Ruru Mahara (Migration)

[2019] AATA 4768

Ruru Mahara (Migration) [2019] AATA 4768 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mere Ruru Mahara

CASE NUMBER:  1911703

HOME AFFAIRS REFERENCE(S):           BCC2019/278665

MEMBER:K. Chapman

DATE:28 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 28 October 2019 at 10:05am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – extensive history of proven criminal offending – Serious Assault of a Police Officer – pending criminal charges – consideration of discretion – best interests of minor sister and niece – strong family and social ties in Australia – preservation of family unit – emotional and financial hardship – gravity of offending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant has a history of criminal offending and pending criminal charges, and therefore her presence in Australia ‘is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.’ The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 10 May 2019, the applicant applied for review of the delegate’s decision to cancel her Subclass 444 visa. She was held on remand at the Brisbane Women’s Correctional Centre at the time her application for review was made. The applicant is presently held on remand at the Southern Queensland Correctional Centre. Between May and June 2019, the applicant submitted various documents to the Tribunal. These included documents in connection with an application for reduction of the review application fee, such as financial records and a letter from Centrelink. The Tribunal Registry granted the fee reduction to the applicant.

4. Additionally, the applicant submitted to the Tribunal various third party statements in support of her character. These included statements from Ms R (her mother), Ms T (her sister), Mr M, Ms D, Ms N, Ms B and Ms S. The Tribunal has duly considered all of the documentary evidence submitted by the applicant.

5. On 26 June 2019, the Tribunal issued a Summons to the Commissioner of the Queensland Police Service seeking documents relating to the applicant’s criminal history. The response to Summons included material pertaining to both proven and pending criminal matters. On 11 July 2019, the Tribunal wrote to the applicant, pursuant to sections 359A and 359(2) of the Act, inviting her to respond to information contained in the delegate’s decision, in Queensland Police Service documentation returned by Summons and in Court documents contained in the Departmental file. Additionally, the aforementioned invitation invited the applicant to provide information concerning the status of any outstanding criminal charges and any reasons why her Subclass 444 visa should not be cancelled. Also on 11 July 2019, the Tribunal invited the applicant to attend a review hearing scheduled for 29 August 2019.

6. On 26 July 2019, the Tribunal received material from the applicant in response to the above invitation, including a statement from her (in the form of a submission) and correspondence from Legal Aid regarding committal proceedings. The applicant also confirmed her attendance at the scheduled review hearing. The aforementioned material has been duly considered by the Tribunal.

7. The applicant appeared before the Tribunal on 29 August 2019, via video link from the Southern Queensland Correctional Centre, to give evidence and present arguments. She confirmed she was able to hear the proceedings. The Tribunal also received oral evidence via telephone from the applicant’s mother, Ms R. The Tribunal granted further time following the review hearing for the applicant to provide updated information concerning the status of pending criminal charges. On 12 September 2019, the applicant submitted correspondence from Legal Aid Queensland dated 2 September 2019 regarding a discontinued charge and attaching a Verdict and Judgment Record dated 7 February 2019 from the Magistrates Court at Southport. The aforementioned material has been duly considered by the Tribunal.

8. On 13 September 2019, the Tribunal issued a Summons to the Commissioner of the Queensland Police Service seeking information concerning the outstanding criminal matters with respect to the applicant. On 20 and 26 September 2019, the Tribunal received responses to its Summons outlining the applicant’s upcoming Court matters. On 27 September 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting her to respond to information contained in the response to the aforementioned Summons, Court and Legal Aid documents. On 18 October 2019, the Tribunal received a handwritten response to the invitation (in the form of a submission) which has been duly considered.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

10. Ms Ruru Mahara, the applicant, is a 23 year old national of New Zealand. Her most recent Subclass 444 visa, issued on 19 September 2008, was cancelled by the delegate on 30 April 2019. At that time she was held on remand at the Brisbane Women’s Correctional Centre with several criminal charges pending.

11. The applicant first arrived in Australia on 14 February 2003 at the age of 6 years. She came to Australia with her mother and two older sisters after the passing of her father. The applicant has made three short return visits to New Zealand since her first arrival in Australia. The applicant has no partner and no children.

12. The applicant was found guilty of multiple criminal matters between the years of 2015 and 2018 for offences including serious assault of a Police Officer, common assault, stealing, breach of bail, failure to appear in accordance with undertaking, possessing dangerous drugs and breach of Probation Order. The applicant is currently held on remand for several offences yet to be determined by the Court.

13. Information obtained from the Queensland Police Service confirms the applicant has the following proven criminal history:

    -23/11/2015 – Stealing (on 21/11/15). No conviction recorded, fined $300;

    -23/11/2015 – Commit Public Nuisance (on 21/11/15). No conviction recorded, fined $300;

    -10/03/16 – Breach of Bail Condition (between 07/02/16 and 10/03/16). No conviction recorded, 80 hours of Community Service;

    -10/03/16 – Possess Utensils or Pipes etc. for Use (on 23/02/16). No conviction recorded, 80 hours of Community Service;

    -14/04/16 - Breach of Bail Condition (on 04/04/16). No conviction recorded, fined $400;

    -14/04/16 – Contravene Direction or Requirement (on 30/03/16). No conviction recorded, fined $400;

    -16/04/16 – Stealing (on 08/02/16). No conviction recorded, Probation 15 months;

    -16/04/16 – Stealing (on 08/02/16). No conviction recorded, Probation 15 months;

    -16/04/16 – Failure to appear in accordance with undertaking (on 27/10/15). No conviction recorded, Probation 15 months;

    -16/04/16 – Failure to appear in accordance with undertaking (on 06/04/16). No conviction recorded, Probation 15 months;

    -16/04/16 – Failure to appear in accordance with undertaking (on 23/02/16). No conviction recorded, Probation 15 months;

    -16/04/16 – Unauthorised dealing with shop goods (on 27/10/15). No conviction recorded, fined $450;

    -18/04/16 - Failure to appear in accordance with undertaking (on 12/04/16). Conviction recorded, imprisonment for 1 month (suspended for 9 months);

    -24/06/16 - Failure to appear in accordance with undertaking (on 07/06/16). Conviction recorded, imprisonment for 1 month (cumulative, suspended sentence fully invoked regarding Breach of Order imposed on 18/04/2016);

    -20/07/16 – Possessing dangerous drugs (on 10/11/15). No conviction recorded, Probation 18 months;

    -20/07/16 – Possess Utensils or Pipes etc. for Use (on 10/11/2015). No conviction recorded, Probation 18 months;

    -20/07/16 – Serious Assault of Police Officer (on 10/11/15). No conviction recorded, Probation 18 months;

    -20/07/16 - Breach of Bail Condition (on 11/11/15). No conviction recorded, Probation 18 months;

    -20/07/16 - Breach of Bail Condition (on 20/11/15). No conviction recorded, Probation 18 months;

    -20/07/16 – Commit Public Nuisance (on 20/11/15). No conviction recorded, Probation 18 months;

    -20/07/16 – Being Intoxicated in a Public Place (on 20/11/15). No conviction recorded, released absolutely;

    -21/12/16 – Breach of Community Service Order (on 10/03/16) (regarding Breach of Bail Condition, Possess Utensils or Pipes etc. for Use, Possess Tainted Property). Order revoked, resentenced for original offences, conviction recorded, fined $300;

    -18/05/17 – Contravene Direction or Requirement (on 02/11/16). Conviction recorded, fined $200;

    -18/05/17 – Common Assault (on 15/11/16). Conviction recorded, Community Service 80 hours;

    -18/05/17 – Unauthorised Dealing with Shop Goods (on 25/01/16). No conviction recorded, not further punished;

    -29/05/17 - Unauthorised Dealing with Shop Goods (on 12/04/17). No conviction recorded, Recognisance $500 with Good Behaviour Period of 6 months;

    -29/05/17 - Unauthorised Dealing with Shop Goods (on 12/04/17). No conviction recorded, Recognisance $500 with Good Behaviour Period of 6 months;

    -29/05/17 - Unauthorised Dealing with Shop Goods (on 12/04/17). No conviction recorded, Recognisance $500 with Good Behaviour Period of 6 months;

    -29/05/17 - Unauthorised Dealing with Shop Goods (on 12/04/17). No conviction recorded, Recognisance $500 with Good Behaviour Period of 6 months;

    -29/05/17 - Unauthorised Dealing with Shop Goods (on 12/04/17). No conviction recorded, Recognisance $500 with Good Behaviour Period of 6 months; and

    -13/02/18 – Breach of Probation Order imposed on 16/04/16 (regarding Stealing x 2, Breach of Bail Condition, Failure to appear in accordance with undertaking x 3); Breach of Probation Order imposed on 20/07/16 (regarding Possessing Dangerous Drugs, Possess Utensils or Pipes etc. for Use, Serious Assault of Police Officer, Breach of Bail Condition x 2, Commit Public Nuisance); Breach of Community Service Order imposed on 18/05/17 (regarding Common Assault). For Breach of Orders conviction recorded, fined $200. Orders revoked for Original Sentences – Serious Assault of Police Officer conviction recorded imprisonment 2 months (suspended for 12 months) concurrent, Stealing x 2 and Common Assault convictions recorded imprisonment 1 month (suspended for 9 months) concurrent, Failure to appear in accordance with undertaking x 3 convictions recorded imprisonment 2 weeks (suspended for 6 months) cumulative, Breach of Bail Conditions x 3 and Possessing Dangerous Drugs and Possess Utensils of Pipes etc. for Use and Commit Public Nuisance convictions recorded imprisonment 2 weeks (suspended for 6 months) concurrent. 

14. Information from the Queensland Police Service and the Magistrates Court at Southport confirms the applicant has the following pending criminal matters (with the date of the alleged offence specified):

    -14/01/2019 – Common Assault (s.335 Criminal Code);

    -14/01/2019 – Robbery with Actual Violence Armed/ In Company/ Wounded/Used Personal Violence (s.411(1) &(2) Criminal Code);

    -14/01/2019 – Common Assault (s.335 Criminal Code);

    -14/01/2019 – Breach of Bail Condition (s.29(1) Bail Act);

    -15/01/2019 – Possessing Dangerous Drugs (s.9(1) Drugs Misuse Act);

    -15/01/2019 – Possess Utensils or Pipes etc. for Use (s.10(2) Drugs Misuse Act);

    -10/01/2019 – Failure to appear in accordance with undertaking (s.33(1) Bail Act);

    -23/05/2018 – Stealing (s.398 Criminal Code);

    -23/05/2018 – Stealing (s.398 Criminal Code); and

    -23/05/2018 – Stealing (s.398 Criminal Code).

15. It is important to note that the applicant has advised the Tribunal that she will plead not guilty to all of the pending criminal matters and that they will not be next heard by the Court until around February 2020.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(e) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

18. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

    Evidence at the review hearing

19. The applicant’s oral evidence, which was provided by video link from the Southern Queensland Correctional Centre, may be summarised as follows. She confirmed that her letter (in the form of a submission) sent to the Tribunal prior to the review hearing contained true and correct information. The Tribunal informed the applicant of her right to exercise the privilege against self-incrimination in respect of any pending criminal matters. The applicant advised that she understood this right. She informed the Tribunal that she had several pending criminal matters and she did not wish to make further comment about them.

20. The Tribunal raised with the applicant that her pending criminal matters might tend to suggest that her presence in Australia ‘is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community’. She was invited to comment and replied, ‘I don’t know what to say.’ The Tribunal raised with the applicant that these pending criminal matters might tend to weigh in favour of cancelling her visa. She was invited to comment and replied, ‘I don’t know what to say.’

21. The Tribunal invited the applicant to make comment, if she wished to do so, about the Notice of Intention to Consider Cancellation (NOICC) of her visa dated 18 March 2019, or her response to the Department by way of a letter dated 26 March 2019. The applicant replied, ‘I don’t know what to say.’ The Tribunal canvassed with the applicant her proven criminal history, a copy of which had been sent to her in the s.359A correspondence of 11 July 2019, inviting her comment upon such history. The applicant replied that she was really young, didn’t know what she was doing, doesn’t know what else she can say and that she regrets it all.

22. The Tribunal asked the applicant to inform it about her conduct on 10 November 2015 in relation to the conviction she received for Serious Assault of a Police Officer. She responded that she really doesn’t remember any of that. The Tribunal notes that the facts to which she plead guilty included that she kicked a male Police Officer in the groin and threw a bottle of liquid at him.

23. The Tribunal asked the applicant to inform it about her conduct on 15 November 2015 in relation to the conviction she received for Common Assault. She responded that she didn’t know what to say and was really embarrassed. The Tribunal notes that the facts to which she plead guilty included that she spat at a male Police Sergeant.

24. The Tribunal asked the applicant to inform it about her conduct in relation to failure to appear in accordance with undertakings, breach of bail conditions, possessing dangerous drugs, possessing utensils or pipes for use and public nuisance for which she was convicted on 13 February 2018. She replied that she was really young, took a lot of drugs and doesn’t remember. The applicant advised that she was around 20 to 22 years old at the time. She agreed when asked by the Tribunal that she was an adult then. The applicant advised that these matters were embarrassing to her.

25. The Tribunal raised with the applicant that her proven criminal history, as reflected in the documents sent to her pursuant to s.359A of the Act prior to the hearing, might tend to suggest that her presence in Australia ‘is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community’, inviting her comment. She replied that since she has been in prison she is ‘not really like that.’ The Tribunal raised with the applicant that her proven criminal history might tend to weigh in favour of cancelling her visa. The applicant was invited to comment and replied that she would be so upset if this happened as she has been in Australia her whole life, she has nieces and nephews and her sister was deported. The applicant advised that she is very upset and she apologised for what she has done.

26. The Tribunal discussed with the applicant her background and family circumstances. She was born in New Zealand and arrived in Australia in 2003 at the age of 6 years with her mother and two sisters. The applicant has made short return visits to New Zealand since her first arrival in Australia. The purpose of the applicant’s last arrival in Australia on 19 September 2008 was to resume residence. She advised that she has never failed to comply with Australian visa conditions.

27. The applicant informed the Tribunal that her mother Ms R, who is a New Zealand citizen, resides on the Gold Coast. The applicant has three sisters. Ms T is an adult New Zealand citizen who resides in Queensland. The applicant’s sister Ms T has two Australian citizen sons aged 8 and 5 years respectively. They are the nephews of the applicant. The applicant’s sister Ms A is an adult New Zealand citizen who was deported from Australia to New Zealand in 2018. The applicant was unaware of the reasons for this, but noted that her sister spent time in prison and had mental health issues. In early 2019, whilst in New Zealand, Ms T gave birth to Miss O, who was aged approximately 7 months at the time of the review hearing. The applicant believes that Miss O’s father in an Australian citizen. Miss O, who is the niece of the applicant, recently arrived in Australia to reside with her grandmother (the mother of the applicant, Ms R). The applicant also has a younger sister, Miss K, who is aged 12 years and resides with their mother. Miss K is an Australian citizen by virtue of her father, who is not in her life. It is apparent that the applicant’s mother, Ms R, resides with both Miss K and Miss O who are Australian citizen minors. Ms T’s Australian citizen children, the applicant’s nephews, reside with their mother separately to Ms R. Ms A continues to reside in New Zealand having been deported from Australia. It is contended in the documentary evidence that legal advice has been sought in an effort to seek the return of Ms A to Australia.

1. The applicant has no partner, nor any children. She doesn’t know her cousins. She has no surviving aunts or uncles. Her grandfather on her mother’s side is elderly and resides in New Zealand. The applicant has not seen him since she was a child and is not sure where he lives. The applicant advised that she is not really in contact with other family members in New Zealand. The applicant is not really sure what her adult sister Ms A is doing in New Zealand following her deportation from Australia.

2. The Tribunal canvassed with the applicant whether she would face hardship if her visa was cancelled. She replied that she wouldn’t know where she would live in New Zealand, adding that her sister has found trouble obtaining accommodation and is suffering from mental health issues. The applicant advised that she wouldn’t know where to go in New Zealand. When asked by the Tribunal if there were any circumstances beyond her control that led to her Subclass 444 visa being considered for cancellation, the applicant replied that she couldn’t control her own emotions. She added that when her older sister Ms A was in Australia she upset the applicant with what she was doing.

3. The Tribunal canvassed with the applicant whether any of her family members would face hardship if her visa was cancelled. She replied that her mother is waiting for her to be released from custody so she can assist in caring for her niece, Miss O. The applicant advised that some mates are helping to look after Miss O and her mother (Ms R) also has to take time off work to do so. The applicant indicated that her mother brings Miss O to visit her in remand. Additionally, the applicant advised that she also looks after her nephews when she is ‘not going around being crazy.’ She last saw her nephews recently when they came to visit her in remand. The applicant confirmed that her nephews reside with their mother, Ms T. The applicant ‘didn’t know what to say’ regarding her minor relatives facing hardship if her visa is cancelled. The applicant also confirmed that there was no other person relevant to the matter of hardship if her visa is cancelled.

4. The applicant confirmed to the Tribunal that she did not suffer any health conditions. Whilst in custody, the applicant has completed some courses to assist her to obtain employment (including the White card, responsible service of alcohol, responsible gaming and a program to gain further education). The applicant is not sure of her future plans. She was last employed in Australia in a casual retail sales role. Her sister, Ms T, also used to ask her to look after her two nephews. When asked by the Tribunal how she was able to care for these children during the period she was offending, the applicant advised that she is ‘not really like that’ and is a good person.

5. The applicant indicated that she has always been truthful and cooperative in her dealings with the Department. She agreed that if her visa was cancelled, nobody else is attached to her visa who would receive a consequential visa cancellation. The Tribunal raised with the applicant that if her visa was cancelled she would be an unlawful non-citizen, be subject to immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. She was invited to comment upon the aforementioned matters but advised that she didn’t know what to say.

6. The Tribunal informed the applicant that because she has a minor sibling and other minor relatives (one niece and two nephews), it is considering very carefully Australia’s international obligations arising from the Convention on the Rights of the Child (CROC). When asked if there were any other international obligations relevant to her case, the applicant replied that she didn’t know. When asked by the Tribunal if she had formed strong family, business or other ties in Australia, the applicant replied that she has strong family ties, she is not involved in business and everything she has is in Australia. When asked by the Tribunal, the applicant confirmed there was no other reason she could not return to New Zealand. The applicant also confirmed that she had no further evidence to provide prior to the Tribunal taking oral evidence from her mother.

7. The Tribunal took oral evidence from the applicant’s mother, Ms R, via telephone. It may be summarised as follows. She confirmed that she is the mother of the applicant and she is a New Zealand citizen. When asked by the Tribunal to outline her knowledge of the applicant’s offending, Ms R stated that she doesn’t know much other than that she has broken the law and done wrong. Ms R added that the applicant kept a lot from her to protect her. Ms R believes that her daughter has changed since she has been in custody. When the applicant was in society, Ms R didn’t want to approach her or have anything to do with her. Ms R has changed her attitude towards her daughter. Ms R advised her daughter has a job in prison, uses better language, is a changed person and has a positive routine in prison. Ms R is not sure what job her daughter has. Ms R advised that in earlier times she wouldn’t let the applicant into her own house but now she would do so.

8. Ms R explained that her grand-daughter, Miss O, now resides with her. The mother of Miss O was deported back to New Zealand whilst pregnant. When Miss O was born the relevant authorities placed the child in foster care and Ms R has recently been able to obtain guardianship of Miss O and bring her to Australia. Miss O is placed in day care in Australia whilst Ms R works as a supervisor at a hotel. Ms R added that she can’t take additional security employment as she must take care of Miss O. Ms R also has a 12 year old daughter, Miss K, to look after.  

9. Ms R explained that her daughters had done some stupid things and she wants her family back together. Ms R had some minor surgery recently. She noted her own sister had passed away from cancer. Ms R reiterated that her eldest daughter, Ms A, was deported from Australia after being in prison. She noted that Ms A suffers from schizophrenia and was obese whilst pregnant. Ms R thinks her daughter, Ms A, was deported due to criminal conduct but she is not sure. Ms R stated that her daughters didn’t want her to be part of their badness. Ms R witnessed the problems with Ms A. Ms R believes that the applicant is an undiagnosed sufferer of dyslexia as she was not interested in school (there is no medical evidence before the Tribunal to confirm Ms R’s lay opinion and no weight is afforded to it). Ms R couldn’t believe the applicant had the ‘brain power’ to challenge the visa cancellation.

10. Ms R confirmed to the Tribunal that she didn’t have much to do with the applicant during her period of offending. Ms R could not ‘confirm or deny’ that the applicant had contact with her minor relatives during the period of her offending. Ms R then added that the applicant did spend time with these minor relatives. The Tribunal raised the applicant’s proven criminal history with Ms R and having heard this she indicated that the proven matters are not bad. Ms R maintained that the applicant was good with her minor relatives. Ms R explained that she resides with Miss K and Miss O, and she works full time. Miss K attends school and after school care, whilst Miss O attends day care. On every second Saturday these children also attend day care.

11. Ms R outlined that she and her family would face hardship if the applicant’s visa was cancelled because the family would be split, noting also that she had minor surgery recently. Ms R stated that the applicant would be a great loss to the family if her visa was cancelled. Ms R believes the applicant is a changed person and noted that she will give up a room in her residence for her. Ms R advised that she is financially secure enough to support the applicant until she finds employment at which time the applicant will make a contribution. Further, the neighbourhood centre and the job agency will help the applicant. Ms R misses the applicant and feels it would be a huge loss for the family if she returns to New Zealand. They have their lives in Australia and Miss O’s father resides in Australia as does Miss K’s. Ms R has her employment in Australia and believes there is less opportunity in New Zealand. Ms R would hugely miss the applicant if she returns to New Zealand. At the conclusion of Ms R’s oral evidence, the applicant confirmed she had nothing to add.

12. The applicant concluded her oral evidence by indicating she is regretful for her earlier conduct. She advised she is not like that anymore and is now a nice person who is really good. The applicant indicated that she ‘needs to stay away from everything when she gets out’. The applicant advised that she has nothing to go back to in New Zealand and her sister there is unstable. The applicant stated that everything she knows is in Australia. The applicant confirmed that she had no further evidence to provide prior to the conclusion of the review hearing. The applicant agreed to provide, after the review hearing, documentary confirmation of the status of her pending criminal matters following consultation with her legal representative from Legal Aid Queensland (noting that she is unrepresented for the purpose of the present review application). There being no further matters to canvass, the review hearing concluded.

13. The Tribunal notes that it had the benefit of taking the oral evidence of the applicant by video link from the Southern Queensland Correctional Centre. The Tribunal observed the applicant to provide scant detail in relation to her proven criminal conduct. For example, she advised that she didn’t remember the particulars of the bulk of such offending. Her demeanour in doing so pointed to the applicant not taking responsibility for her actions, despite saying that she was regretful. On balance, the Tribunal is not satisfied that the applicant was candid when giving evidence on proven criminal matters that she considered to be embarrassing. This does not reflect well upon her and attaches some hollowness to her expressions of remorse in the view of the Tribunal.  

    Material received post-review hearing

14. On 12 September 2019, the applicant submitted material outlining her pending criminal matters. This included notification that one charge of Sexual Assault had been discontinued (for the sake of completeness, the Tribunal notes that no weight in an adverse fashion is afforded to that discontinued charge, and its discontinuance weighs against cancellation of the visa). As previously outlined, the Tribunal obtained further information by Summons to clarify the outstanding criminal matters of the applicant and invited her to respond to it by way of an invitation pursuant to s.359A of the Act dated 27 September 2019. On 18 October 2019, the Tribunal received a handwritten response to the invitation (in the form of a submission) and also another copy of the applicant’s earlier typed submission (initially received on 26 July 2019) both of which have been duly considered.

15. The contemporary submission indicates that the applicant will plead not guilty to all outstanding charges noting that she has previously plead guilty to all matters of which she believes she is guilty. Further, the applicant outlined that the charge of Sexual Assault was baseless and it troubled her to have it attributed to her name. She also outlined that her offending resulted from substance abuse which has now subsided (referring also to her earlier submission). The applicant also expressed remorse and a desire to reintegrate into the Australia community. The applicant’s earlier submission (initially received on 26 July 2019) also outlines the background to the applicant’s offending, her participation in drug, alcohol and educational courses on remand, and her remorse for her conduct. All documentary material submitted on behalf of the applicant prior to and following the review hearing has been duly considered by the Tribunal.

    The ground for cancellation exists

16. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(e)(i) of the Act is enlivened. The applicant has an extensive proven criminal history for matters arising during the years 2015 to 2018. This includes convictions for Serious Assault of a Police Officer and Common Assault, for which she was sentenced to suspended periods of imprisonment. Both of the aforementioned convictions pertain to the applicant’s conduct towards members of the Queensland Police Service. Regarding the former conviction, the applicant pled guilty to facts including that she kicked a male Police Officer in the groin and threw a bottle of liquid at him. With respect to the latter conviction for Common Assault, the applicant pled guilty to facts including that she spat at a male Police Sergeant. The Tribunal considers that the aforementioned conduct of the applicant towards members of the Queensland Police Service is both disgraceful and serious. Such conduct points to the applicant being a risk to the safety of the Australian community. The aforementioned conclusions are buttressed by the applicant’s other proven offending, which displays a blatant disregard for authority in this country.

17. The Tribunal also notes that the applicant has a number of outstanding criminal matters. These include one charge of Robbery with Actual Violence Armed/ In Company/ Wounded/Used Personal Violence (s.411(1) &(2) Criminal Code) and two charges of Common Assault (s.335 Criminal Code). It is common ground that these charges have yet to be dealt with by the Court and the applicant contests them, as is her right. However, that the applicant has been charged with such offences relating to violence, and is currently on remand, tends to suggest that she might be a risk to the safety of the Australian community.

18. The Tribunal also notes that one charge of Sexual Assault in respect of the applicant was discontinued and this tends to suggest she does not pose a risk to the safety of the Australian community. Further, the Tribunal notes the contentions of the applicant that she is no longer drug dependent, has completed rehabilitative courses whilst on remand (including those related to drug, alcohol and employment), is of good character (as contended in the submitted character statements and oral evidence), and will reside with her mother (Ms R) if released from custody. Additionally, the Tribunal notes that many of the penalties imposed by the Court upon the applicant are limited. The Tribunal affords some weight to the aforementioned evidence which tends to suggest the applicant does not pose a risk to the safety of the Australian community. However, such weight is tempered by the fact that the applicant has been on remand for several months, removed from the temptations associated with her former lifestyle, and accordingly has not been able to demonstrate a period in the community where she has presented a low risk since being in custody. Additionally, the Tribunal’s observations regarding the applicant’s demeanour during the review hearing tend to suggest that she has not yet truly taken responsibility for her past actions.  

19. On balance, following careful consideration, the Tribunal is satisfied that the weight of evidence suggests the ground for visa cancellation exists. In particular, it is of much concern to the Tribunal that the applicant has been convicted of two matters involving assault in relation to serving members of the Queensland Police Service. Accordingly, the Tribunal finds that the applicant’s presence in Australia might be a risk to the safety of the Australian community. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

21. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

22. The applicant’s background has been detailed above. She has resided in Australia since 2003 from the age of 6 years, arriving with her mother and siblings. The applicant has her mother (Ms R), one adult sister (Ms T), one minor sister (Miss K), one niece (Miss O) and two nephews (Ms T’s children) resident in Australia. Other family members associated with the aforementioned individuals also reside in this country, as do friends of the applicant. The Tribunal accepts the oral and documentary evidence that some emotional and financial hardship will be faced by these family members, and the applicant, should the visa be cancelled (noting in particular the hope of the family that the applicant will work once released from custody and assist with the care of Miss K and Miss O in Ms R’s residence). The Tribunal also accepts that there will be upset and emotional hardship to the friends of the applicant, and those family members associated with the immediate family members of the applicant, if her visa is cancelled. The Tribunal affords some weight to the respective evidence concerning these matters and finds that the aforementioned family and friendship considerations weigh against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that either the applicant, or any other person, will suffer psychological hardship if the visa is cancelled.

23. The applicant’s minor sister, Miss K, is aged approximately 12 years. The applicant’s minor niece, Miss O, is aged approximately 7 months. They both reside with the applicant’s mother, Ms R. The Tribunal accepts that the evidence of the applicant and Ms R (and the supporting documentary evidence) points to the best interests of these children favouring the applicant’s visa not being cancelled. The Tribunal accepts it is proposed that the applicant will reside with and help care for these children in a residential setting if released from custody. It is further accepted that the applicant wants to play a meaningful role in their lives and they will face hardship if her visa is cancelled. The Tribunal accepts that these minors will face emotional and financial hardship, as will the applicant, if the Subclass 444 visa is cancelled. In particular, the Tribunal accepts that the applicant might obtain employment in Australia if her visa is not cancelled and that she could contribute financially to the household of Ms R. Additionally, it is accepted that Ms R could undertake further employment if the applicant was in Australia to assist her with care of these minors. Further, the Tribunal accepts that the applicant and her minor nephews (Ms T’s sons) will face emotional hardship if the Subclass 444 visa is cancelled. The Tribunal affords some weight to the aforementioned matters and finds they weigh against the cancellation of the applicant’s visa.

1. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant, her sister, her niece and her nephews (and other family members with respect to their right to be a family unit), and which weighs against cancellation of the visa. The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

2. The Tribunal accepts the evidence of the applicant’s mother, Ms R, that she will face emotional and financial hardship if the applicant’s visa is cancelled. In particular, the Tribunal accepts that she would not have the assistance of the applicant to care for Miss K and Miss O within the family residence if the visa is cancelled. Further, the Tribunal accepts that Ms R recently had minor surgery and that her sister passed away from cancer which will elevate the emotional hardship suffered by her if the applicant’s visa is cancelled. In the view of the Tribunal, the aforementioned hardship weighs against cancellation of the applicant’s visa. The Tribunal also accepts that Ms R had another daughter, Ms A, deported from Australia to New Zealand and that as a result additional emotional and financial hardship for her would be suffered if the applicant’s visa is cancelled. In the view of the Tribunal, the aforementioned hardship weighs against cancellation of the applicant’s visa.

3. The Tribunal notes that in the documentary evidence submitted on behalf of the applicant, it is contended that some effort is underway from Ms R to have her adult daughter Ms A return to Australia from New Zealand. The Tribunal accepts that if this occurred in the future then additional emotional hardship would be caused to the applicant and her family members if her visa was cancelled as she would not be able to join Ms A in Australia. The aforementioned matter of hardship weighs against cancellation of the applicant’s visa. For the sake of completeness, the Tribunal notes that if the applicant’s visa is cancelled then in the medium term she would be returned to live in New Zealand where Ms A is residing and there would be the opportunity for them to reunite in their country of nationality (noting that the applicant referred to Ms A suffering from mental health issues and exhibiting past conduct with which she was not happy). Accordingly, the Tribunal is not satisfied that any hardship within the medium term would be suffered by Ms A if the applicant’s visa is cancelled.

4. The Tribunal accepts there is no evidence before it of adverse past or present behaviour by the applicant towards the Department of Home Affairs, nor of non-compliance with visa conditions. The aforementioned matters weigh against cancellation of the visa. The Tribunal accepts that no other person is attached to the applicant’s visa who would receive a consequential visa cancellation if her own visa were cancelled. There is no evidence before the Tribunal indicating that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa.

5. The Tribunal does not accept that there are any circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. Whilst the Tribunal accepts that the applicant’s offending was influenced by drug use at the time, it does not accept that either her consumption of drugs or proven criminal conduct was involuntary. Further, whilst the Tribunal accepts that the applicant’s pending criminal matters are a circumstance that led to the grounds for visa cancellation existing, and that the charge of Sexual Assault has been discontinued, there is no persuasive evidence to suggest that such circumstances were beyond her control given the range of charges preferred and the lack of evidence to suggest that such charges have been laid in a malicious or mala fide fashion. It follows that the Tribunal does not accept that there are circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. As there are no such circumstances, this consideration weighs neither in favour of, nor against, cancellation of the Subclass 444 visa.

6. The Tribunal accepts that if the applicant’s visa is cancelled she would be an unlawful non-citizen, be liable to be placed in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. The Tribunal finds that such matters are likely to result in emotional and financial hardship for the applicant. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

7. As outlined previously, the applicant has resided in Australia since 2003 when she arrived aged 6 years. Her purpose of stay in Australia is to maintain such residence and the Tribunal accepts she has a compelling need to remain in Australia to be with the bulk of her family members. The Tribunal places some weight upon the evidence regarding these issues and finds they weigh against cancellation of the visa. The Tribunal has already described its attribution of weight in relation to family and relationship matters, which intersect with the consideration of the applicant’s submitted need to remain in Australia. The Tribunal accepts that the applicant will face emotional and financial hardship if her visa is cancelled on account of the disruption to her familial and social networks. The Tribunal also accepts that she has limited relatives residing in New Zealand. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa.

8. The Tribunal accepts that the applicant has undertaken some courses with regard to rehabilitation (including drug and alcohol) and employment prospects in custody, and that she contends she is free of drug use, as previously outlined. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa. The Tribunal accepts that the applicant wishes to find employment and assist her family members in Australia and that these plans will not come to pass if her visa is cancelled. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa.   

9. The Tribunal accepts that the applicant has formed strong family and social ties within Australia. These matters have been previously outlined and weigh against cancellation of the applicant’s visa. For completeness, the Tribunal notes that the Subclass 444 visa is a temporary visa according to the prevailing legislation. The Tribunal accepts the applicant has previously been employed in Australia performing casual work in the retail sector. Some weight is afforded to the evidence in relation to the aforementioned matter and the Tribunal finds it weighs against cancellation of the visa.  

10. The Tribunal has carefully considered the matter of the applicant’s basic living standards if her visa is cancelled and she returns to New Zealand. The Tribunal notes that the applicant contends that her sister, Ms A, has suffered difficulty with accommodation in New Zealand and has mental health issues. The Tribunal also notes the applicant has a limited family network in New Zealand. However, the applicant informed the Tribunal that she does not suffer any health problems and there is no medical evidence before it to suggest otherwise. The Tribunal is satisfied that the applicant is entitled to any New Zealand Government service and benefit available to New Zealand nationals if she returns to her country of nationality. Further, the Tribunal is satisfied that in due course, following a period of adjustment, she would be able to search for employment in New Zealand. On balance, the Tribunal does not accept that there is a real risk of the applicant having her basic living standards (including accommodation, finances and subsistence) threatened if she returns to reside in New Zealand and avails herself of the services available to her as a national of that country. Having regard to all of the evidence, the Tribunal is satisfied that no international obligations would be breached as a result of the applicant’s visa being cancelled.

11. For completeness, the Tribunal accepts that the applicant’s preference (and that of her family) is for her to reside in the residence of her mother and she will not be able to do so if her visa is cancelled. The aforementioned matter weighs against cancelling the applicant’s Subclass 444 visa.

12. The Tribunal has also carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing either in favour of, or against, cancellation of her visa.

    CONCLUSION

13. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s visa. The Tribunal has carefully reflected upon the aforementioned factors and it has considered the applicant’s claims individually and cumulatively. Multiple factors have been found by the Tribunal to weigh against the cancellation of this visa, as outlined above. The hardship faced by the applicant and her family members if the visa is cancelled, including their rights to remain as a family unit, weighs significantly against such cancellation. Similarly, ‘the best interests of the child’, which is a primary consideration, weighs significantly against cancelling the visa on account of the applicant’s minor sibling, niece and nephews.

14. However, the following combination of factors presents considerable concern for the Tribunal and weighs strongly in favour of cancelling the applicant’s Subclass 444 visa. The applicant’s proven criminal conduct, which includes convictions for Serious Assault of a Police Officer and Common Assault (in relation to a Police Officer) for which she was sentenced to suspended periods of imprisonment, are matters of some gravity in the view of the Tribunal. Her proven criminal conduct displays a blatant disregard for authority in this country. Whilst the Tribunal has paid due regard to all relevant matters including her lengthy residence in Australia, expression of remorse, the limited sentences imposed by the Court in relation to her proven criminal conduct, her evidence that she is no longer using illicit drugs (including the completion of drug, alcohol and employment courses), the third party evidence suggesting she is of good character, the assistance available to her from the neighbourhood centre and job agency outlined by Ms R, and the option for her to live at her mother’s residence upon release from custody, it is not satisfied that the applicant is no longer a risk to the Australian community as a result.

15. Rather, the Tribunal is satisfied the applicant presents a real risk of reoffending and she might be a threat to the safety of the Australian community if she remains in this country. That is because the applicant has a lengthy history of criminal conduct when in situations of exposure to the temptations of illicit drug use, even when family support has been available to her, and she has not demonstrated a reasonable amount of time where she has been living as an adult in the community without offending. Further, the applicant’s demeanour during the review hearing pointed to her not taking responsibility for her actions and offering somewhat hollow expressions of remorse in the view of the Tribunal. Accordingly, the Tribunal is not satisfied upon the evidence before it that the applicant will desist from her former lifestyle upon release from custody.

16. For the sake of completeness, the Tribunal also notes that the applicant has been charged with very serious criminal offences which have yet to be dealt with by the Court. Regarding these matters, the Tribunal has placed no adverse weight upon the pending criminal charges when considering the exercise of its discretion in the present review, given they are yet to be determined by the Court.

17. The Tribunal has given the present review application very careful consideration given the consequences for the applicant and her family members if the Subclass 444 visa is cancelled. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

19. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    K. Chapman
    Member