Peek and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2861
•8 September 2023
Peek and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2861 (8 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4434
Re:Nadia Ana Lorraine Peek
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:8 September 2023
Place:Sydney
The reviewable decision of 21 June 2023, not to revoke the cancellation of the Applicant’s visa is affirmed.
...............................[SGD].........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – whether the Applicant’s conduct constituted family violence – ties to the Australian community – best interests of minor children in Australia – expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) s 499, 501
CASES
FYBR & Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
8 September 2023
BACKGROUND:
I note the Respondent’s statement of Facts, Issues and Contentions contains a helpful factual summary of this matter, much of which is replicated below.
The Applicant is a 33-year-old citizen of New Zealand. She arrived in Australia permanently in September 2007 and has not departed since that time.
The criminal history of the Applicant, as of 16 November 2022, is as follows:
Date of conviction Offence Sentence 15/6/2009 - Commit Public Nuisance Fined $250 25/5/2010 - Wilful damage police property
- Assault/obstruct police officer
Conviction recorded w/o further punishment 25/2/2010 - 3 charges - Serious assault police officer Convicted, 6 month imprisonment, suspended after 2 months 26/5/2010 - Breach of bail condiction Convicted, $200 fine 15/2/2011 - Possess dangerous drugs Convicted, fined $275 18/7/2011 - Commit public nuisance
- Assault/obstruct police
Convicted, fined $750 14/9/2011 - Failure to appear in accordance with undertaking Convicted, w/o punishment 31/1/2012 - Assault police Convicted, 2 month imprisonment concurrent, parole release 31/1/2012 31/1/2012 - Enter premises and commit indictable offence by break Convicted, 6 month imprisonment concurrent, parole release date 31/1/2012 31/1/12 - 2 charges, Assault/obstruct police officer Convicted, 4 month imprisonment concurrent, parole release 31/1/2012 31/1/12 - Commit public nuisance Convicted, 3 month imprisonment concurrent, parole release date 31/1/2012 30/5/2012 - Commit public nuisance Convicted, fined $450 9/10/2012 - Unauthorised dealing with shop goods (max $150) Convicted, $75 fine 30/1/2013 - Unauthorised dealing with shop goods (max $150) Convicted, no further punishment 30/1/2013 - 2 charges, Possess dangerous drugs Conviction, 22 days imprisonment concurrent 16/9/2015 - Possess dangerous drugs
- Possess utensils/pipes that had been used
- Common assault
- 2 charges, Assault/obstruct police
- 3 charges, Breach of bail condiction
- Assault/obstruct staff member
Convicted on all charges, probation 12 months 14/3/2016 - Commit public nuisance Conviction, $600 fine 18/1/2017 - Unlawful possession of vehicle Convicted, $1000 fine 12/9/2017 - Unlawful possession of suspected stolen property Convicted, $250 fine 12/9/2017 - Contravene direction/requirement Convicted, $150 fine 23/8/2018 - 2 charges, common assault
- Wilful damage
- Commit public nuisance
- Breach of bail condition
Convicted all charges, 12 month probation 13/12/2018 - Possess dangerous drug Convicted, $450 fine 28/5/2019 - Contravene direction/requirement
- Fail to properly dispose of needle/syringe
Convicted, $450 fine 25/6/2019 - 2 charges, Breach of bail condition Convicted, no further punishment 12/8/2019 - Breach of bail condition
- 2 charges, wilful damage
Convicted, $800 fine 29/8/2019 - Not being endorsed to possess restricted drug Convicted, $250 fine 9/12/2019 - Breach of bail condition Convicted, no further punishment 9/12/2019 - Fail to take reasonable care/precaution in respect of syringe/needle Convicted, $150 fine 21/1/2020 - Breach of bail condition Convicted, $200 fine 23/1/2020 - Unauthorised dealing with shop goods (max $150) Convicted, no further punishment 23/1/2020 - Possess dangerous drug
- Serious assault person over 60
- Commit public nuisance
- Breach of bail condition
Convicted all charges, probation 12 months 30/1/2020 - Serious assault person over 60 (domestic violence)
- Obstruct police
- Deprivation of liberty – unlawfully detain/confine domestic violence offence
Convicted all charges, fine $300 20/3/2020 - 2 charges, Contravention domestic violence order (aggravated) Convicted, 48 days imprisonment concurrent, time served, parole date 20/3/2020 20/3/2020 - Breach of probation order Convicted, no further punish, order revoked, 12 month probation 29/5/2020 - Possess dangerous drug
- Fail to properly dispose of needle and syringe
- Contravention domestic violence order (aggravated)
Convicted all charges, 6 month imprisonment concurrent, parole date 18/6/2020 29/5/2020 - Breach of probation Convicted, no further punishment, order revoked – 3 month imprisonment, parole date 18/6/2020 27/11/2020 - Contravention domestic violence order (aggravated) Convicted, probation period 12 months 3/4/2021 - Stealing (domestic violence offence)
- Possess dangerous drugs
Convicted on all charges, no further punishment 3/4/2021 - 3 charges, Contravention of domestic violence order (aggravated)
Convicted all charges, 6 months imprisonment (12 months suspended) 20/4/2021 - Breach of 3/4/2021 order Suspended sentence full invoked, concurrent 20/4/2021 parole 20/4/2021 - 5 charges, Contravention of domestic violence order (aggravated) Convicted all charges, imprisonment 9 month concurrent, parole release 20/4/2021 20/4/2021 - Contravene domestic violence order (aggravated) Convicted, 1 month imprisonment concurrent with the above 16/7/2021 - Contravention of domestic violence order Convicted, 6 month imprisonment concurrent, time served, parole eligibility 16/7/2021 16/7/2021 - Possess utensils/pipes that had been used
- Fail to take reasonable care/precaution in respect of syringe/needle
Convicted, 7 day imprisonment concurrent, time served, parole eligibility 16/7/2021 16/7/2021 - Contravention domestic violence order (aggravated) Convicted, 3 month imprisonment concurrent, time served, parole eligibility 16/7/2021 16/7/2021 - Breach of probation order imposed 27/11/2020
- Contravention domestic violence order (aggravated)
Order revoked, resentenced, imprisonment 2 month, time served, parole eligibility 16/7/2021 9/6/2022 - Fail to properly dispose of needle/syringe Convicted, $400 fine 9/6/2022 - Contravene domestic violence order (aggravated)
- Common assault
Convicted all charges, imprisonment 12 month concurrent, parole release date 9/6/2022 9/6/2022 - Stealing Convicted, 6 month imprisonment concurrent, parole release date 9/6/2022 30/9/2022 - Contravention domestic violence order (aggravated) Convicted, no further punishment 30/9/2022 - Contravention domestic violence order (aggravated offence) Convicted, imprisonment 4 month, suspended 12 month concurrent.
On 9 June 2022 the Applicant was convicted in the Toowoomba Magistrate’s Court and received a sentence of 12 months’ imprisonment but was released on parole on the same day. Her parole was indefinitely suspended on 23 June 2022, and the Applicant was taken into custody.
On 26 July 2022, the Applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Act. The Applicant was invited to make representations and did so, and on 19 June 2023 a delegate of the Respondent decided not to revoke the mandatory cancellation of her visa. The Applicant was notified of that decision on 21 June 2023.
On 23 June 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the cancellation decision.
LAW:
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(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.
In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5) With 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 measureable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the five primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)The strength, nature and duration of ties to Australia (Primary Consideration 3);
(d)The best interests of minor children in Australia (Primary Consideration 4); and
(e)Expectations of the Australian community (Primary Consideration 5).
Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:
(a) Legal consequences of the decision;
(b) Extent of impediments if removed;
(c) Impact on victims; and
(d) Impact on Australian business interests.
ISSUE:
The parties are agreed that the Applicant does not pass the character test as defined in section 501(6). The only issue before the Tribunal is whether there is ‘another reason’ why the cancellation of the Applicant’s visa should be revoked under section 501CA(4) of the Act.
EVIDENCE OF THE APPLICANT:
The Applicant arrived in Australia permanently in 2007 in order to live with her mother. Prior to that, she had lived in New Zealand. Her younger brother also came with her. In New Zealand the Applicant had lived with her mother, father and brother.
The Applicant had met ‘Aunty Ivy’ through her mother, and she moved in with Aunty Ivy in 2010. She had her own room in Aunty Ivy’s house and the Applicant said that Aunty Ivy had had a role in her life prior to her moving in with her.
The Applicant described a strong connection to the Australian Indigenous community and spiritual beliefs, having been taken in by an Indigenous family and having gone to country.
In 2013, the Applicant was diagnosed with schizophrenia, and since then has been hospitalised many times as a result of mental health issues, including putting herself into hospital in 2017. She had previously been placed on involuntary treatment orders.
The Applicant was currently taking several medications to treat her mental health condition, including a depot injection.
The Applicant said that she would not go back to Aunty Ivy’s house now. She accepted there were domestic violence orders against her.
The Applicant did not have regular contact with her brother.
Approximately 15 years ago, the Applicant met Ms Williams. Their relationship began approximately a year ago, and they lived together 2 months prior to the Applicant going to gaol. The Applicant said that she would live with Ms Williams if she was released and that she speaks to her every day.
The Applicant accepted she had a long history of drug use, including the use of methamphetamine, on one occasion whilst she was in gaol.
The Applicant could not remember many of the specific incidents of her offending, but she did deny using a knife in relation to the 2014 convictions.
The Applicant did recall some incidents involving Aunty Ivy, which led to orders being made to protect Aunty Ivy.
The Applicant said that she had met Ms Williams’ children and that she could remember meeting specific children of Ms Williams. She said that she had spoken to some of her grandchildren on the phone.
The Applicant was in regular contact with her Aunties in New Zealand, including speaking to one of them on the phone ‘yesterday’.
It must be noted that at the time of the hearing the Applicant was very unwell, and unable to focus.
EVIDENCE OF MS WILLIAMS
Ms Williams gave evidence that she was 50 years old and lived in Toowoomba.
She said that she has 6 children and 5 grandchildren.
Ms Williams said she first met the Applicant 12 years ago, and that their relationship began about 2 months before the Applicant was incarcerated. At this time the Applicant was attending her appointments for depot injections, but not receiving counselling.
She said she had daily contact with the Applicant, and that her family was aware of their relationship. She said that most of her family had met the Applicant.
Ms Williams said that she had known the Applicant during the time she lived with Aunty Ivy, and that she was aware of the Applicant’s mental health history.
Ms Williams said that she had lost 3 brothers to drug addiction and that she was totally opposed to the use of drugs or alcohol. She said the Applicant was not using drugs when living with her. She did not know whether the Applicant had used drugs in gaol.
Ms Williams said that if the Applicant were released they would both go to counselling. Ms Williams said that she had spoken to the hospital about access to counselling.
Ms Williams said that she wanted to eventually move to the Sunshine Coast and that she felt that both the Applicant and herself needed to get out of Toowoomba.
Ms Williams was aware that the Applicant had been in contact with her family in New Zealand. If the Applicant were removed to New Zealand, Ms Williams said she would not move to New Zealand in order to be with the Applicant.
EVIDENCE OF EDWIN PEEK
Mr Peek is the Applicant’s cousin, and said he is 3 years older than the Applicant.
They had lived close together in the same town in New Zealand. Mr Peek said that life had been hard for the Applicant as her father was not around much and there had been a lot of domestic violence. The Applicant’s father was said to have been ‘in and out of gaol’.
Mr Peek moved to Australia in 2011 and was living in Melbourne. Mr Peek had been in contact with both the Applicant and her brother. He said that he had spoken to the Applicant ‘quite a bit’ over the last couple of years and that he had seen a change in her attitude. He said that she had lost both her father and mother within a relatively short time.
If the Applicant were to remain in Australia, Mr Peek said that he couldn’t support her as he has his own family and his own problems. If returned to New Zealand, Mr Peek said that he would continue to offer whatever support he could. He felt that the Applicant’s family in New Zealand would support her emotionally but would be unable to provide much financial support, or a place to live.
The Applicant has not met Mr Peeks children or partner in person, and his contact with the Applicant had been limited since she left New Zealand.
EVIDENCE OF DR HATZIPETROU
Dr Hatzipetrou affirmed his report of 24 July 2023.
He said that the Applicant had a cognitive disability, and that it could be very difficult for her to be flexible in relation to how she looked at particular situations or examine alternatives.
The Applicant was said to suffer from schizo-affective disorder, which demonstrated the symptoms of schizophrenia along with other conditions such as depression, hallucinations, delusions, and mood disorders.
Dr Hatzipetrou said that a person experiencing psychosis was out of contact with reality.
In his view the Applicant required a combination of different treatments including medication, and psychosocial intervention.
The Applicant was receiving ‘Depot injections’ in order to reduce the symptoms of psychosis. He noted that depot injections are typically used where a person has a record of poor compliance with a medication regime.
The Applicant was also said to have borderline personality disorder with a pervasive pattern of delusion, which became part of the person.
Personality disorders were also characterised by histrionics, a fragile self-identity, and fear of rejection. All of these characteristics were said to be part of the Applicant’s personality.
In relation to risk assessment Dr Hatzipetrou noted the Applicant’s history of violence and a number of other clinical issues. He said what was important was what was happening at the present time and how that affected the Applicant’s chances of re-offending.
The Applicant was said to have multiple vulnerabilities which could be addressed through health services. Her need for assistance was not limited to medical assistance but also included factors such as housing.
Overall Dr Hatzipetrou thought the Applicant was at moderate risk of imminent offending, high risk of future offending overall, but low to moderate risk of serious harm as a result of re-offending. A lot would depend on supports available to address the Applicant’s various vulnerabilities. The Applicant was said to require systematic help, a range of interventions, the setting of boundaries, assistance with her ability to manage herself, a stable environment and proper medication.
Dr Hatzipetrou also said that the Applicant would benefit from Occupational Therapy. She was said to need many interventions. If the Applicant were to receive counselling with Ms Williams, Dr Hatzipetrou thought that this would be of assistance.
Dr Hatzipetrou said the date on which his assessment of the Applicant had taken place was 17 July 2023.
He said that the Applicant was well known to medical services, which he thought was exactly what would be expected. She was non-compliant in relation to her medication which was why depot medication was required.
Dr Hatzipetrou said that the Applicant was very difficult to manage in the Australian public health system. He said that if the Applicant were to go to New Zealand, she would have access to mental health treatments, but he felt that she would not have the same level of support in New Zealand, especially in relation to supports which could be added in order to assist with mental health treatment. He thought this was because the New Zealand population was smaller, with less mental health facilities and an absence of programs like the NDIS.
Dr Hatzipetrou said there were quite a lot of support services available in Toowoomba, but the Applicant needed to be able to engage with those who were trying to help her.
Drug use was said to have an adverse effect on the Applicant’s mental health conditions and that it would be of very serious concern if the Applicant were to relapse into drug use. In particular, it would interfere with the efficacy of her mental health medications.
Dr Hatzipetrou said that he would recommend that the Applicant enrol in long-term residential mental healthcare programs. The effectiveness of any treatment of the Applicant would depend on how the Applicant engaged with it. In particular, the Applicant must want to abstain from drug use.
Dr Hatzipetrou said that it would be helpful to the Applicant if Ms Williams were to access counselling for herself and the Applicant.
DECISION:
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY:
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.
There are two limbs to this consideration:
(a)the nature and seriousness of the conduct of the non-citizen; and
(b)the risk to the Australian community should the non-citizen re-offend.
Nature and Seriousness of the Applicant’s conduct
The Applicant has a long list of criminal offending, for which she was charged and convicted, along with offences for which she was charged but not convicted.
Many of the offences involved serious violence, including a pattern of ongoing domestic violence in relation to Aunty Ivy, assaulting police officers, breaching domestic violence orders, and ongoing drug use, including an admission of drug use on one occasion while the Applicant was recently incarcerated.
The sentencing remarks of Magistrate Stark, after the Applicant re-offended almost immediately having been released on parole in 16 July 2021 are relevant:
You are currently serving a term of nine months for a like offence. You have
something like 15 prior offences for breaching domestic violence orders on your
record. You have been given in the past, suspended terms of imprisonment. You
were on probation at the time of committing this offence and no doubt, you have also
received fines. So you have – you have run, virtually, the four sentencing options
which are available to the Court.
I am satisfied the only appropriate sentence is one of imprisonment, considering the offences were committed whilst on probation and also the subject to a parole order.
It is clear from the Applicant’s list of offences and the timing of those offences, that although the Applicant appears to have been given a great deal leniency by the Courts, she did not change her behaviour and continued to re-offend.
The Applicant’s offending must be regarded as very serious.
Risk to the Australian community, should the non-citizen re-offend:
The medical evidence in relation to the likelihood of the Applicant re-offending was clear. Dr Timmins, in his report on the Applicant dated November 2020, assessed the Applicant as high risk of re-offending. Dr Hatzipetrou, in his assessment of the Applicant said as follows:
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.
In Dr Hatzipetrou’s opinion, the Applicant’s risk of re-offending was entirely dependent on the Applicant’s engagement with mental health and other necessary support services. In particular, it was important that the Applicant abstain from drugs. Unfortunately in this regard, the Applicant admitted to using drugs whilst in prison, although I accept that she has not used drugs in immigration detention.
I also accept that the Applicant has completed a number of courses including anti-violence courses.
The Applicant clearly has good intentions, but the issue whether those good intentions will translate into changed behaviours. It is of concern that during her recent period of imprisonment, the Applicant engaged in a pattern of aggressive behaviour towards prison staff and inmates, as noted in the correctional services reports.
Several pages of Queensland corrective services reports were presented to the Tribunal, including reports of the Applicant making threats to kick a pregnant inmate in the stomach, and in March this year resisting taking her medication properly.
(a)Casenote 19 March 2023:
Prisoner Peek was seen in the medication line for afternoon medication on today’s date.
At was at this time prisoner Peek was seen by the nurse and received her medication. It was at this moment the nurse alerted the author that prisoner Peek had appeared to place her medication between her bottom teeth and lip. When the author requested prisoner Peek to open her mouth she complied and did so willingly, however was observed to biding the bottom of her mouth and under her tongue. The author instructed prisoner Peek to pull down her lip where a tablet was located. Prisoner Peek then repeated the process and again presented for inspection where again the medication was still present. After a third time the medication was properly taken.
(b)Casenote 1 June 2023:
Prisoner peek at approximately 0900 hrs was seen pushing the industries laundry off the shelves and swearing at another prisoner using words to the effect that ‘I will kick you in the fucking stomach’ and ‘I will kill your baby’ to the pregnant prisoner. Prisoner Peek was told to move onto the back wall which she complied.
On the basis of all of the evidence, including all of the medical evidence, the Applicant’s risk of re-offending must be seen as high.
In coming to this conclusion, I note Dr Hatzipetrou’s assessment that, although the Applicant’s risk of re-offending was moderate to high, the risk of imminent serious harm was low to moderate. It was the most current assessment, but Dr Hatzipetrou acknowledged that his risk assessment was contingent on the Applicant not using drugs and properly engaging with mental health support services. There was no evidence that would enable the Tribunal to be confident that the Applicant would do so.
In my opinion, based on the evidence of the Applicant’s previous offending, if the Applicant were to re-offend the consequences are clearly very serious, whether those consequences occur imminently or at a later date, given that her offences involved serious assault, repeated breach of domestic violence orders, and damage both to police officers physically and police property. In short, the Applicant has not shown any respect for any aspect of law enforcement in Australia. Although Dr Hatzipetrou thought the risk of imminent serious harm to the community was moderate to low, the risk remains and the consequences of any re-offending are likely to be serious. I note that Dr Hatzipetrou did not elaborate on what he regarded as serious harm.
Overall, this first primary consideration weighs very heavily against revocation of the delegate’s decision.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN:
The Applicant’s family violence offences are protracted and serious. They involve physical assault of a person over 60 years of age, deprivation of liberty and theft.
The Applicant blatantly ignored domestic violence orders put in place to protect Aunty Ivy with whom she was in a domestic relationship. This is perhaps best demonstrated by the fact that the Applicant has been recorded as breaching her domestic violence orders on more than 15 occasions, despite repeated warnings, with many of these breaches culminating in threats and violence.
All of the above must be seen in the context of a toxic relationship with Aunty Ivy, who it was implied, was also a drug user, although there was no objective evidence before the Tribunal in this regard. There was also some evidence that Aunty Ivy may have encouraged the Applicant to make contact with her when a Domestic Violence Order was in place.
I take into account the evidence that Aunty Ivy may have encouraged the Applicant to make contact with her when a Domestic Violence Order was in place, and I also take into account the evidence as to the Applicant’s mental health issues, including difficulty setting boundaries and fear of rejection.
Overall, I give this consideration heavy weight against the revocation of the delegate’s decision, especially as the domestic violence continued over a long period of time and in blatant disregard of Domestic Violence Orders and repeated warnings from the Court.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA:
The Applicant has lived in Australia for approximately 16 years and she has family in Australia, with whom she has, at least, some regular telephone contact.
I accept Ms Williams’ evidence that she is in a relationship with the Applicant, that they lived together prior to the Applicant’s incarceration, and that they are in contact every day. Clearly the relationship is very important to both the Applicant and Ms Williams.
I note also Ms Williams’ evidence that the Applicant has been accepted into the Indigenous community, and that this gives the Applicant access to a range of services. Although there was no direct evidence on the point, it probably also assists the Applicant to have a sense of belonging.
The Applicant also gave evidence that Indigenous culture and the spiritual link to country was important to her.
Both the Applicant and Ms Williams gave evidence that Ms Williams would not travel to New Zealand if the Applicant were to be returned to that country, it would also mean that the Applicant would be separated from Indigenous spirituality and culture, in relation to which I accept her evidence as to it being very important to her.
There was no evidence of the Applicant having any other close ties to the Australian community. Her contact with family seemed to be very limited, and there was no evidence of her belonging to any specific church groups or other organisations. This may, in part, be due to her mental health. The Applicant’s brother did not give evidence and was also said to have mental health issues. The Applicant’s Cousin’s evidence was that they had not met each other for a considerable time but had periodic phone contact. His evidence was very supportive of the Applicant.
I give this consideration heavy weight in favour of revocation of the delegates decision.
PRIMARY CONSIDERATION 4 - BEST INTERESTS OF MINOR CHILDREN
Ms Williams has a number of grandchildren. The Applicant was said to have spoken to two of them by phone, although she has not met any of them.
There is no evidence of the Applicant playing any role in their lives at this time.
The situation is similar in relation to the Applicant’s Cousin’s children, all of whom she has never met, and seemed to have little if any contact with them. I note that the Applicant has never met her Cousin’s partner and that contact with her Cousin has been limited to phone calls.
Overall, I give this consideration minimal or limited weight in favour of revocation of the delegate’s decision.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY:
Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction at paragraph 8.5.
In determining the weight to be given to this consideration, I take into account the Applicant’s long history of offending, the violent nature of some of her offending, domestic violence offences and her apparent disrespect for Australian law enforcement authorities and courts.
The Applicant has been found guilty of violence against a woman over the 60.
I also take into account that the community is likely to have some compassion for a person who has had a difficult childhood and suffers from very serious mental health issues. The community, however, has limited tolerance for ongoing failure to comply with mental health treatments, including whilst in prison, where the Applicant deliberately and repeatedly attempted to avoid taking her medication.
Accordingly, I give this consideration heavy weight in favour of non-revocation of the delegates decision.
OTHER CONSIDERATIONS
Extent of impediments if removed:
There are no language or cultural barriers to the Applicant returning to New Zealand.
On the basis of the evidence, the Applicant must be seen as vulnerable and at risk. She has very serious mental health issues, which require ongoing treatment.
She has clearly suffered from the loss of her mother as a result of suicide, and later the death of her father.
The Applicant requires very significant mental health intervention, along with other supports, including stable housing and a sense of belonging. If the Applicant were to be removed to New Zealand, it would clearly have a deleterious effect on her mental health at least in the short to medium term.
To the extent that she has any stable attachment, that is with Ms Williams, who would not move to New Zealand if the Applicant were returned to that country. As noted previously in this judgement, it would also mean that the Applicant was cut off from being part of the Indigenous community, which is clearly important to her.
It must also be noted that the Applicant’s relationship with Ms Williams is of limited duration and has not been tested. Ms Williams herself, said that she needed ongoing counselling. She also talked about moving from Toowoomba to the Sunshine Coast which, given the evidence of Dr Hatzipetrou, may place some stress on the Applicant, especially as Dr Hatzipetrou referred specifically to the variety of services available to the Applicant in Toowoomba. There was no evidence as to the services available on the Sunshine Coast.
I accept Dr Hatzipetrou’s evidence that mental health services in New Zealand are equivalent to those in Australia, but that the Applicant may not have access to services such as the NDIS, although the Dr also referred to services provided by non-government organisations in New Zealand. At the very least, I am of the view that the Applicant’s mental health treatment would be likely to be set back, at least for a period, if she were returned to New Zealand. Further, given the Applicant’s need for stability, any forced change of location is likely to be very stressful, and result in a deterioration in her mental health.
The Applicant has family in New Zealand with whom, on the basis of the evidence, she has a close relationship, and who will offer her support, even if it is limited as a result of their circumstances, if she is returned to New Zealand.
I give this consideration heavy weight in favour of revocation of the delegates decision.
CONCLUSION
Although I have much sympathy for the Applicant, the evidence, when considered in its entirety, weighs in clearly favour of non-revocation of the delegates decision.
Accordingly, the reviewable decision of 21 June 2023 is affirmed.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
..............................[SGD]..........................................
Associate
Dated: 8 September 2023
Date(s) of hearing: 31 August 2023 Advocate for the Applicant: Dr Marianne van Galen Dickie Solicitors for the Respondent: Ms Mia Donald
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Charge
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