Rukuwai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2201

Rukuwai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2201 (21 June 2022)
Division:GENERAL DIVISION
File Number(s):2022/2720
Re:Haley Rukuwai
APPLICANT

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

DECISION
Tribunal:Senior Member O'Donovan
Decision Date: 21 June 2022
Written Reasons Date: 8 July 2022
Place:Canberra

The Reviewable Decision dated 28 March 2022 is affirmed.
...................................................................
Senior Member Damien O’Donovan
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (Subclass 444) visa – where Applicant does not pass the character test – whether “another reason” to revoke visa cancellation – Decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 501, 501CA, 499(1)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Plaintiff M1/2021 v. Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] 214 CLR 1
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Secondary 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 O'Donovan

The applicant was born in New Zealand on 30 January 1982. She first arrived in Australia on 4 January 1989. She has visited New Zealand a number of times since then but has always lived in Australia.
On 17 February 2021 the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act). It was cancelled following her conviction and incarceration for a range of offences including dangerous operation of a vehicle which resulted in her being sentenced to 18 months in prison.
On 19 February 2021 the applicant applied for revocation of the decision to cancel her visa and she made representations in support of that request. On 28 March 2022 a delegate of the Minister made a reviewable decision not to revoke the cancellation of the applicant’s visa. On 1 April 2022 the applicant applied to the Tribunal for review of the reviewable decision. In these proceedings I must consider whether the decision to cancel the applicant’s visa should be revoked.
The applicant’s visa was cancelled because, as a result of the length of the sentence imposed on her, she did not pass the character test specified in section 501(6)(a) of the Act. In those circumstances the Minister was obliged to cancel her visa under section 501(3A). Pursuant to subsection 501CA, I can revoke the cancellation if I am satisfied that there is another reason why the original decision should be revoked.
In the present case it is accepted that the applicant has made representations in accordance with section 501CA(4)(a) and that she does not pass the character test. Accordingly, the only question is whether there is ‘another reason’ why the original decision should be revoked. The exercise of this power is regulated by Ministerial Direction No 90.
In considering whether there is ‘another reason’ to revoke the visa cancellation I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[1]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[2]
[1] [2016] FCA 1166; (2016) 153 ALD 337, [38].
[2] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, including the Minister’s delegates and the Tribunal, but does not apply to the Minister.[3]
[3] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked Direction 79, the previous direction which dealt with section 501CA, on the same date.[4]
[4] Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, [2-3].
The Direction provides that:
A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.[5]
[5] Ibid [5.2].
The factors that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2 of the Direction. The following principles in paragraph 5.2 of the Direction provide a framework for decision makers:
(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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[6]
[6] Ibid.
Paragraph 6 of Part 2 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.[7]
[7] Ibid [6].
Paragraph 8 of the Direction identifies the following as primary considerations:[8]
(a)Protection of the Australian community;
(b)Family violence committed by the non-citizen;
(c)The best interests of minor children in Australia affected by the decision; and
(d)Expectations of the Australian community.
[8] Ibid [8].
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:[9]
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
[9] Ibid [9].
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’[10]
[10] Ibid [7.1]
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’.[11] This does not however preclude the Tribunal giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[12]
[11] Ibid [7.2].
[12] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.[13]
[13] Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461, [57].
ISSUES FOR DETERMINATION
The only issue for determination is whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE
The following material was taken into evidence in the course of the hearing:
·Exhibit 1: ‘G’-Documents pages 1-238, filed on 26 April 2022;
·Exhibit 2: Statutory declaration of Haley Rukuwai dated 13 May 2022;
·Exhibit 3: Statutory declaration of Candice J Bell dated 17 May 2022;
·Exhibit 4: Respondent's tender bundle, pages 1-589, filed on 30 May 2022.
The following witnesses gave evidence:
·The applicant;
·Marie Thompson;
·Matthew Flanders;
·Patrice Poutu; and
·Jacqueline McGregor.
FACTS
Fact finding principles
Set out below are my findings of fact. To the extent that any of the findings are controversial the evidence on which the finding is based is cited.
The applicant was a complex witness to assess. She made some admissions that were not in her interests which is usually the hallmark of an honest witness. However, on many occasions she sought to minimise her culpability for the worst conduct she engaged in. As a consequence, I have approached her evidence with caution on certain key matters and in particular her evidence concerning her drug use immediately prior to her incarceration. I have generally preferred the descriptions of events given by police in various summonsed documents. Given the source from which they come I am satisfied that they are generally more reliable than the account given by the applicant. Where I have rejected her sworn evidence, I deal with the reasons why in the section covering my fact finding.
My specific findings are as follows.
The applicant’s background – work, social and criminal history
The applicant moved to Australia with her mother and stepfather on 4 January 1989 aged 6. In 1994 the applicant moved with her family to Logan in Queensland where she has been based ever since.
Her childhood and early adulthood were unremarkable. She was part of a large family with roots in the Maori community. Her first child KT was born on 11 November 2000. The applicant was not married at the time and the relationship with the father did not last. Soon after she formed a relationship with JA, and they married in 2001. She had four children with him – CA, AA, SA, and RA.
Between 2001 and 2015 the applicant led a happy family life. Her husband worked as a fly-in-fly-out worker and she was a stay-at-home mum. According to witnesses close to the family in this period, the home was a happy one and the applicant was a kind, diligent and loving mother. The evidence of witnesses who knew her in this period were universally glowing.
The applicant actively encouraged her children to play sport, which she also played herself. She was involved with managing netball teams and rugby league teams for her children and played competitive netball herself. She was heavily involved with her extended family and it is clear that she was involved not just with her own nuclear family but the broader family life of her sisters and brothers.
The only serious incident of note in this period was an incident in a car park late one night in 2005 when the applicant assaulted a police officer after he attempted to break up a fight the applicant was having with another female. The applicant punched him three times with a closed fist, was ultimately arrested and continued to abuse the police while she was detained.
However, in 2015, the applicant’s life began to change significantly.
She was offered methamphetamine, commonly referred to as the drug ‘ice’ by a female friend in a social setting, and she began casual use of the drug.
During the following year her marriage broke down. The ending of the marriage was at her initiative and was resisted by her husband. The applicant’s assessment was that the marriage ended because they had ‘grown apart’ and her husband suffered from depression which did not help.
On the applicant’s evidence given at the hearing of this matter, her use of ice first became regular when custody arrangements were entered into in relation her children. Every second weekend her husband JA would have the children and that provided the applicant with an opportunity to ’get high with the girls’ as the applicant described it in her evidence at the Tribunal hearing.
As a result of disputes about property and custody the split became acrimonious.
In February 2017, after both the applicant and JA had re-partnered, the applicant sent JA the following text message:[14]
Get her fucken mongrel kids under control too…Another one of the kids come home and say hers have hit them and I’ll be around with a fucken bat.
Why the fuck u even want our kids around those fukn animals is beyond me…
[14] Exhibit 4, 267.
At the hearing of this application the applicant claimed that she did not intend to threaten a physical assault and denied that her former partner would have been scared by the message. I do not accept that assessment. The text is expressed in menacing terms. At the point in time when it was sent, the applicant was known by JA to be a user of ice who had a conviction for assaulting a police officer. I am satisfied that JA and his new partner would have been fearful as a consequence of the text.
JA reported the matter to the police and the applicant was charged with using a carriage service in a menacing, harassing or offensive manner. A conviction was recorded, and the applicant was fined. A domestic violence order (DVO) had already been taken out by JA but following this incident the order was extended to his new partner and her children. The applicant also took out a DVO against JA.
Over the following months the applicant repeatedly breached the DVO, but not in ways which, in my assessment, involved threats of violence.
Prior to these events the applicant had formed a relationship with a new man, CK. Over the next four years the applicant would have three children with him. On the applicant’s account, which I accept as accurate for the purposes of this application, CK was violent, brutal, manipulative, and unstable. The full detail of the horrors the applicant confronted at CK’s hands are documented in the G-documents.[15]
[15] Exhibit 1, G16, 120-134.
The relationship began with a hook up at a party which led to the applicant becoming pregnant to CK while CK was still in an existing relationship.
TK was born in December 2016 and in February 2017 CK moved in with the applicant and her children. For a short period of time the relationship worked but during 2017 the applicant was exposed to what she described as ‘fits of rage, emotional blackmail, delusional accusations and stalking’.[16]
[16] Ibid 124.
Between 2016 and 2017 the applicant’s use of ice increased.[17] CK was a heavy user of marijuana but had not used ice before he met the applicant. He subsequently commenced using the drug.[18]
[17] Exhibit 1, G13, 107
[18] Exhibit 1, G16, 129.
In around August 2017 the applicant discovered she was pregnant with AK, her second child with CK.[19]
[19] Ibid 122.
As the pregnancy progressed, JA obtained orders which allowed him to put the family home on the market. At this point the applicant’s eldest child KT went to live with the applicant’s mother. Her eldest son went to live with his father, but the applicant retained full time care of her other four children.
AK was born prematurely at 29 weeks in February 2018. The family home was sold shortly after.[20] . The applicant moved in with her mother with RA, her youngest son from her first marriage. Her two older boys, KA and SA moved in with her sister. Her daughter AA moved in with her father.
[20] Exhibit 1, G15, 116.
While AK was still in hospital, the applicant fought with her mother and her sister over her relationship with CK and ended up homeless, relying on friends for accommodation. Soon after her former husband was awarded full parental rights over their children.
At this point in time the applicant had been a regular ice user and over the course of 2018 the applicant’s use of the drug moved from being regular to daily.
The applicant claimed in one of her submissions to the delegate that it was in after these events that she started using methamphetamine,[21] but I am satisfied that the applicant started using ice much earlier and probably around December 2015. That was the evidence she gave at the hearing and I have no reason to doubt it. Her decision to use ice was unrelated to the chaotic events following the collapse of her marriage although the opportunities for the applicant to use ice increased as a consequence of the court orders made in relation to the children.
[21] Exhibit 1, G16, 127.

Over time, the applicant’s ice use was increasing to almost daily and other forms of criminality increased.[22]
[22] Exhibit 1, G4, 42.
In the following 3 years the applicant accumulated a large number of convictions for stealing from shops, stealing from petrol stations, driving while unlicensed, driving a car with number plates that were reasonably suspected of being stolen or unlawfully obtained, possession of tainted property (numberplates), possessing drug paraphernalia and possessing prohibited drugs. She failed to attend court in accordance with undertakings and failed to comply with bail conditions. Her complete criminal record is detailed in the applicant’s Criminal Charge Sheet dated 25 November 2021. It is extensive.[23] The applicant’s daily use of ice from around mid-2018 and the need to fund it helps to explain the applicant’s criminality in this period.
[23] Ibid 37-43.
At this point, the applicant describes herself as living in fear and alienated from friends, family, and any support networks she previously had. She concedes this alienation was not just as a consequence of CK’s controlling behaviour.[24]
[24] Ibid 128.
CK’s violence escalated and in repeated incidents beginning around August 2018, the applicant suffered severe bruising and broken ribs. During a further assault in January 2019 the applicant rang police and obtained a DVO against CK. This did not end the violence and appeared to cause an escalation in the manipulation engaged in by CK which included elaborate demonstrations of a desire to self-harm.
In mid-2019 the applicant discovered that she was pregnant with her third child with CK, ArK. At that point the applicant was homeless, and her older children with CK were in the care of her daughter KT.[25] The applicant and CK placed the children with KT initially on a temporary basis. but due to their chaotic lives ended up leaving the children with KT on a permanent basis.[26]
[25] Exhibit 1, G15, 116-117.
[26] Exhibit 1, G3, 31.
While the applicant was pregnant the violence continued. She stopped using ice but continued to offend in order to supply CK with drugs. The applicant was admitted to hospital on a few occasions during this period due to the beatings she received from CK. Later in the pregnancy the applicant discovered that CK had been cheating on her which prompted her to resume using drugs. She said in her submission to the delegate that she ‘will always regret putting [her] baby in danger and being so sad I let myself do that’.[27]
[27] Exhibit 1, G16, 134.
In September 2019 the applicant engaged in the conduct which became the subject of a dangerous driving conviction. It is by far the most serious offence committed by the applicant. The incident is comprehensively described in the Queensland Police Service Court Brief in relation to the dangerous operation of a vehicle charge laid in relation to the conduct.[28] The applicant pleaded guilty to the charge and was sentenced on the basis of these facts:
On the evening of 14 September 2019 Police observed a black Mitsubishi with what appeared to be a fake registration plate. Police pulled up beside the vehicle and observed…Hayley Rukuwai [sic] to be the driver of the vehicle, as they had had previous dealings with the defendant. Police spoke with the rear passenger as his window was down and asked him to get the driver to pull up around the corner…The passenger said “Haley, cops want you to pull over there.” As the lights at the intersection …changed to green the defendant accelerated away from Police as they activated their lights and sirens. Police continued to follow the vehicle with lights and sirens activated as they could see the defendant was not going to stop at the red light at Blackwood Street intersection and wanted to warn the public of the oncoming vehicle.
Police pulled over and deactivated lights and sirens approximately 10 metres through the lights…as the defendant narrowly missed a silver sedan as it turned right from Blackwood Street and continued to accelerate away from Police along Ewing Road on the wrong side of the road at approximately 120km/hr. The speed limit for this section of roadway is 60km/hr. It was night time and vehicles approaching the offending vehicle could not see the defendant was on the wrong side of the road until they had almost collided. At least 3 vehicles needed to take evasive action to avoid colliding with the vehicle the defendant was driving. …Police watched from a stationary position on Ewing Road as the defendant drove through the red light at high speed at Smith and Ewing Rds, Woodridge.[29]
[28] Exhibit 4, 120.
[29] Exhibit 4, 120.
In her evidence to this Tribunal the applicant denied that she went through any red lights, denied that she was going any faster than 80km/hour and denied that she ended up on the wrong side of the road. I do not accept that evidence. I accept the facts as outlined in the Police Brief. It is appropriate to do so given that the applicant pleaded guilty to the charge when it came before the court on 13 January 2021 and was sentenced to 18 months in prison. Further, as clarified by the Full Court of the Federal Court in HZCP and Minister for Immigration and Border Protection,[30] ‘relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[31] As these facts formed the basis of the sentence which triggered the original cancellation of the applicant’s visa, I am not at liberty to depart from them.[32]
[30] [2019] FCAFC 202.
[31] Ibid [68].
[32] Ibid.
ArK was born in February 2020 and the Department of Child Safety immediately removed her from the applicant’s care. The applicant claimed in her submission that the loss of ArK changed her life, and she began working with Child Safety and provided clean urine samples, began drug and alcohol counselling, and obtained housing.[33] I do not accept that the applicant ceased using drugs in February 2020.
[33] Exhibit 1, G16, 134.
She was stopped twice by police in June 2020 and on both occasions the applicant was in possession of a glass pipe for smoking ice. On the second occasion the police noted that the applicant exhibited signs of being under the influence of drugs. Based on this material I am satisfied that the applicant was still smoking ice as of June 2020.
On 3 August 2020 the applicant was sentenced in relation to multiple offences for failure to appear in accordance with undertakings dating back as far as September 2018 and a breach of a DVO which occurred on 23 March 2018.
The applicant was given a light sentence, but it appears that she was remanded in custody awaiting the hearing of a long list of charges still outstanding. On 13 January 2021 she pleaded guilty and was sentenced in relation to the other charges including the dangerous driving offence. The applicant was sentenced to 18 months in prison in relation to the dangerous driving offence.
During her time in prison the applicant was of good behaviour and was tested twice for drugs and on both occasions was clean.[34] When she arrived, she was assessed as a low risk of re-offending by Queensland Corrective Services.[35]
[34] Exhibit 1, G12, 76.
[35] Exhibit 1, G23, 167.
In October 2021, despite being in custody, the applicant was again before the court for breaching a DVO. The orders had been taken out by the applicant’s eldest daughter KT who had custody of the applicant’s children with CK. The orders prohibited the applicant from, among other things, attempting to contact KT by any means whatsoever.[36]
[36] Exhibit 1, G8, 61.
The applicant breached the order by writing several letters to her children at KT’s address between March 2021 and April 2021.[37] KT was obviously concerned enough about this behaviour to complain to police. It appears that the real concern was that CK might become aware of KT’s address which, given CK’s propensity to violence, was an outcome she understandably wished to avoid.
[37] Ibid.
I am satisfied that at the time of writing the letters the applicant was aware of the order and that sending the letters constituted a breach. Given the content of the letters though it is difficult to be critical of the applicant’s desire to express her love for her children.
While in prison and immigration detention the applicant has completed the following courses to which there is reference in the material before the Tribunal:[38]
[38] Exhibit 1, G24, 173-178.
·Transforming corrections to transform lives on 3 December 2020;
·Skillsets for Successful Tenancies – Dollars and Sense accredited by the Tenancy Skills Institute on 15 October 2020;
·Participate in safe work practices on 10 December 2020;
·Prepare and serve espresso coffee and use hygienic practices for food safety on 12 October 2020;
·Provide responsible service of alcohol on 14 October 2020;
·Bringing Up Great Kids Parenting Course on 18 February 2021;
·Collars and Textile workshops on 26 October 2020;
·Build Don’t Break – Resilience Program and Resilience Booster Program (undated);
·Short Substance Intervention Program (undated);
·Low Intensity Substance Intervention Program (undated); and
·18 other vocational training courses.
On 17 February 2021 the applicant’s visa was cancelled. Soon after, the applicant was moved to immigration detention. In her first submission the applicant described her relationship with CK in surprisingly warm terms given the terrible violence and manipulation to which she had been subjected. At this point she had been in custody for about 6 months.
Since I have been in prison CK has been a great support to me with regular phone calls and updates regarding the children.[39]
[39] Exhibit 1, G13, 108.
At a later point that year the applicant described more clearly the violence which she had experienced in the relationship and exhibited a clearer perspective on the mistreatment and manipulation to which she had been subjected.[40]
Contact with her children
[40] Exhibit 1, G15-G17, 115-137.
The applicant has effectively lost contact with all of her children except her youngest ArK and her son SA who she contacts by text. I will discuss the reasons for this in more detail in the consideration section below.
Contact with family and friends in Australia and in New Zealand
As discussed above, the applicant had deep ties with the Australian community prior to her descent into drug use. She has few relatives and friends left in New Zealand, but her grandmother is there, although her evidence at the hearing was that the contact with her was at best infrequent.
Present circumstances
The applicant remains in immigration detention. The witnesses who gave evidence in support of her application were not (with the exception of her mother) currently in close contact with her. The relationships can be summarised as follows:
(a)Matthew Flanders: he described the applicant as ‘his best mate’s sister’. He spoke glowingly about the applicant in the period from when he first knew her in 2002 to 2017. From 2017, he noted that he had not seen her in person and had only spoken on the phone once since that time.
(b)Patrice Poutu: the applicant’s children and Ms Poutu’s children are first cousins. They have known each other since 2009. She claimed that she last saw the applicant in person many years ago, in approximately 2014. Ms Poutu noted that she was very close to the applicant from 2009 to 2014 until the relationship with Ms Poutu’s children’s father deteriorated.
(c)Jacqueline McGregor: first met the applicant through her partner. The parents of Ms McGregor’s partner relocated to Australia with the applicant’s parents, and their children were described as ‘growing up together’. She spoke highly of the applicant’s parenting and her involvement in her children’s extracurricular activities such as sport, however noted in recent years the two families had grown apart.
The applicant outlined her possible living arrangements if the decision was substituted, and she was released into the community. She has two people that offered to take her in while she got on her feet - a friend, KW in Springfield Lakes and her Auntie, CR on the Sunshine Coast. She also stated that in the alternative, she could live with SK, who is a cousin of CK. She noted that she knew CK’s family long before she started to date CK.
PRIMARY CONSIDERATIONS
The applicant contends:
(a)that she is not a risk to the Australian community because she is a low risk of reoffending and that her offending is for the most part not serious, she has expressed genuine remorse and has been rehabilitated;
(b)in relation to domestic violence issues she does not pose a risk of re-offending and should not be judged on her conduct in light of her own experiences of domestic violence;
(c)that it is in the best interests of her children for her to have frequent close physical contact with them which can only happen if she is in Australia. It is also in the best interests of other minor children who are related to her;
(d)that she would experience hardship if removed, particularly on account of her mental health, and
(e)that it would be a breach of Australia’s human rights obligations if the applicant were returned to New Zealand given her close family and other ties to Australia.
Primary Consideration 1 – Protection of the Australian community
Paragraph 5.2 states that:[41]
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
[41] Above n 4, [5.2].
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:[42]
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.
(a) Nature and seriousness of the applicant’s conduct to date
[42] Ibid [8.1(2)].
Paragraph 8.1.1 sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the applicant’s conduct, the Tribunal must have regard to the following factors:[43]
[43] Ibid [8.1.1].
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…
(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 (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Having regard to the factors in paragraph 8.1.1 of the Direction, the Tribunal finds, for the following reasons, that the applicant’s offending is very serious. The applicant has a long history of offending which has become more serious over time. However, there are three particular offences critical to this finding.
First, her offence in 2005 which involved violence against another woman and then assaulting of a police officer. Although I am prepared to accept that the applicant was not the instigator of the original fight which attracted police attention, the assault on the police officer was unprovoked. As the sentencing Magistrate stated ‘…Assaults on police officers cannot be trivialised. It is very, very serious.’[44]
[44] Exhibit 4, 284.
Crimes committed against government officials in the performance of their duties are highlighted in the Direction as serious. It is appropriate to regard them as such.
The second significant offence is a family violence offence. The applicant breached the domestic violence order to which she was subject and threatened violence towards JA and his partner. I am satisfied that was an act of family violence as defined in the Direction.
Family violence is defined to mean:
…violent, threatening or other behaviour by a person that…causes the family member to be fearful.
I am satisfied that the sending of the text in 2017, which stated ‘I’ll be around with a fucken bat’, at a point in time when her former partner new that the applicant both used methamphetamine and had at least one criminally violent incident in her past, did cause her former partner to be fearful. The fact that the matter was reported to the police and charges were proceeded with is consistent with this conclusion.
I am therefore satisfied that the applicant engaged in an act of family violence. Under the Direction this should be viewed very seriously.
The third significant offence is the dangerous operation of a vehicle charge. Having regard to the 18-month prison term imposed in relation to the dangerous driving offence the applicant committed, that offence should also be regarded as serious. However, it is not just the sentence imposed which is relevant to considering the seriousness of this offence. The applicant endangered the lives of innocent road users in her reckless attempt to evade questioning by the police. The applicant is very fortunate that other road users were not maimed or killed that evening. By running red lights and driving on the opposite side of the road, the applicant was courting disaster. It is only by good fortune that serious harm was not inflicted on one or more innocent person.
This crime is the most serious of the crimes the applicant has committed.
Also relevant is that the frequency of the applicant’s offending dramatically increased between 2016 and 2021. I do however accept that in relation to the applicant’s failure to attend court having given an undertaking to do so, and failure to report to police when it was a bail condition that she do so, on many occasions CK prevented her from attending. This conclusion is based on the hostile and controlling nature of the relationship.

The seriousness with which the applicant’s conduct is viewed is further aggravated by the fact that she gave false and misleading declarations to the immigration department on multiple occasions when returning to Australia between 2011 and 2016.
I am satisfied that the applicant’s offending should be regarded as very serious.
(b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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 harms 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.[45]
[45] Above n 4, [8.1.2(1)].
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:[46]
a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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
[46] Ibid.
The applicant has offended in a variety of ways but most of it is very closely associated with the use of methamphetamine. I have no doubt that if the applicant remained drug free, she would pose only a very small risk of re-offending.
However, if the applicant were to resume her drug use, the nature of the harm which the Australian community would be exposed to would include:
(a)Harm from dangerous driving, with the potential for road users and other innocent bystanders to be killed or maimed;
(b)Harm from threats of violence when the applicant comes into conflict with other members of her family, especially her former spouse and potentially her eldest daughter;
(c)Property theft to fund the applicant’s drug habit.
In relation to the applicant’s violent offending, this appears to be historical and is very unlikely to be repeated except perhaps as a consequence of the extreme use of methamphetamine.
Likelihood of engaging in further criminal conduct
In my assessment it appears very unlikely that the applicant will engage again in general violent conduct. She has not been convicted of violent offending since 2005. Despite the use of ice over an extended period, no additional convictions involving actual violence were added to her criminal record. The likelihood of the applicant committing acts of physical violence is very low.
In relation to her other offending, the critical question is whether the applicant can stay off drugs generally and methamphetamine in particular. Prior to falling into drug use the applicant appears to have been a tremendous contributor to the Australian community with very limited propensity to commit crime. Once she began using methamphetamine and her marriage collapsed, she was constantly breaking the law. I am satisfied that if the applicant remains off drugs and finds a level of stability in her life there is a very low likelihood that she will re-offend. This is consistent with the assessments of Queensland Corrective Services of the applicant when she has been drug free in a contained environment.
However, if the applicant resumes using drugs, there is a very high probability that she will return to the behaviour which led to the long string of convictions which make up her criminal record.
In assessing the likelihood that the applicant will return to drug use, I note the following. I am satisfied that the applicant has been off drugs since she was remanded in custody in the second half of 2020. She has also undertaken courses that may have a protective effect whilst in prison and immigration detention which are detailed above at paragraph 63. She will be subject to drug screening by the Department of Child Safety as a condition of access to ArK.[47]
[47] Exhibit 1, G13, 83-84.
However, immediately prior to being remanded in custody I am satisfied that the applicant was still a regular user of methamphetamine. I do not accept her claims that the birth of her youngest child and the immediate removal of ArK by the Department of Child Safety led her to stop using. When the applicant was free in the community during 2020, I am satisfied she was using methamphetamine. It is only when she was taken into custody that the use stopped.
I am also satisfied that the applicant’s use of methamphetamine is independent of her relationship with CK. She was using the drug recreationally prior to their relationship commencing and continued to use it during a hiatus in the relationship from late 2019. It is clear from the evidence of Jacqueline McGregor that there was a portion of the applicant’s social group that fell into using the drug and the applicant was part of that. Her drug use was not prompted or maintained by her dysfunctional relationship with CK. Its origins lie elsewhere.
The applicant has not maintained an extended period in the community without use of the drug since the end of 2015. On release, there are few protective factors in place which would support the applicant’s stated determination not to return to drug use once released into the community.
The applicant seems unable to squarely admit all of the terrible consequences of her drug use. She initially denied in her sworn evidence that she had used the drug while pregnant, but eventually admitted to using at least once while pregnant with ArK. This is despite the fact she had previously reported drug and alcohol misuse including during pregnancies.[48] In her submissions, to the delegate the applicant sought to place blame for her drug use on events that were happening to her which happened long after her drug use had commenced.[49] She also sought to persuade the Tribunal she ceased drug use earlier than she in fact did. In her submission the applicant identified the loss of ArK in early 2020 as the trigger for her ceasing to use drugs.[50] However, on 2 occasions after that the applicant was found with drug paraphernalia. In one case a glass pipe was found in the applicant’s purse, and she admitted that the pipe was hers.[51] In the other case the applicant was the sole occupant of the rental car where the glass pipe was found. Her claims that the pipe was not hers are not plausible in light of all the circumstances.[52] Further, police formed the view she was affected by drugs. I am satisfied on both occasions the pipe found by police in the applicant’s possession was hers. The applicant’s unwillingness to frankly admit to the full extent and impact of her drug offending is not a promising sign for reform if released into the community.
[48] Exhibit 1, G22, 149.
[49] Exhibit 1, G15, 116.
[50] Exhibit 1, G16, 134.
[51] Exhibit 4, 6.
[52] Ibid 10.
Further, the witnesses who the applicant called in support of her good character were, with the exception of her mother, figures from her distant past. Ms McGregor knew her well prior to her drug use but had only heard from her on one occasion in recent years and that was to obtain the statement for the Tribunal proceedings. Her last in-person contact with the applicant was on Boxing Day prior to the applicant’s incarceration.
Matthew Flanders was a friend of the applicant’s brother who had not seen her for five years. Although his evidence gave good insight into how far the applicant had fallen after years of being a good mother and community member, he had only one recent dealing with the applicant in person for several years. Patrice Poutu was a similarly distant figure who said that she had not seen the applicant in person for several years.
The applicant’s plans for where she would live were also unsettled. It was hard to get a picture of what the applicant’s social network would look like upon release and where the support she needs would come from. I found it difficult to identify protective factors which would discourage her from returning to drug use. She pointed to support from MARA which is a female reintegration program funded by Queensland Corrective Services designed to reduce recidivism. However, the applicant’s reports from MARA were dated February 2021 and have not been updated.[53]
[53] Exhibit 1, G21, 144.
In those circumstances, given how highly addictive ice is, the applicant’s lengthy use of it and her inability to stay away from it in the past even while pregnant, and the lack of clear social support that would discourage the use of the drug, I am satisfied that there is a significant risk that the applicant will return to using the drug. That also means that there is a significant risk that the applicant will resume criminal offending.
Conclusion
Because I am satisfied that there is a significant risk that the applicant will resume drug use and offending and that the offending could manifest in the form of high risk driving which poses serious risks to the safety of the Australian community, this consideration weighs against revoking the visa cancellation. I should emphasise that there is also a strong chance that the applicant won’t return to drug use and there are some promising signs in that regard. However, I am not persuaded that such an outcome is certain, or even more likely than not, and accordingly I am proceeding on the basis that the applicant continues to pose a risk to the health and safety of the Australian community if the cancellation of her visa is revoked.
Primary Consideration 2 – Family violence committed by the non-citizen
Although the applicant has breached domestic violence orders on a number of occasions, I am satisfied that only one of the breaches involved an act of family violence as defined in Direction 90. That incident involved the applicant making credible threats of violence to her former spouse via text. I am satisfied that the applicant was convicted of an offence that involved family violence.
While it is of concern that the applicant’s daughter who has custody of the applicant’s youngest children, felt the need to take out a DVO against the applicant and that it was breached, I do not have sufficient details of the basis for the making of the DVO to determine what concern prompted KT to make the original application. I am satisfied that the breaches which resulted in the conviction – namely the sending of letters to her children – were not acts of family violence as defined. The applicant’s subsequent breaches of the DVO obtained by JA are similarly technical in nature and do not fall within the definition of family violence.
In these circumstances the family violence engaged in by the applicant is at the very lowest end of seriousness. There was a single threat of violence which made a family member fearful. Although the resulting DVO was breached in other ways, I am not satisfied that anything the applicant did in breach of the order made a family member fearful. She has not repeated the threats of violence or engaged in any other behaviour that satisfies the definition of family violence.
Consequently, this consideration weighs against revocation of the visa cancellation, but only to the smallest degree.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of any minor children affected by the decision.[54] This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made as per paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
[54] Above n 4, [8.3].
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a)   The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)   The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)   The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)   The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)   Whether there are other persons who already fulfil a parental role in relation to the child;
(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)   Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
(h)   Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are a large number of minor children said to be affected by any decision in relation to the applicant’s visa. They fall into three broad categories:
1. Minor children from the applicant’s marriage to JA;
2. Minor children from the applicant’s relationship with CK;
3. Minor children in the applicant’s extended family.
To render the task of providing reasons manageable I discuss the best interests of these children under these broad categories. This does not mean that I have not considered the best interests of each child individually.
Children from the applicant’s marriage with JA
The applicant has three minor children from her first marriage:
1. AA – A 17-year-old daughter;
2. SA – A 14-year-old son;
3. RA – A 12-year-old son.
Custody of those children has been awarded to the applicant’s former husband.
The applicant has not seen AA in person since 2018 and she has not maintained contact in any other forms with AA since then.
The applicant has not seen SA since 2018. She is however in regular text contact with him.
The applicant has not seen RA since 2018 and has no contact with him in any form.
The current court orders do not provide for any contact between these children and their mother. The applicant previously stated that she wished to eventually care for all her minor children when she was released.[55] However, in a later statement, the applicant submitted that her intention is to recover ‘full custody of her three youngest children’,[56] making no specific reference to the three minor children with JA. Accordingly, I am satisfied that the applicant will not gain custody of or access to any of her children with JA by court order and there is no reason to think that JA will voluntarily facilitate access.
[55] Exhibit 1, G15, 117.
[56] Exhibit 1, G14, 113-114.
I am satisfied that in relation to these children, very little will change in terms of the degree of contact the applicant will have with them if the visa cancellation is revoked. Closer contact, at least in the short term, is unlikely given the apparent hostility between the applicant and JA. The type and frequency of contact that may occur in the medium term is a matter of speculation.
In relation to the mandatory factors in paragraph 8.3(4) I note the following:
a)The relationship with each of the children is parental and for a long period she fulfilled that role with distinction. However, since 2018 there has been a lengthy period of very limited contact and there are no court orders in place that will facilitate a resumption of meaningful contact;
b)It is unlikely that the applicant will play a positive parental role in the lives of these children. As a result of her behaviour, she has been excluded from their lives for nearly four years and that is unlikely to change;
c)The evidence indicates that the applicant did her best to shield her children from her drug use and the domestic violence to which she was subjected as a result of her relationship with CK. I am not in a position to draw any conclusions about the impact of her prior conduct on these children;
d)The effect of separation from the applicant on these children would be negligible. They have been separated from her for around 4 years and contact has been limited to texting between the applicant and SA. This can continue if the applicant is in New Zealand. When the children are older, if they wish to resume face to face contact, they can visit New Zealand. This is less than the contact which may occur if the applicant remains in Australia but not significantly so;
e)In relation to these children JA performs the parental role;
f)I have not received any evidence on the views of the children;
g)There is no evidence that the children would be at risk of family violence from the applicant or were abused or neglected in any way by the applicant;
h)There is no evidence that the children have suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.
Given the limited contact that the applicant has had with these children in the last 4 years, I am not persuaded that their best interests would be significantly affected by her removal to New Zealand. Generally speaking, it is better that children have the possibility of access to and physical contact with their mother. Accordingly, the best interests of these children favours to a limited degree the revocation of the visa cancellation.
Children with CK
The applicant had three children with CK. The two older ones were left with the applicant’s eldest daughter KT in mid-2019. The applicant has not spoken to them since 2019. At that time the children were around two and a half and one and a half.
The applicant left them with KT because of violence and uncertainty which characterised her life at the time.
KT is also is raising the applicant’s youngest child ArK. ArK was removed from the applicant’s care a few days after she was born and placed with KT by the Department of Child Safety. ArK was around five months old when the applicant was taken into custody.
The applicant does have contact with ArK which is facilitated by the Department of Child Safety. She now has a Child Safety Officer and is described as ‘having weekly video calls with her daughter [ArK]’.[57]
[57] Exhibit 1, G12, 76.
The relationship between the applicant and KT appears to be strained. On the applicant’s account the relationship deteriorated when she signalled to KT that she wanted to take her children with her back to New Zealand. KT has sought and obtained orders from the Family Court on 12 February 2020 that formally gave her custody of the two older children and the applicant has no custody rights at this point in relation to those children.[58]
[58] Exhibit 1, G8, 61.
The applicant’s plan is to obtain orders which facilitate access to these children initially with her ultimate goal being to obtain orders that the children be returned to her care.

This means that if the applicant is released back into the Australian community there is likely to be a dispute about the custody and care of these children.
In relation to the mandatory factors in paragraph 8.3(4) I note the following:
(a)These children have not been in the applicant’s care since 2019 in the case of TK and AK and in the case of ArK, she has never been in the applicant’s care. There has been contacted facilitated by the Department of Child Safety with ArK but there has been no contact with the older two children and no evidence that TK was prepared to facilitate it. The applicant is the children’s mother which in and of itself is important, but she has not performed a parental role for the children for a long time and never performed that role in relation to ArK. There has now been an absence of around three years from the older children’s lives and the applicant has been separated from ArK from birth;
(b)There is a significant question mark over whether the applicant will play a positive parental role in relation to the children in the future. She has no access rights at all in relation to TK and AK, but it is possible that may change. The applicant currently has limited contact with ArK and again that may change. While the applicant has a strong desire to take on a parental role in relation to these children, and she has demonstrated prior to 2016 that she is capable of performing such a role, there are many question marks about whether she is:
(i)capable of the durable reform which is necessary for her to take on that role; and
(ii)whether those who have assumed the burden of her children’s care over the last four years will co-operate with her attempts to do so.
(c)I am not satisfied that the applicant is likely to play a positive parental role in relation to these children in the future. If she returns to drug use, there is little prospect that she will play any positive role at all. Even if she does not return to drug use, her presence in Australia and pursuit of custody could well be unsuccessful and generate further hostility between her and KT. It is unlikely at this point that the applicant will play a positive parental role in the life of these children. This is not to say that she does not wish to, and could not be capable of doing so, but the damage she has done to the relationships that are critical to the ongoing care of her children appear to be significant and there is no evidence on which I could form a more optimistic view of the matter;
(d)I am satisfied that the applicant’s drug use while pregnant with ArK has had an adverse impact on ArK but there is no evidence before me which would allow me to quantify or describe that impact. Equally, I am satisfied that the applicant’s drug use and the chaos that it brought to her life had a negative impact on TK and AK. When ArK was born, the Department of Child Safety had sufficient concerns regarding the applicant that its officers removed the child from the applicant’s care. The Department of Child Safety’s concerns about the applicant included, failing to access antenatal care, lack of adequate supervision, leaving the children unattended, not meeting the daily needs of the children, and failing to engage with support services. I prefer that assessment over the applicant’s assessment of her own performance as a mother in that period.
(e)The applicant has been separated from her older children with CK since the middle of 2019 and from ArK since February 2020. Since the applicant was remanded in custody the applicant has weekly contact with ArK over videoconference and no contact at all with her older children with CK. It is a significant thing to physically separate a mother from her young children but given the lengthy absences which have already occurred the effect will be much less significant than would normally be the case. I am satisfied that the applicant will be able to maintain contact with ArK by electronic means if she is returned to New Zealand. It is difficult to judge what contact will be facilitated by KT in relation to the older two children if the applicant is returned to New Zealand, but that is equally true if the applicant remains in Australia. At present the applicant is subject to a DVO that runs until 2023,[59] and to date KT has been strict in enforcing the terms of that order;
(f)KT is performing the parental role in relation to these three children and on the evidence of the applicant she was at one stage happy for KT to look after her older children;[60]
(g)There is no evidence concerning the views of the children;
(h)There is no evidence that the children have been or are at any risk of being exposed to family violence perpetrated by the applicant, but the assessment of the Department of Child Safety was clearly that ArK was at risk of neglect based on the applicant’s previous history. According to the Department of Child Safety, the applicant has an extensive history of child protection concerns which have been noted above.[61] If left in the applicant’s care, ArK was assessed to be at an unacceptable risk of suffering emotional and physical harm as a result of neglect, as well as physical and emotional abuse’.[62]
(i)There is no direct evidence that the applicant’s children suffered any physical or emotional trauma arising from the applicant’s conduct.
[59] Exhibit 1, G13, 101.
[60] Exhibit 1, G3, 31.
[61] Exhibit 1, G22 146-165.
[62] Ibid.
I am not satisfied that it would be in the best interests of the applicant’s two older children with CK for the applicant to remain in Australia. While it almost always is in a child’s best interests that they have access to close physical contact with their mother, I am not satisfied that this would occur if the applicant remained in Australia. It is quite possible that the only effect of the applicant remaining in Australia is to create conflict with the children’s current carer.
In relation to ArK, the Department of Child Safety are already involved, I am satisfied that the calculus is a little different. The applicant currently has regular facilitated contact with ArK, and this is likely to increase if the applicant were released into the community. I am satisfied that it would be in ArK’s best interests for the applicant to remain in Australia.
One further issue that was raised in earlier submissions was the possibility that CK may get custody of the children if the applicant does not remain in Australia. In my view this is not a feasible outcome. CK is presently in prison. Given his history of violence I am satisfied that his access to his children will be limited.
Nephews and nieces
The applicant has three nieces and two nephews who she has identified as minor children whose interests should be considered. I note the following by reference to the factors identified at paragraph 8.3(4) of the Direction:
(a)The applicant does not play a parental role in relation to these minor children. There was a period in her life when I am sure she was a good Aunt, but those days are long gone. There is no evidence of contact with any of them since the applicant was incarcerated and none have provided evidence in support of the applicant’s review application;
(b)Any role the applicant plays in their lives will be non-parental;
(c)There is no evidence about the impact of the applicant’s prior conduct on these children;
(d)There is little evidence that separation from these children will have any effect on them. The applicant has made submissions on this issue,[63] but there is little in the way of credible evidence to support the claims;
(e)These children have others who fulfil the parental role;
(f)There is no evidence about the views of these children;
(g)There is no evidence that the children are at risk so far as their involvement with the applicant is concerned;
(h)There is no evidence of trauma in relation to these children.
[63] Exhibit 1, G13, 97.
I am satisfied that the best interests of these children are not affected in any significant way by my decision in relation to the revocation of the applicant’s visa.
Conclusion
As should be clear from the discussion above, because of the number of children affected and the variety of circumstances in which they find themselves, no consistent picture of their best interests emerges from the material. In relation to the applicant’s children with JA, the relationship is distant. The applicant only corresponds with one of those children and that is via text. This contact can continue if the applicant is removed to New Zealand. In relation to TK and AK, I am concerned that the applicant remaining in Australia and agitating for changes in care arrangements could be disruptive. In relation to ArK, I am concerned that removing the applicant from Australia will disrupt a relationship which has potential to develop if the applicant remains in Australia.
To the extent that such matters can be reconciled I am not satisfied that this consideration weighs in favour of revoking the applicant’s visa cancellation.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:[64]
[64] Above n 4, [8.4].
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition…non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should…cancel [a non-citizens visas] if they raise serous character concerns through conduct, in Australia or elsewhere, of the following kind:
a.Acts of family violence; or
b.…
c.…
d.Commission of crimes against government… officials…in the performance of their duties; or
e.…
f.…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole and in this respect decision-makers should proceed on the basis of the government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph (4) of this consideration reflects the Full Court of the Federal Court’s decision in FYBR and Minister for Home Affairs (‘FYBR’) which found in relation to an earlier direction that the expectations of the Australian Community are not matters for evidence.[65] They are expressed normatively, and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different.[66]
[65] [2019] FCAFC 185 (‘FYBR’).
[66] Ibid [91] per Stewart J.
Accordingly, the expectation of the Australian community, as expressed in the Direction, is that a person like the applicant who has failed to obey the law will not be allowed by the Australian Government to remain in Australia. Also, non-revocation may be appropriate simply because of the nature of the applicant’s offences. The expectation is that the Government should cancel a visa if offences of particular kinds raise character concerns. Acts of family violence and the commission of crimes against officials in the performance of their duties are offences which raise such concerns.
However, to apply the consideration correctly it needs to be kept in mind that the Principles in paragraph 5.2 of the Direction make clear that the consideration does not operate in a uniformly harsh way where an applicant has breached Australian law. How heavily the consideration weighs against the applicant in circumstances where the applicant has not obeyed the law remains a matter of discretion for the decision-maker, and how much weight the consideration is given relative to the other considerations is also a matter for the decision-maker. A higher level of tolerance can be afforded if an applicant has lived in Australia for most of their life or from a very young age. The applicant fits both of those criteria.
The principles also make clear that the presence of family violence is so serious that even strong countervailing considerations may not be sufficient in some circumstances to justify an exercise of the discretion in favour of the applicant – even if there is no measurable risk of the applicant causing physical harm to the Australian community.[67] These matters need to be carefully weighed.
[67] See Principles in the Direction (above n 4) at [5.2(4)] and [5].
In weighing this consideration, I note the following:
(a)The applicant has lived in Australia for a long time and from a young age;
(b)Her offending has for the most part has been associated with drug use and it is possible that in the future she will resume the kind of obedience to the law which Australians expect and which she exhibited prior to her drug use;
(c)Since 2016 the applicant’s offending has been very significant and she exhibited significant resistance to obeying the law;
(d)The applicant has engaged in family violence as defined in the Direction and has in the past assaulted a police officer during the performance of his duty. These are serious matters. However, in relation to the first offence, it is very much at the low end of the scale and in relation to the second, it happened more than 15 years ago, and no similar conduct has been engaged in.
The length of the applicant’s stay in Australia, and the age she was when she arrived in particular favours the view that this consideration should not weigh strongly against the applicant.
Accordingly, this consideration weighs against the revocation of the visa cancellation but not strongly.
OTHER CONSIDERATIONS
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’[68]
[68] Above n 4, [7(2)].
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J relevantly observed in relation to an earlier iteration of the Direction in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
... Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
That is the basis on which I will proceed to apply them.
International non-refoulement obligations
The applicant submits that to deport the applicant (which would be the practical result of a non-revocation decision) would be a contravention of the applicant’s rights under the ‘United Nations Covenant on Human Rights’. I have proceeded on the basis that the applicant is referring to the Universal Declaration of Human Rights (which is included among the materials filed by the applicant).
The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on 10 December 1948. The Declaration is not a treaty so does not bind Australia as a matter of international law. It has not been specifically incorporated into Australia’s domestic law.
The applicant claims that deportation to New Zealand would breach articles 1, 3, 5 and 8 of the Declaration. The applicant contends that it would be inhumane to enforce the removal of the applicant from Australia when the applicant has spent most of her childhood and all of her adulthood in Australia ‘and the inveterate ties to Australia’.
A non-refoulement obligation, as is explained in the Direction, is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The harm required is not any type of harm but serious harm such as:
(a)A threat to the person’s life or liberty (including the death penalty or arbitrary deprivation of life);
(b)Significant physical harassment of the person (including torture);
(c)Significant ill-treatment including cruel or inhuman or degrading treatment or punishment of the person;
(d)Significant economic hardship that threatens the person’s capacity to subsist;
(e)Denial of access to basic services where the denial threatens the person’s capacity to subsist;
(f)Denial of the capacity to earn a livelihood of any kind where the denial threatens the person’s capacity to subsist.
The applicant’s submission emphasises the cruelty of separating the applicant from a place she has called home for such a long time and where all of her familial ties are in place. This does not raise an issue of non-refoulement as the harm is not faced when she returns to the New Zealand but arises from her removal from Australia. Even if that were not the case the harm asserted is not sufficiently serious to fall within the harm required to breach a non-refoulement obligation. The most serious harm the applicant claims is that she will end up homeless if returned to New Zealand.[69] I am not satisfied that will be the case. The applicant has relatives there and is resourceful. I consider it unlikely that she will be destitute on her return to New Zealand. In those circumstances, I am satisfied that Australia would not be breaching a non-refoulment obligation by returning the applicant to New Zealand.
[69] Exhibit 1, G13, 103.
How then, should the submissions concerning the Universal Declaration of Human Rights be considered? The Direction provides that ‘other considerations must also be taken into account, where relevant’,[70] in accordance with the provisions of Part 9 of the Direction. Some specific considerations are enumerated but that does not limit the relevant considerations.
[70] Above n 4, [9(1)].
The best course seems to be to treat the submissions put by the applicant on this subject as raising arguments which should be given weight according to their merit in determining whether there is another reason to revoke the cancellation.
The applicant’s contention is that articles 1, 3, 5 and 8 of the Universal Declaration of Human Rights will be breached if the applicant is returned to New Zealand.[71]
[71] Applicant’s Statement of Facts, Issues and Contentions filed on 16 May 2022, [52].
The terms of those articles are as follows:
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 3: Everyone has the right to life, liberty and security of person.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

No attempt was made in submissions to link the text of the declaration with what is happening to the applicant, but the key submission is as follows:
To deport the applicant and deprive her of the revocation of cancellation would be a contravention of the applicant’s rights under the Convention as it would inhumane (sic) to enforce the removal of the applicant from Australia when the applicant spent most of her childhood and all of her adulthood in Australia and the inveterate ties to Australia (sic).
I accept that the applicant will suffer greatly as a result of being separated from her children, as she has no doubt suffered over the last three years as a result of being separated from them. It is a significant step to separate someone from the country they grew up in and spent most of their life in.
However, New Zealand is a modern country very similar to Australia and one which the applicant was considering moving to in the recent past.[72] She has been separated from her own children for some years now as a result of her own conduct. The decision will operate harshly on the applicant but in my assessment could not be properly described as inhumane. The applicant has relatives in New Zealand and will be able to continue contact with her children using modern technology. Visits from her children may be possible if she is able to repair the damage she has done to the key relationships in her children’s lives.
[72] Respondent’s Statement of Facts, Issues and Contentions filed on 30 May 2022, [73].
I accept that the decision to separate the applicant from Australia will have a significant impact on her given the length of time she has lived in Australia. The Direction clearly regards that as a relevant matter for decision makers to consider.[73]
[73] Above n 4, [5.2(4)].
In my assessment, a non-revocation decision falls short of meeting the description of inhumane treatment. The harshness of operation of the decision however should not be ignored and should be given proper weight. Accordingly, when examined in that light, this consideration weighs in favour of a decision to revoke the cancellation.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:[74]
(1)   Decision-makers must consider 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.
[74] Ibid [9.2].
The applicant is a citizen of New Zealand. She is 40 years of age. The applicant appears to be in good physical health, and apart from her susceptibility to drugs has no underlying health issues. There are no language or cultural barriers which would prevent her from establishing and maintaining basic living standards in New Zealand. She knows people in New Zealand and has relatives there (although, apart from her grandmother, it is doubtful that they would provide much assistance to her if she was returned). The applicant has a relatively short paid work history because she was a stay-at-home mum, but she has completed activities and courses while in prison, including a barista course that could provide a road to employment. She is currently studying and hopes to finish a Bachelor of Commerce. She has previously completed a Diploma of Accounting.[75]
[75] Exhibit 1, G13, 101.
The fact that the applicant was considering returning to New Zealand – which was the cause of the falling out with her eldest daughter– reassures me that the applicant herself is confident that she can achieve basic living standards if she returns to New Zealand.
I accept that there is a risk that the dislocation and lack of family support in New Zealand may lead the applicant to turn once more to drugs, but I am satisfied that she is sufficiently resourceful to maintain basic living standards even if this occurs.
The impediments the applicant faces in establishing basic living standards for herself in New Zealand does not weigh in favour of revocation.
Links to the Australian Community – Strength nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction provides as follows:[76]
[76] Above n 4, [9.4.1].
(1) Decision-makers must 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.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant in her submissions highlighted:
(a)the length of time she has lived in Australia,
(b)the young age she was when she arrived in Australia,
(c)the long years of productive contribution she made when her family was intact and before she began using drugs,
(d)the school friends she has in Logan,
(e)the contributions she made to Netball clubs and rugby league clubs as a participant and manager,
(f)the large extended family she has in the Logan area, and
(g)the fact that she has 8 children living in Australia who it is possible she will have greater contact with following release from immigration detention.
These demonstrate the powerful ties that the applicant has in Australia and the very weak ties she has in New Zealand. The applicant contributed positively to the Australian community between the ages of 6 when she arrived in Australia and the age of 34 when things began to go very wrong for her.
However, for a person who has lived in Australia for 35 years, it is notable that, apart from her mother, the witnesses she called in support of her application were from her distant past. Since 2016, the applicant has managed to damage and destroy her links with her children, her former husband, and members of the community. There was very little evidence of ongoing links to the community she was connected with in 2015.
This consideration weighs in favour of the applicant and is the most powerful consideration favouring a decision not to revoke, but while the ties to the Australian community are long, they are, at this point, severely weakened.
Impact on Victims and Australian Business Interests
In the present case there is no information about the impact of the decision on victims or Australian business interests and accordingly the consideration does not affect my consideration.
Other considerations
The applicant has also highlighted the legal consequences of the decision not to revoke the cancellation. The submission is expressed as follows:
This is an issue as, notwithstanding the background of the applicant as the legal consequences will prevent the applicant from rejoining her family in Australia because hardship to the applicant given the duration of time which the applicant has lived in Australia and cause irreparable harm to her immediate and extended family and the children with whom she is entitled to have contact.[77]
[77] Above n 71, [27].
The substance of this submission is dealt with in the section concerning the applicant’s ties to the Australian community and the best interests of minor children. It does not require separate weighting.
OTHER SUBMISSIONS
The applicant sums up her submissions in the following terms:
i.the nature of her conduct revealed in her criminal record whilst extensive did not involve serious harm to anyone;
ii.the domestic violence issues occurred as a result of an abusive and violent relationship at a time when the applicant was consuming drugs;
iii.the applicant has been remorseful and showed contrition for her conduct and cooperated with the authorities to reach an early conviction;
iv.the applicant has undergone self-improvement programs during incarceration;
v.the applicant has a long-term association with Australia having arrived as a six year old child in 1989;
vi.the applicant has children with whom she has the propensity to re-establish a relationship;
vii.the applicant has close family members with whom she has a strong relationship most of whom are domiciled in Australia;
viii.deportation will cause the applicant irreparable harm given that she has little or no support on arrival in New Zealand
In relation to these submissions, I note the following:
a)I do not accept that her criminal conduct did not involve serious harm to anyone. Her drug possession and use had an adverse impact on the care of her children such that her youngest child was removed from her care by the Department of Child Safety and none of her children were in her care when she was incarcerated in 2020. While it is true that the dangerous driving offence did not result in harm to anyone, the incident could easily have ended very differently with the senseless death of a road user a distinct possibility.
b)I do not consider that the applicant’s drug use or violent relationship account for or excuse the threats of physical violence she made to her spouse via text. The hostility the applicant held towards him, on her account, arose from his desire to sell the family home and the commencement of a new relationship. The family violence incident is not a strong factor favouring non-revocation, but it cannot be excused on the grounds pressed by the applicant.
c)I accept that the applicant cooperated with authorities to reach an early conviction. I am less persuaded that the applicant has shown remorse or contrition. During the hearing before this Tribunal the applicant denied or could not remember most of the serious elements of the dangerous driving incident and she sought to blame her conduct on the passenger in the vehicle encouraging her to speed away from the police. For a grown adult who gave evidence that she was not affected by drugs during the event, to speed away from police and blame her conduct on her passenger is a long way from recognising the seriousness of the offence or her responsibility for it.
d)I accept that the applicant has undergone self-improvement programs during her incarceration, and these will have a protective effect in terms of her return to drug use. However, I was very concerned by the applicant’s attempts to minimise her use of drugs after ArK was removed from her care. In my assessment, the applicant is susceptible to a relapse into drug use notwithstanding efforts while incarcerated, and the evidence of protective influences outside of prison was weak.
e)I have discussed at paragraphs 174-178 my conclusions about the significance of the applicant’s long-term ties to Australia.
f)I am not satisfied that if the applicant remains in Australia, she will reach a position where she can re-establish significant relationships with many of her children. The fact that she has an adult daughter who has full time care of her three youngest children but has such a strained relationship with her that:
(i)she has DVO’s out against the applicant,
(ii)is resistant to access arrangements and,
(iii)did not provide any statement in support of the applicant’s case
are all suggestive that the re-establishing of relationships with her children except by electronic means is doubtful.
g)It was not clear whether, apart from her mother, the applicant had any strong ongoing relationships with members of her extended family. The witnesses she did call had known her well in the past but did not provide evidence of significant social contact in recent years.
h)I accept that the applicant will have little support on arrival back in New Zealand. A decision not to revoke the cancellation will make things very tough for her.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the visa cancellation. The nature and seriousness of some of the applicant’s offences are of significant concern. There remains a risk that the applicant will re-offend if she resumes drug use and in light of the dangerous driving offence, serious harm could be the consequence. There is no doubt that the Australian community would be best protected by the non-revocation of the visa cancellation.
Primary consideration 2, the family violence consideration favours non-revocation. The applicant has engaged in conduct which meets the definition of family violence. It is however at the low end of offending and is an isolated incident committed during a stressful time for the applicant. This is not to excuse the conduct but to keep it in perspective when considering a decision that could result in deportation. This consideration weighs against revocation but not significantly.
In regard to Primary Consideration 3 - the best interests of minor children – I was not satisfied that this consideration ultimately weighed in favour of revocation. While it is a big step to make a decision which dramatically curtails a mother’s ability to have physical contact with her children, the extended periods of limited or no contact and the potential for the applicant to disrupt the care arrangements which are currently in place have left me ambivalent about whether this consideration.
Primary Consideration 4 weighs against revocation of the visa cancellation as the expectations of the Australian community are that the applicant’s offences should cause her to forfeit the privilege of remaining in Australia. However, the fact that she has lived in Australia for a great many years and from a young age reduces significantly any weight this consideration has in favour of revocation. This consideration weighs against revocation but not significantly.
The strength, nature and duration of the applicant’s ties to Australia weigh strongly in favour of revocation of the visa cancellation decision. The applicant was a strong contributor to Australia over many years and built-up ties with her local community and extended family. While her significant drug use and ultimate incarceration appears to have weakened or destroyed most of these ties, they remain significant and should be given significant weight.
The impediments she will face if returned to New Zealand do not favour revocation. I am satisfied that she will be able to establish a basic standard of living if returned to live there.
I have considered all of the other submissions the applicant has made and do not accept that returning the applicant to New Zealand would be inconsistent with any principles in the Universal Declaration of Human Rights, nor does it engage any non-refoulement obligations. I do not accept that the applicant showed significant remorse for her criminal offending. In my assessment, she was unwilling to face-up to the seriousness of her offending. None of the more general submissions made by the applicant persuaded me there was another reason why the cancellation should be revoked.
Having regard to all of these considerations, I am not satisfied that there is another reason why the visa cancellation decision should be revoked. The applicant’s offending is extensive, and in parts serious. There remains a risk that she will re-offend which is tied closely to the risk that she will resume drug use. The expectation of the Australian community is that a person with the applicant’s record of offending will not be allowed to remain in Australia. Only the applicant’s ties to the Australian community provide significant support for a different decision. However, notwithstanding the length of those ties, the applicant’s years of drug use have been very destructive of those ties.
In these circumstances, the reviewable decision should be affirmed.
DECISION
The Reviewable Decision dated 28 March 2022 is affirmed.

I certify that the preceding 184 (one hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan

...................................................................
Associate
Dated: 8 July 2022

Date(s) of hearing: 6 and 7 June 2022

Solicitor for the Applicant: Mr Andrew Rouyanian

Solicitors for the Respondent: Ms Cody Allen