RWXF and Minister for Immigration and Border Protection (Migration)
[2019] AATA 749
•18 April 2019
RWXF and Minister for Immigration and Border Protection (Migration) [2019] AATA 749 (18 April 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4020
Re:RWXF
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:18 April 2019
Place:Sydney
The decision under review, being the decision made by the delegate of the Minister for Immigration and Border Protection in July 2017 to refuse to grant the applicant a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (Cth), is affirmed.
....................[SGD]....................................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – visa refusal – Bridging E (Class WE) visa – character test – where applicant has substantial criminal record – where applicant’s conduct in detention reflects adversely on character – whether risk of applicant engaging in criminal conduct in Australia – protection of the Australian community from criminal or other serious conduct – the best interests of minor children – expectations of the Australian community – other considerations – where international non-foulement obligations not relevant to proceedings – decision affirmed
LEGISLATION
Children and Young Person's (Care and Protection) Act 1998 (NSW) s 79
Migration Act 1958 (Cth) ss 109, 438, 499, 501CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Picard v Minister for Immigration and Border Protection [2015] FCA 1430SECONDARY MATERIALS
Department of Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Direction under section 499: visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
18 April 2019
This is an application for review of a decision made by the delegate of the Minister for Immigration and Border Protection (the Minister) in July 2017 to refuse to grant the applicant a Bridging E (Class WE) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act).
The hearing of this matter proceeded in a somewhat unusual manner. The Applicant sought to have the matter heard “on the papers”. The Tribunal determined that the parties be present on 22 March 2019 in order to indicate and tender the documents sought to be relied upon. Those documents, in turn, were marked as exhibits in the proceeding. The Tribunal further required that the parties make oral submissions intended to complement written submissions made by direction of the Tribunal on 19 March 2019.
The Respondent neither requested nor required that the Applicant, or any other person upon whose evidence the Applicant relied, be available for cross-examination.
The Applicant is a 40-year-old woman and a citizen of New Zealand who has entered Australia on a number of occasions, the most recent in breach of her bail conditions in New Zealand when she arrived in Australia on a fraudulently obtained passport in March 2009 at the age of 30.
The following table reproduces in part a statement of facts produced by the Respondent in this hearing and accepted in relevant detail by the Applicant, and supplies relevant details concerning the Applicant, her criminal history and the chronology of this matter.
DATE EVENT November 1978 Applicant born in New Zealand. December 1992 Applicant first visits Australia at approximately 14 years of age. January 1993 Applicant departs Australia. June 1994 Applicant is 15 and is convicted in New Zealand of: three counts of receiving property (under $500); and wounding with intent to GBH
and is sentenced to three months of “residence” orders.November 1995 Applicant is 17 and is convicted in New Zealand of shoplifting (under $500) and sentenced to a one year good behaviour bond. January 1996 Applicant is 17 and is convicted in New Zealand of dishonesty offences and sentenced to three six month periods of supervision by community corrections and ordered to pay $80.20 in reparations. February 1997 Applicant enters Australia for a second time. February 1997 Applicant departs Australia. March 1998 Applicant is 19 and is convicted in New Zealand of:
1. breaching community service;
2. two drink driving offences and disqualified for six months and three months respectively;
3. operating a vehicle carelessly and disqualified for six months.
February 1999 Applicant is 20 and is convicted in New Zealand of two dishonesty offences and sentenced to a six month good behaviour bond. July 1999 Applicant enters Australia for the third time. August 1999 Applicant departs Australia. February 2000 Applicant is 21 and is convicted in New Zealand of drink driving and is sentenced to disqualification for six months and fined $400. March 2001 Applicant gives birth to her first son “A” who now resides with his grandmother in New Zealand. April 2001 Applicant is convicted in New Zealand of two driving offences and fined $900 and disqualified for six months. August 2001 Applicant enters Australia for the fourth time. September 2001 Applicant departs Australia. August 2002 Applicant is 23 and is convicted in New Zealand of drink driving and is sentenced to 160 hours community service, disqualified from driving for 15 months and her motor vehicle is confiscated. October 2004 Applicant enters Australia for the fifth time. November 2004 Applicant departs Australia. February 2005 Applicant is 26 and is convicted in Australia of assault occasioning actual bodily harm. April 2005 Applicant is 26 and is convicted in New Zealand of procure/possess methamphetamine and amphetamine. May 2005 Applicant is 26 and is convicted in New Zealand of procure/possess cannabis plant and fined $300 and ordered to pay court costs of $130. August 2005 Applicant enters Australia for the sixth time. September 2005 Applicant departs Australia. April 2006 Applicant enters Australia for the seventh time. May 2006 Applicant departs Australia. August 2006 Applicant enters Australia for the eighth time. August 2006 Applicant is convicted in New Zealand of operating a vehicle carelessly and fined $300 and ordered to pay court costs of $130. August 2006 Applicant departs Australia. January 2007 Applicant is 28 and is convicted in New Zealand of driving a motor vehicle in a dangerous manner and disqualified for eight months and ordered to pay Court costs of $130. June 2007 Applicant is 28 and is convicted in New Zealand of:
1. possess/use utensils – methamphetamine and amphetamine and sentenced to 50 hours community work;
2. disorderly behaviour;
3. six driving offences for which the Applicant is fined and sentenced to 140 hours of community service and disqualification for six months.
November 2007 Applicant is 29 and is convicted in New Zealand of shoplifting (under $500) and sentenced to 40 hours community work. July 2008 Applicant is 29 and is convicted in New Zealand of:
1. being unlawfully in a building and ordered to pay $471 in reparation;
2. theft of property valued under $500 and sentenced to a six month good behaviour bond; and
3. willful damage and ordered to pay $50 in reparation;
4. drive while disqualified and ordered to complete 140 hours of community service and supervision order for one year;
5. fail to remain stopped for an enforcement;
6. operate a motor vehicle recklessly and sentenced to 140 hours of community service and supervision order for one year
2008/2009 Applicant is charged with offences in New Zealand which cannot be prosecuted whilst she in Australia:
1. unlawfully in a building;
2. fail to answer District Court bail;
3. import/export fantasy-type substances;
4. possess for supply – fantasy substances;
5. procure/possess methamphetamine/amphetamine; and
6. drive under influence of drink or drug – third or subsequent
March 2009 Applicant is 30 and enters Australia for the ninth time on a fraudulently obtained passport (breaching her bail conditions in New Zealand) and has since remained in Australia.
On entering Australia, the Applicant does not disclose her lengthy history of criminal offences in New Zealand or the offence committed in Australia of which she was convicted in February 2005.September 2010 Applicant is 30 and is convicted in Australia of:
1. furnish false name to member – fined $250
2. possess a dangerous drug (cannabis) – conviction recorded;
3. possess schedule 2 substance commercial – sentenced to 28 days’ imprisonment
4. possess thing – administer dangerous drug – conviction recorded.
September 2010 Applicant’s Special Category (Class TY) visa is cancelled under s 109 of the Act for providing incorrect information on her incoming passenger card in March 2009.
Applicant is taken into immigration detention as she is now an unlawful non-citizen.September 2010 Applicant absconds from immigration detention and remains unlawfully in the Australian community until located by the Compliance Field team in August 2015. June 2012 Applicant gives birth to a second son, “B” (he is currently being cared for by his father and paternal grandmother. The father separated from Applicant at the end of 2012). June 2015 Applicant is arrested by Queensland police and states she acquired injuries to her left hand. August 2015 Applicant is located by the Department’s Field Compliance team and again taken into immigration detention. September 2015 Applicant lodges a Protection (Class XA) visa application (Protection visa application) and an associated Bridging E (Class WE) visa application (First Bridging visa application). October 2015 Applicant’s First Bridging visa application is refused by a delegate of the Minister (First Bridging visa refusal). December 2015 Applicant’s Protection visa application is refused by a delegate of the Minister. December 2015 Applicant applies for further Bridging visa which was refused by a delegate; the refusal was affirmed by the Tribunal in January 2016. November 2015 to
April 2017Applicant continues to apply for further Bridging visas and Tribunal continues to affirm the delegate’s decisions to refuse Applicant a Bridging E (Class WE) visa. February 2016 The Applicant was assaulted in detention custody and received medical treatment. May 2016 The Children’s Court of New South Wales makes orders under s 79 of the Children and Young Person’s (Care and Protection) Act 1998 (NSW) giving custody of “B” to his father and requiring that all contact between the Applicant and “B” be supervised until he is 12 years old. August 2016 AAT affirms the Protection visa application decision. September 2016 Applicant applies to the Federal Circuit Court for judicial review of the AAT’s Protection visa application decision. February 2017 Applicant marries “C”, an Australian citizen. February 2017 Applicant is baptised. April 2017 Applicant applies for the Bridging E (Class WE) visa the subject of the application (the Current Bridging visa application). April 2017 A delegate of the Minister refused the Current Bridging visa application because she was not satisfied Applicant would comply with the conditions of the visa. April 2017 The Migration and Refugee Division of the Tribunal reviews the delegate’s decision in relation to the Current Bridging visa application and remits the matter back to the Department for reconsideration with directions. June 2017 The Federal Circuit Court quashes the Tribunal’s Protection visa application decision on the basis of the Tribunal’s failure to disclose a s 438 certificate to Applicant was procedurally unfair as the information the subject of the certificate was relevant, or potentially relevant, to the review. July 2017 A delegate of the Minister reconsiders the Current Bridging visa application and refuses the application under s 501 of the Act because the Applicant does not satisfy the character test. October 2017 The General Division of the Tribunal (Senior Member Kelly) reviews the delegate’s decision in relation the Current Bridging visa application and affirms the delegate’s decision. December 2017 The Migration and Refugee Division of the Tribunal sets aside the decision not to grant the Applicant a protection visa and finds that Australia owes the Applicant non-refoulement obligations and remits the matter back to the Department with a direction that the Applicant satisfied s 36(2)(aa) of the Act. April 2018 Federal Court sets aside AAT’s decision to affirm the refusal of the Current Bridging visa application and orders that the review of the delegate’s decision be remitted to the General Division of the Tribunal, differently constituted, for determination in accordance with law. ISSUES
The issues for the Tribunal are to:
(a)determine whether the Applicant passes the character test (as defined in s 501(6)); and, if not;
(b)consider whether the discretion in s 501(1) should be exercised in favour of refusal.
RELEVANT LAW
The character test
Subsection 501(1) provides that the “Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The character test is defined in s 501(6) of the Act. Relevantly in this case, a person will not pass the character test if:
(a)having regard to the person’s past and present criminal conduct and/or the person’s past and present general conduct, the person is not of good character (s 501(6)(c)); or
(b)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia (s 501(6)(d)(i)).
Exercise of discretion
A decision under s 501(1) of the Act involves an assessment and evaluation of the factors for and against refusal: e.g. Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
Further, the decision under s 501(1) must be carried out in accordance with any written directions under the Act (s 499(2A)). In this case, Part B of Direction No. 79 – Direction under section 499: visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) must be complied with.
Direction 79
Pursuant to para 7(1) in Direction 79, a decision under s 501(1) must be informed by the principles in para 6.3 of Direction 79, which are:
(a)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.
(b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(c)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community, such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(d)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(e)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(f)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(g)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by these principles, the decision-maker must take into account the primary considerations in Part B of Direction 79 in deciding whether to refuse the visa. These considerations are set out in para 11 as follows:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
There are other considerations in Part B which must be taken into account where relevant in deciding whether to revoke the mandatory cancellation. Relevantly to these proceedings, these considerations include:
(a)International non-refoulement obligations; and
(b)Impact on family members.
These considerations are non-exclusive.
A decision-maker must also take into account all critical claims made in the submissions of an applicant: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42] but not every statement in the material provided by an applicant is also, in effect, a mandatory relevant consideration: see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] (cf [31]) per Robertson J; see also Minister for Home Affairs v Buadromo [2018] FCAFC 151.
This is an application for a Bridging visa. The issue of non-refoulement is not relevant in this case as visa refusal would not result in removal to New Zealand but only continued detention pending the outcome of the remitted Protection visa application. This ruling was made by Deputy President Rayment and myself at a directions hearing in this matter on 15 March 2019.
The parties’ submissions
Some of the Applicant’s claims are:
·she passes the character test;
·she has not been involved in criminal conduct since 2010;
·she is not a risk to the Australian community;
·she is the victim of false claims;
·she will be persecuted in New Zealand by a criminal bikie gang;
·it is in the best interests of her child and her family that her visa be granted and that she remain in Australia; and
·she has certain health conditions.
The Respondent makes the following submissions:
·The Applicant’s history of offending is lengthy and involves many dishonesty and drug offences; and
·The Applicant’s conduct in absconding from immigration detention, remaining unlawfully in the community for five years and her behaviour while in immigration is also not consistent with her being of good character.
The Minister also contends that the Applicant does not pass the character test having regard to ss 501(6)(c) and/or (d)(i) of the Act because:
(c)having regard to either or both of the following:
(i) the Applicant's past and present criminal conduct;
(ii) the Applicant's past and present general conduct;
the person is not of good character; or
(d)in the event the Applicant were allowed to enter or to remain in Australia, there is a risk that the Applicant would:
(i) engage in criminal conduct in Australia.
Aspects of the Applicant’s evidence
The evidence of the Applicant is contained in, amongst other things, a statutory declaration. The Tribunal assigns weight to that evidence because it is in the form of a statutory declaration. No inference should be drawn and none is drawn against the Applicant for not having given evidence; nor, perhaps curiously, was it the case that the Respondent required the Applicant to be present for cross-examination. The evidence, however, comes uncontested before the Tribunal and the weight of assertions sworn to by the Applicant needs to be evaluated against other evidence.
In this regard, it is highly relevant, in the Tribunal‘s view, that the Applicant provided false evidence and testimony before the hearing conducted by Senior Member Kelly. This evidence is referred to below. The Applicant’s conduct in perpetrating this attempted fraud on oath/affirmation before a Tribunal, which went to central questions in the Tribunal hearing, cannot be underestimated in the magnitude of its misbehaviour.
This very fact, in the Tribunal‘s view, comprehensively diminishes any weight which should be given and which can be placed upon the Applicant’s evidence. In the Tribunal‘s view, little weight and credibility should be given to the assertions by the Applicant of changed, reformed good character, assertions as to proper behaviour whilst in detention custody, assertions as to the role of others in pressuring her into inappropriate and criminal behaviour throughout her life both in New Zealand and throughout her time in Australia, even whilst in detention custody. In fact, the Tribunal accords evidence by the Applicant little weight.
The history of offending
The Applicant has a long history of offending that includes many dishonesty and drug offences: Exhibit R1 at p. 46, 49, 52, 59. The offences of which the Applicant was convicted in New Zealand are classified as offences in Australia. The Applicant began her criminal offending in 1994. The 1994 offences were dealt with in a Youth Court in New Zealand. She committed further criminal offences in 1995, 1996 and 1997. The offences in those years included one offence of wounding with intent to cause grievous bodily harm, three offences of receiving property (under $500), one offence of shoplifting (under $500), eight offences of take/obtain/use document for pecuniary advantage, and one offence of breach community service.
Criminal offending commenced again in 2005 when the Applicant was 26 and was convicted in Australia of assault occasioning actual bodily harm. She also committed offences in 2006, 2007 and 2008. The offences in those years included procure/possess methamphetamine/amphetamine, procure/possess cannabis plant, disorderly behaviour, possess/use utensils - methamphetamine and amphetamine, shoplift (under $500), wilful damage, theft property (under $500), and unlawfully in building.
The Applicant's first traffic offence in New Zealand was in 1996 and her most recent traffic offences were in March 2007. The traffic offences include three offences of fail to give name and address on demand, four offences involving alcohol, three offences of drive while disqualified, two of which were committed in March 2007, two offences of operated a vehicle carelessly, two offences of drove a motor vehicle in a dangerous manner in 2006 and 2007, and one offence in 2007 of operated a motor vehicle recklessly. The Applicant committed two offences of failing to remain stopped for an enforcement officer in 2007. The Applicant's traffic offences were more serious and frequent in 2006 and 2007 than they had been previously.
In addition to the 2005 offence in Australia, on 10 September 2010 the Applicant was convicted in Australia of furnish false name, possess a dangerous drug (cannabis), possess schedule 2 substance commercial, possess thing - administer dangerous drug. She was sentenced to 28 days in prison for the possess schedule 2 substance commercial offence.
The Applicant has not been convicted of any offence since 2010. In the Tribunal’s view, this alone does not necessarily suggest a reformed character. Being possessed of good or bad character is not immutable.
The Applicant accepts offending for which she has not been charged with respect to the offences under ss 197A and 235(3) of the Act in absconding from immigration detention, remaining unlawfully in the community for five years and working while unlawfully being in Australia.
In 2015, charges were laid by Queensland police who, while seeking to ascertain the Applicant's identity, attempted to detain the Applicant and were bitten by the Applicant. While those charges were dismissed because the Magistrate found that the Queensland police did not have a lawful basis for the arrest of the Applicant, the Applicant did not disclose her correct legal name (and that used on her passport) or the fact she was an unlawful noncitizen who had committed the offences described above. In particular, the Court transcript indicates that the Applicant gave her birth name and not the name she changed to by Deed Poll in 2002 and which was used on her passport.
Of utmost significance is that the Applicant knowingly provided to the previous Tribunal a statement from the father of her Australian child which purported, falsely, to have been signed by him (Exhibit R1 pp. 836, 546 (letter), 648 (email serving letter), 670 (father's evidence)).
The Respondent argued vigorously and in some detail that the Applicant’s conduct in relation to her children should be taken into account by the Tribunal. The Tribunal is however of the view that allegations, although contained to some extent in official government records in both New Zealand and Australia, are so serious and are based clearly on reports by those who have not or could not be called to give evidence that the Tribunal is not satisfied that it should act upon those matters. In fact, the Tribunal does not take any aspect of those allegations into account in disposing of this application, apart from those matters referred to when considering the best interests of minor children in Australia.
Conduct in detention
The Respondent argues that the Applicant's conduct in detention also reflects adversely on her character, including updated incident reports to March 2019. The Serco incident reports before the previous Tribunal included aggressive behaviour by the Applicant to Serco staff, assaults by the Applicant on other detainees including stabbing another detainee in the hand with a pen, assaults on Serco officers, the possession of contraband including liquids smelling like alcohol, and verbal abuse of medical and Serco staff and other detainees. There are also numerous reports of altercations between the Applicant and other detainees.
There are two reports of parcels containing an alcoholic beverage being sent to the Applicant while in detention, including from the Human Rights Commission: Exhibit R1 p. 198. Her husband was found to have a bottle of suspected alcoholic beverage after visiting the Applicant on one occasion: Exhibit R1 p. 201.
Before the previous Tribunal, the Applicant gave explanations for many of the other incidents in detention about which she was cross-examined. Her explanations included that she had been the victim, she was unwell, she was distressed and frustrated by being in detention, being away from her son B, and by the court case about him, and that she was not directing her abuse at any individual.
The Applicant has not given evidence in these proceedings although the explanations above were oral evidence before a previous Tribunal. The Tribunal is satisfied, however, that as has been discussed above, little credibility and therefore weight should be attached to any evidence of the Applicant (either in oral or written form) because of the false evidence she produced at the Tribunal hearing before Senior Member Kelly. The Tribunal is satisfied that it should rely upon the official reports of Serco and other material which bears upon the Applicant’s conduct in detention. This conduct, the Tribunal finds, affects her character adversely.
THE CHARACTER ISSUE
It is correct that the Applicant has served relatively little time in custody. The offences, however, for which she has been convicted are numerous and varied. She has also been convicted of various traffic offences which display anti-social behaviour at the very least.
The Applicant is supported by numerous persons who attest to knowledge of her, and generally speak in support of the Applicant, her application and a change that has occurred suggestive of reformed behaviour and character. While these statements may be accepted as genuine on behalf of those who support the Applicant, for the reasons which follow, and which are based on objective evidence, the Tribunal ultimately does not place a great deal of weight on this material.
It is not in contention that there is no evidence that the Applicant has committed any criminal offences since 2010. The Tribunal regards her being unlawfully in Australia for a period until 2015 as having the quality of a continuing offence. There is evidence that she has been untruthful to authorities in coming to Australia and remaining in Australia.
The Tribunal once again refers to the giving and provision of false material to the Tribunal at which Senior Member Kelly presided. It is the case that there is no evidence of continuous criminal or bad behaviour by the Applicant.
However in the Tribunal’s view, although not continuous, there is sufficient constant and consistent misconduct by the Applicant from her early years to relatively recent times, which is suggestive of the fact that the Applicant has not changed her behaviour and has not in any way, in the Tribunal’s view, reformed. In fact, it is the Tribunal’s view that the opposite position is amply demonstrated. The Tribunal is therefore not satisfied that the Applicant passes the character test having regard to past criminal conduct and to her past and present other conduct which indicates she is not of good character in accordance with s 501(6)(c) of the Act. Furthermore, the Tribunal finds on the evidence of past behaviour and conduct that if the Applicant were allowed to remain in Australia, there is a risk that she would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i)) of the Act.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Applicant's offending and conduct, which causes her to not pass the character test set out above, is constant and persistent behaviour. The Tribunal infers from the pattern and frequency of the offending and the evidence as a whole that the Applicant will continue to offend in the future despite what she asserts about reformed behaviour and character. This view, taken by the Tribunal, is founded amongst other things on relatively recent conduct, including her behaviour in immigration detention and the false material attempted to be placed before the Tribunal hearing on the last occasion and referred to above.
Conduct which causes the Applicant not to pass the character test under s 501(6)(c) of the Act is also required to be considered as "serious" pursuant to paragraph 11.1.1(1)(e) of Direction 79. Independent of these matters, the Applicant’s past conduct is viewed objectively by the Tribunal as serious.
Having regard to the Applicant's past conduct as a whole, the Tribunal finds that there is a real risk that the Applicant will commit further offences or engage in other serious conduct.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant does not have custody of her Australian child by an order made in May 2016 under s 79 of the Children and Young Person's (Care and Protection) Act 1998 (NSW) which also requires that she be supervised in all her contact with him until he is 12 years old (Exhibit R1 p. 289). The Tribunal does not accept that the Applicant was not given a right to be heard in relation to this matter.
In particular, the Children's Court allocated parental responsibility to the Minister for Family and Community and Services for a period of six months from the date of the order and then made an order allocating parental responsibility to B's father until B attains the age of 18 years. The Court accepted undertakings from B's father that he:
·Will not restore B to his mother's care;
·Agreed to facilitate supervised contact between B and the Applicant once per month while she remains in NSW until B is 12 years of age; and
·Will supervise or ensure that a responsible adult supervises any contact between the Applicant and B, "be it through Skype or equivalent, telephone call, letters or any future face to face contact", until B is 12 years of age.
There is no requirement that the Applicant's access to her child be face-to-face access.
Notwithstanding these matters referred to above, the Tribunal accepts that the mother and child have established a suitably deep and affectionate relationship with each other. This is a factor of considerable importance, which cannot be ignored, and although there are other factors to which the Tribunal has referred which lessen to some degree the force of this consideration, the Tribunal nonetheless considers this to be a consideration of some weight in the Applicant’s favour.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In Robertson and Minister for Home Affairs (Migration) [2019] AATA 164, I dealt with the similarly formulated consideration under Direction 65. Although at first blush it may appear, as Mortimer J said in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, that this consideration weighs against the Applicant, that is merely a prima-face statement and may be displaced by other factors. This consideration, as are all the others in Direction 79, requires an evaluation of very-often competing factors in order to reach a conclusion as to the ultimate weight to be accorded to the consideration. Each consideration must be individually assessed according to what will quite often be a variety of competing factors. In this case, even taking into account the weighty considerations in the Applicant’s favour in relation to her young child in Australia, nonetheless, in the Tribunal’s view, this factor weighs heavily against the Applicant.
It is the Tribunal’s view that the Australian community would expect that the Applicant should not be granted the visa.
Other considerations
These considerations are not exhaustive.
International non-refoulement obligations
This consideration is referred to above. It is not relevant to this application. That decision was made on 15 March 2019 by Deputy President Rayment and myself in this matter.
Impact on family members
The Applicant's husband will be adversely affected by a decision to refuse the visa. The Tribunal accepts that the Applicant's husband finds the current situation very demanding and stressful and his life would be easier if the Applicant was not in detention.
It is accepted by the Tribunal that all members of the Applicant’s family, including her young son, will be deeply affected should she be refused a visa.
There are letters from other members of the Applicant's family, although there is nothing that suggests that they are particularly impacted by her being in detention.
Accordingly, the consideration of the impact on family members weighs in favour of not refusing the Applicant's visa.
The Applicant’s personal email
On 20 March 2019, the Applicant personally forwarded to the Tribunal an email containing a number of serious allegations in relation to the Children's Court proceedings. Contrary to the Respondent’s submissions, the Tribunal disregards this material as irrelevant to these proceedings.
The Applicant’s health
There is evidence that the Applicant has suffered adversely both mentally and physically since being placed in immigration detention. The Tribunal accepts that this weighs in the Applicant’s favour as a factor to be taken in consideration with all other relevant factors.
CONCLUSION
The Tribunal is not satisfied that the Applicant passes the character test. The considerations weighing in favour of refusing the visa strongly outweigh the considerations which weigh in favour of not refusing the visa and the visa should be refused.
The decision of the delegate is affirmed.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
............................[SGD]............................................
Associate
Dated: 18 April 2019
Date of hearing: 22 March 2019 Applicant: By telephone Counsel for the Respondent: R Francois, Barrister Solicitors for the Respondent: E Warner Knight, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Standing
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