Ross and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1773
•15 June 2021
Ross and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1773 (15 June 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2021/1913
GENERAL DIVISION )Re: Amanda Ross
ApplicantAnd: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
Tribunal: Senior Member B. Pola
Date of Corrigendum: 24 June 2021
Place: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision made on 15 June 2021 such that:
1.The paragraph numbering is amended to account for the missing paragraph numbers [72], [200] and [259] as follows:
(a)On page 34, the paragraph numbered [73] is replaced with [72] and all subsequent paragraph numbers are amended accordingly; and
(b)The wording in the signature paragraph on page 88 certifying the preceding number of paragraphs in the decision is changed from “271 (two hundred and seventy-one)” to “268 (two hundred and sixty‑eight)”.
……….....................[SGD].........................
Senior Member B. Pola
Division:GENERAL DIVISION
File Number(s):2021/1913
Re:Ms Amanda Ross
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member B. Pola
Date:15 June 2021
Place:Brisbane
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 23 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..........................[SGD]..............................................
Senior Member B. Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B. Pola
15 June 2021INTRODUCTION AND BACKGROUND
The Applicant, Ms Amanda Ross is a 49 year old citizen of New Zealand. Movement records indicate that the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia in July 2011[1].
[1] Exhibit G1, G2, pages 53 and 54.
The Applicant has a history of criminal conduct in Australia with respect to significant drug related offending, breaches of bail, the unlawful possession of a weapon, contravening a direction or requirement, drug driving and traffic related offences, in addition to conduct involving family violence[2].
[2] Exhibit G1, G2, pages 20 and 21; Exhibit R2, SG2, pages 9 to 15; Exhibit R2, SG4, pages 188 to 190.
On 19 November 2018, before the Brisbane Supreme Court the Applicant was sentenced to imprisonment for six years and six months for trafficking in dangerous drugs[3].
[3] Exhibit G1, G2, page 21.
Whilst serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 4 March 2019 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that the Applicant did not pass the character test pursuant to s501(6) of the Migration Act [4].
[4] Exhibit G1, G2, pages 4 to 19; Exhibit G1, G2, page 116.
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[5].
[5] Exhibit G1, G2, pages 38 to 52; pages 55 to 79; pages 105 to 110; Exhibit G1, G9, page 242; Exhibit G1,
G10, page 243; Exhibit G1, G11, page 244; Exhibit G1, G12, page 245; Exhibit G1, G14, page 247; Exhibit G1, G15, page 248 and 249; Exhibit G1, G16, page 250.
On 23 March 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6].
[6] Exhibit G1, G2, pages 4 to 19.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 29 March 2021 seeking a review of the abovementioned decision not to revoke the cancellation of her Visa, within the required time frame[7].
[7] Exhibit G1, G1, pages 1 to 3. For the Tribunal to have jurisdiction to review the decision, the Applicant mustThe application was heard in Brisbane on 24 May 2021, the Applicant was self-represented and appeared before the Tribunal in person. The Respondent was represented by Ms Kate Ervin of Clayton Utz, and also appeared in person. The Tribunal heard oral submissions from both the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons. Additionally, the Tribunal heard evidence from the following witnesses called on by the Applicant:
(i)The Applicant’s mother, Ms JTH who provided submissions to the Tribunal in support of her daughter in addition to appearing in person before the Tribunal to give evidence[8];
(ii)The Applicant’s sister, Ms DT, who provided submissions in support of her sister and gave evidence via telephone[9]; and
(iii)The Applicant’s son, Mr HR, who provided submissions in support of his mother, in addition to the offer of full-time employment in his business upon her release from criminal custody[10].
[8] Exhibit A5; Transcript 24 May 2021, pages 59 to 62.
[9] Exhibit A8, page 54; Transcript 24 May 2021, pages 62 to 65.
[10] Exhibit A6; Exhibit A8, page 49 and 55; Transcript 24 May 2021, pages 65 to 68.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(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 previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[11]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[11] Exhibit G1, G10 to G12, pages 46 to 65.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[12]:
“…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…”[13].
[Tribunal underline for emphasis]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked[14].
[14] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view that the Applicant does not pass the character test as they were convicted of trafficking dangerous drugs before the Brisbane Supreme court on 19 November 2018, and were sentenced to a term of imprisonment of six years and six months[15].
[15] Exhibit G1, G2, page 21.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of her visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act and must comply with directions made under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[16]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, paragraph 6 of the Direction provides:
“6. How to exercise the discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.”[17].
[Tribunal emphasis]
[16] On 15 April 2021, the former applicable direction, Direction No 70 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
[17] The Direction, sub-paragraph 6.
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case, and that when applying the primary and other considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Paragraph 8 of the of the Direction, which stipulates the following primary considerations:
(i)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration 1”);
(ii)Whether the conduct engaged in constituted family violence (herein referred to as “Primary Consideration 2”);
(iii)The best interests of minor children in Australia (herein referred to as “Primary Consideration 3”); and
(iv)Expectations of the Australian community (herein referred to as “Primary Consideration 4”).
The Other Considerations which must be taken into account are listed in paragraph 9 of the Direction. These considerations are:
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; and
(ii)Impact on Australian business interests.
A number of principles are set out in paragraph 5.2 of the Direction which further guide decision makers in the exercise of their discretion, which the Tribunal has transposed:
“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 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 other 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.”
The Tribunal will now address the four Primary Considerations.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Direction requires decision makers to keep in mind 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.
Paragraph 8.1(1) of the Direction provides that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with the expectation that they are and have been law abiding; will respect important institutions; and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Applicant’s criminal offending history can be gleaned from the s501 G-Documents[18], in addition to documents produced under summons[19] comprising:
[18] Exhibit G1.
[19] Exhibit R2.
(a)The Applicant’s criminal history in Australia which appears in a document entitled, “Nationally Coordinated History Check Results” dated 20 January 2021[20];
[20] Exhibit G1, G2, pages 20 and 21.
(b)Sentencing remarks of their Honour Lyons SJA in the Supreme Court of Queensland in Brisbane on 19 November 2018[21];
[21] Exhibit G1, G2, pages 22 to 27.
(c)Sentence Calculation Details Report from Queensland Department of Corrective Services[22];
[22] Exhibit G1, G2, pages 28 and 29.
(d)Supreme Court of Queensland, Order of the Court of Appeal dated 11 December 2020[23];
[23] Exhibit G1, G2, pages 30 to 34.
(e)International movement records of the Applicant from the Department of Home Affairs[24];
[24] Exhibit G1, G2, pages 53 and 54.
(f)Queensland Corrective Services Offender Case File dated 22 November 2018 to 14 February 2019[25];
[25] Exhibit G1, G2, pages 80 to 82.
(g)Queensland Corrective Services Administration Form – Notice of Placement Decision[26];
[26] Exhibit G1, G2, pages 83 to 85.
(h)Queensland Corrective Services Administration Form, Information Notice Security Classification[27];
[27] Exhibit G1, G2, pages 86 to 88.
(i)Queensland Government work and development order[28];
(j)Various media articles[29];
(k)Supreme Court of Queensland, Court of Appeal judgement delivered on 11 December 2020[30];
(l)Documents produced under summons by the Queensland Police Service[31];
(m)Documents produced under summons by the Brisbane Supreme Court of Queensland[32]; and
(n)Documents produced under summons by the Southport Magistrates Court[33].
(o)
[28] Exhibit G1, G2, pages 89 to 90.
[29] Exhibit G1, G2, pages 96 to 104.
[30] Exhibit R2, SG1, pages 1 to 5.
[31] Exhibit R2, SG2, pages 6 to 91.
[32] Exhibit R2, SG3, pages 92 to 113.
[33] Exhibit R2, SG4, pages 114 to 197.
Overview of the Applicant’s criminal and other offending history
Before considering the application of Primary Consideration 1 with reference to the circumstances of the Applicant, the Tribunal will provide a brief overview of the Applicant’s criminal offending history. This is captured in the following table, with the Tribunal providing further details in the reasons which follow[34]:
[34] Exhibit G1, G2, pages 20 and 21.
Date and Court Charges Result 30 March 2015
Southport Magistrates CourtPossess utensils or pipes etc that had been used (on 7 March 2015). No conviction recorded, recognisance $450, good behaviour period six months, drug diversion. 16 July 2015
Southport Magistrates CourtUnlawful possession of weapons (on 26 June 2015). No conviction recorded, and fined. 3 September 2015
Southport Magistrates CourtContravene direction on requirement (on 3 July 2015). No conviction recorded, and fined. 19 October 2016
Southport Magistrates CourtBreach of bail condition (on 22 August 2016). Conviction recorded, and fined. 3 March 2017
Southport Magistrates Court1) Contravene Direction or requirement (on 24 November 2015).
2) Breach of bail condition (on 1 June 2016).
3) Breach of bail condition (on 4 November 2016).
4) Breach of bail condition (on 14 November 2016).
On all charges, conviction recorded and fined.
25 May 2017
Southport Magistrates CourtBreach of bail condition (on 1 May 2017). Conviction recorded, and fined. 1 August 2017
Southport Magistrates CourtBreach of bail condition (on 3 July 2017). Conviction recorded, and fined. 22 November 2017
Southport Magistrates CourtBreach of bail condition (on 2 October 2017). Conviction recorded, and fined. 19 November 2018
Brisbane Supreme Court1) Trafficking in dangerous drugs (between 24 August 2015 and 11 May 2016).
2) Possessing dangerous drugs schedule 2 drug quantity of or exceeding schedule 3 (on 17 November 2015).
3) Possess dangerous drug specified in schedule 1 or 2 (two charges on 17 November 2015 and 10 May 2016).
4) Possessing anything used in the commission of crime defined in Part 2 (on 10 May 2016).
1) Conviction recorded, sentenced to imprisonment for six years and six months.
2 to 4) On all remaining charges conviction recorded, not further punished, serious drug offence certificate issued.
7 December 2018
Southport Magistrates CourtPossess utensils or pipes etc that had been used (on 17 November 2015). Conviction recorded, not further punished.
19 November 2018 - Serious drug trafficking conviction
Sentencing remarks before the Tribunal from Her Honour Judge Lyons SJA in the Brisbane Supreme Court of Queensland on 19 November 2018 outlined the extent of the Applicant’s drug trafficking offending, which the Tribunal refers to[35]:
[35] Exhibit G1, G2, pages 22 to 27.
“Ms Walker, you were found guilty, earlier today by a jury after a two-week trial, of five counts on the indictment. One count of trafficking, one count of possessing a dangerous drug in excess of two grams, two counts of possessing a dangerous drug and one count of possessing a thing used in connection with trafficking in a dangerous drug. That related to the mobile phone. There was a period of trafficking involved from the 21st of August 2015 to 11 May 2016. Count 2 related to you possessing an amount of methylamphetamine in excess of two grams and, in fact, was in excess of 20 grams, on the 17 of November. There was also a charge of possessing a dangerous drug on that occasion, which has got the exotic title of Too Far, 25C-NBOMe, n-(2-methoxybenzyl) – 2.5 dimethoxy-N-chlorophenethyiamine, and then also two counts of possessing dangerous drugs of a small quantity on the 10th of May 2016 when your home was searched at [location redacted].
During the last two weeks the circumstances of your offending have been laid bare. The text messages and the telephone calls indicate that you were trafficking regularly as a street level trafficker. There were so many calls and texts, it is so hard to avoid the conclusion that you were a persistent trafficker in both cannabis and methylamphetamine. There were eight months of great activity. People were calling you regularly. You were calling [name redacted], your supplier, and requesting the same amounts. You were found with a significant quantity on the 17 of November. In fact, that amount, which was some 20 grams. You were purchasing in ounce amounts and that you were regularly selling eight balls and other amounts. It is hard to quantify the amounts that you sold in but there were coded references to continuing supplies by you to others.
You were commercially motivated. You were regularly chasing money. You were regularly chasing rent money. You wanted to be paid. You owed a significant debt to [name redacted] and, at times, you admitted in those calls that you owed him, at least, $1000 as well as other occasions when there were amounts of $500 and other sums that were indicated.
You had no trappings of wealth when your home was searched and there were not significant quantities found on that occasion. The telephone intercepts, however, had indicated that prior to that search you had sold out. You had no drugs to sell. People were regularly chasing you. You were regularly chasing [name redacted] for drugs.
I accept that you used yourself but, as you said to police, it was not every day. It was several times a week. During the first phase, there was a lot of telephone intercepts that were clearly indicating your contact with [name redacted]. As I have said, at all hours of the day and night, in particular, you would drive in the early hours of the morning, supplying customers.
Given those text messages and those transcripts, you still contested all of these charges. You contested that you were trafficking despite that clear evidence and you even contested counts 2 and 3 where it was quite clear that you were found, on video camera footage, of possession of the methylamphetamine and that tablet. As I have said, there was a persistence to your offending and, in particular, you persisted after you were intercepted by police in November. You had customers in Brisbane. You had numerous sales. You have sold out on occasions and you would sell on credit.
…
In come to an appropriate penalty, it is important that I punish you in a way that is just in all of the circumstances, to provide conditions which will help you to be rehabilitated, but there needs to be significant deterrence to deter you and others from committing the same or similar offences, and I make it clear that the community denounces this conduct that you were involved in. You obviously impacted on the lives of, at least, 15 other people who are also experiencing the misery of having been involved in methamphetamine.
…
In all of the circumstances the sentence I will impose is this; in relation to count 1, which is the trafficking, I will impose a sentence of six and a-half years. There will be no recommendation for parole at an earlier date. So you will be considered for parole at the 50 per cent mark. In relation to count 2, I will convict and not further punish. In relation to counts 3, 4 and 5, I will convict and not further punish. In relation to the possession of scales, which is a summary offence which will be dealt with in the Magistrates Court on Monday, I make it clear that that is really an aspect of the trafficking and would have been subsumed into the head sentence of six and a-half
years if was able to be taken into account today…”
[sic, Tribunal redactions]
When the Applicant was questioned as to their convictions relating to their drug trafficking offences, the Applicant largely accepted what they had done was wrong and expressed remorse. The Tribunal refers to the following exchange at the hearing[36]:
[36] Transcript 24 May 2021, page 26, lines 31 to 44; page 27, lines 1 to 21.
“Respondent: So you engaged in the drug trafficking over a period of eight to nine months, is that correct?
Applicant: ---Yes.
Respondent: And during that time you were selling drugs to at least 15 customers on a regular basis?
Applicant: ---Yes.
Respondent: And you were also using drugs during that period, weren’t you?
Applicant: ---Yes.
Respondent: You were using multiple times a week, but not every day. (Indistinct)?
Applicant: ---Yes, correct.
Respondent: And you had started using drugs at the age of 15, is that right?
Applicant: ---Yes, yes.
Respondent: So it sounds like you wanted to say to say no?
Applicant: ---No, no, no. Just yes. Yes.
Respondent: And would you accept the description that Her Honour gave of you being (indistinct)[37] motivated, regularly chasing money, and wanting to be paid during the course of your offending?
Applicant: ---Yes.
Respondent: Now, you also stated on page 36 of the G documents in those forms that you submitted to the Department when you were applying for revocation of the cancellation, you’ve described yourself as - in respect of this offending - I was in the wrong place at the wrong time with the wrong people. Is that still how you characterise it?
Applicant: ---I - at the end of the day I was an - I was an addict. And I just did wrong. And I didn’t know because I was clouded by my thoughts and my judgments. So, now that I don’t have all these clouds upon me, around me, I can think clearlier (sic) now. So, then, yes, correct. It was - it was just bad because I was a drug addict. And I apologise for that.
Respondent: So, yes, you now say that you take full (indistinct) for your (indistinct)?
Applicant: ---Yes.
Respondent: But you did challenge the conviction, didn’t you?
Applicant: ---I challenged the evidence that the police had put forward. That’s what I was challenging. Not the - not challenging on what the conviction was itself, it was just the statement of facts that was given (indistinct) evidence.”
Family Violence related conduct
[37] On listening to the audio of the hearing, the Tribunal has made out the following: “commercially”.
There is evidence before the Tribunal in Queensland Police Service documents that the Applicant was involved in a family violence related incident in March 2015 involving their younger brother. The Tribunal refers to the following records of Queensland Police[38]:
“The Aggrieved is [name redacted]. The Respondent is Amanda May WALKER [the Applicant] [date of birth redacted] Present during incident was [names redacted] Children present during incident [names redacted]. On Sunday the 29th of March 2015 at approximately 1440 hrs Police have attended [address redacted] for a disturbance that had occurred earlier in the afternoon at approximately 1340hrs. Police have taken up with [name redacted] the Aggrieved and [name redacted] a witness and obtained details. Amanda WALKER is the Aggs sister and had left prior to Police arrival. The aggrieved said that WALKER (the Resp) had attended the house at approximately 1340 hrs and wanted some movies from [redacted] and a bottle. The Resp then started talking to the Aggrieved about some money that was loaned to her. The Aggrieved did not want to talk about it and there was a verbal argument and the Aggrieved wanted the Resp to leave. The Respondent then got up and walked towards the Agg who was sitting at the time. The Aggrieved got up and the Resp then started punching the Agg in the body about 40 times causing swelling and bruising. The Agg then grabbed the Resp by the arm and tried to drag her out the front. There was a struggle and the Agg went out the back to cool off and have a smoke. The Resp followed and there was further punching to the body and the Agg fell back landing on a lawn mower during which he cut his right toe. Observations of the Agg there were several large red marks over his body from being hit and marks on his upper left arm from being hit and finger marks. There was a mark on his right elbow also. [Redacted] then said that the Resp attended the address. The Agg asked about money he leant her and a verbal argument. [Name redacted] was upset and was swearing at the Resp. The Resp yelled at the Agg to “calm down” and the Agg said “Don’t tell me what to do in my own home.” [Name redacted] then took the kids to another room. [Redacted] returned and saw the Resp start punching the Agg in the stomach. [Redacted] pushed the Resp away to get out of his face. Further verbal argument. The Aggrieved went outside to have a smoke and the Resp followed. There was a scuffle and the Agg fell to the ground near the mower. The Resp came back inside and tried to get her son to come with her. The Resp had blood on her mouth. The Agg came back inside and grabbed her by the arm and dragged her to get her outside. The Resp then left. Police then attended [redacted] and TUW the Respondent. The Respondent said that she went to the house to talk to [name redacted] about a baby bottle and some movies. The Agg then started yelling abuse towards the Resp saying things like “you’re the reason I am in this position.” There was an argument about money I borrowed and something that happened last night with him and [name redacted]. The Resp then said that the Agg was up in her face and getting loud. The kids were getting scared and were moved into another room.
Further arguments about what was going on and the kids being scared and that it was his house and she should not tell him what to do and to leave. The Agg then pushed the Resp towards the front door and then with his right elbow, elbowed the Resp in the jaw. The Resp then said ’You are just like my father doing that, I can not believe you did that.” The Resp said she had been abused by her father as a child. The Resp then started to punch at the Agg and he stood there taking it. [Name redacted] and the Resp then tried to get him to stay out the back and shut the door, but he continued to argue with the Resp verbal abuse and swearing. The Resp then went outside and there was a further physical scuffle and the Agg fell to the ground. The Resp then left.
To protect the aggrieved: Police believe it is necessary to protect the Aggrieved in this instance as the Respondent has shown violence towards the Aggrieved, there is physical evidence along with the witness version. The Aggrieved said that the Resp has done this before, most recently about 8 months ago at his parents’ house. This was not reported to Police. The Aggrieved would like no contact conditions
along with not attending the residence conditions on the order if granted. Supportlink offered to both the Agg and Resp, the Resp accepted a referral and the Agg declined.”
[sic, redactions in document]
[38] Exhibit R2, SG2, page 11.
When the Applicant was questioned as to this incident, they had initially sought to downplay their involvement, and referred to evidence submitted from their brother, Mr JR regarding the incident. Mr JR provided the following statement to the Tribunal (observing that he did not appear before the Tribunal to give evidence)[39]:
“… I told the Police at the time that they had gone overboard, disproportionately so, and exaggerated what was a siblings altercation between brother and sister into a huge thing. I went to court three times to get the police to variate the charge/charges, but they went ahead with it on their own direction, they obviously didn’t consider it important enough, as for an event that occurred on the 29/03/2015, they never served the papers until 11/06/2015…”.
[39] Exhibit A9.
After questioning at the hearing, despite earlier describing the incident as having been exaggerated by police, the Applicant did not deny that a physical altercation between herself and her brother took place. The Tribunal refers to the following exchange[40]:
[40] Transcript 24 May 2021, page 37, lines 13 to 47; page 38, lines 1 to 47; page 39, lines 1 to 45.
“Respondent: You’ve (indistinct)[41] the police report exaggerates the disagreement that you had (indistinct)?
[41] On listening to the audio of the hearing, the Tribunal has made out the following: “said that”.
Applicant: ---It was their terminology of their way of their events and I’m not denying what this - I’m just saying that that’s their description of how they’ve actually placed it.
Respondent: How would you describe it?
Applicant: ---How would I describe it? We had a big disagreement, not to the extent - I mean, I’d have to be super, super fit to turn around and stand there and beat my brother up like that when he’s about - he’s over six - and I’m not trying to deny anything like that, but I would have to be really super fit to - I can’t remember everything that happened that day. And I’m not denying the fact that we did have a disagreement, but even with my brother, my brother, he tried to go into court, like three times, to try and stop what was going on. It wasn’t my brother or myself that had put in this order, it was the police that put in the order.
SeniorMember: Would you mind just walking us through what happened on the day?
Applicant: ---Yes.
SeniorMember: It says here it occurred in the end of March 2015 and the police attended at around 2.40 pm?
Applicant: Yes.
Senior Member: For a disturbance which occurred probably an hour earlier? Applicant: Yes.
SeniorMember: So you said it's a disagreement between yourself and your brother?
Applicant: Yes.
SeniorMember: And it says here that the aggrieved - which I'm assuming is your brother - said that yourself had attended their house and wanted some movies and blank - sorry, movies from something and a bottle?
Applicant: Yes.
SeniorMember: The respondent then started talking to the aggrieved about some money that was loaned to her, and then the aggrieved did not want to talk about it and there was a verbal argument following that. And then the aggrieved wanted the respondent to leave. Is that correct?
Applicant: Okay. My brother has a baby so I feel that it was kind of around the other way. My brother always owes me money and I've always lent him money. The bottle would have been because he's got a baby so I might have - I'm not 100 per cent, there was no reason for me to get a bottle from him so I'm not too sure of that. In regards - my brother lives with my mum at the moment, so my brother is always - he's just my brother and I'm not going to - if he wants something from me I'll give it to him, do you know what I mean, so.
SeniorMember: So there was a verbal argument between the two of you. Are you suggesting that it was the other way around, your brother owed you money?
Applicant: Yes.
SeniorMember: Okay. And what did he owe you money for?
Applicant: Just because I've loaned it (indistinct)[42] to get food or something, something along those lines (indistinct)[43]. Because he's got a few kids, so.
[42] On listening to the audio of the hearing, the Tribunal has made out the following: “to him”.
[43] On listening to the audio of the hearing, the Tribunal has made out the following: “for him and the kids”.
SeniorMember: Sure. Sure. So then an argument followed. So what's your version of events during that argument?
Applicant: The argument that we had between each other, I probably shoved him and (indistinct) because we both get up in each others faces and didn't mean for that to happen. So I'd be up like this and he'd be down like this at me saying (indistinct). So I probably shoved him, we probably shoved each other but not to the extent where I (indistinct)[44] my brother. I know he fell over something as well.
[44] On listening to the audio of the hearing, the Tribunal has made out the following: “beat”.
SeniorMember: Is that because he fell because he tripped or did you push him?
Applicant: Yes, he fell because he tripped.
SeniorMember: It says in here that police made some observations with respect to marks on your brother's body from being hit. So there's finger marks there. Do you disagree with that?
Applicant: Look, there might have been some finger marks and that, I'm not going to try and deny that because I can't honestly tell you. It happened a few years ago, I'm not denying that so there probably might have been some finger marks if I pushed him so he's, you know, (indistinct). I'm not going to deny that.
SeniorMember: Okay. It says here that you then started punching the aggrieved in the stomach to get the aggrieved - to push the respondent away to get out of his face?
Applicant: No, I wouldn't have punched him in the stomach. I would have pushed him out of the way.
SeniorMember: It says here that you'd fallen over to the ground near a mower?
Applicant: Maybe, yes.
SeniorMember: So there is some truth to the reporting of the police there?
Applicant: Yes.
SeniorMember: So it's not entirely - - -? It's not totally - - -- - - mis-communicated. Do you accept that?
Applicant: Yes.
SeniorMember: Then you accept that a domestic violence protection order was then put in place for a period?
Applicant: Yes. Yes.
SeniorMember: All right then. I'll hand you back to the respondent.
Respondent: (Indistinct) that was going on, there's reference to children being present?
Applicant: Yes.
Respondent: The kids were scared and moved to another room. Is that right?
Applicant: (No audible response.)
Respondent: It also states near the bottom of the page that the aggrieved said that the respondent has done this before, most recently about eight months ago at his parents' house?
Applicant: My parents' house. That's where I used to live and I wish I can - I wish I could change that time and he had a lot of things on his plate. He's got a lot of things still on his plate to this day but I will still support him, no matter what. Even when my brother had - he's been incarcerated as well, I still made sure I was there for my brother because at the end of the day no matter what happens between us, I will always love him and even though this happened and it was a once off and it says that it happened prior to that, my brother wasn't in the right frame of mind of thinking things. Neither was I. We both weren't. We were saying things that weren't very nice towards each other and I'm not saying that it was all - I'm not meaning that, because I should have known better because I'm the older sister. And I've always been like that. Dad's always - my father drummed that into my head, like if something went down with the younger ones I would get it, so I had to make sure that I tried and did the right thing with him. And I hated myself for what happened that day because after all that, the aftermath of it is that the police have put in an order where I could not see my brother and my nieces and nephews and that. I couldn't even go near the place of 100 metres because of this order. That was killing me inside because of this. I've lived here for almost 21 years, this has never happened before. I'm not - it's not a constant thing with me. That time was just a horrible time of our lives where he was struggling with a lot of things and I was too, and I should have known better not doing stuff for him and not - with me doing it, that's what the repercussions was because I asked him for that money and I should have just wiped it off. But I didn't.
Respondent: So the statement that you had engaged in the conduct before is incorrect?
Applicant: Sorry?
Respondent: So the statement that you had done this before - - -?
Applicant: No, no, I had but not to the graphic information that was given here. Meaning like what I'm saying before is that we have had a dispute between each other, like an argument but not to that graphical - - -
SeniorMember: So you would say a verbal argument?
Applicant: Yes, yes.”
The Tribunal has referred to the Domestic Violence Protection Order (“Protection Order”) which was issued on 29 May 2015 and expired on 27 May 2016, naming the Applicant as the Respondent. A condition of the order stipulated that the Applicant must be of good behaviour towards the victim (that is her brother, Mr JR), and must not commit domestic violence against him, or attend his premise or be within 100 meters of where he resided[45].
16 July 2015 - Weapon offence
[45] Exhibit R2, SG2, page 9.
Queensland Police Service Court Briefs indicate that on 26 June 2015, the Applicant was found to be in possession of a weapon they were not lawfully entitled to have. The Tribunal refers to the following facts relating to the charge[46]:
“On the offence date and time at [redaction] Police from Nerang Criminal Investigation Branch executed a search warrant under the provisions of the Police Powers and Responsibilities Act.
During the execution of this search warrant the defendant in this matter was present at the address and was located in the garage which had been modified into a bedroom.
As a result a search of the defendant’s handbag was performed and inside the handbag Police located a Taser which was made to look like a mobile phone. The Taser was activated and deemed operable.
The defendant at the commencement of the search warrant was advised of her rights under the provisions of the Police Powers and Responsibilities Act.
The defendant was questioned in relation to the Taser and she informed Police that she was aware that it was in her bag and was given the Taser by an associate and she carried it for personal protection, she further stated that she had not used deployed the Taser on any person.
The defendant is not lawfully entitled to have possession of this weapon.”
[46] Exhibit R2, SG2, pages 21 and 22.
When the facts of this offence were put to the Applicant at the hearing, they ultimately did not deny they had been in possession of the weapon they had acquired through an “associate” or “friend”. The Tribunal refers to the following exchange[47]:
[47] Transcript 24 May 2021, page 54, lines 35 to 45; page 55, lines 1 to 42.
“Senior Member: Then on 16 July 2015 there's a record there with respect to the unlawful possession of weapons?
Applicant: Yes.
SeniorMember: So I was just going to take you to SG2, page 21 if you don't mind?
Applicant: Yes.
SeniorMember: Thank you. In there - - -?
Applicant: Yes.
SeniorMember: - - - it's a police record which goes to some events around your handbag being searched and they located a taser?
Applicant: Yes.
SeniorMember: You weren't lawfully entitled to possess that?
Applicant: Yes.
SeniorMember: Are you able to give any explanation as to why you had that?
Applicant: Why I had that is it was given to me by an associate because there was a lot of things that was happening around the area at Narang, so it was only just for a safety - safety purposes and that. Because we do know at that stage there was a few girls that were getting beaten just for nothing, and that's why I had that in my handbag. I've never turned around and used it. I had only got it prior, the day before, so I hadn't even used it or anything like that.
Senior Member: When you say an associate?
Applicant: A friend.
Senior Member: A friend?
Applicant: Yes. Yes.
SeniorMember: When you say girls getting beaten around the area, which area was that?
Applicant: [Location redacted].
SeniorMember: [Location redacted]?
Applicant: Yes.
SeniorMember: So there was just community incidents of public beatings of women?
Applicant: Yes. Yes.
SeniorMember: So someone gave you a taser?
Applicant: Yes, just - because they felt sorry for me. Because being an older woman and that as well so. And they did that (indistinct) because how I'd (indistinct) go visiting and a few of my relations and all that kind of stuff during the day, because it was happening during the day as well as at night with all these different beatings. People were getting, things were getting taken off them like handbags and all that kind of stuff as well at that stage.
SeniorMember: Okay?
Applicant: So I was only using it only just for protection, not to - - -
SeniorMember: So it was used for protection you say?
Applicant: Yes, yes.
SeniorMember: Because you felt there was some need for general protection other than what the police were already providing the community?
Applicant: It was given to me as a gift and I shouldn't have taken it upon myself to have that. I should have - as I said to you, at that - at that stage of my life I was a drug addict, so I was thinking in a - not in the right frame of mind. Like if I had that - somebody tried to give that to me now I'd go no, I don't need it. What would I need it for. But at that stage of my life, as you can see it's around about June, I was going through a really bad stage, I was an addict, so I was thinking I needed this. Maybe I didn't need that but I was just being really offensive, so maybe I needed that for protection because I was a drug addict.”
The Tribunal observes that when the Applicant appeared before the Southport Magistrates Court on 16 July 2015, they received a no conviction recorded notation for the offence and they were fined.
Breaches of Bail Conditions
In the evidence before the Tribunal are seven occasions upon which the Applicant has breached bail, ranging in date between 22 August 2016 to 2 October 2017, prior to their sentencing upon having been found guilty of trafficking dangerous drugs[48].
[48] Exhibit G1, G2, page 21.
The Tribunal observes the sentencing remarks of Her Honour Judge Lyons SJA in relation to the breaches of bail in the Brisbane Supreme Court on 19 November 2018[49]:
“There were some six breaches of bail, but I accept that that was in the context of not having any transport and that there have been no breaches in the last six months.”
Traffic history of the Applicant
[49] Exhibit G1, G2, page 26.
Queensland Police Service Traffic records of the Applicant confirm a range of driving related offences which began soon after their arrival into Australia in July 2000. The Applicant’s record shows they had accumulated a range of fines for speeding, driving whilst relevant drug was present in their system on a number of occasions, failing to stop at red lights, driving in a bus lane, disobeying directional arrows on the road, following another vehicle too closely, driving an unregistered motor vehicle as well as un uninsured motor vehicle, as well as receiving multiple warnings regarding loss of demerit points[50].
[50] Exhibit R2, SG4, pages 188 to 190.
The Tribunal observes that the Applicant’s driver’s licence has been disqualified on two occasions, as a result of having a prohibited drug in their system. The first occasion was on 2 November 2016, and the second was on 20 December 2017. With respect to the second occasion in 2017, the Applicant was questioned as to the circumstances of this offending at the hearing, the Tribunal observes the following exchange with the Applicant[51]:
[51] Transcript 24 May 2021, page 28, lines 18 to 47; page 29, lines 1 to 17.
“Respondent: You’ve said that you were very sick and you were coughing, you had a runny nose and you had medicine?
Applicant: ---Yes.
Respondent: Are you suggesting the medicine is why?
Applicant: ---No, I’m just saying, I was very sick, that’s all, at that present time. It could have been numerous - I’m not 100 per cent sure, but I’m only saying that because it’s of oath, I’m saying what’s happening at that point in time. And regards with it, I had to actually drag myself out of bed that particular day because my son was on holiday camp so I was supposed to take him to holiday program at the Police Citizens Youth Club and I didn’t want to go that day because I was really sick. So, maybe, I’m not 100 per cent sure, but I do know I was very sick that day, so I do apologise for that.
Respondent: Was your son in the car with you on that day?
Applicant: ---No, no, no. I’d already taken him to that program that day, because he goes there in the morning and then I pick him up in the afternoon.
Respondent: At what point were you found with the drugs in your system?
Applicant: --In the morning.
Respondent: In the morning, so it was just after you had dropped him off?
Applicant: ---Yes.
Respondent: On that day, in those supplementary G docs in SG2 page 89?
Applicant: ---Yes.
Respondent: That is the Queensland Police overview of the facts and it states - - -?
Applicant: ---Sorry, beg your pardon, was that the G document?
Respondent: The SG document?---The SG, 89, sorry. That’s all right?
Applicant: ---Yes.
Respondent: At, probably about two-thirds of the way down the page, there’s a statement that a certificate was later produced by a government analyst confirming the presence of the relevant drug, methylamphetamine within the defendant’s saliva?
Applicant: ---Yes.
Respondent: Had you taken that before driving your son to holiday camp or after you drove - - -?
Applicant: ---No.
Respondent: Before. So, between dropping him off then, the police stopped you?
Applicant: ---I hadn’t had any - it’s a bit of a - I - - -
Respondent: Take your time?
Applicant: ---No, that’s all right. That day, I feel because I didn’t have anything in my system for three weeks, so I don’t understand how that occurred, like, how it did so. That’s another, yes, that’s another thing to talk about, but what I’m trying to say to you, I didn’t have anything in my system for three weeks so I don’t understand why that happened that particular day.”
The nature and seriousness of the Applicant’s conduct
Sub-paragraph 8.1.1(1)(a) of the Direction requires that decision makers must have regard to (without limiting the range of conduct that may be considered very serious), the following types of crimes or conduct that are viewed very seriously by the Australian Government and the Australian community, these are:
(i)Violent and/or sexual crimes;
(ii)Crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)Acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed.
Sub-paragraph 8.1.1(1)(b) of the Direction states that decision makers must have regard to (without limiting the range of conduct that may be considered serious) the following types of crimes or conduct that are considered serious by the Australian Government and the Australian community, these are:
(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) [of the Migration Act]);
(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 [Migration] Act, which prohibits escape from immigration detention.
Additionally, the Direction requires decision makers to consider the following additional considerations with respect to the nature and seriousness of the non-citizen’s criminal offending or other conduct to date pursuant to sub-paragraphs 8.1.1(1)(c) to (g) of the Direction:
(i)with the exception of the crimes or conduct mentioned in subparagraph 8.1.1(1) (a)(ii), (a)(iii) or (b)(i), the sentence imposed by the courts for a crime or crimes;
(ii)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(iii)the cumulative effect of repeated offending;
(iv)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(v)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 noncitizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Upon a wholistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the following considerations have application with respect to the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction: sub-paragraph 8.1.1(1)(a)(iii); and sub-paragraphs 8.1.1(1)(c), (d) and (e).
Sub-paragraph (a)(iii) of paragraph 8.1.1(1) of the Direction states that “acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed” are viewed very seriously.
The Tribunal earlier referred to an incident of family violence which had occurred between the Applicant and her brother, that is reported to have taken place in front of children. The Applicant did not deny that her conduct had left marks on the victim (her brother)[52]:
[52] Transcript 24 May 2021, page 38, lines 25 to 40.
“SeniorMember: It says in here that police made some observations with respect to marks on your brother's body from being hit. So there's finger marks there. Do you disagree with that?
Applicant: Look, there might have been some finger marks and that, I'm not going to try and deny that because I can't honestly tell you. It happened a few years ago, I'm not denying that so there probably might have been some finger marks if I pushed him so he's, you know, (indistinct). I'm not going to deny that.
SeniorMember: Okay. It says here that you then started punching the aggrieved in the stomach to get the aggrieved - to push the respondent away to get out of his face?
Applicant: No, I wouldn't have punched him in the stomach. I would have pushed him out of the way.
SeniorMember: It says here that you'd fallen over to the ground near a mower?
Applicant: Maybe, yes.
Senior Member: So there is some truth to the reporting of the police there?
Applicant: Yes.”
Despite both the Applicant and the victim seeking to recast the events in submissions before the Tribunal; police involved still believed there to be a need for a Protection Order to be put in place against the Applicant, preventing contact between her and the victim (her brother)[53].
[53] Exhibit R2, SG2, page 9.
The Queensland Police records indicate that this had not been the first incident of domestic violence involving the Applicant, with the report referring to an incident which had occurred about eight months ago at their parents’ home[54]. In earlier reasons, the Tribunal has transposed an exchange in which the Applicant during the course of the hearing did not deny that a verbal argument had taken place[55].
[54] Exhibit R2, SG2, page 11.
[55] Transcript 24 May 2021, page 39, lines 10 to 45.
The Tribunal acknowledges that the Applicant was not charged for the reported incident which occurred in March 2015. However, the Tribunal observes that with respect to the application of sub-paragraph 8.1.1(1)(a)(iii), where there is evidence of “acts of family violence”, this is taken into account “regardless of whether there is a conviction for an offence or a sentence imposed”.
With respect to the evidence of the family violence incident contained in the Protection Order, the Queensland Police Service records, supplemented by the Applicant’s evidence; the Tribunal is of the view that this incidence of family violence engages sub-paragraph 8.1.1(1)(a)(iii) of the Direction. Additionally the Tribunal observes that the relevant sub-paragraph of the Direction states that acts of family violence are viewed very seriously, “crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community…(iii) acts of family violence”.
The Tribunal is of the view that for the purposes of sub-paragraph 8.1.1(1)(a)(iii) of the Direction, the nature of the conduct of the Applicant with respect to this incident of family violence is considered very serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the courts for a crime or crimes with the exception of the crimes or conduct mentioned (relevantly) in sub-paragraph 8.1.1(1)(a)(iii).
The Tribunal in earlier reasons outlined the criminal history of the Applicant. The Tribunal observes the Applicant’s criminal offending history recorded entries from 2015 onwards, (observing that their driving related offences began soon after arriving in Australia). The Applicant’s first criminal conviction was recorded against her in October 2016, when she was 45 years of age.
The Applicant has appeared before lawful authority on 10 occasions for sentencing regarding 17 offences. Before receiving a sentence involving criminal custody, the Applicant had been sentenced on eight occasions, and had benefited from multiple no conviction sentences, fines, a good behaviour bond, and had been ordered to undertake a drug diversion program.
On 19 November 2018, the Applicant was sentenced to six years and six months for trafficking dangerous drugs. With the Applicant currently 49 years of age, and having resided in Australia for 21 years, the Applicant’s criminal offending conduct resulted in a sentencing regime imposing criminal custody equivalent to around a third of the time she has spent residing in Australia whilst not incarcerated.
The Tribunal regards the Applicant’s offending conduct involving the trafficking of dangerous drugs, namely methamphetamines as extremely serious.
The Applicant was described by Her Honour Judge Lyons SJA as someone who during a period of eight months had operated with great activity, that they were commercially motivated, supplying customers at all hours, and selling on credit[56]. The Tribunal observes that sentences involving the imposition of criminal custody are normally the final resort in the sentencing hierarchy, and the Tribunal views the head custodial sentence of six years and six months with respect to the Applicant’s trafficking dangerous drugs to be a lengthy sentence. The Tribunal refers to the sentencing remarks of Her Honour Judge Lyons SJA in this regard[57]:
“…it is important that I punish you in a way that is just in all of the circumstances, to provide conditions which will help you to be rehabilitated, but there needs to be significant deterrence to deter you and others from committing the same or similar offences, and I make it clear that the community denounces this conduct that you were involved in…”
[sic, Tribunal bold for emphasis]
[56] Exhibit G1, G2, pages 23 and 24.
[57] Exhibit G1, G2, page 25.
The Tribunal is of the view that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction is engaged with respect to the Applicant’s criminal conduct, and the custodial sentence imposed by the Court on the Applicant reflects the extremely serious nature of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
The Applicant’s offending commenced with driving related offences soon after their arrival, which evolved into drug possession offences some fifteen years later. The Applicant’s her first entry in her criminal history occurred when she was 43 years of age in March 2015, with a no conviction recorded notation for a drug possession related offence. Following this, her criminal offending evolved to include drug driving related convictions, multiple breaches of bail, contravene a direction or requirement, followed ultimately by their most serious conviction regarding trafficking of dangerous drugs[58].
[58] Exhibit G1, G2, pages 20 and 21; Exhibit R2, SG4, pages 188 to 190.
The Tribunal observes that the earlier non-custodial sentences the Applicant had received failed to have a deterring effect on their criminal conduct, as the Applicant did not seek to moderate their conduct or address the factors causing them to offend.
The Tribunal is of the view that the Applicant’s conviction regarding the trafficking of dangerous drugs is objectively more serious than that of the Applicant’s earlier offences involving drug possession and breaches of bail. It is evident that the Applicant’s criminal offending conduct reflects a trend of increasing frequency and seriousness, such that it engages sub-paragraph (d) of paragraph 8.1.1(1) of the Direction, in favour of non-revocation of the Applicant’s Visa, and that the nature of the Applicant’s conduct is deemed very serious.
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 Tribunal is of the view that the Applicant’s offending has indeed had a cumulative effect and warrants the application of this sub-paragraph. The Applicant’s frequent and increasingly serious criminal conduct required significant resources to bring them to account for their actions, including significant police resourcing with respect to their conviction for trafficking dangerous drugs.
There is no doubt that a cumulative effect of the Applicant’s conduct is felt by the victims of the Applicant’s offending involving the trafficking of dangerous drugs, as referred to by Her Honour Judge Lyons SJA in her sentencing remarks of 19 November 2018, where she stated, “… other people cannot live normal lives because of their addiction to methylamphetamine, which you have facilitated”[59].
[59] Exhibit G1, G2, page 24.
The Tribunal observes that the Applicant accepted that their criminal offending was “serious” in submissions to the Tribunal and acknowledged that it impacted the lives of other people[60].
[60] Exhibit A7, page 1.
A further cumulative effect of the Applicant’s offending relates to their conduct regarding the use of a motor vehicle on Australian roads, and the traffic related offences which they have amassed including two counts of drug driving (in 2016 and 2017) [61]. With respect to the Applicant’s convictions regarding drug driving, laws are in place regarding the use of motor vehicles in order to protect the safety of the wider community; the Applicant’s repeated conduct in this respect is viewed very seriously.
[61] Exhibit R2, SG4, pages 188 to 190.
The Tribunal views the cumulative effect of the Applicant’s conduct enlivens the application of sub-paragraph 8.1.1(1)(e) of the Direction, in favour of a finding that the Applicant’s offending is of a very serious nature.
Having regard to all of the evidence and submissions made to the Tribunal, as they apply to the relevant sub-paragraphs (a)(iii), (c), (d), and (e) of paragraph 8.1.1(1) of the Direction; the Tribunal is of the view that the Applicant’s conduct overall is characterised as extremely serious. The Tribunal has found the sentence imposed by the courts for their drug trafficking related offending to be the determinative factor with respect to the general characterisation as to the nature and seriousness of the Applicant’s conduct.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, sub-paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(1)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Paragraph 8.1.2(1) of the Direction requires decision makers be guided by the following principle in relation to the harm that would be caused if the criminal offending or other conduct of the Applicant were to be repeated:
“… decision-makers 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.”
[Tribunal underline for emphasis]
The Applicant’s submissions to the Tribunal acknowledged the harm caused and the seriousness of their criminal conduct on the lives of individuals who they had trafficked dangerous drugs to, the Tribunal refers to the following exchange[62]:
“…What matters to me is that I am so sorry and remorseful of what I have done to the families out there, to those 15 people and their families, their children. I have to think about it in my respectful way of (indistinct)[63], that could have been my child, that could have been my aunty, that could have been my cousin so I do apologise. All that matters to me is that I do the right thing by my family and by my children to show them my example that I am a new person.”
[62] Transcript 24 May 2021, page 13, lines 3 to 9.
[63] On listening to the audio of the hearing, the Tribunal has made out the following: “thinking”.
The Tribunal again refers to the sentencing remarks of Her Honour Judge Lyons SJA in the Brisbane Supreme Court on 19 November 2018, which highlights the impact which such criminal offending can have on the community[64]:
“… As you know, the distribution of methylamphetamine in our community is at dangerous levels and the impact on so many members of society is incredible. It has impacted on you, other people cannot live normal lives because of their addiction to methylamphetamine, which you have facilitated…
…
You obviously impacted on the lives of, at least, 15 other people who are also experiencing the misery of having been involved in methamphetamine…”
[64] Exhibit G1, G2, pages 24 and 25.
In the Tribunal’s mind, the harm resulting from repeat conduct involving the trafficking of dangerous drugs is considered very serious.
The Tribunal is of the view that if the Applicant were to offend again, the nature of the harm that would result from such conduct on individuals and the broader Australian community can be observed from the impact which the trafficking of dangerous drugs such as methamphetamines has on the community.
The Tribunal observes the myriad of problems arising from the trafficking of dangerous drugs (particularly methamphetamines) with respect to:
(i)the link between the use of methamphetamines and drug induced psychosis in individuals which can lead to the commission of violent crimes;
(ii)the highly addictive nature of the dangerous drug which fuels related crimes such as property offending as individuals turn to this to fund their addictions;
(iii)the general harm to the community caused by the trade of such drugs when community resources are required to intervene including policing, emergency services, and hospitals; and
(iv)the resulting economic impact flowing from the trade of such drugs which diverts resources within the economy.
The Tribunal agrees with the Respondent’s contention regarding the harm which could be caused should the Applicant engage in further or other serious conduct when reflecting on the Applicant’s criminal offending record, and agrees that sub-paragraph 8.1.2(1) of the Direction is engaged: 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[65].
The likelihood of the Applicant engaging in further criminal or other serious conduct
[65] Exhibit R1, page 10, paragraph 34.
In submissions before the Tribunal, the Applicant stated the following with respect to their substance abuse issues, “The charges against me happened at a time in my life when I was addicted to drugs. Until then, I had never been in trouble with the police or been before a court”[66].
[66] Exhibit A7, page 1.
During the course of the hearing, the Applicant has further stated[67]:
“..I was regularly using drugs again as a coping mechanism -we were evicted from our rental property and where living on the street/car, I held a small job that helped us get through each day, until we were giving support from a homeless shelter.
Because of my addiction, I was using often - I would work odd jobs to support my habit and most times I would have enough substance for my use to last at least 6 months, at this time I was charged by the police for trafficking and possession. I am not proud of the fact that I used drugs as a means of coping with the impact this has had on my husband, children and family…”
[Tribunal bold for emphasis]
[67] Exhibit G1, G2, page 92.
The Applicant confirmed they had commenced using drugs from the age of 15, and when asked by the Tribunal to explain what they had meant when referencing “triggers” that lead to their abusing prohibited drugs, they agreed that life stressors contributed to their addiction[68]:
“Senior Member: If I may, earlier you mentioned that you now understand your triggers that led to your drug usage, do you mind explaining to the tribunal what they were?
Applicant: ---Okay, yes. What I’m meaning is, at that time, my husband had lost his job, we were having financial difficulties and so forth. It was really hard for him to get another job and that as well at that time. Trying to balance the fact of running a house, putting a roof over our head and so forth, that’s what was really bad at that time. And because I was an addict, I was thinking things in the wrong mannerism, I wasn’t - I was thinking of things in a cloudy way, not in a - like now, if I came to that kind of position, I can find different ways, I’ve achieved so many things where I can actually not worry about that trigger again, because now I have these certificates and these qualifications and these just different job opportunities now and a positive effect without being clouded with all of this false judgement because of all the drugs in my system. Now, it’s different because I feel I’m stronger and I know what I have to do to survive for my family and myself.
SeniorMember: Would you refer to things like losing your job or facing financial difficulties as just life stressors?
Applicant: ---It’s just life stressors, definitely, is 100 per cent. If, like now, if that happened to me now, I’d go, oh my gosh, that’s all right, I’ll just go and get another job and that’s how - like, when I first initially came to Australia, I was a - I’m a qualified chef, it got - and like, when I was working at different jobs in regards to that, I didn’t want - I wanted to go and get another type of job, so I just went doorknocking and got cards and I’d ring up to those employers to make sure that, you know, if I wanted a job I could get one. So, now, I can do that because I’m not feeling like I’m in a bubble anymore, I can branch out and I can speak to somebody, a stranger. It doesn’t worry me now, it doesn’t affect me anymore and that mannerism, because I used to hide all the time and be embarrassed who I was.”
[68] Transcript 24 May 2021, page 26, line 42; page 35, lines 4 to 32.
The “triggers” which the Applicant has referred to are indeed general life stressors. On this point, the Tribunal observes that there is no certainty that events such as losing employment or facing financial difficulties will not be encountered by the Applicant into the future.
The Tribunal has reservations with respect to accepting the Applicant’s claims regarding their ability to deal with their triggers should they be returned to the community; given the lack of medical evidence from an independent and suitably qualified clinician confirming that the Applicant has indeed acquired sufficient insight and has developed the capacity to appropriately deal with such triggers, to an extent that should they face such issues into the future, they will not resort to past behaviours, which ultimately led to their incarceration.
The Applicant stated that their sobriety from their addiction issues commenced approximately six months prior to their incarceration, the Tribunal refers to the following exchange[69]:
[69] Transcript 24 May 2021, page 34, lines 33 to 46; page 35, lines 1 to 2.
“Respondent: This is in your February 2021 letter to the Department of Home Affairs. You stated, at the top of that page on the third line, that you’ve been clean for two-and-a-half years. If my math is correct, that means that it’s from the time that you went to prison, approximately?
Applicant: ---Yes, correct. Well, actually, a little bit - it would be a little bit longer than that because prior to coming into jail, so into incarceration, so a little bit before then.
Respondent: When did you stop taking drugs?
Applicant: ---Probably about six months prior.
Respondent: Did you have any assistance to break your addiction at that time, or was it just - - -?
Applicant: ---My assistance into breaking that, I did some, as I said, some numerous courses and stuff like that. But I am an addict and I always will be a reformed addict, so I replaced it with doing the gym, going running, keeping myself healthier. Whilst I’ve been incarcerated, I’ve lost like 22 kilos now because I want to better myself, so that’s what I’ve replaced it with.”
The Tribunal is hesitant to afford measurable weight to the Applicant’s claims they had stopped using drugs six months prior to their incarceration, given (1) the long-standing nature of the Applicant’s addiction issues, with their prohibited drug use commencing from when they were 15 years of age; and (2) the lack of corroborating independent medical evidence with respect to any interventions, mental health treatment(s), or counselling undertaken by the Applicant.
This point is particularly pertinent when one considers the concerns raised by clinicians in two reports contained within the evidence before the Tribunal. These reports were tendered as part of proceedings in the Brisbane Supreme Court relating to the Applicant’s trafficking in dangerous drug and other drug related charges.
The first of the two reports prepared by Dr Jeremy Butler, Psychiatrist, dated 8 May 2018 provides a detailed background as to the Applicant’s history and in particular her childhood, which seemed traumatic from the events described by the Applicant and reported by Dr Butler. The Tribunal refers to the following extracts of this report[70]:
[70] Exhibit R2, SG3, pages 92 to 103.
“…Ms Walker said she had rarely used cannabis as used to make her "hypo".
She said that she began using "speed" at about 15 years of age and would usually drink it with orange juice. She said it would increase her libido but would not cause her to feel either paranoid or to hallucinate. She said that she had used it recreationally over many years but denied ever having used it daily or second daily. However, she did indicate that when her partner was perhaps being unfaithful, she may have been using it three days a week towards the end of 2015 or during 2016. She claimed that she had not used any for several months prior to my assessment interview.
She denied having used "ice", methamphetamine apart from one or two occasions…
… Ms Walker was raised in New Zealand and her parents separated when she was 18-years of age. She described her father as a violent, hard man who was aggressive towards her mother and who abused alcohol. She recalled there were many instances of domestic violence…
…She said she has one living brother and sister. One of her other sisters died from cerebral palsy whilst the other died from sudden infant death syndrome. One brother killed himself at the age of 12…
… Ms Walker denies ever having used cannabis or methamphetamine on a daily basis. However from her account, she may have been using it at least two or three times weekly in 2015 or 2016. It is certainly possible that her level of drug usage was greater than what she relayed to me…
… In my opinion, Ms Walker is currently suffering from an acute stress disorder which is impacting upon her social functioning and causing significant subjective distress. I believe that she would benefit from appropriate investigations and treatment with respect to this condition. In my opinion, if untreated, there is a risk that she could develop a more protracted post-trauma syndrome, which could reactivate what are now relatively dormant symptoms of a delusional disorder, which initially developed in either 2012 or 2013. Presently, I do not believe that Ms Walker's overall capacity to function and to process information is significantly affected by any delusional thinking…
… In my opinion, Ms Walker would benefit from a review of her propensity to use illicit substances and would benefit from any therapy designed to proactively reduce the likelihood of any escalation her use of such illicit substances.”
[Tribunal bold]
The second report tendered to the Brisbane Supreme Court was completed by Dr Velimir Kovacevic, Consultant Psychiatrist dated 18 September 2018, following a request for re‑examination of the Applicant’s mental state during the course of the proceedings. The Tribunal refers to the following relevant extracts of the report[71]:
[71] Exhibit R2, SG3, pages 105 to 110.
“…Miss Walker reported one previous admission to a psychiatric unit in 2012 when she was hospitalized because of threats of suicide. She had six days long admission at the Gold Coast University Hospital. Her suicidality emerged in the context of financial hardship. She was a sole carer for her young son and was no longer able to work as a tow truck driver. At the time Miss Walker also believed that her husband cheated on her. She said the stress was immense and she contemplated ending her life.
After she was discharged, Miss Walker lost her home, separated from her husband and moved back to her mother's house. She received no further psychiatric follow up and had limited further contacts with mental health services. Her financial and coping difficulties continued, however. She said she continued to feel suicidal on many occasions. She was finding it difficult to meet her rent payments on her Centrelink benefit and was at the same time using "speed". She said that her use of amphetamines commenced in 2012 as a way of coping with her problems. According to her, some friends supplied her with drugs in order to help her cope with her depression.
Miss Walker denied any adverse effects of amphetamines and stated she had never experienced a substance-induced psychotic episode…
…Miss Walker denied any significant difficulties with her physical health. She currently takes no prescription or non-prescription medications…
… There is little doubt that Miss Walker suffers from some longstanding psychological difficulties. There is a conspicuous absence of the memories of her early childhood, supporting a suggestion that she may have been sexually abused as a child. As an adolescent she reported experiencing an eating disorder, anxiety and depression in the context of difficult psychosocial circumstances. Such a developmental trajectory markedly increased the chances of Miss Walker experiencing significant psychiatric morbidity as an adult. About six years ago she was diagnosed with possible Bipolar Affective Disorder precipitated by illicit substance abuse, although there is no great deal of evidence to substantiate this diagnosis…
…When it comes to Miss Walker's diagnosis, my preferred diagnostic formulation would include an Adjustment Disorder with Depressed and Anxious Mood, in the context of probable childhood trauma, an extensive substance abuse history and longstanding difficulties in personality functioning. There is no sufficient evidence to diagnose Miss Walker with a Post Traumatic Stress Disorder at this time. Her presentation is not inconsistent with childhood trauma and sexual abuse and the later development of an eating disorder and substance abuse disorder would not be inconsistent with such formulation.
Miss Walker has indicated that she had traumatic background, although her memories are largely absent. She acknowledged her chronically chaotic existence, drug use and longstanding difficulties in psychosocial functioning, including limited ability to cope with stress of everyday living…
… Contrary to Dr Butler, I found no clear evidence that Miss Walker suffered from symptoms of a delusional disorder at the time when she committed her alleged offending. In addition to that, at the time of the interview I regarded Miss Walker as capable of understanding her charges and her rights under the law, and able to instruct her Counsel and assist in the preparation of her defence. Therefore, Miss Walker is in my opinion medically fit to stand trial…
… Miss Walker might benefit from the management of her symptoms in the short to medium term with antidepressant medications and psychological interventions. I would recommend her referral to a psychologist for counselling and CBT (cognitive-behavioural therapy). She also requires interventions aimed and reducing the likelihood of her future use of illicit substances…”
[Tribunal bold]
In earlier reasons, the Tribunal has found that there is a likelihood of the Applicant re‑offending due to the incomplete nature of their rehabilitation with respect to factors leading to their recidivism.
The Tribunal acknowledges the contribution the Applicant has made to the Australian community since residing here from January 2000, most notably from the Applicant’s modest contribution to the Australian community through her employment in various roles over time. However, tempering this contribution in the Tribunal’s view is the fact that any tolerance afforded to the Applicant by the Australian community has surely been exhausted when considering the extremely serious nature of the Applicant’s criminal conduct, involving the trafficking of dangerous drugs.
Conclusion: Primary Consideration 4
The Tribunal is of the view that the above factors, read as a whole in the context of this case, weigh very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
The Tribunal accordingly finds that Primary Consideration 4 is of a very heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
Paragraph 9.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction, that the receiving country of the Applicant is New Zealand, as well the Applicant’s submissions within their Personal Circumstances Form to the Respondent, and submissions of the Respondent[114]. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
[114] Exhibit G1, G2, pages 51 and 52; Exhibit R1, paragraph 68.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs decision makers 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 substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
222.The Applicant who is presently 49 years of age has stated to the Tribunal that they have no health concerns nor did they declare any in their Personal Circumstances Form to the Respondent, with the Applicant stating to the Tribunal that, “I have been identified with no physical or medical or mental health conditions”[115].
[115] Transcript 24 May 2021, page 17, lines 44 and 45.
With respect to the Applicant’s contention that they have not been identified with a mental health condition, the Tribunal in earlier reasons made findings with respect to the Applicant’s mental health as assessed by Dr Butler and Dr Kovacevic regarding the Applicant’s underlying mental health conditions, and their substance abuse issues, which the Tribunal will summarise again here:
(i)Dr Butler’s report of 8 May 2018, stating, “…In my opinion, Ms Walker is currently suffering from an acute stress disorder which is impacting upon her social functioning and causing significant subjective distress. I believe that she would benefit from appropriate investigations and treatment with respect to this condition. In my opinion, if untreated, there is a risk that she could develop a more protracted post-trauma syndrome, which could reactivate what are now relatively dormant symptoms of a delusional disorder, which initially developed in either 2012 or 2013. Presently, I do not believe that Ms Walker's overall capacity to function and to process information is significantly affected by any delusional thinking…”[116].
[116] Exhibit R2, SG3, page 102.
(ii)Dr Kovacevic’s report of 18 September 2018, stating, “…Miss Walker might benefit from the management of her symptoms in the short to medium term with antidepressant medications and psychological interventions. I would recommend her referral to a psychologist for counselling and CBT (cognitive-behavioural therapy). She also requires interventions aimed and reducing the likelihood of her future use of illicit substances…”[117].
[117] Exhibit R2, SG3, page 110.
The Tribunal observes that should the Applicant be deported to New Zealand, they would have similar access to comparable health care to that which is available in Australia; in addition to comparable support for rehabilitation services; should they wish to pursue such services.
On this point, the Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[118], where Senior Member Kelly stated the following:
[118] [2016] AATA 301 [at 101].
“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... 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.”
The Tribunal observes that the Applicant has resided in New Zealand for the first part of her life, and, in the Tribunal’s view the Applicant would not face any substantial language or cultural barriers. Further to this, they would have access to comparable social welfare support to that in Australia.
The Tribunal is of the view that any hardships the Applicant would face should they be deported to New Zealand would likely be temporary until they have had an opportunity to establish themselves.
The Tribunal observes that before the arrival of her son Child X and subsequent incarceration, the Applicant has had a long employment history. Additionally, the Tribunal has observed in earlier reasons that the Applicant has accumulated relevant qualifications whilst incarcerated to assist in her employability post incarceration[119].
[119] Exhibit A7, pages 2 to 4.
Whilst the Applicant states that the training she has undertaken whilst incarcerated is only recognised in Australia, the Tribunal notes that the Applicant was a qualified chef prior to her incarceration when she resided in New Zealand. This is a transferable skill that could assist the Applicant in finding employment should she be deported[120].
[120] Transcript 24 May 2021, page 35, lines 21 to 32.
The Tribunal observes that the Applicant has at least contemplated residing in New Zealand in the past, with various references of this recorded in the material before the Tribunal:
(i)Queensland Corrective Services offender case file notes submitted by the Applicant, which indicated on 31 December 2018, “…where she disclosed she is open to returning to NZ however, would appeal the decision if needed…”[121].
[121] Exhibit A7, page 24.
(ii)In Dr Kovacevic’s report of 18 September 2018 it states, “Miss Walker [the Applicant] stated she was planning to eventually return to New Zealand”[122]. [Tribunal insertion]
[122] Exhibit R2, SG3, page 107.
(iii)In the sentencing remarks of Her Honour Judge Lyons in the Brisbane Supreme Court on 19 November 2018, where she stated, “…but I understand you have family in New Zealand and there is an indication that your husband and son will move back to New Zealand at the expiry of your custodial term”[123].
[123] Exhibit G1, G2, page 25, lines 15 to 20.
The Applicant’s husband and son had been living in New Zealand until just recently; and from cross-examination of the Applicant during the course of the hearing it was evident that the Applicant has some family presently residing there (when she referenced her cousin “Ms MR”) [124]. This in the Tribunal’s view further highlights the familiarity the Applicant has with New Zealand.
[124] Transcript 24 May 2021, page 49, lines 34 to 46; page 50, lines 1 to 29.
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 9.2 of the Direction is of a slight weight in favour of revocation. However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found when combining Primary Consideration 1, and Primary Consideration 3 of these reasons.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to s501CA of the Migration Act, 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the Applicant’s impact on their victims from their offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is neutral[125].
[125] Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895, [at 88]; TBNM andLinks to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub-paragraphs 9.4.1 and 9.4.2 of the Direction, which consider the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Applicant arrived in Australia with her husband in 2000 when she was 28 years of age and has resided in Australia since this time. The Applicant’s immediate family (consisting of her husband, her son Child X, and her adult son Mr HR, in addition to her mother and siblings) all reside in Australia[126].
[126] Exhibit G1, G2, page 48.
The Tribunal heard evidence that the Applicant’s son Child X is an Australian citizen[127], with the Applicant’s son Mr HR confirming he is a New Zealand citizen[128], and the Applicant’s husband Mr TW, is a permanent Australian resident[129]. Additionally, both the Applicant’s mother and sister who gave evidence before the Tribunal confirmed they were both citizens of New Zealand, whilst residing in Australia[130].
[127] Transcript 24 May 2021, page 56, lines 29 and 30.
[128] Transcript 24 May 2021, page 66, lines 4 and 5.
[129] Transcript 24 May 2021, page 56, lines 18 to 27.
[130] Transcript 24 May 2021, page 59, lines 27 and 28; page 63, lines 12 to 14.
The Tribunal has had regard to the submissions of many of the Applicant’s family members detailing the impact deportation of the Applicant would have upon them emotionally, and upon the Applicant personally. The Tribunal refers to some of these submissions:
(i)Mr TW, the Applicant’s husband in an email of 28 March 2021, “…We are devastated that Amanda will be sent to NZ while all her family are here in Australia, we are the close support required for Amanda at this moment…”[131].
[131] Exhibit A1.
(ii)Ms JTH, the Applicant’s mother, in an email of 9 April 2021, “…I would find it cost prohibitive to travel constantly between the family here, and my daughter back in New Zealand… Please I beg of you to allow my daughter to stay here, so she would have all of her cousins nieces and nephews, her husband and both of her son’s and her granddaughter, her sister and brother, their partners and families, we are a very supportive unit awaiting to enfold Amanda back into our lives…”[132].
[132] Exhibit A5.
(iii)Ms DT, the Applicant’s sister Ms DT, in an email of 6 April 2021, “… I plead with you to allow us the other opportunity to have her home with us, to be given the opportunity to make memories with her here…”[133].
[133] Exhibit A7, page 54.
The Tribunal in earlier reasons of this decision has gone into detail as to the impact of the Applicant’s deportation regarding the best interests of relevant minor children. The Tribunal accepts that the Applicant’s immediate family members in Australia would suffer significant emotional hardship should the Applicant be deported
The Tribunal has had regard to the impact of the decision regarding deportation of the Applicant with respect to their immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction weighs strongly in favour of the Applicant remaining in Australia.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residence and/or people who have an indefinite right to remain in Australia.
The Tribunal has previously observed that the Applicant moved to Australia in January 2000 as a 28 year old, and whilst entries in her criminal offending record did not commence until March 2015[134], she did begin offending soon after her arrival (in November 2000) with respect to her traffic record before the Tribunal[135].
[134] Exhibit G1, G2, page 21.
[135] Exhibit R2, SG4, page 189.
Regarding the application of sub-paragraph 9.4.1(2)(a)(i) of the Direction, the Tribunal has limited the weight which may otherwise have been afforded to the Applicant in circumstances where their offending began relatively soon following her arrival in Australia.
With respect to the Applicant’s positive contributions to Australia since their arrival, in her submissions before the Tribunal, she outlined a fairly consistent employment history, up until around the time of her son’s birth (Child X). The Tribunal refers to the following exchange[136]:
[136] Transcript 24 May 2021, page 51, lines 24 to 47; page 52, lines 1 to 4.
“Respondent: At the bottom of that page you've listed your employment history and you've said that - so after arriving in Australia in 2000 you worked at [name redacted] as a chef from 2006 to 2007. Is that right?
Applicant: Yes.
Respondent: When you worked in [location redacted] at the water mains from 2007 to 2010?
Applicant: Yes.
Respondent: Then as a tow truck driver with [name redacted] from 2010 to 2011?
Applicant: Yes.
Respondent: Have you had any other jobs while you've been in Australia?
Applicant: Yes, I have. I've worked for a [name redacted] - because I used to be a chef and I used to work at the [name redacted]. I was there for about a year when I first came over. I was - and I used to sell flowers on the weekend to people up in Brisbane. I used to work at [name redacted] as well. I've worked there. That was in the earlier (indistinct) and I used to do printing as well, sell printing for - goodness me - I'm just trying to think of the name, sorry. I can't think of the name at the moment, sorry.
Respondent: That's fine. So when did you work at the [name redacted]?
Applicant: When I first came over in 2000 and same with [name redacted]. [name redacted] was situated down at Harbour Town.
Respondent: Then when were you working at [name redacted]?
Applicant: That would have been - goodness me - round about - look, I'm not 100 per cent sure right offhand but about 2002 till 2003.
Respondent: When were you working at the printing job?
Applicant: [name redacted], I knew it was going to come to me, sorry. [name redacted]. Yes, I worked there for about 18 months. That was after - it was after [name redacted].”
[Tribunal redactions]
The Tribunal is of the view that a moderate measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s modest contribution to the Australian community through her employment.
With respect to the application of sub-paragraph 9.4.1(2)(b) the Tribunal accepts that the Applicant is close with her immediate and extended family and friends in Australia, which meet regularly and often hold catch-ups for the many birthdays and occasions throughout the year.
The Tribunal accepts that the Applicant has a close relationship with her immediate family as identified in earlier reasons of this Other Consideration, in addition to enjoying a close relationship with her extended family which includes her cousins, nieces and their children.
Notably the Applicant submitted statements in her support from her niece, Ms NW, and her cousins Ms KH and Ms MG[137]. The Tribunal has had regard to the Applicant’s Personal Circumstances Form to the Respondent identifying her extended family, in addition to the Applicant’s submissions during the course of the hearing, and accepts that the Applicant enjoys a close bond with her family and friends who are in Australia[138].
[137] Exhibits A2; A3; and A4.
[138] Exhibit G1, G2, page 48.
The Tribunal observes that the Applicant had a friend present at the hearing for support (who was not called to give evidence).
The Tribunal further observes the offer of employment from the Applicant’s son, Mr HR, to the Applicant offering her a job assisting in the running of his business should the Applicant be allowed to remain in Australia[139].
[139] Exhibit A7, page 49.
In applying paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and social links and is of the view that this attracts a moderate measure of weight in favour of the Applicant being allowed to remain in Australia.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs strongly in favour of revocation for the Applicant.
Whilst the Tribunal has applied a strong measure of weight to this Other Consideration, it is it is by far outweighed by the combined and determinative weight the Tribunal has given to both Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant; as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project or delivery of an important service in Australia.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)Extent of impediments if removed, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(c)Impact on victims is of neutral weight.
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia, a strong measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision; and
(ii)Impact on Australian business interests is of no weight as this consideration is not relevant to the factual circumstances of the Applicant.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration 1 weighs very heavily in favour of non-revocation.
(ii)Primary Consideration 2 weighs moderately in favour of non-revocation.
(iii)Primary Consideration 3 weighs strongly in favour of revocation.
(iv)Primary Consideration 4 weighs very heavily in favour of non-revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and that of Primary Consideration 3), does not in any way outweigh the combined very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, and Primary Consideration 4 of the Direction.
In the Tribunal’s mind, Primary Consideration 1, and Primary Consideration 4, have been determinative considerations in this matter.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
As an aside, the Tribunal would like to acknowledge and commend the Applicant’s efforts in representing herself in the proceedings, her submissions were detailed and her arguments were well articulated.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 23 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 268 (two hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
....................................[SGD]....................................
Associate
Dated: 15 June 2021
Date of hearing:
24 May 2021
Applicant:
Ms Amanda Ross (self-represented)
Solicitor for the Respondent:
Ms Kate Ervin (Clayton Utz)
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 G Documents (pages 1 to 262) - 9 April 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (16 pages) 14 May 2021 14 May 2021 R2 Respondent’s Supplementary Section 501G ‘G’ Documents’ (pages 1 to 197) - 10 May 2021 A1 Statement of Mr TW (husband) (via email) 28 March 2021 6 April 2021 A2 Statement of Ms NW (niece) (via email) 7 April 2021 7 April 2021 A3 Statement of Ms KH (cousin) (one page) 7 April 2021 7 April 2021 A4 Statement of Ms MG (cousin) (via email) 8 April 2021 8 April 2021 A5 Statement of Ms JTH (mother) (via email) 9 April 2021 9 April 2021 A6 Support letter of HR (son) (one page) undated 13 April 2021 A7 Applicant’s bundle of material (pages 1 to 58) - 22 April 2021
& 30 April 2021A8 Email from Mr TW (husband) 17 May 2021 17 May 2021 A9 Email from Mr JR (Applicant’s brother) 17 May 2021 17 May 2021 A10 Applicant’s son’s school enrolment forms 19 May 2021 19 May 2021 A11 Applicant’s bundle of material in reply (16 pages) - 18 May 2021
have lodged the application for review with the Tribunal within nine days after the day on which he or she
received notification of the decision, refer to s500(6B) of the Migration Act.
Minister for Home Affairs (Migration) [2019] AATA 850, [at 81].
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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