RWXF and Minister for Immigration and Border Protection (Migration)

RWXF and Minister for Immigration and Border Protection (Migration) [2017] AATA 1614 (3 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4020
Re:RWXF
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:3 October 2017
Place:Sydney

The decision under review is affirmed.
..........................[sgd]..............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa refusal – character test – substantial criminal record - past and present criminal conduct – 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 – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 197, 235, 499, 501(6)(c), 501(6)(d)(i)
SECONDARY MATERIALS
Direction 65 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA made under s 499 of the Act
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
3 October 2017
The reviewable decision

The Applicant, RWXF, has applied to the Tribunal for review of the decision made by the delegate of the Minister for Immigration and Border Protection dated 3 July 2017 to refuse to grant her a Bridging E (Class WE) (the visa) under subsection 501(1) of the Migration Act 1958 (the Act).
The legislation
Section 501 of the Act 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 Respondent relies on subsections 501(6)(c) and/or (d)(i) to claim that the Applicant does not pass the character test because:
(c)having regard to either or both of the following:
(i)     the person’s past and present criminal conduct;
(ii)    the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia; or
…
The decision under s 501(1) must be made in accordance with any written directions under the Act (s 499(2A)). Relevantly, that is Part B of Direction 65 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA made under s 499 of the Act (Direction 65). Part B “Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application”.
The issues in this case are whether the Tribunal is satisfied that the Applicant satisfies the character test, and if not, whether to exercise the discretion to refuse the visa application.
Background
The following facts are not contentious.
The Applicant was born in New Zealand in 1978 and is a citizen of that country. She first visited Australia in 1992 for about four weeks. Thereafter she visited Australia on seven other occasions for short periods of time as a holder of a Special Category (Temporary) Class TY) visa. Most recently she entered Australia on 19 March 2009 on a New Zealand passport in another identity. On entering Australia she did not disclose her lengthy history of criminal offences in New Zealand or the offence committed in Australia of which she was convicted on 9 February 2005.
On 10 September 2010, the Applicant’s Special Category (Temporary) Class TY visa was cancelled pursuant to s 109 of the Act (for providing incorrect information to the department on her incoming passenger card on 19 March 2009). Consequently, the Applicant became an unlawful non-citizen and was detained pursuant to s 189 of the Act and taken to the Northern Territory Immigration Detention Centre in Darwin. She absconded from that facility on 13 September 2010 and remained unlawfully in the community until located by a Compliance Field team on 10 August 2015, when she was again detained pursuant to the Act and transferred to an immigration detention centre where she has remained.
On 21 September 2015, the Applicant lodged an application for a Protection (Class XA) visa with an associated Bridging E (Class WE) visa application. The latter application was refused by a delegate on 6 October 2015. On review, this Tribunal found it did not have jurisdiction. An application for judicial review in the Federal Circuit Court was withdrawn.
The Applicant sought review of the refusal of the Protection (Class XA) visa in this Tribunal which affirmed that decision on 14 August 2016. On review, the Federal Circuit Court found jurisdictional error and remitted the matter to the Tribunal on 14 June 2017 for hearing according to law. The matter has not yet been heard.
The Applicant has applied unsuccessfully for numerous other Bridging E (Class WE) visas between November 2015 and 5 April 2017, including on review in this Tribunal.
The application for Bridging E (Class WE) visa the subject of this review was made on 5 April 2017 and refused by the delegate on 6 April 2017 because she was not satisfied that the Applicant would comply with conditions of the visa. On review, this Tribunal remitted the matter to the department for reconsideration with a direction, among others, to impose a $10,000 security for compliance with the visa conditions.
A delegate reconsidered that application and refused it under s 501 of the Act because the Applicant does not satisfy the character test.
The Applicant married her husband on 1 February 2017 and was baptised at Hillsong Church on 26 February 2017. She has two sons from previous relationships. The older son, A, was born in March 2001 and resides with his paternal grandmother in New Zealand. Her younger son, B, was born in Australia in 2012 and is being cared for by his father and paternal grandmother. The Applicant and B’s father separated around the end of 2012.
The contentions of the parties
In summary, the Respondent argued that consideration of the following matters leads to a finding that the Applicant does not satisfy the character test and the discretion should be exercised to refuse the Bridging E (Class WE) visa:
·Her history of offending is lengthy and involves many dishonesty and drug offences.
·Her conduct in absconding from immigration detention, remaining unlawfully in the community for five years, working while unlawful, and her behaviour in immigration detention are not consistent with her being of good character.
·She has been deprived of custody of her five year old son, B, 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.
·Whatever view is taken of the veracity of the Applicant’s claims for protection, Australia does not owe her any protection obligations because her fears relate to the alleged criminal conduct of third parties in a country with effective state protection, and further, the visa the subject of this review is a bridging visa.
·The Applicant knowingly provided to the Tribunal a statement from the father of B which purported, falsely, to have been signed by him.
The Applicant has provided various documents in which she has set out her case. The following is a summary of her claims.
·There is a real threat that she will be harmed or killed if she returns to New Zealand because she is known as a police informant and has gang members hunting for her there. That is why she fled to Australia.
·That traumatic life threatening experience has prevented her from seeking the help she needed because she did not know what to do.
·She has been seriously assaulted while in migration detention by two New Zealand citizens who were suspected of knowing that she had been named as a police informant, has a hit on her life in New Zealand and fears such further attacks.
·As a consequence of that assault she was hospitalised and sustained a cervical spinal cord injury.
·She is unable to obtain adequate medical care for her various conditions in migration detention
·She and her husband require a bridging visa so that her husband can sponsor her on a Partner visa, onshore. They missed the 7 day time frame to apply for a Partner visa when she was located in 2015 because her husband was driving trucks interstate. She will abide by all conditions of a bridging visa and will not be living unlawfully in Australia. She has her husband’s strong support. She also has the support of close relatives and the support network available through the fellowship of Hillsong Church.
·It is in the best interests of her Australian citizen son, B, that she be granted the visa. She was unable to attend the Children’s Court hearing to have B restored to her care because she was in migration detention. The involvement of Family and Community Services was the result of false reports from agents of her former partner.
·A person, X, advised police where she was living and that she was unlawful which resulted in Australian Border Force apprehending her on 10 August 2015, before she had been able to save the money necessary to pay for an immigration lawyer to resolve her migration status.
·Her son A wants to come to Australia and live with the Applicant and her husband. A and his paternal grandparents with whom he lives, are worried about her welfare.
·Corruption is a factor in her bridging visa having been refused.
·She has skills that can benefit the Australian community.
·She is ashamed of her criminal history but it is not serious. Her 32 criminal convictions are minor, she has not committed any offences for seven years, and she has only spent 29 days in prison years ago on remand for possession of a banned substance (used by body builders). The Applicant had difficulty coming to terms with the tragic loss of her mother in a car accident when she was 12 and became involved with an older man who took advantage of her naivety and had her cashing cheques for small amounts, for which she was charged with five counts of fraud. He also had her plead guilty to an assault charge for which she was not responsible, to prevent him going to gaol. The rest of her criminal charges are driving offences and petty offences, and a couple of drug related convictions, eg a small bag of cannabis for which she was fined $350.
·New Zealand police have advised her that the outstanding charges have gone to court and cannot be dealt with unless she is physically present. In relation to the outstanding warrant issued by the Court in New Zealand, Sergeant McIntyre of the Auckland police has emailed her saying “the New Zealand Police will not be getting involved” and “Good luck in Australia”.
·New Zealand police do not want to extradite her to New Zealand which shows that they are aware of the danger to her life if she returns. It would be inappropriate for New Zealand police to state that they are unable to protect her.
·She absconded from immigration detention in Australia in 2010 because she was informed that she did not fit the criteria for a Protection visa and that deportation to New Zealand was imminent. She was not allowed visitors, including legal counsel, she was unaware of her rights and departmental procedures. She felt intimidated and was terrified of being killed if deported.
·She regrets not handing herself in to the department and has provided a full explanation of the mitigating circumstances that influenced her length of unlawfulness in Australia. Those mitigating circumstances included the birth of B, who was her first priority. She was concerned about what would happen to them both if she handed herself in. She was not confident to go to the department. She contacted a couple of migration lawyers. She was advised that the cost would be $15,000 to $20,000 and she would require a deposit of $5,000 before work would begin on her case. She started to save but it was difficult because of the costs of caring for B. She supported herself and B, declared her earnings and paid taxes.
·The 2012 changes to the Act which included complementary protection, have allowed her to lodge a valid visa.
·On 9 June 2015 she was unlawfully arrested by Queensland police. Her left arm and right hand were broken because of the use of unnecessary force. She paid a few thousand dollars for medical treatment and travelling to New South Wales to get help with B from his father and paternal grandmother which reduced her savings. She has taken action legal against Queensland Police and is expecting to receive compensation.
Consideration
Character test
The first issue to determine is whether the Applicant has satisfied the Tribunal that she passes the character test as set out in s 501(6)(c) and (d).
There are three documents before the Tribunal that record the Applicant’s criminal and traffic convictions in New Zealand. They are New Zealand Police records produced on 11 May 2017 and 9 August 2010 and a Convictions History Report from the Ministry of Justice processed on 9 May 2017. There are some inconsistencies between the records, but taking a conservative approach, the Tribunal finds that 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 early 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.
No criminal offences are then recorded until 2005. 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, shoplifts (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 failed to give name and address on demand, four offences involving alcohol, three offences of drove 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 failed 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.
The Applicant has been convicted of the following offences in Australia. On 10 September 2010 she was convicted of furnish false name to member, 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 sentence was backdated to 5 August 2010, which the Tribunal finds was the date she was arrested. She was taken into migration detention on 10 September 2010. On 9 February 2005 she was convicted of assault occasioning actual bodily harm.
In making the above findings, the Tribunal has taken into account the Applicant’s explanations about various offences, and how she could not have committed various offences because she was in court elsewhere or overseas at the time, but does not accept her explanations. While the Tribunal accepts that there was some duplication in the New Zealand records of her convictions, the Tribunal does not accept that they are inaccurate in the ways she claimed.
The Tribunal finds that the Applicant has sought to minimise the seriousness of her criminal history and her driving offence history by unpersuasive explanations. It does not accept that she genuinely feels ashamed or remorseful.
The Applicant raised the incident in June 2015 when her elbow was fractured by police in Queensland. The incident did not result in criminal convictions for the Applicant. The protection visa decision dated 4 August 2016 sets out, at paragraph 22, details obtained from a transcript of the Magistrate’s Court ruling. The Tribunal accepts that charges laid against the Applicant were dismissed. The magistrate was satisfied that the Applicant’s biting a police officer was:
a result of (1) an unlawful arrest; and (2) a reflex action to the extreme pain that she was subjected to when her elbow was fractured as result of the force, which I consider to be excessive.
Section 501(6)(c) of the Act includes consideration of the Applicant’s past and present general conduct, as well as her past and present criminal conduct.
The Applicant has outstanding charges for criminal offences in New Zealand, and outstanding warrants, as she has acknowledged in her evidence. The Tribunal takes those matters into account as an aspect of her general conduct because the charges have not been tested in the court and she has not been convicted. An email from Interpol Wellington states that the Applicant has the following active charges:
·Unlawfully in a building;
·Fail to answer District Court bail;
·Import/Export Fantasy-type substances;
·Possess for Supply – Fantasy substances;
·Sell/Give/Supply/Administer/Deal Fantasy substances (4 charges);
·Procure/possess methamphetamine/amphetamine; and
·Drove under influence of drink or drug – 3^rd or subsequent.
The evidence is clear that the Applicant was on bail when she left New Zealand, that her New Zealand passport had been confiscated as part of her bail conditions, and that she left New Zealand on a false passport that she had purchased. Taking into account those circumstances and the nature of the outstanding charges, the Tribunal finds that the outstanding charges are of a more serious kind than the offences of which the Applicant had been previously convicted.
The Tribunal does not accept the Applicant’s claim that a New Zealand policeman has told her that the police will not be getting involved in relation to the outstanding warrant or warrants. She has not provided the email she claims that an officer sent to her.
The Tribunal finds that the Applicant has serious criminal charges pending against her in New Zealand. It does not accept her evidence that sought to minimise the seriousness of those charges or her claims that the New Zealand police would not pursue them. There is extensive reference in the protection visa decision dated 4 August 2016 to the Applicant’s evidence in that case where she first claimed the outstanding charges were minor, and then when the nature of the charges were put to her, sought to explain them away.
The Applicant used the false passport she had purchased to enter Australia. She provided incorrect information to the department on her incoming passenger card on 19 March 2009. She did not disclose her criminal history. The Applicant has given explanations about why she absconded from immigration detention three days after being detained in 2010 and why she did not apply to regularise her migration status with the department before being detained in August 2015. The Tribunal did not find the explanations persuasive, including her claims to be at risk of serious or significant harm from a bikie gang in New Zealand, to which the Tribunal will return later in this decision in relation to Australia’s international non-refoulement obligations.

The Tribunal accepts that escaping from immigration detention is a criminal offence pursuant to s 197A of the Act punishable by five years’ imprisonment. The Applicant has not been charged or convicted of the offence. However, that she did escape and remain in the community for five years is not in dispute. She also admitted working while she was unlawfully in the community. That is an offence under s 235(3) of the Act. She has not been charged with that offence.
The Applicant was cross-examined extensively about the records of her conduct while in detention up until 27 July 2017. Those records include aggressive behaviour by the Applicant to Serco staff and other detainees, assaults by the Applicant on other detainees, including stabbing 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. Her husband was found to have a bottle of suspected alcoholic beverage after visiting the Applicant on one occasion. The Applicant said that she did ask her husband to take her alcoholic beverage earlier in the month when it had been her birthday. She also said during cross-examination that she had drunk in the centre and suffered from high anxiety and that a drink will help her manage that. The Tribunal infers that the Applicant was referring to drinking alcohol.
After the hearing in this matter the Applicant obtained, through a Freedom of Information request, a video recording of a search of her room on 10 April 2017 which she claimed showed a SERCO officer planting in her room, a bottle with a small amount of liquid in it alleged to be alcohol. The Applicant claimed that this evidence shows that incident reports of her conduct in detention are not accurate and therefore should be given little weight.
After seeking the Respondent’s view about admitting the evidence, the Tribunal arranged a further hearing date for the video footage to be observed by the Tribunal and the parties. The Respondent tendered the video footage in its case.
The Tribunal viewed the video footage with the parties. The Applicant provided a written submission and made oral submissions at the hearing. She claimed that the video footage showed that the area where the bottle was located had been thoroughly searched and that a Serco officer returned to the room about 10:13 to 10:20 minutes into the footage and then “located” the bottle in that area.
As the Respondent conceded, it is not possible to see the left hand of that Serco officer when he returns to the room. However, for the Tribunal to accept the Applicant’s claim, it has to accept her implied claim that the Coke bottle was not in the room when the Serco officers entered. That depends on whether the Tribunal accepts her evidence is reliable which the Tribunal does not. The Tribunal does not agree with the Applicant’s description of the early search or where the Coke bottle was located. The footage was filmed from near the door of the room. The bed was at the back of the room and where the Coke bottle was located was obscured by a storage unit. The Tribunal does not accept the Applicant’s claim that the video footage shows that the Coke bottle was “planted” in her room by a Serco guard.
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 Tribunal accepts that being in detention is difficult but taking into account the number and nature of the incident reports, it does not accept her claim that the incidents either should not be construed as reflecting adversely on her character or should be given little weight because the incident reports are inaccurate.
The Tribunal accepts that the Applicant was assaulted by two detainees on 25 February 2015 and taken to hospital for treatment. She claims that she continues to suffer from a neck injury suffered in that incident. She claims that those detainees had links to the New Zealand gang that she fears and that she was targeted for that reason. The Tribunal does not accept that claim because there is no supporting independent evidence. The Tribunal accepts that at least one of the detainees was removed from Australia.
On 16 May 2016, the Children’s Court of New South Wales made orders in relation to child B pursuant to s 79(1) of the Children and Young Persons (Care and Protection) Act. The order 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.
The Applicant claimed that there had not been a court hearing because she was in detention. She claimed that the allegation made against her in relation to B was false.
A letter from the relevant state child welfare agency to the Applicant dated 8 May 2017 states the following:
… (the agency) does not hold inaccurate information about the incidents, it holds information about (child A’s) accidental ingestion of ecstasy in 2005 as described by the New Zealand child protection officials. It also holds information about your alleged use of Panadol to sedate (child B) from reports of risk of harm made to it. You would be aware of this because you hold copies of the reports and affidavits filed by (the agency) in the Children’s Court.
The Tribunal does not accept that there was not a court hearing because the Applicant was in detention. Movement records show that she was taken to the Children’s Court from detention seven times. Tribunal finds that the Court was satisfied that the orders were appropriate. It does not go behind the orders. The orders reflect adversely on the Applicant’s conduct in relation to B. The report of the incident involving A also reflects adversely on the Applicant. In making those findings, the Tribunal has taken into account various accounts and documents where the Applicant claims the circumstances of the incidents involving her sons are false or different from what the agency recorded but does not accept her evidence.
The Applicant provided to the Tribunal a signed letter from B’s father supporting her. The Tribunal accepts his evidence that he had seen the letter but did not sign it. While he agreed that the Applicant cares for B, he did not agree that she was a good mother. The Tribunal finds that the Applicant knowingly provided the document to the Tribunal which she had prepared and signed in the name of B’s father when he would not sign it. The Applicant’s attempted explanations for her action do not assist her claim to be of good character. After the Tribunal commented that her failure to take responsibility for her actions did not assist her case, the Applicant did acknowledge that what she had done was wrong.
When it was put to the Applicant by counsel for the Respondent that she would say and do anything to get out of detention, the Applicant responded: “Anyone would”. The Tribunal accepts that the Applicant would do anything to get out of detention. The Tribunal does not accept that the Applicant’s evidence is reliable.
The Tribunal has taken into account the references the Applicant has provided and the evidence given by her husband but gives that evidence little weight. None of her husband or the writers demonstrates knowledge of the Applicant’s criminal and general conduct as found by the Tribunal. The Tribunal accepts that the Applicant’s husband believes what she tells him and genuinely cares for her and her welfare. The Tribunal does not believe what the Applicant says unless it is supported by independent reliable evidence. The Tribunal accepts that she has been baptised at Hillsong Church and has engaged with a member of that Church, but finds that she has done so for the purpose of obtaining a visa.
The Tribunal notes that apart from the two family names the Applicant used in New Zealand and her husband’s family name, the records of the department include four other family names by which the Applicant has been known. The Tribunal infers that one of those was the name on the false passport she used and another was that given to police when she was arrested in the Northern Territory in 2010. The Applicant acknowledged during the hearing that she had been known by a number of different names while in Australia.
Taking into account the Applicant’s past criminal history, the outstanding criminal charges in New Zealand, her departure from New Zealand on a false passport, her arrival in Australia on that false passport and giving incorrect information on the arrival cards, her escaping from detention in 2010 and remaining in the community unlawfully for five years until found and taken back into detention, her working while unlawfully in the community, her conduct while in detention, the Court order made in relation to B, the New Zealand child protection agency record in respect of A, and the fact that she was prepared to provide to this Tribunal a document purporting to be signed by B’s father which she had signed when he would not, the Tribunal finds that the Applicant is not of good character in accordance with s 501(6)(c) of the Act.
While the Applicant has not been convicted of any criminal offences or driving offences since 2010, given her past criminal conduct and her general conduct, including the outstanding criminal charges in New Zealand, leaving New Zealand on a false passport in breach of bail, her migration history in Australia summarised above, and her conduct during these proceedings, the Tribunal finds that in the event that the Applicant were allowed to remain in Australia, there is a risk that she would engage in criminal conduct in Australia (s 501(6)(d)(i)).
The Tribunal now turns to the exercise of the discretion to refuse the visa.
Primary considerations
Protection of the Australian community from criminal or other serious conduct
The Applicant’s conduct as found in relation to s 501(6)(c) above is considered to be serious.[1] Her offending prior to leaving New Zealand was more serious than it had been previously. The Applicant has not been convicted of a criminal offence since 2010. The longest sentence in custody was 28 days for a 2010 offence She was living in the Australian community for five years although unlawfully. She provided false or misleading information to the department, including by not disclosing previous criminal offending. The Tribunal finds that the offences of which the Applicant was convicted in New Zealand are classified as offences in Australia.
[1] Direction 65, paragraph 11.1.1 (d).
The nature and seriousness of the Applicant’s conduct weighs strongly against a finding that the Applicant satisfies the character test.
The Tribunal finds that there is a risk that the Applicant will commit further offences or engage in other serious conduct. In making that finding, the Tribunal takes into account that she did not commit a criminal offence in Australia for five years before she was taken into detention for the second time and the support she will have from her husband if she is granted the visa and it would be in her interests to obey the law if she was granted the visa.
The Tribunal finds that the Applicant feels entitled to do whatever she thinks she needs to do to achieve her objective, including breaking the law. She does not accept responsibility for her actions.
The Applicant has a history of drug taking and it is clear from the records of International Health and Medical Services (IHMS), which provide medical care in detention, that she is demonstrating drug seeking behaviour while in detention. The Tribunal finds that her complaints about being denied medication are not well-founded. She is being denied particular medications that she has requested. Similarly, the Tribunal does not accept her claims that she is being denied treatment she needs. The transport records show that she has been taken to external medical providers, including a neurologist, 10 times. The Tribunal accepts that she may not have received particular treatment she has requested, for example from a chiropractor, but it does not accept that it is treatment that is necessary. Necessary treatment is a matter for medical practitioners to assess.
The Tribunal finds that there is a risk that she will again commit drug offences if the visa was granted. The Tribunal is satisfied that she will drink alcohol if she is released from detention. It follows that there is a risk that she will commit driving offences under the influence of either drugs or alcohol, as she has in the past, if the visa is granted.
It is not possible to estimate the duration of the Applicant’s intended stay in Australia because it will depend on the outcome of her protection visa application. That outcome may include further judicial review applications and remittals, including to the High Court. The process may end soon or in several years’ time. She may apply for a spouse visa. The Tribunal finds that the longer the Applicant is in the community, the more likely it is that she will reoffend.
The best interests of minor children in Australia
The Applicant’s son B is a minor child in Australia. The Respondent argued that this consideration is neutral in this case. The Tribunal takes into consideration the court order in relation to B. However, the Tribunal accepts the evidence of B’s father that he takes B to visit the Applicant in detention but that is not ideal. The Tribunal finds on balance, that granting the visa would be in the best interests of B. However, given the terms of the court order, the Tribunal does not give this consideration significant weight.
The Applicant’s child A is not in Australia. The Tribunal considers his position in relation to Paragraph 12 of Direction 65.
Expectations of the Australian community
The Tribunal considers that the nature of the character concerns set out earlier in this decision are such that the Australian community would expect that the Applicant should not be granted the visa.
Other considerations
Paragraph 12 of Direction 65 requires consideration of international non-refoulement obligations, impact on family members, impact on victims, and impact on Australian business interests only “in deciding whether to cancel a visa”. That appears to be a typographical error, as Part B of the Direction “Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application”. Counsel for the Respondent requested the Tribunal to consider the relevant matters.
The Tribunal does not consider that international non-refoulement obligations are relevant in this case because there is no suggestion that refusing the visa will have the consequence that the Applicant will be sent back to New Zealand or out of the country. Her protection visa application remains to be determined. If contrary to the Tribunal’s view they are relevant, because the Tribunal does not accept that the Applicant’s evidence is reliable, it is not satisfied that there is a real chance that she will suffer serious harm or a real risk that she will suffer significant harm if she returns to New Zealand for the reasons she claims. Further, Australia does not owe the Applicant any protection obligations as her fears relate to the alleged criminal conduct of third parties in a country with effective state protection.[2]
[2] New Zealand 2016 Human Rights Report, Country Reports on Human Rights Practices for 2016, United States Department of State, Bureau of Democracy, Human Rights and Labor
In addition to child B, the Tribunal accepts that the Applicant’s husband will be adversely affected by a decision to refuse the visa. The Tribunal accepts that he finds the current situation very demanding and stressful and his life would be easier if the Applicant was not in detention. There are letters from the Applicant’s sister-in-law and brother. While expressing support for the Applicant and her parenting skills, their evidence does not suggest that they are particularly impacted by her being in detention.
The Applicant provided a copy of an email apparently sent to her by A, in support of his mother. He wrote that he wants her released from detention so that he can visit her in Australia and spend time with his half-brother B. Apart from his email, there is no significant body of evidence about his relationship with his mother or B or that there is any real prospect that he would visit the Applicant in Australia. There is no evidence from his grandmother who cares for him in New Zealand. It is clear that the Applicant has not cared for A since 2009 when she came to Australia. There is also the evidence previously referred to from the State child welfare agency about the incident in New Zealand in 2005 and evidence from B’s father, that suggests that the Applicant did not have care of A before she came to Australia.
This consideration, impact on family members, weighs in favour of not refusing the Applicant’s visa, although the Tribunal does not give the consideration significant weight in relation to child B because she does not have care or custody of him and has limited supervised access. The Tribunal gives greater weight to the impact on the Applicant’s husband.
Consideration
For the above reasons, the Applicant has not satisfied the Tribunal that she passes the character test. The Tribunal concludes that the considerations weighing in favour of refusing the visa strongly outweigh the considerations which weigh in favour of not refusing the visa. In coming to that conclusion, the Tribunal has given greater weight to the primary considerations than to the other considerations.
The decision under review is affirmed.

I certify that the preceding 68 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...........................[sgd].............................................
Associate
Dated: 3 October 2017

Date(s) of hearing: 7, 8 and 28 September 2017

Counsel for the Respondent: Ms R Francois and Mr A Markus

Solicitors for the Respondent: Ms E Knight, Australian Government Solicitor

[2017] AATA 1614

3 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Remedies

Date(s) of hearing:	7, 8 and 28 September 2017
Counsel for the Respondent:	Ms R Francois and Mr A Markus
Solicitors for the Respondent:	Ms E Knight, Australian Government Solicitor