminal custody as recently as the middle part of 2023;[101]
·the significant history of the Applicant’s involvement with substance abuse. Her involvement with illicit substances commenced as early in her life as age seven;
·the range of past and current diagnoses including paranoid schizophrenia, bipolar affective disorder, schizoaffective disorder and borderline personality disorder which have been incompletely treated in the past and seemingly continue affect her now;
·the clinically assessed deficits in the level of the Applicant’s cognitive functions and the extent to which this impairs her insight into, a judgment of, her offending;
·the simplistic and largely unplanned state of the Applicant’s future plans upon a return to the community with particular reference to implementation of, and adherence to, any sort of rehabilitative or treatment plan to facilitate that treatment;
·the Applicant’s continuing and non-compliant and aggressive behaviour during her time in prison and immigration detention; and
·the Applicant’s failure to experience any notable deterrent effect from the progressive sentencing regime imposed on her.
[100] R2, p 10 [41.3].
[101] See generally, R3, p 12, lines 14-27.
Findings about recidivist risk
Having considered the lay and clinical evidence, I will now summarise my findings around the Applicant’s current recidivist risk:
·the Applicant’s evidence to the previous Tribunal about any remunerative work she would do if returned to the community was vaguely stated and otherwise unconvincing. I am not satisfied that the prospect of remunerative employment represents any protective factor in the event of her return to the community now;
·the previous SFIC of the Applicant appears to conflate the delegate’s finding in the Decision Under Review with the earlier Tribunal’s findings. The contention in that SFIC on this issue of risk should be thus viewed with caution;
·it is unsustainable for the Applicant to purport to lay blame for the incomplete and unsatisfactory state of her rehabilitation at the feet of State and/or Commonwealth ‘authorities’. Sooner or later she must take responsibility for her treatment and rehabilitation. The material makes it clear that (1) she does not lack cognitive ability to participate in a regime of rehabilitative treatment; (2) fulsome and substantial programs of treatment have been offered and scheduled for her but that (3) she has a poor history of remaining engaged with rehabilitation while in the community and to then consequently resume her pattern of offending. Indeed, at least two clinicians have noted her poor history of adherence to treatment. Nurse Hong Wang noted that ongoing case management has been declined to the Applicant ‘…due to her poor history of engagement.’ The Consultant Psychiatrist, Dr Ceron, noted the Applicant’s ‘…disengagement from services…’ and that she ‘…did not engage well with corrective forms of community case management…’;
·I am thus compelled to find there is a strong and convincing likelihood of the Applicant again disengaging with rehabilitation in the community and to again succumbing to substance abuse which will immediately predispose her towards resuming her pattern of offending. This finding is augmented by the reality that, as found by Dr Hatzipetrou, her ‘future plans [i.e. upon a return to the community] were simplistic and lacked planning and organisation’;
·Dr Hatzipetrou did, in my respectful and non-clinical opinion, correctly find that the Applicant’s offending behaviour is the result of (1) a serious mental health disorder; (2) her substance abuse disorder; and (3) her limited cognitive capacity. Just as most of the other clinicians did, Dr Hatzipetrou outlined a pattern of rehabilitative treatment necessary for the Applicant to undertake for the effective management of her psychological symptoms grounding the predispositive factors behind her offending. The awkward and damaging truth for the Applicant is (1) she has been afforded access to such modalities of treatment in the past and not adhered to them such that (2) it can now be found she is nowhere near completion (or even adequate participation) in any such rehabilitative journey;
·although its ‘Information Notice’ dates from June 2020, the Queensland Parole Board’s finding that the Applicant then posed an unacceptable risk of committing an offence and that she also posed a serious risk of harm to someone else, should not go unnoticed. This is so because following the Applicant’s eventual release and return to the community, she compiled something like 20 convictions that involved commission of some of her most significant domestically violent offending and other violent offending and that she also resumed her pattern of abusing illicit substances;
·I accept Dr Hatzipetrou’s assessment of this Applicant representing a high risk of violent recidivism. While I carry certain misgivings about how an assessment of high recidivist risk for violent offending can comfortably sit with either or both of (1) a moderate risk of imminent violence; and (2) a low-moderate risk of causing serious harm to others, I will nevertheless accept Dr Hatzipetrou’s assessment of there being a high risk of this Applicant committing an offence of violence at some point relatively soon after her return to the community. This is not a level of risk that the Australian community should be reasonably expected to tolerate; and
·I have sought to locate protective factors against the risk of the Applicant recommitting her offences. The evidence of Ms Williams about possibly sourcing rehabilitative services for the Applicant (and herself) was both aspirational and unconvincing. The evidence of the Applicant’s cousin, Mr Edwin Peek, about him representing some kind of protective factor was well-intended but it could not now be safely found to even remotely represent any type of factor militating against the Applicant’s recidivist risk.
Assessment of recidivist risk

In relation to sub-paragraph (b) of the abovementioned paragraph [186], the Applicant has spent about the last 17 years in Australia since initially arriving here as a 14-year-old in 2004, taking into account the time she spent outside of Australia since initially arriving here. She has spent 51 per cent of her life in this country and is currently aged 33 years. She has a very moderate work history in Australia. She has no biological children in Australia. Whatever participation in, and contribution to, the Australian community she may have made during her time here cannot necessarily be found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [186], I repeat that the Applicant has, since her initial arrival in 2004, spent about 17 years or 51 per cent of her life in Australia but that she did not spend her formative years here. She is currently 33 years of age and has spent over half her life in this country. This means the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [186], I am of the view that the length of time the Applicant has spent here (i.e. 17 years since her initial arrival facilitates a raising of the community’s level of tolerance for her offending. This finding cannot be augmented due to her not having spent her formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [186], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing her criminal offending of the same type and magnitude already committed[211] and (on the other hand), whatever countervailing considerations may work in her favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the sheer scope and extent of her offending[212] and its resulting harm thus far has been of such a significant and serious magnitude as to dispel any applicable countervailing considerations.
[211] In particular, her appalling domestic violence offending.
[212] In particular, her appalling domestic violence offending.
In relation to sub-paragraph (f) of the abovementioned paragraph [186], I have found that at least three modes of convictions in the Applicant’s criminal history are captured by sub-paragraphs 8.5(2)(a),(c) and (d) of the Direction. Given that finding, even strong countervailing considerations in her favour may not assist the Applicant. Therefore, my finding must be that the nature of her offending effectively precludes any countervailing considerations working in her favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [186] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very extensive and serious nature of the Applicant’s offending between June 2009 and September 2022, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
The Applicant does not propound the relevance of any of the Other Considerations (a),(c) and (d) to the instant facts.[213] The Respondent takes an identical position with regard to these three Other Considerations.[214] I agree with the respective positions of the parties and will allocate neutral weight to each of Other Considerations (a), (c) and (d).
Other Consideration (b): Extent of impediments if removed
[213] See generally, Transcript, p 43, lines 31-34; p 44, lines 1-9 and lines 13-21.
[214] R2, p 17 [68]-[70]; p 18 [74]-[75].
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 33 years of age. In her PCF she ticks the ‘Yes’ box in response to the question: ‘Do you have any diagnosed medical or psychological conditions’.[215] She records her diagnosed psychological condition in these terms: ‘I suffer from Schizoaffective disorder and depression and anxiety.’[216] She cites the medication she is receiving for her Schizoaffective disorder as ‘Diazepam’ and ‘Paliperidone injections’.[217] She also says in her PCF that she has been prescribed ‘Olanzapine’.[218] There is no mention in the PCF of the name of any doctor/health professional/counsellor under whose care the Applicant may be (or may have been) for her claimed condition.
[215] R1, p 112.
[216] R1, p 112.
[217] R1, p 112.
[218] R1, p 112.
The Applicant’s own evidence is corroborated by the clinical evidence before the Tribunal. It will be recalled that:
·the Senior Mental Health Clinician, Ms Bella Plowman (on behalf of the Queensland Government) accepted that as at March 2018 the Applicant ‘….is diagnosed with schizophrenia and is currently treated in the community under a treatment authority as an involuntary patient.’;
·the Clinical Nurse, Hong Wang recorded in May 2020 that the Applicant had been diagnosed with Schizoaffective Disorder;
·the Consultant Psychiatrist, Dr Carolina Ceron did, in September 2020 confirmed the Applicant ‘…has an established diagnoses of Schizoaffective disorder documented since 2014…Her illness has been complicated by polysubstance use….’
·the Clinical Psychologist, Dr Victoria Barclay-Timmis reported on 13 November 2020 that ‘The chronic nature of Ms Peek’s mental health conditions and intellectual difficulties evidently have a significant functional impairment…’;
·the Psychiatrist, Dr Crystal van de Belt reported on 14 March 2023 that the Applicant ‘…has a history of psychotic symptoms since at least 2012.’ Dr van de Belt noted the Applicant’s current diagnosis to be one of Schizoaffective disorder and that her mental health symptoms ‘…required a high level of community and specialised professional support.’; and
·the Forensic and Clinical Psychologist, Dr Luke Hatzipetrou reported in July 2023 that the Applicant ‘…had…a pattern of symptoms consistent with schizoaffective disorder currently in remission.’ He also though the Applicant presented ‘…with a pervasive pattern of behaviours and emotional responses consistent with cluster B and personality traits (borderline personality traits).’
It is therefore safe to find that the Applicant does suffer from a mental health condition(s) in the form of Schizoaffective Disorder (perhaps in remission) in addition to her having symptoms of borderline personality disorder. In terms of any physical disability, her representative confirmed that the only physical health issue she faced was an asthmatic condition for which she has an inhaler.[219]
[219] See generally, Transcript, p 38, lines 31-42.
The Applicant is 33 years of age and thus of an age where she is either in, or otherwise entering, what is generally known as the prime of her life. For the purposes of this sub-paragraph 9.2(1)(a) I will find that the Applicant’s mental health condition(s) are impediments to her return and resettlement in New Zealand. I will also find that her age and state of physical health are not such impediments.
Paragraph 9.2(1)(b): the Applicant resided in New Zealand until the age of 14 years. There is little or nothing to cavil with the finding that spending almost half her life in New Zealand has surely caused the Applicant to come to know, understand and experience the cultural norms of that country. The Applicant’s movement history after initially arriving here in 2004 indicates she departed Australia for New Zealand on two occasions. In 2004, she went to New Zealand and stayed there for nine months. In 2005, she went back to New Zealand for two years and two months.
New Zealand shares a commonality of language with Australia. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if she returns to New Zealand.’[220] This is my view (and finding) as well. I will find there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in New Zealand.
[220] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. First, I will look at whether the Applicant will experience any social impediment to a return and resettlement in New Zealand. In her statement of 24 July 2023 the Applicant says:
‘I am scared of being sent away to New Zealand. I don't know how to cope in a country where I have no support. Here I have Michelle [Williams], my cousin and brother, and I know the places to get help from doctors and services. There I won't know who to turn to and I wont [sic] understand how to.
If I have to go to New Zealand I can never come back. Michelle could not come with me and she could not visit me. I would be lost. I am really frightened of going back forever to a country I don't call home.’[221]
[221] R1, p 670.
Earlier in this statement the Applicant refers to family she has in New Zealand in these terms:
‘Family in New Zealand
I only know my mums [sic] side of the family in New Zealand. I have two or three aunties there I have spoken to two'[sic] Aunty Maryisa and Aunty Kerianna. I have grandparents there as well.
None of my relatives in New Zealand have ever stayed in close contact with me. I know I cannot rely on them for any support if I am sent back there.’[222]
[222] R1, p 668.
At the earlier Tribunal hearing, Ms Michelle Williams was asked about (1) the Applicant’s family in New Zealand; and (2) the extent to which she has had contact with them. This is what is recorded in the transcript of that earlier hearing:
‘MS DONALD: Do you know if Nadia has spoken to any of her relatives in New Zealand?
MS WILLIAMS: Yes. She told me she has. I’ve spoken to Nadia’s cousin in Melbourne, and, no, she told me that she’s been talking to her parent-grandparents and (indistinct) and that.
MS DONALD: And - - -?
MS WILLIAMS: Yes.
MS DONALD: Are they aware that she might have to go back to New Zealand?
MS WILLIAMS: Yes. No, don’t want her really back in their family.
MS DONALD: Sorry?
MS WILLIAMS: Yes. And they (indistinct) really don’t want her back in their family.
MS DONALD: Do you know if she’s been speaking with her aunts?
MS WILLIAMS: Yes, she has tried to ring them and she has spoken to them, yes, her mother’s sister and that.’[223]
[My emphasis]
[223] R1, p 30, lines 41-45; p 31, lines 1-8.
Also at the earlier Tribunal hearing, Mr Edwin Peek gave evidence on the same two specific issues. In his evidence-in-chief, he said the following:
‘DR VAN GALEN-DICKIE: Thank you. What support do you think she would get from family in New Zealand?
MR PEEK: Our family’s pretty, like, you know, (you reap what you sow indistinct) sort of people, so. I mean, we’ve all been through some type of bad stuff. I mean, they’ll give her the talk she needs, you know, like, “You better” – guidance or, you know, someone to just talk to, like, (indistinct) someone just genuinely wanting to (indistinct). As far as I’m concerned, with financially supporting her and giving her a place to stay, I think they’ve all been a bit past that now. They’ve got all – have kids and they’re all sort of that age, the time of their life where they’re trying to do their own thing. All they can give her is a lot of moral support.
DR VAN GALEN-DICKIE: Okay?
MR PEEK: Just to let her know that we are here to support her.
DR VAN GALEN-DICKIE: So technically, only moral support is?
MR PEEK: (Indistinct.)
DR VAN GALEN-DICKIE: Yes? Is that what you’re saying? Sorry, we can’t hear you very well?
MR PEEK: (Indistinct.) Sorry.
DR VAN GALEN-DICKIE: That’s okay?
MR PEEK: (Indistinct) No, I wouldn’t say just say moral. I mean, like, if there’s, obviously, financial issues, like, if there’s something that comes up, like, you know, if she gets sick or anything, you know, I’m sure I will do that and they would probably come together because, you know, it’s – Nadia’s not the, you know, the sort of – we’ve got a few crooks in – well, not crooks, but a few people..
DR VAN GALEN-DICKIE: Yes?
MR PEEK: that have, yes, have had a tough road, and, yes, we do look after family. It’s not like we’re going to turn out back, but, sometimes, people just have to run.’[224]
[My emphasis]
[224] R3, p 34, lines 44-46; p 35, lines 1-24.
Obviously, the Applicant’s primary contacts and perceived ‘immediate’ family and close social grouping is in this country. This would possibly include members of the Australian First Nations people of the Kamilaroi Tribe whose Elders have apparently accepted and recognised her. However, in the event of a statutorily compelled removal to New Zealand, it would not be correct to suggest or find that she is entirely devoid of social support in that country. There is evidence that the Applicant has been talking to relatives in New Zealand including her mother’s sister. Be that as it may, I will find that the extent to which the Applicant may have difficulty in establishing social support in New Zealand is of moderate weight towards a finding that this Tribunal should restore her Visa status to remain in Australia.
Second, I will look at whether the Applicant will experience any economic impediment upon a return and resettlement in New Zealand. In terms of remunerative employment, the Applicant’s PCF confirms she has worked as a ‘packer slicer’ and in the field of ‘composite fibre’ in Australia. There is little to cavil with the proposition that she would be able to engage in similar remunerative employment in New Zealand. However, it also likely that given her mental health issues, the Applicant would be placed on some kind of government benefits in New Zealand equivalent to what we know in this country ‘Disability Support Pension’. In that event, the Applicant would be entitled to same type of government-type support as would be generally available to other citizens in that country. The Applicant’s cousin, Mr Edwin Peek, indicated to the previous Tribunal hearing that there was a possibility of financial support for the Applicant from both himself and relatives in New Zealand.[225] While these economic impediments are not insurmountable, I will find that they are nevertheless of moderate weight towards a finding that this Tribunal should restore her Visa status to remain in Australia.
[225] See generally, R3, p 35, lines 10-20.
Third, I will look at whether the Applicant will experience any impediment in terms of medical support in the event of a return and resettlement in New Zealand. I have outlined the clinical evidence about the Applicant’s mental health diagnoses. Those symptoms are both significant and complex and, as the relevant clinicians have stipulated, should be the subject of a sustained pattern of rehabilitative treatment, management and control. New Zealand is a country with a healthcare system broadly comparable to that of Australia. She will have access to such publicly available healthcare as would be available to other citizens of New Zealand.
The concern expressed on behalf of the Applicant is that while the respective healthcare systems between the two countries may be similar, the Applicant cannot be relied on to access and maintain a pattern of rehabilitation on her own, and therein is said to lie the impediment. But that contention can only go so far. This is because even with her close circle around her in Australia there are at least three clinicians who have confirmed she has a ‘…history of poor engagement [Clinical Nurse, Hong Wang]’ with rehabilitation and that ‘she did not engage well with more assertive forms of community case management… [Consultant Psychiatrist, Dr Carolina Ceron]’ and that, even if she remained in Australia, her ‘future plans were simplistic and lacked planning and organisation [Forensic and Clinical Psychologist, Dr Luke Hatzipetrou].’
The other reason the abovementioned contention can only go so far is due to clinical evidence suggesting the Applicant not lacking the cognitive capacity to (1) understand her mental health condition(s); and (2) to understand the need for her engage with treatment. At least one clinician was of the view that she was cognitively fit enough to be tried for her offending. If so, there is surely nothing to cavil with a finding that she must surely by now realise that she needs to keep in contact with, and under the care of, clinicians who can affectively treat her.
Overall, I will allocate a strong measure of weight to this medical impediment the Applicant is likely to face in New Zealand if returned there now. This finding is based on two things: (1) the extent (if any) of any relative difference between publicly availably healthcare for the Applicant’s mental health condition(s) between Australia and New Zealand; and (2) the fact that the Applicant may have to make a greater effort on her own to source and maintain such rehabilitation in New Zealand but, at the same time, noting the clinical evidence suggests she does not lack the cognitive capacity to do so.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to her return and re-settlement in New Zealand;
·her mental health symptoms do represent an impediment to her return and resettlement in New Zealand;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in New Zealand;
·she will face an extent of difficulty in establishing social support in New Zealand and that this does constitute an impediment representing moderate weight in her favour;
·she will face a not insurmountable extent of economic difficulty if removed to New Zealand and that this does constitute an impediment representing moderate weight in her favour; and
·the most significant impediment is that relating to medical support available to her for her mental health symptoms if returned to New Zealand. I have found this impediment carries a strong measure of weight in her favour.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a strong level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of strong weight in favour of revocation;
(c)impact on victims: is of neutral weight; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION

Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of moderate weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a very heavy weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) are outweighed by the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.

DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 19 June 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 220 (two hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........[SGD].............
Associate
Dated: 10 July 2024

Date of hearing: 4 June 2024

Advocate for the Applicant: Dr van Galen-Dickie (Sisters Inside)

Ms Mirja Johanson

Counsel for the Respondent: Mr Douglas Freeburn (Higgins Chambers)

Solicitor for the Respondent: Ms Karrie Hartwig (Lawyer)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

12 January 2024

R2

Statement of Facts, Issues and Contentions (‘SFIC’)

15 May 2024

15 May 2024

R3

Tender bundle

Various

16 May 2024

APPLICANT SUBMISSIONS

A1

Statement of Facts, Issues and Contentions

19 April 2024

19 April 2024

A2

Statement from Linda Jane Southey

Undated

19 April 2024

A3

Statement from Janine Bradley

11 April 2024

19 April 2024

A4

Reply to Respondent’s SFIC

22 May 2024

22 May 2024

ANNEXURE B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	12 January 2024
R2	Statement of Facts, Issues and Contentions (‘SFIC’)	15 May 2024	15 May 2024
R3	Tender bundle	Various	16 May 2024
APPLICANT SUBMISSIONS
A1	Statement of Facts, Issues and Contentions	19 April 2024	19 April 2024
A2	Statement from Linda Jane Southey	Undated	19 April 2024
A3	Statement from Janine Bradley	11 April 2024	19 April 2024
A4	Reply to Respondent’s SFIC	22 May 2024	22 May 2024

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2023/4434

GENERAL DIVISION )
Re: Nadia Ana Lorraine Peek

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   20 June 2024
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 19 June 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

………..................[SGD]............................
Senior Member Theodore Tavoularis

Date of hearing:	4 June 2024
Advocate for the Applicant:	Dr van Galen-Dickie (Sisters Inside)
Ms Mirja Johanson
Counsel for the Respondent:	Mr Douglas Freeburn (Higgins Chambers)
Solicitor for the Respondent:	Ms Karrie Hartwig (Lawyer)
Sparke Helmore Lawyers