QDVJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

QDVJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1841 (1 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1545
Re:QDVJ
APPLICANT

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

DECISION
Tribunal:Senior Member P. Q. Wood
Date:1 June 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.......[sgd].................................................................
Senior Member P. Q. Wood
Catchwords
MIGRATION – visa cancellation – non-revocation of mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – where applicant made representations seeking revocation of visa cancellation – where delegate not satisfied another reason to revoke visa cancellation where applicant seeks review by Tribunal - Direction 90 – substantial criminal offending – protection of the Australian community – best interests of minor children – expectations of the Australian community – Applicant’s substance abuse – links to the Australian community – any other relevant claim - non-refoulement obligations - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Emma Colvin, Alison Gerard and Andrew McGrath, Children in out-of-home care and the criminal justice system: A mixed-method study (Australian Institute of Criminology, 2020)
Migration Act 1958 – Direction under s 499 - Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member P. Q. Wood
1 June 2021
INTRODUCTION

The Applicant seeks review of a decision not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) Visa made by the Department of Home Affairs on 9 March 2021.
The hearing before the Tribunal in this matter was held in Melbourne on 6, 7 and 18 May 2021 by videoconference as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency. The Applicant was represented by Mr Hughan of Counsel. The Minister was represented by Ms Mills of Counsel.
I have read and had regard to all the written evidence, which was compiled into an agreed Exhibit Register, a true and correct copy of which (anonymised) is attached hereto and marked Annexure A.
For the following reasons I affirm the decision under review.
CONFIDENTIALITY
On 8 April 2021, the Tribunal made an order under section 35 of the AAT Act, to prohibit the publication of the name of the Applicant in these proceedings. Having regard to the specific circumstances of the case, the Tribunal considers it appropriate to refer to the Applicant by the pseudonym QDVJ. Certain details will be redacted, including the identity of the witnesses and other names and information tending to identify QDVJ and any witnesses in the proceeding.
Pursuant to the same order abovementioned, the hearing was closed to the public.
BACKGROUND
The Applicant is a 24-year-old citizen of New Zealand who first arrived in Australia in June 2003, when she was six years old.[1] She has lived in Australia ever since.
[1] R3 [5], A1, p 2.
In November 2004, the Applicant was granted a visa Class TY Subclass 444 – Special Category (Temporary) visa.[2]
[2] R1, p 247.
The Applicant’s offending, which comprises of more than 60 offences, began in 2011 when she was 14 years old.[3] She has previously been the subject of a range of sentencing dispositions, which include diversions, community corrections orders, youth supervision orders, probation, fines, forfeiture orders and imprisonment.
[3] R2, p 339.
On 15 March 2018, the Applicant was sentenced to an aggregate of 17 months’ imprisonment in relation to 25 charges including robbery, theft of a motor vehicle (four charges), reckless conduct endanger serious injury, dangerous driving, fail to answer bail (three charges), contravene a conduct condition of bail (three charges), possess prohibited weapon, aggravated burglary, commit indictable offence whilst on bail and unlicensed driving.[4] She was also convicted and fined $1,000 for breaching a community corrections order imposed in February 2017, and sentenced to four months imprisonment to be served concurrently with a maximum sentence of 12 months.[5]
[4] A1 [32].
[5] R3 [7].
On 21 September 2018, the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act).[6] The Applicant sought revocation, and in that instance cancellation of her visa was revoked by a delegate of the Minister on 5 March 2019.[7]
[6] Ibid [8].
[7] Ibid.
On 2 February 2020, the Applicant received a 12 month community corrections order (CCO) due to a conviction of theft of a motor vehicle, attempted theft of a motor vehicle, possess GHB, commit indictable offence whilst on bail, contravene a conduct condition of bail and dishonestly receive stolen goods.[8]
[8] Ibid [9].
On 11 May 2020, the Applicant was sentenced to four months’ imprisonment by the Magistrates’ Court in Heidelberg for further offences including; contravene community corrections order, theft of a motor vehicle, unlicensed driving, possess GHB, and fail to stop vehicle on police direction, and resentenced for charges for which she had been sentenced to a CCO in February 2020.[9]
[9] Ibid [10].
On 22 May 2020, a delegate of the Minister cancelled the Applicant’s visa under section 501(3A) of the Act as she had a “substantial criminal record” on account of the March 2018 sentence and as she was then serving a full time custodial sentence.[10]
[10] Ibid [11].
The Applicant requested revocation of the mandatory visa cancellation decision on 10 June 2020.[11] In July 2020, the Applicant was transferred to immigration detention at Melbourne Immigration Transit Accommodation where the Applicant remains pending the outcome of this review.[12]
[11] Ibid [12].
[12] Ibid.
On 5 March 2021, the delegate decided not to revoke the mandatory cancellation decision.[13] The Applicant was notified of that decision on 9 March 2021.[14]
[13] Ibid [14].
[14] Ibid.
The Applicant lodged an application for review of the delegate’s decision with the Tribunal on 16 March 2021.[15]
[15] R1, p 1-7.
The Tribunal’s consideration takes place in the context of the sexual abuse, violence and trauma that the Applicant has experienced in her youth and early adulthood. In this respect, it is important to observe that the Tribunal was extremely disturbed by the failure of respective state authorities in her case.[16] Aged just 13 years, the Applicant was removed from her family and placed into residential care after being sexually and physically abused by multiple individuals. It is difficult to imagine a more vulnerable child. Rather than be protected in residential care, she was introduced to substance abuse and criminal offending. By the age of 16, she was using ice. She now faces the prospect of being permanently separated from her daughter, aged seven years.
[16] Residential care environments are well understood to be criminogenic, see Emma Colvin, Alison Gerard and Andrew McGrath, Children in out-of-home care and the criminal justice system: A mixed-method study (Australian Institute of Criminology, 2020).
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this sub-section 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.”
As I have referred above, the Applicant has previously made the necessary representations required by section 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. It is appropriate to refer to the Full Court of the Federal Court of Australia’s remarks in Minister for Home Affairs v Buadromo:[17]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[18]
[17] [2018] FCAFC 151.
[18] Ibid [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues now before the Tribunal:
(1)whether the Applicant passes the character test; and
(2)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Where an Applicant makes out on either ground, there is a line of authority to the effect that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[19] I consider each of these issues below.
[19] Ibid.
If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it is necessary, to avoid this self-executing clause to have effect, for the Tribunal to make a decision in this case by 1 June 2021.
(1) DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is defined in section 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
As I have referred to above, on 15 March 2018, the Applicant was sentenced to an aggregate of 12 months’ imprisonment in relation to 25 charges.[20] There is a ready concession by the Applicant that she does not pass the character test.[21] There is a further concession that the only issue before the Tribunal is whether there is another reason why the cancellation should be revoked.[22] Both of these concessions are reflected by respective contentions to this effect in the Respondent’s Statement of Facts, Issue and Contentions (SFIC).
[20] R3 [7].
[21] A1 [5].
[22] Ibid.
There can be no question that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act. It follows that she cannot rely on section 501CA(4)(b)(i) of the Act for the revocation of the cancellation.
(2) IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act.
DIRECTION 90
On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[23] The non-revocation decision in this matter was therefore made under a previous Direction, while the hearing and release of the Tribunal’s decision follow after the commencement of a new Direction. The Full Court of the Federal Court of Australia has previously considered this issue during the transition from Direction 55 to Direction 65 in December 2014.[24]
[23] Direction, cl 2-3.
[24] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[25]
[25] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
THE PRINCIPLES IN PARAGRAPH 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under section 501 or 501CA, as the case may be.
Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable 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. However, Australia may 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.
(5)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 8.4(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.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;[26]
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[27]
[26] This consideration is not relevant to this application.
[27] Direction [8].
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.”[28]
[28] Direction [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 Primary Consideration A, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
“(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
Application of Factors in Paragraph 8.1.1(1) of the Direction – The Nature and Seriousness of the Non-Citizen’s Conduct to Date
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).

Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been convicted of offences which engage sub-paragraph (a). The most serious involved the robbery of a young student which occurred on 29 February 2016. Immediately before the 15 March 2018 sentence, to which I have referred above, the circumstances were described by the prosecutor as follows:
“The victim attended Melbourne central business district at approximately 11pm. He was there to meet a friend B at the Flinders Street station. This would be his first meeting with B whom he had been chatting with on Facebook Messenger. The victim met with B and two others before they wandered around Federation Square in Swanston Street and then ended up at McDonald’s in Swanston Street with approximately 15 people.
Shortly after the group split and the victim found himself in a car park behind St Paul’s Cathedral. The victim was with B, her friend in approximately three or four others. They were talking and smoking when suddenly QDVJ started to touch and open a bag belonging to the victim. QDVJ has been told the others that there was a laptop in the bag, before grabbing the victim around the neck and commencing to punch him. An unidentified male has punched the victim to the stomach a number of times. The victim has tried to flee at this time and the male has then grabbed him by the bag.
Co-accused MS has then commenced an assault on the victim punching him to the face and head and the remainder of the group, excluding B and her friend, have then started punching and kicking the victim. At this point the victim lost consciousness. It is unclear how long the victim lost consciousness for.
His next memory is finding himself back at Flinders Street station on the steps to the entry. The victim was dazed and confused and vomiting blood. The victim had his backpack with him, but however was missing his computer, phone, headphones, wallet, learner permit and $200 in cash.
The victim made his way to McDonald’s in Swanston Street where an unidentified member from the group of offenders returned his android mobile phone to him. The other items that were reported stolen were not recovered. A short time after this the victim was taken to St Vincent’s Hospital in an ambulance. The victim received a laceration to his lip, bruising and swelling to the face and ribs, wires to his braces had become loose.”[29]
[29] R1, p 54 – 55.
The learned Magistrate described the offending as “disgusting quite frankly”.[30]
[30] Ibid, p 64.
The Applicant’s written submission in this application asserts her regret in relation to this offence:
“…I feel very remorseful for this offence and I am so sorry to the victim for what
he went through. I still think about that kid all the time. I recall that I was
fighting with Anthony at the time and was very stressed. However, there is no
excuse for any human to lay any hands on anyone else. I felt immediately bad for this offence and still carry terrible guilt.”[31]
[31] Ibid, p 104.
In her oral evidence before the Tribunal, the Applicant reasserted remorse in relation to this offending.
Taking into account all of the evidence, I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
The Applicant has been sentenced to and served terms of imprisonment of 14 days in 2015, 12 months in 2018 and four months in 2020.[32] The Applicant’s criminal history involves multiple police chases and multiple offences against police officers, including where the Applicant has resisted police and assaulted police on duty.[33] The most recent offending in this regard occurred on 6 March 2020 for failing to stop at police direction.[34] There can be no question that the abovementioned conduct directly challenged lawful directions made by “government representatives or officials […] in the performance of their duties […]”.
[32] A1 [16].
[33] R3 [17].
[34] Ibid [46.2].
Taking into account all of the evidence, I find that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The relevant sentences have been outlined above. I find that sub-paragraph (c) of paragraph 8.1.1(1) militates in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As referred to above, the Applicant’s offending began in 2011 when she was 14 years old and has been frequent. The Tribunal acknowledges that whilst there has historically been a trend of increasing seriousness, the offending in 2020 was less serious than the offending for which she was sentenced in March 2018. Overall however, the Tribunal is of the view that the Applicant’s criminal offending does demonstrate a trend of increasing frequency and seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction, in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
The Applicant has a long criminal history beginning in 2011, during the course of which she has benefited from a range of non-custodial sentences. The Applicant had been sentenced on five occasions prior to receiving her first custodial sentence.[35]
[35] R2, p 369 – 394.
The Applicant’s frequent and increasingly serious criminal conduct has had a cumulative effect, with significant resources required to bring the Applicant to account for her actions; which included significant police resourcing required in order to protect the community from the potential harm resulting from her criminal conduct.
The cumulative effect of the Applicant’s criminal conduct would obviously also have had an impact on the many victims of the Applicant’s offending.
A further cumulative effect of the Applicant’s offending relates to her steadfast refusal to respect lawful authority, particularly in relation to laws which apply to the operation and use of motor vehicles on Australian roads; and the resources required to hold the Applicant to account for her conduct. The Applicant was first sentenced in relation for the theft of a motor vehicle in 2015 and since that time has faced the same charge on many further occasions, together with offences involving unlicensed driving, failing to stop, careless driving, dangerous driving and using an unregistered motor vehicle on different occasions.
On 15 March 2018, the following exchange took place between the Magistrate and the prosecutor:
“Her Honour: It’s not overstating to say this is life or death. What she may not know is driving around in the suburbs of this jurisdiction there have been multiple fatalities with young people. It’s had a devastating impact upon the young people that live in this community, against the people that appear here in court, they are their friends, their family, loved ones and more often than not the driver survives, so it might be all well and good for her to be choosing to drive, but how would she live with herself knowing she killed one of her friends. I’m not exaggerating, it happens every day. You only have to go to the Royal Melbourne Hospital today and see people that are living that experience because they have made the mistake of getting into a car with someone that strolls into drive similar to the way that QDVJ has driven.
Prosecutor: At speed, through red lights, along with other people in the vehicle and not just life or death of the driver, which is incredibly distressing, but also the life or death in terms of the robbery. Leaving someone unconscious and walking away without any regard for their state ---
Her Honour: Absolutely.” [36]
[36] R1, p 71.
The Tribunal is of the view that the cumulative effect of the Applicant’s repeated offending, clearly enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
As no evidence has been provided to this effect, this factor is not relevant to the determination of this application.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).
As referred to above, the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Act on 21 September 2018.[37] The Applicant sought revocation and the visa cancellation was revoked on 5 March 2019 by a delegate of the Minister.[38] The Tribunal considers that the unequivocal warning of the consequences of further offending made clear to the Applicant following cancellation of her visa on 21 September 2018, and the subsequent decision of a delegate to revoke the mandatory cancellation, must have had little effect. This is because the Applicant has been sentenced on four further occasions since 5 March 2019.[39]
[37] A1 [18].
[38] Ibid.
[39] R2, p 369 – 394.
In considering this sub-paragraph and more broadly, the Tribunal has had regard to the Applicant’s mental health, including her Post Traumatic Stress Disorder (PTSD) diagnosis, which is discussed further below.
Having regard to all of the evidence and submissions made to the Tribunal, including that which is outlined in the abovementioned relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, the Tribunal is of the overall view that the nature and seriousness of the Applicant’s conduct can only be 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 that it may be 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
Sub-paragraph 8.1.1(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
It is clear that if the Applicant re-offends, she risks causing serious physical or psychological injury to others, as well as possible property loss. Serious injury could be caused to members of the community who may be assaulted or have their goods stolen, or to police officers or other individuals if the Applicant continues to drive recklessly.
I have earlier outlined the nature of the harm that the Applicant’s offending occasioned upon the young student who was the victim of the robbery and the learned Magistrate’s description of the Applicant’s driving as a “life and death” matter. There is no need to repeat this any further. However, it is necessary to have regard to paragraph 8.1.2 to the general policy of paragraph 8.1.2(1) of the Direction. Specifically, that paragraph stipulates: “Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.” The further salient point arising from paragraph 8.1.2(1) is that “[…] the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases”.
The circumstances of the Applicant’s serious offending to my mind, comprises conduct that, if repeated, is “so serious that any likelihood that it may be repeated is unacceptable” to the Australian community. Having regard to the Applicant’s offending in its totality, I am also of the view that the Australian community’s tolerance for any risk of future harm, particularly involving offences such as reckless conduct endangering serious injury and robbery for example, would become lower were she to re-offend in such realms.
The Applicant’s involvement in the robbery of the young student in February 2016, in the circumstances in which it occurred, had the effect of threatening the life of her victim. Were the Applicant to be returned to the Australian community and re-commit such very serious offending, there can be little said by her to cavil with the finding that harm resulting to a future victim(s) would parallel that suffered by her victim in February 2016.
Regard should be had to the abovementioned paragraph of the Direction: it is reasonable and safe to find that were the Applicant to repeat such offending, its impact and consequences “may be so serious, that any risk of similar conduct in the future is unacceptable”.
Were the Applicant to re-offend again in the manner in which she has to date, her offending could conceivably result in significant physical and emotional harm to a quite realistically devastating level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant gave oral evidence to the effect that she believes that she has a fair chance of not relapsing into substance abuse and will be able to manage her mental health in the community this time.
In this respect, the Applicant made reference to her recent linkages with Flat Out and Dr Tram Nguyen, psychiatrist. In this regard, I have considered the oral and written evidence of Ms YJS, a representative from Flat Out, and the oral and written evidence of Dr Nguyen. Additionally, the Tribunal has read and had regard to the letter dated 28 April 2021 from ABindicating the support that would be available to the Applicant from Djirra.
The Applicant’s written submission states:
“Most of the Applicant’s offending occurred when she was struggling with drug dependency and trauma-induced mental health issues, including symptoms of depression and post traumatic stress disorder. Her level of culpability should be considered in the context of the trauma and violence she experienced as a child and young person.
Psychiatrist Dr. Nguyen has concluded that the Applicant meets the criteria for PTSD and substance use disorder and opines that her substance use has been a form of self - medication for childhood trauma and recurrent memory. Dr. Nguyen notes that the Applicant reports she does not offend when abstinent of substances or sober, and that her ongoing substance use has been contributed to by the lack of psychological treatment to address her underlying complex trauma.
The Applicant’s inability to engage with treatment for her childhood trauma and issues which led to her offending was recognised by the Sentencing Magistrate on 11 May 2020. The Applicant’s dislocation as a child - her years in residential care where she gravitated to peers due to her family difficulties, was factored into her sentencing on 15 March 2018 with the Sentencing Magistrate noting the Applicant’s youth, and prospects of rehabilitation in imposing a short non-parole period.
The Applicant has expressed remorse and acceptance of responsibility for her offending. This and her rehabilitation were recognised by the Magistrate in sentencing her on 15 March 2018 in addition to her guilty plea and other mitigating factors which reduced the severity of sentence that would have otherwise been imposed.
Direction 90 acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The community understand that people can rehabilitate themselves and, in the case of this Applicant, her recent engagement with psychiatric treatment for her complex trauma has finally unlocked the factor which has prevented her successful rehabilitation.
There are several reasons the Tribunal can be satisfied that the Applicant has very good prospects of not returning to substance abuse and will be capable of appropriately dealing with her mental health in the community this time. These include:
a. Unlike in 2019, the Applicant has already been linked with mental health and other specialist supports in immigration detention which will be immediately available to support her transition into the community and to work with her in the long term. The Applicant acknowledges that she requires intensive support and treatment in the community and is committed to it.
b. The Applicant’s engagement with psychiatrist Dr Nguyen in MITA is a major breakthrough the importance of which should not be underestimated. The Applicant has, for the first time, developed trust to open up about her complex trauma in a therapeutic setting and is now committed to ongoing treatment in the community.
c. The Applicant’s genuine remorse for her offending, acceptance of responsibility, and insight into the links between her offending and substance use, including an improved understanding of the devastating effect on her life to date of not having had necessary treatment for her past trauma.
d. Support to the Applicant in the community provided by Flat Out, a community based organisation which provides assertive outreach and intensive case management support for women who have been criminalized.
e. AOD counselling in the community facilitated through Flat Out along with intensive case management to promote the Applicant’s engagement.
f. Support for the Applicant’s independent accommodation through Flat Out.
g. The Applicant’s commitment to do well for her 6 year old daughter and to work toward eventually having her daughter back into in her care.
h. The Applicant’s sense of family and commitment to do well for her younger siblings in particular which Dr. Nguyen refers to as a positive personal feature.
i. The real and meaningful love and support that the Applicant’s siblings and other family offer to her which Dr. Nguyen notes as important to her remaining substance free.
j. The Applicant’s commitment to building a solid, forward looking relationship with her mother with the assistance of therapeutic treatment
k. The Applicant’s commitment to employment and her confidence in being able to secure work either through community networks as she has done previously. with assistance through Flat Out or through the Red Cross employment program for young people who have been involved in the justice system.
l. The Applicant’s resilience and commitment to change despite her experience of complex trauma as noted by Dr. Nguyen:
QDVJ has a willingness to change, and with now disclosing the abuse, she is able to make the steps towards further change in the trajectory of her life, and not carrying the burden of what others have done to her.”[40]
[40] A1, p 13-14.

The Applicant is acutely aware that her reoffending after the delegate revoked the previous cancellation of her visa on 5 March 2019, weighs against her. The Applicant’s contention is that this time is different. Her evidence is that her recent linkages with Flat Out and Dr Nguyen did not exist previously and, importantly, she has felt comfortable opening up to Dr Nguyen about her past, something which she has previously not been able to do in a counselling or therapeutic environment.
Whilst indicating a willingness to see the Applicant on a fortnightly or monthly basis in the future, in her evidence before the Tribunal Dr Nguyen said that she had only conducted an assessment of the Applicant to date. This involved two consultations in October 2020 and a third in the week before the hearing commenced. Dr Nguyen said that she had not started a therapeutic relationship with the Applicant yet because of Covid-19 restrictions, difficulties in providing care into a detention environment and the nature of the Applicant’s previous trauma.
The Minister’s position is that the Applicant should be found to pose, at least, a moderate risk of reoffending.
In this respect, the Respondent’s SFIC highlights that on 11 May 2018, the Applicant was assessed as a high risk of reoffending by Corrections Victoria.[41]
[41] R3 [51.1.].
The Respondent has also drawn the Tribunal’s attention to the fact that the Applicant started consuming alcohol and cannabis at the age of 13 while in the care of the Department, commenced offending at the age of 14 and commenced using ice at the age of 16, at which point her offending broadened.[42]
[42] Ibid.
The Respondent also drew to the Tribunal’s attention that the Applicant was previously diagnosed with PTSD by a Dr Aaron Cunningham, psychologist, in February 2017.[43] Dr Cunningham recommended that the Applicant would benefit from outreach case management at that time. It is the Respondent’s position that whilst the Applicant may receive assistance in finding accommodation and accessing treatment this time, this remains untested and the Tribunal should be concerned by the Applicant’s history of relapsing with respect to substance abuse and reoffending.[44]
[43] Ibid [51.4.].
[44] Ibid [51.6.].
Indeed, the Tribunal observes there is no objective clinical evidence before the Tribunal that the Applicant’s propensity to abuse alcohol and/or illicit drugs is resolved or otherwise under some kind of remedial management or control. In circumstances where, as the Applicant admitted, most of her offending was committed while under the influence of alcohol or illicit drugs, there can be no safe finding that her risk of recidivism is any different to what it was at the time of her most recent removal from the Australian community.
The Applicant’s family situation presents further issues. Whilst the Applicant asserts to the Tribunal to have a supportive family, Dr Nguyen’s report makes clear that her relationship with her mother triggers significant issues in relation to her past trauma.[45]
[45] Ibid [51.7.], R1 179.
Ultimately, whilst the Applicant has expressed a desire to improve herself, she has a long history of substance abuse and has re-offended on many occasions. Overall, I consider with regard to the evidence before the Tribunal that the opinion that the Applicant presents a reduced likelihood of engaging in further criminal or other serious conduct is wishful and unconvincing.
Conclusion: Primary Consideration A
Having had regard to all the evidence and the relevant factors specified by the Direction, I am of the view (and I find) that Primary Consideration A weighs strongly in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of Relevant Children
It is first necessary to identify the children actually or possibly relevant to this proceeding.
The relevant children are:
·The Applicant’s Australian citizen Aboriginal daughter born 2014;
·The Applicant’s half sibling Australian citizen sister born 2005 aged 15;
·The Applicant’s half sibling Australian citizen sister born 2011 aged 10; and
·The Applicant’s half sibling brother born 2012 aged 9.
As above, the Applicant’s daughter is now seven years of age. She is the product of a relationship between the Applicant and her partner at the time, an aboriginal man who lives in South Australia.
Consideration of Factors
Sub-paragraph (a) of paragraph 8.3(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where (1) the relationship is non-parental, (2) there is no existing relationship, (3) there have been long periods of absence, or (4) there has been limited meaningful contact (including whether an existing Court order restricts contact).
An initial observation is that the restrictions on visitations to detainees at immigration detention facilities as a result of the COVID-19 pandemic must not be held against the Applicant.
The evidence is that the Applicant has been the primary caregiver of her daughter for approximately two and a half years of the seven years she has been alive and they share a close maternal bond. The Tribunal accepts this. The Tribunal further accepts that, because of the COVID-19 pandemic and associated restrictions, the Applicant and her daughter maintain contact mostly by daily video calls.
With reference to her daughter, I am satisfied that the Applicant’s relationship with her has been a parental one; there have been long periods of physical absence of the Applicant from her child’s life; and notwithstanding the long periods of physical absence, there has been meaningful contact of a clearly parental nature between her and her daughter for the significant majority of her life thus far. Significantly, the relationship has withstood the circumstances of the Applicant experiencing substance abuse, family violence at the hands of her daughter’s father, the aftermath of considerable trauma the Applicant experienced in her childhood and the Applicant engaging in criminal conduct.
The Tribunal has read and had regard to a statement dated 1 May 2021 provided by one of the Applicant’s half siblings, born 2005, who resides in foster care. In her statement, the half sibling describes the Applicant as a “mother figure”. She describes experiencing depression and suicidal ideation and the support that the Applicant provides to her by regular telephone conversations.
With reference to the Applicant’s aforementioned half siblings, I am of the view that while not necessarily a parental relationship, the relationship between she and those half siblings is nevertheless close and at times parent like. I am of the view that while the Applicant has been physically absent for extended periods of time from the lives of her half siblings, this is not a sufficiently great period to have an ongoing impact or such that there is no existing relationship. I am satisfied there has been meaningful contact of a half sibling relationship between the Applicant and those children.
I am mindful that less weight should generally be given where the relationship is non-parental as is no doubt the case between the Applicant and her half siblings. Logically, the weight allocable for her relationship with her biological child must exceed that allocable for her half siblings.
Therefore, with respect to the Applicant’s daughter and each of the other children, I am of the view that a strong, but not determinative, level of weight is allocable to this sub-paragraph (a) in favour of a finding that it is in the best interests of those children for the Applicant’s visa status be restored to her.
Sub-paragraph (b) of paragraph 8.3(4) requires a decision-maker to consider the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
In relation to the Applicant’s daughter, there can be no question that the Applicant is likely to pay a parental role in the future. This is significant due to the prospect of the two being permanently separated, at least until her daughter is 18. How positive the Applicant’s parental role will be would depend upon whether the Applicant relapsed into substance abuse and reoffending. The same can be said in relation to the Applicant’s younger half siblings, acknowledging that whilst they may look up to their older half-sister as a mother, she is not their mother, and their parenting is the responsibility of their biological parents.
Taking into account my findings about the respective factors relating to each of the children, I am of the view that this sub-paragraph (b) militates in favour of the allocation of a strong level of weight in favour of setting aside the non-revocation decision.
Sub-paragraph (c) requires me to examine the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
In this case, there is no evidence that the impact of the Applicant’s prior conduct has shown any observable detrimental effect on her child’s wellbeing. Notwithstanding this, I consider that the Applicant’s criminal offending and subsequent periods of separation from her daughter cannot have been beneficial to the child. The same can be said in relation to the Applicant’s younger half siblings, acknowledging that, while they are close with the Applicant, they do not rely upon the Applicant in the same way as the Applicant’s daughter.
It is not possible to find, with any certainty, how any future offending by the Applicant will impact the Applicant’s daughter and half siblings. One does not even know the circumstances of any such future offending. Therefore, no finding about any future adverse impact can be reached at this stage.
Accordingly, this sub-paragraph (c), at best, can only attract neutral weight in favour of the Applicant having her visa status restored to her.
Sub-paragraph (d) requires me to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
The Applicant gave evidence that the father of her daughter has indicated that he will not voluntarily permit their child to travel to New Zealand in circumstances where the Applicant’s visa status is not restored to her. The Tribunal accepts that this is the case and recognises that the Applicant faces the prospect of being separated from her child, at least until the child turns 18 years of age.
The Tribunal has considered the indigenous heritage of the Applicant’s daughter and the disadvantage she has already experienced in life. The Applicant gave evidence of her desire to ensure that her daughter remains connected to her aboriginal culture, which the Tribunal accepts. In this respect, I acknowledge that the Applicant’s daughter has two half siblings who share the same father.
I have already acknowledged above that the Applicant’s daughter and the Applicant face the prospect of being permanently separated, at least until the Applicant’s daughter is 18 years of age. The contemporary reality is that were the Applicant to be removed to New Zealand, she would be able to maintain non-face-to-face communications with her daughter and half siblings. I did not understand her evidence to suggest that the electronic means through which she has maintained contact with the relevant children for the period of her physical removal from their lives is not something that will continue upon her removal. I accept that communications by electronic and other non-personal platforms are not the same thing as inter-personal contact. I accept that it will be more difficult for the Applicant to ensure that her daughter remains connected to her aboriginal culture from afar, but I do not accept the assertion that it will be impossible.
In these circumstances it is appropriate that a strong level of weight should be allocated to this sub-paragraph (d) in favour of a finding that it is in the best interests of the relevant children for the Applicant’s visa status to be restored to her.
Sub-paragraph (e) asks whether there are other persons who already fulfil a parental role in relation to the children.
The material is clear that all the relevant children are primarily cared for by the Applicant’s mother. The Tribunal understands that the Applicant’s mother remains willing to fulfill a parental role in relation to the Applicant’s daughter if her visa status is not restored to her.
The Applicant gave oral testimony, which the Tribunal accepts, that she is ok with her mother fulfilling a parental role in respect of her daughter because the Applicant believes that her mother ultimately wants to assist her to return to be the child’s primary carer.
In these circumstances, this sub-paragraph (e), at best, can only attract neutral weight in favour of the Applicant having her visa status restored to her.
Sub-paragraph (f) requires me to consider any known views of the children (having regard to their age and maturity).
The Tribunal has had regard to the Applicant’s evidence in respect of the views of each of the relevant children. The Tribunal also had the benefit of hearing oral testimony from the Applicants siblings. I have also read and had regard to the written statements of the Applicant’s mother and the father of the Applicant’s daughter. All assert that they want the Applicant to physically return to the lives of the relevant children.
In these circumstances, it is safe to allocate a moderate level of weight to this sub-paragraph (f) in favour of the Applicant for the restoration of her visa status to remain in Australia.
Sub-paragraph (g) compels the decision-maker to look for and analyse evidence that the child/ren have been or are at risk of being subject to or exposed to family violence perpetrated by the non-citizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally.
As no such evidence has been provided, this factor is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
As alluded to earlier, there is no clinically verifiable or independent evidence about any extent to which any of the relevant children have suffered physical or emotional trauma resulting from the Applicant’s conduct.
Accordingly, I am of therefore of the view that this is sub-paragraph (h) is of neutral weight for the purposes of determining this application.
Conclusion: Primary Consideration B
I have had regard to the evidence and have sought, where I have thought appropriate and relevant, to apply my findings about the evidence towards the allocation of weight – one way or the other – to each of the relevant sub-paragraphs to paragraph 8.3 of the Direction.
I am therefore of the view (and I find) that the cumulative best interests of the relevant minor children in Australia weigh strongly, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the strong weight I have attributed to Primary Consideration A.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[46] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[47]
[46] Direction [8.4(3)].
[47] Ibid [8.4(4)] - paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration C, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)    acts of family violence; or
(b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)     worker exploitation.

I also note, based on the principles in paragraph 5.2 of the Direction, that:
·the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[48]
·Australia may 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;[49]
·the nature of a 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 a visa outcome adverse to the non-citizen.[50]
Analysis – Allocation of Weight to this Primary Consideration C
[48] Ibid [5.2(4)].
[49] Ibid.
[50] Ibid [5.2(5)].
As a starting point, I note my findings that the Applicant has been convicted of various serious offences. This all amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, by virtue of paragraph 8.4(1) of the Direction, the Australian community, as a “norm” expects the Government to remove the Applicant.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not be granted a visa to come here. In particular, paragraph 8.4(2) stipulates that an Australian community expectation that the Australian government “can and should refuse entry to non-citizens” in such circumstances. This paragraph 8.4(2) then enumerates certain factors that are informative of this expectation and, ultimately, the weight allocable to it. The Applicant’s involvement in the robbery of a vulnerable young student, in the circumstances in which it occurred, is particularly relevant to this. Therefore, the Australian community expects the government “can” and “should” cause the Applicant to cease to hold a visa.
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa. In this respect, as referred to above, I am mindful that the Applicant is the mother of an Australian citizen Aboriginal daughter aged seven years. I also accept that the Applicant first came here at five years of age. These matters quite properly attract weight in the Applicant’s favour.
However, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction: the nature of the non-citizen’s conduct, and the harm resulting from it, is so serious that even the strong countervailing considerations are insufficient (at least so far as the Australian community’s expectations are concerned) to justify revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration C
Considering all relevant factors, Primary Consideration C weighs strongly in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant and is of neutral weight.
(b) Extent of Impediments if Removed
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.”
The Applicant propounds a lengthy association with Australia. She came here when she was six years old and has resided here on a virtually uninterrupted basis since then.
The Applicant contends that she would effectively be starting a new life by herself in New Zealand without family, social support and with limited financial means.
Most concerningly, in her report, Dr Nguyen stated in her assessment that if the Applicant is separated from her daughter and family, she is at a significant risk of abusing substances, offending, and being incarcerated. Dr Nguyen asserts that the Applicant's ability to cope in these circumstances in New Zealand without assistance will be significantly harmed.
The Respondent considers the various components of this Other Consideration and reaches a conclusion/contention that:
“The applicant is a young woman who will not face any cultural or linguistic barriers in New Zealand, despite having not lived there since the age of 6. The applicant is of working age with no physical health problems and has reasonable employment prospects, which will stand her in good stead when seeking employment.
The applicant has PTSD and a substance abuse disorder, but the services generally available to the applicant in Australia would be similar to those available in New Zealand. This is conceded by the applicant: AS [110].
The applicant will likely face practical and emotional hardship on account of this move, particularly if her daughter is unable to relocate to New Zealand with her. The applicant also has no other family in New Zealand, and therefore a limited support network.
The Minister contends that the Tribunal should give this consideration limited weight in favour of revoking the mandatory cancellation decision.”[51]
[51] R3 [73-76].
I will address each of the three components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s “age and state of health”.[52] The Applicant is 24 years of age and has a considerable period of her life before her. The material indicates she suffers from PTSD, substance abuse disorder and other mental health issues.[53] The Applicant has only recently sought treatment. That engagement with a psychiatrist has taken place virtually. It would not be a stretch of the evidence to suggest that a nation like New Zealand, being at a similar stage of cultural and political development, would have the same or similar attitudes towards the care and treatment of mental health as Australia.
[52] Direction [9.2(1)(a)].
[53] R3 [51.4], A1 [57].
Whilst the Applicant asserts to have made progress with her psychiatrist in Australia (by way of feeling comfortable opening up for the first time), it is safe to conclude that the Applicant could be adequately treated in New Zealand. Put another way, it is safe to find that the Applicant will have access to the same treatment styles and modalities as is currently available to other citizens of New Zealand.
Second, it is necessary to consider whether there are any “substantial language or cultural barriers”[54] to the Applicant returning to New Zealand. As found by this Tribunal (differently constituted) in a previous case:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand. […]”.[55]
[54] Direction [9.2(1)(b)].
[55] Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].
Therefore, it is difficult to find allocable weight in support of the Applicant in circumstances where both the language and cultural norms between Australia and New Zealand are quite similar.
Third, Paragraph 9.2 of the Direction requires an enquiry into the extent of any “social, medical and/or economic support available” in New Zealand.[56] Reference can again be made to this Tribunal’s findings in Tera Euna, wherein it was noted: “New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[57]
[56] Direction [9.2(1)(c)].
[57] Tera Euna [101].
In its SFIC, the Respondent makes the observation that the Applicant “has reasonable employment prospects, which will stand her in good stead when seeking employment”.[58] I am of the view that these are both relevant and correct observations. The Applicant has most recently worked for several months in a factory.[59] The Applicant would not be returning to New Zealand devoid of any workplace skills.
[58] R3 [73].
[59] Ibid [70], A1, p 18.
I have had regard to the totality of the evidence.
On the negative side, it can be fairly said that the Applicant does not have any family or social connections in New Zealand and has mental health and other issues requiring treatment (as discussed above).
On the positive side, New Zealand is culturally and linguistically similar to Australia. The substantial component of her working life remains before her and her state of physical health is such to allow her to obtain factory, or similar, work in New Zealand.
It is thus difficult to allocate anything more than a slight level of weight in favour of the Applicant, pursuant to this Other Consideration(b) such that her visa status to remain in Australia be restored to her.
(c) Impact on Victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I am mindful that the material contains a statement and photographs from the young student who was the victim of the robbery which occurred on 29 February 2016. This statement and photographs were taken, to my mind, to assist police/prosecuting authorities with the criminal matter. They cannot be fairly taken as a quasi victim impact statement.
Accordingly, there is no victim impact statement (or equivalent) now before the Tribunal saying the Applicant’s continued presence in Australia would have an adverse impact on any of the Applicant’s victims of her past offending. This does not dispel the proposition that her past offending has had a negative impact on its victims.
In the absence of any victim impact statement (or equivalent) about any impact on a specific victim(s), it would, in my view, it is unsafe to allocate any weight to this Other Consideration (c) in circumstances where there is no information before the Tribunal about how non-revocation of the mandatory cancellation would impact any such victim(s).
Accordingly, I am of therefore of the view that this Other Consideration (c) is of neutral weight for the purposes of determining this application.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors. They comprise: (9.4.1.) the strength, nature and duration of ties to Australia; and (9.4.2.) the impact on Australian business interests.
I will consider each in turn.
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia. I will address each component in turn.
In its SFIC, the Respondent contends (with specific reference to the strength, nature and duration of the Applicant’s ties to Australia) thus:
“The applicant has resided in Australia for about 18 years, which is most of her life as she is 24 years old: GD 89. The applicant’s daughter, siblings and immediate and extended family reside in Australia. It appears that her daughter, and at least 2 of her half siblings are Australian citizens.”[60]
[60] Ibid [69].
The first sentence is correctly made. With respect to the second and third sentences, I am precluded from including minor children as part of my consideration of weight allocable to this Other Consideration because I have considered their interests in the course of my analysis of weight allocable to Primary Consideration B.
1. Impact of non-revocation on the Applicant’s immediate family
The Respondent also readily acknowledges the extent of the Applicant’s immediate family members in Australia. They include the Applicant’s mother and step-father and their children, and the Applicant’s own daughter who all reside in Australia. As best as I understood the evidence, each of those immediate family members are either Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Those family members thus fall within the ambit of paragraph 9.4.1(1) of the Direction.
There cannot be any cavilling with the finding that the Applicant’s removal to New Zealand would adversely affect her family. This was made clear from (1) the written evidence of the Applicant’s Mother; (2) the written and spoken evidence of the Applicant’s siblings and (3) the written evidence of her daughter’s father. Taken in total, it can be safely found that each of the Applicant’s family members will be adversely impacted by her removal to New Zealand.
2. Strength, nature and duration of “other ties” – length of residence
I will now consider the strength nature and duration of the Applicant’s “other ties” to the Australian community. The first enquiry in determining the extent of these “other ties” requires me to look at how long the Applicant has resided in Australia including whether she arrived here as a young child. There are two tempering sub-elements to be taken into account as part of the consideration of this second component. She arrived here in June 2003 as a six year old. She is now 24 years of age and has thus, resided here for the significant majority of her life. She commenced offending in Australia at 14 years of age. Having regard to paragraph 9.4.1(2)(a)(i), I am not of the view that the Applicant began offending “soon after arriving in Australia”. Accordingly, any weight allocable to her pursuant to 9.4.1(2) cannot be adversely tempered due to her having committed offences soon after arriving in Australia.
3. Strength, nature and duration of “other ties” – family and other social links
The first people who, to my mind, fall within the ambit of this specific category are again the Applicant’s family members. In summary the Applicant’s relationships with family members who have a right to remain in Australia indefinitely can be summarised as follows:
·she has a mother-daughter relationship which, albeit strained, has lasted her entire life;
·she has a relationship with her step-father which has lasted for the length of her mother’s relationship with him;
·she has a strong sibling connection which has lasted her entire life; and
·she has a connection with her aunt, her cousin, her other aunt (who has previously cared for her daughter) and her mother’s family.
The next person that, to my mind, falls within the ambit of this specific category is the father of her child. Although their previous domestic/de-facto relationship came to an end, the Applicant and her daughter’s father were in that domestic relationship for several years. I have previously made reference to a letter of support he provided to the Tribunal. It suffices to say that the Applicant does have – indeed, is compelled to have – due to the parental arrangements for her daughter, a defined social link with her daughter’s father.
The Tribunal has also had regard to the Applicant’s involvement in her Church and her involvement in the Samoan community and sport.
I take into account and have regard to all of the evidence relating to the: (1) the extent of the Applicant’s removal on her family members in Australia; (2) the length of time she has resided in Australia; and (3) the extent of the strength, duration and nature of her family or social links with people who have an indefinite right to remain in Australia.
Therefore, I am of the view that these three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly, but not determinatively, in favour of the restoration of her visa status to remain here.
9.4.2 Impact on Australian Business Interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact her removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
This second part of Other Consideration 4 is not relevant to determination of this application.
Weight allocable to Other Consideration 4: links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the three specific components of this first part of Other Consideration 4, the totality of the evidence points to a strong, but not determinative weight, in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests) is not relevant to determination of the instant application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: slight weight in favour of the Applicant;
(c)impact on victims: neutral; and
(d)links to the Australian community: strong, but not determinative, weight in favour of the Applicant.
CONCLUSION
Is There Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs strongly in favour of non-revocation;
·Primary Consideration B weighs strongly, but not determinatively, in favour of revocation;
·Primary Consideration C weighs strongly in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations, even when combined with the strong, but not determinative, weight I have attributed to Primary Consideration B, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A complete view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 179 (one hundred and seventy nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

.......[sgd].................................................................
Associate
Dated: 1 June 2021

Date of hearing: 6, 7 and 18 May 2021

Counsel for the Applicant: Mr Greg Hughan

Solicitors for the Applicant Refugee Legal

Counsel for the Respondent: Ms Laura Mills

Solicitors for the Respondent: Australian Government Solicitor

[2021] AATA 1841

1 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	6, 7 and 18 May 2021
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant	Refugee Legal
Counsel for the Respondent:	Ms Laura Mills
Solicitors for the Respondent:	Australian Government Solicitor