Samuels and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Samuels and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4817 (22 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/7272
Re:Ursula Samuels
APPLICANT

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

DECISION
Tribunal:Member M O'Loughlin
Date:22 December 2021
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
...........................[Sgnd]............................
Member M O'Loughlin

Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (Subclass 444) visa – where Applicant does not pass the character test - whether “another reason” to revoke visa cancellation – Best interests of minor children – Ministerial Direction 90 – Decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185.
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Minister for Immigration and Multicultural Affairs V SRT [1999] FCA 1197.
Secondary Materials
Ministerial Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member M O'Loughlin
22 December 2021
INTRODUCTION

Although the applicant has a troubling history of largely petty crime, she now appears to have been drug free for over a year and the Tribunal has reason to hope she has overcome her drug habit. She has two young children, and the Tribunal is satisfied that it is appropriate to allow her to remain in Australia for their sakes.
The applicant is a citizen of New Zealand.
On 19 March 2021, her Class TY Subclass 444 Special Category (Temporary) visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act) by a delegate of the Minister administering the Act[1].
[1] As defined in s19 of the Acts Interpretation Act1901 (Cth). References in this decision to "the Minister" should be taken to mean the Minister administering the Act at the relevant time.
On 13 April 2021, the applicant sought revocation of the cancellation of her visa.
On 29 September 2021, a delegate of the respondent (the Minister) decided not to revoke the cancellation of the applicant’s visa.
The applicant has applied to the Tribunal under section 500 of the Act for review of the decision of 29 September 2021 not to revoke the cancellation of her visa.
EVIDENCE
Matters Agreed
The applicant provided various written statements to the Tribunal, in particular a statement in the form of an unexecuted statutory declaration dated 1 December 2021, which she adopted under oath as her evidence.
It is also agreed by the parties that the applicant does not pass the character test contemplated in section 501(6) of the Act.
Certain further “undisputed facts” can be extracted from comparison of written submissions provided by the parties[2]. They are relevantly summarised below.
[2] The applicant's undated closing submissions prepared by Marta Mamarot, solicitor for the applicant, and the respondent's Statement of Facts, Issues and Contentions dated 17th of November 2021.
The applicant was born in New Zealand and is 29 years old.
She moved to Australia on 28 October 2000 when she was 7 years old.
Before her visa was cancelled, she lived in Australia as a permanent resident.
On 19 February 2021, the applicant was sentenced to a term of imprisonment of 12 months.
On 19 March 2021, the applicant’s visa was cancelled as mandated by section 501(3A) of the Act.
On 29 September 2021, a delegate of the Minister decided not to revoke the mandatory cancellation of the applicant’s visa.
On 7 October 2021, the applicant applied to this Tribunal for review of the delegate’s decision not to revoke the mandatory cancellation of her visa.
Applicant’s Evidence
In her statement of evidence[3], the applicant says that her father died of heart problems in 2014 that her mother died of cancer in 2018.
[3] Exhibit A1.
She says that she has seven brothers and sisters who are all still alive. One sister resides in Sydney, one sister and two brothers live in Melbourne, and her other three siblings live in New Zealand.
She says that her parents returned to New Zealand when her father got sick. She does not say when that was.
She says that her father died in 2014. She would have been about 21 years old at that time. Her mother decided to stay in New Zealand where she died 3 years later.
The applicant’s statement says that as regards education she finished year 10 then went to TAFE where she studied hairdressing, design, and music.
She sets out her employment history which indicates that she worked as a General Hand in a joinery for 2 years. She then worked in a recycling company for 6 months and as a “pick packer” for 4 months.
In her oral testimony, she explained that a pick packer is someone who packs boxes for delivery from a supply of relevant items using a list compiled from an order.
She says in her statement that she has 2 so with Jeremy Rodricks. They are J, 6 years old, and N, 5 years old.
The statement says the applicant had started using marijuana as a teenager. She said it helped her sleep and forget about what she was going through at the time. It is not clear what she means when she refers to “… what she was going through at the time”.
She says that she moved from smoking marijuana to drinking alcohol which “was [her] problem until [she] was 18”.
She said that eventually her dad scolded her, and she stopped drinking.
The statement says that she then started using heroin. She said that she started using about $100 worth a week and, at its worst, it became a $600 per day addiction.
She said that heroin puts her in a deep sleep and helped her with her traumas, though she does not set out what those traumas were.
At paragraph 15 of her statement, she says that she went to rehab on five different occasions but cannot remember the dates of those attendances.
Her statement records that she has been clean for periods of between one day up to one year and that her triggers (presumably to return to drug use) are “argument[s] with other people and people doubting me about my struggles”. She does not say what her struggles were.
At paragraph 17 of her statement, she says that the last time she used was 2 years and 5 months ago.
The statement says that the applicant has not had to do a drug test in gaol or in the detention centre, and that she has prepared a relapse prevention plan which she started by signing up to SMART Recovery with Life Beyond Addiction. The statement says that she signed up with this program on 30 November 2021 and attended her first meeting on 1 December 2021.
The applicant’s statement says that she was on the “Bupe” program which the Tribunal takes to refer to a program of replacement drug therapy using buprenorphine. She says that she has never been on the methadone program.
She says that she was clean of drugs for the year she was “on the run”.
In relation to her criminal record, she acknowledges that it is bad.
She says that she remembers most of her offences which are mostly shoplifting. She says that generally they were committed to support her drug habit.
The statement says that in around 2018 to 2019 she was using $600 worth of heroin per day.
The applicant says that in 2018 she was in a bad place in life. Both of her parents had died, and she was using drugs regularly. She says that she would shoplift to buy drugs and that she wasn’t thinking straight because she was “drug induced”.
In paragraph 25, the applicant says that things were the same in 2019, that she had a lot of trauma from her parents passing and from leaving her son, N. She says that she carried her son for 9 months and left the hospital without a baby which affected her mentally and emotionally, though she didn’t realise it.
The applicant says that her decision to leave N with her sister Shannel is a decision she stands by and, although she thinks it was the best choice, it still made her feel guilty. She says that she knew she wasn’t mentally well enough to look after him.
The applicant statement says that she committed all of her shoplifting offences because she was under the influence of drugs and so that she could buy drugs. She says that she knows that she has committed a lot of offences and breaches of conditions, but she doesn’t remember them.
At paragraph 29 of the statement, the applicant says she’s been in gaol 3 times.
The first was in Silverwater Women’s Correctional Centre for 2 weeks. The second time was for 3 months at Silverwater Remand Centre, after which she did 4 weeks in the detox unit and was released to Wayback Rehabilitation.
She was last sent to prison on 21 February 2021.
The applicant says that she found work in gaol very satisfying and that she benefited from the structure it has given to her days as well as from the work itself.
She said that she was given medication for anxiety and depression but thought it affected her mood swings, so she told the psychiatrist that she did not wish to take it anymore.
She says that she completed the drug and alcohol course which was 2 days per week for 2 weeks. She described it as a group course and says that she learned strategies to cope with drug addiction and how to be sober.
She says that she likes the course and hearing the other women’s stories and that it made her reflect on her own poor choices.
She also says that she finished the grief and loss course at church which was one day per week over 3 weeks. That was also a group course and taught her a lot about how to deal with her emotions.
Finally, she says that she completed an IT course which took one day and taught basic IT skills.
At paragraphs 40 to 44 of the statement, the applicant refers to two incidents that occurred at Silverwater Women’s Correctional Centre.
She said the first was a fight between her and another inmate which she did not start.
The applicant describes the incident at paragraph 41 of the statement:
“She came at me. she was yelling at me, so I yelled back. She hit and then that was it. It was just a heated argument.”
The applicant’s statement said that the second incident was a heated argument with another inmate which was all verbal.
She goes on to say in May 2021 she was transferred from gaol to detention where she attended a few counselling sessions relation to drug and alcohol, addiction, and quitting cigarettes. She said that the drug and alcohol counselling was a total of three sessions at a pace of one per week.
Paragraphs 45 to 49 relate to the applicant’s two children. The eldest, J, is 6 years old and the applicant says that he goes to the park with his father nearly every day. The applicant says that he is smart and doing well at school.
She says she talks to him on FaceTime and the child’s father keeps her updated.
The statement says that the child’s grandmother, Charmaine, speaks to her about important issues.
The applicant says that the child does not know where she is and believes that she is at work and cannot come home. She discusses his sport and daily activities with J, including things like what he will be having for dinner. She says that she and J enjoy talking and that she can see that he is looked after very well by J’s father, Jeremy, and Jeremy’s family.
The other child, N, is 5 years old and lives with her sister Shannel and her partner.
The applicant says that she talks to N regularly and that N has been led to believe that the applicant is an auntie and Shannel is his mother.
The statement says that the applicant believes that her sister is doing a great job of looking after N and that they have agreed to tell N about her when he is old enough.
The applicant says that this will be very difficult for Shannel who has raised N since birth.
She says that she gave N to her sister at the hospital when he was born and that she wasn’t well and knows that her sister would take better care of N.
In relation to her future plans, in respect of her health, the applicant says that she intends to continue with her sobriety and relapse prevention plan though she concedes that she has not worked on it for long.
She is confident that if she continues looking after herself mentally and physically her family will be reunited and that she has the skills to look after her children.
She says that she must make sure she does not fall and return to drug taking.
She states that she has been clean for 2 years and 5 months but knows that she will need to seek support from drug and alcohol services and from a general practitioner.
As regards to her ties with New Zealand, she says that since her parents’ deaths she has considered Australia her home because her kids are here.
She says that there is nothing left for her in New Zealand. Her parents did not have a home or assets and she is not sure how she would live there.
She knows her mum has brothers and sisters there, but she does not know them well enough to go and live with them. She says that her parents left New Zealand to come to Australia for a better life and that it would not make sense to return to New Zealand.
As regards to her future in Australia, she says that she wants to stay here for her kids and family. She says she missed her kids and wants to make it up to them.
She also says that she knows she has the right support and will get support from her sister and from Jeremy, the father of her children, and his family.
She says that although her children are well looked after, she knows that they are her responsibility and she will continue to make sure that they are loved, cared, and looked after.
She acknowledges that her drug history is terrible but that being in gaol and detention has taught her that she must do things properly.
She finishes her statement by saying that she does not want to be a problem to the Australian Government and community. She wants to be a law-abiding person and live peacefully with her children, family, and the Australian community.
Cross-Examination of the Applicant
The applicant was asked about her two trips back to New Zealand. Movement records from the Department of Home Affairs[4] were put to her. She agreed that the first trip was from 27 December 2004 to 27 January 2005, a trip of one month. She said that her grandmother had been ill and that her mother had sent her and her sister to care for her.
[4] Exhibit R1, page 96.
The other trip was from 20 May 2013 to 19 July 2014. The applicant said that her father had died, and she went for his funeral. She said she also wanted to help her mother and the other children. The Tribunal observes that she would have been in her early 20s at this time.
She said that the funeral was 2 days after she landed.
She agreed with her assertion at page 56 of Exhibit R1, that her mother could not afford to support her after about a year, so she came back to Australia.
The applicant was then asked about a note from NSW Corrective Services[5] that states that she reported using illicit substances in 2017 after her father passed away.
[5] Exhibit R2, page 214.
She agreed that her father had died in 2013.
In relation to the possibility of her working if she returned to New Zealand, she agreed that she could work in the type of employment she has done in Australia.
When asked about her family in New Zealand, she said she rarely speaks to them. She does not get on well with her youngest sister, although she does sometimes say hello to her other family there.
In respect of her current relationship with Mr Jeremy Rodricks, she agreed that she had described him as the “love of her life” in a letter[6] which she wrote as an annexure to her personal circumstances form[7].
[6] Exhibit R1, page 90.
[7] Exhibit R1, page 79.
The Tribunal observes that the letter is undated, but the form is dated 5 August 2021, so the letter was presumably written shortly before that date.
The applicant said that she and Mr Rodricks had separated 2 years ago but that they maintain a good relationship.
On being pressed about her relationship with Mr Rodricks the applicant said that she had described him as her spouse/partner in the personal information form, at page 5 of that document, not because that was true but because she thought they wanted an emergency contact.
She was asked why, if she thought they were seeking an emergency contact, she had not referred to him in an earlier version of the personal circumstances form[8] dated 9 April 2021. She replied that she had only had 2 to 3 days to complete the form and it had been rushed.
[8] Exhibit R1, at page 63.
The Tribunal finds that the applicant’s evidence on this matter was vague, evasive, and unconvincing.
The applicant was then asked about her drug taking history.
She said that she started smoking marijuana when she was about 16 years of age and continued until she was 18 years of age.
She said that she had problems with marijuana and alcohol and a few years later with heroin and ice.
She agreed that she started using marijuana and alcohol in about 2010 and heroin and ice in about 2015.
On being asked about the history contained in Mr Rodricks’ statement[9], she agreed that she had used ice a few times in about 2011.
[9] Exhibit A2 at [4].
After saying that she had not used heroin at all at that time, she then agreed that she had used it infrequently.
Ultimately, she agreed with the proposition that she was using ice, heroin, and marijuana in 2011.
She was then asked when she had last used a prohibited drug. She said that she had last used about 2 years before her incarceration on 21 February 2021. Although it is not important, the Tribunal notes that in fact she was incarcerated on 21 January 2021[10].
[10] Exhibit R1, Sentencing Remarks of Judge Mottley, G2, page 42.
The applicant then said that the last time she had used heroin, ice or marijuana was 2 years before the hearing.
The applicant was referred to her statement[11] in which she states that the last time she used was 2 years and 5 months ago.
[11] Exhibit A1, at [17].
She then agreed that she had last used 2 years and 5 months ago or in about mid-2019.
She was referred to a statement she had made to a mental health nurse[12] on 7 June 2021 and she agreed that she had said that she stopped using heroin about a year earlier, or in mid-2020.
[12] Exhibit R2, page 423.
When asked why she had said she had stopped using heroin in about June 2019 when it appeared that she had stopped about a year later than that, she replied that she was clean for about a year before she was incarcerated and has been clean since, so it was about 2 years.
The applicant was further pressed and agreed that she had said, as recorded in a case note report[13], that during the time she was “on the run” she was unable to stop and had wanted to use more and more drugs.
[13] Exhibit R2, page 214.
The applicant agreed that her evidence about being drug free for a year before handing herself in was not true.
She also agreed that the written statement about having not used drugs for 2 years and 5 months was not true. She said that when she uses drugs, she cannot be accurate about dates.
She denied that she had overstated the time she had been drug free because she thought it would help with this application but agreed that it was not plausible that she would overestimate by more than a year.
The applicant’s evidence about the length of time since she had used prohibited drugs was vague and inconsistent.
She was asked about her statement[14] insofar as it related to courses that the applicant has done while incarcerated and in immigration detention. At paragraph 35 of that statement the applicant attests that she completed a drug and alcohol course which went for 2 days a week for a duration of 2 weeks.
[14] Exhibit, A1
Under cross-examination she agreed that the course to which she referred was a one-day course. When asked why she had said it went for 2 days a week for a duration of 2 weeks, she said that she had been mistaken.

She said that at about that time she had also been doing a course about grief and loss which had been a 2-week course with one session per week.
The applicant was asked about paragraph 15 of her statement[15] in which she said that she has been to rehab on five different occasions.
[15] Exhibit, A.
When asked to list her experiences in rehabilitation, she said that the first had been at Phoebe House in about 2016 and that she had done 5 months of the 6-month rehabilitation program.
She said that she later did one day in the detox unit at Jarrah House and later attended a detox program that lasted 10 days. She said that she thought that was it.
When pressed, she recalled that she had attended Wayback and Guthrie House.
She agreed that she had not completed any of her five attempts at rehabilitation.
When it was suggested to her that she had not fully engaged with formal rehabilitation in relation to her drug use, she said that she has been seeing a drug and alcohol counsellor and had been to two sessions.
She said that she had also been to a “smart recovery” meeting which she described as being a group discussion similar to Alcoholics Anonymous.
On being asked further questions about those meetings, she said that their purpose was mainly to help her from stop smoking, although there was some discussion of her drug use. She said that she had been to two sessions then had missed one and had not been back since due to the COVID-19 pandemic.
The applicant was referred to a “Check Results Report”[16] and agreed that set out the crimes of which she been convicted.
[16] Exhibit R1, page 26.
The applicant was asked about the timing of some of her offences in relation to the community corrections order that she had signed, and she agreed that she had offended just after she had signed the order.
She said that she was not in the right space at the time and was “under drugs”.
She agreed that pages 375 and 376 of exhibit R2 set out the police allegations against her in relation to further offending that took place on 3 September 2018.
She did not agree that she threatened to stab the manager of the shop who detained her, although she agreed that she entered a plea of guilty to charges relating to that incident.
She agreed with the statement of Judge Mottley on page 6 of her sentencing remarks[17] that the circumstances of this offence would represent “a disturbing situation” for the victim.
[17] Exhibit R1, page 46.
The applicant agreed that the police fact sheet on page 398 of exhibit R2 showed that she had had two warrants issued and have been charged with escaping police custody in about February 2019.
The charge in relation to escaping police custody was discussed. The applicant had apparently been arrested and taken to a room at the police station for questioning but had used her jumper to stop the door from closing. She then took the opportunity to run out of the station but was rearrested a short time later.
She said that this happened because she was under the influence of drugs.
The applicant was again referred to the sentencing remarks of Judge Mottley and agreed that she had surrendered herself to the authorities on 21 January 2021 and had been in custody ever since. She agreed that from 9 December 2019 to 21 January 2021 she was aware that she was wanted by the authorities but that she chose to ignore that.
She agreed that she has regularly shown disregard to authorities and said that she regretted that.
She agreed that she has been given multiple opportunities to reform and rehabilitate herself, but she did not take them. She said that she tried to the best of her ability but wishes she had tried harder.
The applicant was then asked about some alleged incidents in prison. She agreed there was a fight with another inmate which she said the other inmate started in relation to which she struck the aggressor once. She agreed there was another incident or incidents involving verbal altercations, but she denied further physical fighting.
In relation to her children, she agreed that the elder child, J, has been placed in the full-time care of Charmaine Rodricks and her partner. She said that there had been a threat that he would be placed in foster care so legal guardianship was transferred to Jeremy Rodricks’ mother and father.
She agreed that that had been necessitated because of her drug use. She said that J was 3 or 4 years old at the time.
The applicant said that when J first went into his grandparents’ full-time care, she would have daily contact with him, but this reduced to the point that she only spoke to him three times in 12 months when she was on the run.
She says that she now spends time on FaceTime with him often.
She gave evidence that she believes that J is well looked after and said that if she is not removed to New Zealand, J would stay in the full-time care of the grandparents until the applicant has her stability and until the grandparents think she is fit enough to resume care of her children.
In relation to the other child, N, she agreed that her sister, Shannel acts as guardian. The applicant said that N calls Shannel “mum” and calls the applicant “auntie”.
The applicant said that despite this, she saw N regularly before she was incarcerated and said that they have a very good relationship.
She agreed that she had not provided financial support for the children but said that she had provided some caring assistance in J’s early life and immediately before her incarceration for N.
She said that if she is released and stays in Australia N will stay with Shannel and Shannel’s partner until everyone agrees that the applicant is capable of undertaking full-time care of the children.
The applicant agreed that her staying clean of drugs will be critical for that to happen.
The applicant agreed that she could contact her children by telephone and Facetime if she had to return to New Zealand but said that would make things much harder.
The applicant was asked about her sister’s son, Primo. She said that he is 16 years old and is in the full-time primary care of her sister Shannel and Shannel’s partner. She agreed that she has not contributed to Primo’s upkeep.
The applicant said that she has another niece, Makiah. Makiah lives with her mother and the applicant has not provided financial assistance or other care for Makiah.
The applicant was asked about the IHMS record that appears at page 425 of exhibit R2. She agreed with the suggestion within that document that, although she believes that she suffers from anxiety and depression, she has chosen not to take medication prescribed for those conditions. She complained that the medication interfered with her mood and her sleep. She said that she is not currently receiving treatment from a psychologist or psychiatrist and said that she accepts that she will need to consult a general practitioner.
She further accepted that she is not currently suffering from significant mental health issues and that treatment available to her in Australia would also be available to her in New Zealand.
In re-examination the applicant clarified that she would live with her sister Shannel if she is released into the Australian community and that she would seek assistance from a general practitioner, attend Narcotics Anonymous meetings and Smart Recovery, and try to obtain psychiatric help.
In re-examination she also asserted that the Smart Recovery program to which she had referred does not relate to giving up smoking cigarettes but related to heroin.
Assessment of the applicant’s evidence
The Tribunal found the applicant to be vague and evasive in her evidence and found that she tended to exaggerate or lie in respect of matters that might be harmful to her case.
In particular, the Tribunal finds that she was not truthful about the amount of time that had passed since she last used prohibited drugs. The Tribunal further finds that she was vague and evasive about her interactions with rehabilitation, the courses she has done while in prison and in detention, and the detail of some of her offending, in particular, the threat that she made to stab the Officeworks manager.
Evidence of Charmaine Rodricks
Ms Rodricks gave evidence via telephone. There was no apparent compromise to her evidence by reason of not being present at the hearing.
Ms Rodricks’ evidence-in-chief is provided in a written statement which had been provided on a statutory declaration form that had been signed but not executed.[18]
[18] Exhibit, A4.
Ms Rodricks adopted that statement under oath.
She confirms that she is Jeremy Rodricks’ mother. She is in full-time employment. She was born on 27 September 1960 and at the time of giving evidence was 61 years of age.
The statement says that she first met the applicant in 2011 when the applicant and her son Jeremy were friends.
She said that the applicant came to live at their house for a year or so before the applicant went to New Zealand after the death of her father.
She said that she knew the applicant had trouble with drugs since 2014 or 2015, before J was born. She had not seen the applicant take drugs but knew when she was under the influence because she and Jeremy would be sleepy and unable to focus.
Ms Rodricks said that the applicant had never argued with her but sometimes the applicant and Jeremy would argue and be aggressive towards each other.
She says that she became concerned and sought help from the Salvation Army who provided the applicant with accommodation.
She was aware of the applicant’s criminal offending after J was born, although the applicant did not discuss those offences with her. She said the police visited occasionally on advice.
She understood that the applicant was stealing expensive equipment to fund her habit.
She states that she looks after the applicant’s elder child and the younger child is looked after by the applicant’s sister.
She said that the applicant and her son initially concealed the fact of J’s birth from her but her friends at the hospital told her.
She said that the involvement of Family and Community Services (FACS) came about when one of the applicant’s friends became concerned and complained to them.
Ms Rodricks said that by that stage she was already taking partial care of J. She did not believe that the applicant and Jeremy were ready to be parents, so she and her husband had to step in and take care of their grandchild.
She does not believe that J was being properly cared for at that time. She noticed that J had skin problems.
She said that her son Jeremy had been in gaol, but he has not touched drugs since his release. She said that he is slowly being reintroduced to J’s life.
She believes that J’s closest relationship is with her husband.
She believes that J is in a very safe and loving environment and is looked after well.
She states that she believes that with the right help the applicant would be able to reconnect with her children, although she acknowledges that the applicant will need to turn her life around and make changes in order to do so.
In her statement, Ms Rodricks expresses the hope that the applicant will continue to stay clean after she is released. She believes that a second chance to stay in Australia would give the applicant the opportunity to be a part of her sons’ lives.
Ms Rodricks believes that it is in the children’s best interests for the applicant to stay in Australia so she can be given a chance to be a mother and carer for her children. She believes that it would be devastating for her children in the long run if the applicant were returned to New Zealand because they would grow up not having a relationship with their biological mother.
She says that if the applicant is returned, she would be escaping her responsibilities and the children will be the ones losing out.
In cross-examination, Ms Rodricks said that the complaints to FACS were made at the end of 2015 or beginning of 2016.
She said that J first entered her full-time care at 2 or 3 months old, and that she had taken J in before FACS had become involved.
She said that she did not become J’s legal guardian immediately and that that occurred after the applicant lost her housing commission accommodation. Ms Rodricks said that they took the mother and child in to keep them together.
Ms Rodricks said this occurred when J was about 6 months old, and had been in and out of rehabilitation with the applicant.
Ms Rodricks was asked whether she and her husband became J’s full-time carers at that stage, but she said that FACS had arranged childcare for J from 8:00am to 4:00pm or 5:00pm in the afternoon. She said that everything got really bad around 2019 and 2020 and that she was very aware that Jeremy and the applicant had problems with drug use at that time.
She agreed that their drug use had affected the care that the applicant gave to J from 2015 until 2019.
Ms Rodricks said that the applicant and J had a great deal of contact through FaceTime until recently. She said that in the last month or so, J had not been engaging with FaceTime and did not like using telephones.
Ms Rodricks was asked about her statement at paragraph 10 in which she said that J has a closer relationship with her and her husband than with his parents. She said that recently J’s relationship with her son Jeremy had improved.
She explained that Jeremy had come out of gaol in June of this year and that he had not used drugs since then.
She said that Jeremy’s reintroduction to J’s life has proceeded slowly but it is important because she and her husband will not be around forever.
She said that the applicant had never been in a position to provide for her and her husband financially, although they do get a carers’ allowance from the government.
She said that she believes that the applicant has had the assistance she needs to avoid drugs in the past and hopes that if she is released from detention, she will take the opportunity to seek that help and be a proper member of society.
She said that she believes the applicant would be in a bad place in New Zealand and would not be able to repair herself there.
In relation to the possibility that the applicant may relapse into drugtaking, Ms Rodricks said that, although she cannot be certain, she holds hope that after what the applicant has been through, she will make a genuine effort to avoid her former mistakes.
She said that her contact with the applicant has been patchy for the past 2 or 3 years and when she was asked to write a support letter, she said she would do it for the children.
Re-Examination
Ms Rodricks said that she believed it was in the children’s best interests for them to form a relationship with their mother. She said that she did not believe this could be done by electronic means.
She said that although she and her husband were able to support the applicant emotionally, they could not offer accommodation or substantial financial assistance.
She said that the applicant could resume care of J if she completed rehabilitation. It would then be appropriate for her to be gradually reintroduced to J’s life.
Assessment of Ms Rodricks’ evidence
Ms Rodricks appeared to make every effort to give clear and truthful evidence to the Tribunal. The Tribunal accepts the honesty of her evidence.
Evidence of Shannel Samuels
Ms Shannel Samuels’ evidence was set out in her unsworn statement[19]. She adopted that statement on oath.
[19] Exhibit A3.
Ms Samuels gave her evidence by telephone. There was no apparent restriction in her capacity to give evidence in this way.
She gave evidence that she has the care of the applicant’s child, N, which has been the arrangement since the child left hospital as a newborn.
She agreed that N refers to her as “mum” and to the applicant as “auntie”. She said that the applicant will do anything to be a role model and parent for N.
The witness was asked whether she knew when the applicant started using drugs. She said she believed it was when their father died.
It was put to her that at paragraph 16 of her statement, she said that the applicant started using drugs when she was 18 or 19 years of age, which was well before her parents passed away. She said that she started noticing the applicant’s drug use after their father had died.
Ms Shannel Samuels was reluctant to comment on the nature of the relationship between the applicant and Jeremy Rodricks, save that she believed that if they became a couple that would be better for the children.
She said that currently Jeremy has no relationship with N at all, but that she would like N to know that he has an older sibling, J.
She said that the applicant lived with them for “a couple of years on and off” before she went to gaol. She would stay with them for a while and then go off. The witness did not know where the applicant would go to.
She agreed that the applicant’s history of drug use was extensive, as was Jeremy’s although she was not sure if Jeremy still uses drugs.
She said that she believes that the applicant has been through detoxification and rehabilitation. She believed that the applicant’s drug use had restricted her ability to be a part of N’s life as did her financial problems.
She said she does not have any concerns that the applicant would relapse and compromise her ability to care for N, although she appeared to concede that if the applicant did relapse it would compromise her ability to look after N.
In relation to her own health, she said that she suffers renal failure and is hoping to get a kidney transplant but does not expect that to affect her own ability to care for N.
Re-Examination
In re-examination, the witness said that she believes it would be in N’s best interests for the applicant to be allowed to return to the Australian community.
She said that she and the applicant have not discussed the circumstances in which the applicant would resume the care of N, but she would be happy for that to happen if she was satisfied about the applicant’s rehabilitation.
Assessment of Shannel Samuels’ evidence
Although Ms Samuels seemed to be making a concerted effort to support her sister’s application, particularly in saying that the applicant was a “perfect mother”, the Tribunal accepts her evidence as essentially truthful.
Evidence of Jeremy Rodricks
Mr Rodricks’ evidence-in-chief was in the form of a written statement[20], which he adopted on oath.
[20] Exhibit A2.
He gave his oral evidence by telephone and there was no evident restriction on his ability to give evidence because of that.
His evidence-in-chief is that he is the father of the applicant’s two children.
He is an Australian citizen and is currently 31 years old.
He lives with his parents, brother, and the elder of the applicant’s children, J.
He says that he met the applicant when he was about 21 years old.
He says that they have lived together on and off for the last 8 years.
He described their relationship as “toxic” because “there were lots of drugs involved”.
Mr Rodricks says that he was a drug addict and that he used ice and heroin.
He said that when he was with the applicant, he went to many rehabilitation centres but always relapsed.
He said that he went to gaol in 2019 and since he was released, he has been under the supervision of the drug court and has stayed off drugs since then.
He says that he feels responsible for getting the applicant into drugs. He said he was using a lot of drugs and that he always shared them with her.
He said that when he went to gaol in 2019, he assumed that she would stop using drugs, but when he got out, he found that she had formed a new relationship, that she and her new partner were using drugs together and he realised she was an addict.
He said the only time he saw her make a real effort to be clean was when the Department of Correctional Services forced her to go to rehabilitation.
In relation to her criminal behaviour, he understands that she committed a lot of offences in 2016 mainly relating to shoplifting.
Mr Rodricks says that at the beginning of their time together the drug use was not so bad, but in about 2016 they both became frequent users. He says that he does not believe that the applicant would have committed any crimes if she had not been under the influence of heroin.

In relation to his children with the applicant, he said he was not happy about her pregnancy because he knew she was a drug addict, and he was not ready to be a father.
He said he lived with the applicant and that his parents did not know about J until his mother found out.
He said the applicant’s father died and she and her mother went to New Zealand for his funeral.
He said that the applicant was not a bad mum. He said that he was working, and she stayed home to look after the baby.
In a statement, he says that it was not a good period in their lives and that the applicant went back to using drugs after the baby was born[21]. He says that eventually someone reported them to FACS, and the applicant was forced to go to rehabilitation.
[21] Exhibit A2.
He said that it was at that time that his parents became involved in the full-time care of J.
The statement says that his parents are J’s official guardians and that he is slowly becoming more involved in J’s life.
He says that J does not know where the applicant is but sees her on FaceTime and has happy conversations with her.
He says that he believes that the applicant will ultimately be able to be with J.
In relation to his other child, N, Mr Rodricks says that he did not want another child and has avoided forming a relationship with N.
Paragraph 31 of his statement says that he and the applicant are no longer together, and he is not planning to re-establish a relationship with her right now. He said he believes that J needs a mother, and he hopes that they can reunite their children and that he accepts that this will need to be a slow process.
In relation to the chance of the applicant reoffending, Mr Rodricks believes that she has now been through so much that she is not a substantial risk. He believes that she now knows better, and he points out that she is nearly 30 years old and must take responsibility for herself and the kids.
He says that he has been able to come back from where she is and believes that she can do so too.
He believes that sending her to New Zealand will not help her or give her a proper chance to stay off drugs and he would be sad for their children and for himself if she does not have the chance to show what she is capable of.
He says that if she returns to New Zealand, the children will not have a meaningful relationship with her. He does not believe that the children can reasonably go to New Zealand with her. He points out that he is not from New Zealand and does not have any ties to the country, and that the children were born in Australia and are settled here.
He says that he does not believe that she will be a threat to the Australian community if released and that she will put the children first.
Cross-examination of Mr Rodricks
In cross-examination, Mr Rodricks confirmed that he first met the applicant in about 2011.
He described the current relationship as civil. He said that they separated when he went to gaol. He said that before then the applicant had not seen much of J because Mr Rodricks was what he described as a “full heroin addict”. He said that the applicant also had some level of addiction but not as bad as his. He said that he exercised some control over her drugtaking and did not give her as much, partly out of selfishness and partly because he did not want her habit to escalate.
He confirmed that his parents are now J’s primary carers.
He said that after his parents took over the primary care role, it was much easier for the applicant and him to use drugs because they did not have to worry about J’s wellbeing.
Mr Rodricks said that he is trying to improve his relationship with J and the recent lockdown of 2 months gave him the opportunity to work on that.
In relation to N, Mr Rodricks’ evidence essentially confirmed what he said in his statement. Although he has had little contact with the child, he believes that he is well looked after.
He said that although he hopes to support the applicant if she is released, there may be restrictions on what he can do and he knows his boundaries.
Mr Rodricks was pressed about the difficulties of overcoming drug addiction and agreed that it is difficult to do. When it was put to him that there is a chance that the applicant will relapse, he said that he did not believe that it would happen because of the support that she has but he acknowledged that there was some risk. He further agreed that if that happened it would restrict their ability to play a positive role in the children’s life.
Re-Examination
In re-examination, Mr Rodricks was asked whether the applicant’s deportation would be in the best interests of the children and he said that he did not think it would be. He said he did not want J to grow up without the applicant. He said that J knows that Charmaine and her husband are grandparents, not parents.
In response to a question from the Tribunal, Mr Rodricks said there had been no discussion about circumstances in which J would live with the applicant rather than with Mr Rodricks.
Assessment of Jeremy Rodricks’ evidence
The Tribunal assesses Mr Rodricks’ evidence as generally truthful.
Sentencing Remarks
Amongst the documents referred to in cross-examination and submissions are the sentencing remarks prepared by Judge Mottley of the Drug Court of New South Wales on Friday, 19 February 2021.[22]
[22] Exhibit R1, pages 41-50.
The applicant gave evidence that was inconsistent with the sentencing remarks. At the top of page 6 of the remarks, Her Honour sets out that during the shoplifting incident on 3 September 2018, in the course of the struggle with the Officeworks manager, the applicant threatened to stab him and at the same time a pair of scissors fell to the ground.
The applicant denied that that happened.
In dealing with that inconsistency, the Tribunal has had regard to the statement by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs V SRT[23]:
“It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”
[23] [1999] FCA 1197 at [40].
This appears to be supported by the leading decision of McKerracher J of the Federal Court in HZCP v Minister for Immigration and Border Protection[24], to which the respondent referred in closing submissions. Relevantly he states, at paragraph 79:
“The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained.”
[24] [2019] FCAFC 202.
The Tribunal observes that the findings made by Her Honour in relation to the threat made by the applicant to stab the manager of the business from which she was stealing are essential to the charge of intimidation for which the applicant was being sentenced. The Tribunal declines to look behind the sentencing remarks in this regard and finds that the threat that is set out in those remarks was made by the applicant, despite her denial.
STATUTORY FRAMEWORK
Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not satisfy the character test and that person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined in s 501(7).
Section 501(7)(c) provides that a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal finds that at the time the applicant’s visa was cancelled under s 501(3A), she had been sentenced to a term of imprisonment of 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
The applicant quite properly conceded in submissions that she does not pass the character test.
The Tribunal finds that the applicant does not pass the character test as defined and that the Minister was therefore obliged by the terms of s 501(3A) of the Act to cancel the Applicant’s visa.
There is no suggestion by the respondent in submissions that the applicant has not made representations as contemplated by s 501(CA)(4) of the Act and the Tribunal finds that she has.
In view of the Tribunal’s finding that the applicant does not pass the character test, the Tribunal’s remaining task is to determine whether there is “another reason” why the original decision to cancel the applicant’s visa should be revoked (s 501(CA)(4)(b)(ii)).
In doing so the Tribunal must apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Paragraph 5.2 of the Direction provides a framework for decision makers. It emphasises that the grant of an Australian visa is a privilege and is made in the expectation that a visa holder will be law abiding and not cause harm to individuals or the Australian community.
It also makes it clear that non-citizens who engage in criminal conduct should forfeit the privilege of staying in Australia and that Australia has a low tolerance of criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
The Direction sets out “primary” and “other” considerations relevant to the discretion to revoke the cancellation of a visa.
The Direction provides that primary considerations should generally be given greater weight and that one or more primary considerations may outweigh other primary considerations[25].
[25] See commentary of Colvin J at [23] in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
PRIMARY CONSIDERATIONS
Paragraph 8.1 - Protection of the Australian Community
The Direction relevantly provides that decision-makers should keep in mind the protection of the Australian community from harm and have particular regard to the principle that entering or remaining in Australia is a privilege that is conferred on non-citizens in the expectation that they will be law abiding and will not cause or threaten harm to individuals in the Australian community[26].
[26] Paragraph 8.1(1) of the Direction.
The Direction also provides that decision-makers should give consideration to:
(i)the nature and seriousness of the non-citizen’s conduct to date[27]; and
(ii)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct[28].
[27] Paragraph 8.1.1 of the Direction.
[28] Paragraph 8.1.2 of the Direction.
The Direction, at sub paragraphs 8.1.1(1)(a) and (b), sets out some examples of conduct that may be considered serious. Crimes of violence are specified. The respondent submits in its Statement of Facts, Issues, and Contentions that there is a relevant crime of violence, being the conviction described in the Check Results Report[29] as “stalk/intimidate, intend fear physical etc harm (personal)” (which the Tribunal notes is described in the sentencing remarks as the offence of “intimidation”).
[29] R1, page 28.
There is no guidance as to the meaning of a “crime of violence”. In this case, the applicant was in the process of eluding physical capture. There was a struggle and she threatened to stab her pursuer. It is not suggested that she struck or otherwise used force against him. She was not convicted of any form of battery.
Although the use of threatening language alone could amount to a violent crime for the purposes of the Direction, the Tribunal observes that the victim had grabbed the bag of stolen items that the applicant was carrying, that he continued to hold it to the point that the straps broke (at about the same time that the applicant made her threat) and she ran off without it.
The Tribunal is not satisfied that this crime involves a relevant element of force against its victim and is not satisfied that it is a “violent crime” for the purposes of the Direction.
None of the other crimes of which the applicant was convicted appear to be crimes of violence.
The respondent submits that the Tribunal should have regard to allegations made against the applicant about her conduct while in gaol and in detention. The Tribunal observes that there were no convictions in relation to any of the alleged behaviour and the Tribunal is not satisfied that they were “crimes” as specified by both paragraphs 8.1.1(1) a) (i) and (ii).
Paragraph 8.1.1(1)(c), which does not require a conviction for relevant conduct to be covered, does not apply as there is no allegation that the applicant has committed acts of family violence.
The Tribunal finds that there is no criminal offending or other conduct shown to have been perpetrated by the applicant that is relevant to paragraph 8.1.1 (a).
There is no evidence or suggestion that the matters to which the Tribunal is directed by paragraph 8.1.1(1) (b) are relevant.
Paragraph 8.1.1 (c) directs that in considering the nature and seriousness of the applicant’s conduct, the Tribunal should have regard to the sentence imposed by the Court for a crime or crimes.
The respondent’s submission is effectively that a sentence of imprisonment suggests of itself that the applicant’s crimes are relevantly serious. This is a submission of substantial force. The Tribunal accepts that the 12-month term to which the applicant was sentenced does suggest that the applicant’s conduct was serious and must weigh against revoking the cancellation of her visa.
In paragraph 8.1.1(1)(d), the Tribunal is directed to consider the frequency of the applicant’s offending and whether there is any trend of increasing seriousness. The applicant’s counsel submits that the applicant’s convictions suggest a series of shoplifting offences combined with some breaches of bail with a single conviction for the “intimidation” offence.
The applicant submits that there is no relevant trend of increasing seriousness, although the offending was frequent during the period of 2018 and 2019.
The respondent submits that the offending was frequent and has increased in seriousness having escalated from petty dishonesty to an incidence of “violent” offending and breach of conditional liberty orders.
The Tribunal accepts the applicant’s evidence that her offending was related to her serious drug habit and was done in pursuit of money to fund that habit. The Tribunal notes that the so called “violent” offending was in September 2018 and that the applicant was generally at liberty during 2019 and 2020.
The Tribunal has regard to the sentencing remarks of Judge Mottley[30] who noted that, although the applicant does not appear to have focussed on improving her behaviour, she has not come to the attention of the authorities for any offending behaviour since then.
[30] Exhibit R1, page44.
Presumably Her Honour is referring to shoplifting-type offences as she was aware that the applicant was in breach of conditional liberty orders during this time.
The Tribunal is satisfied that there was frequent offending from 2016 to 2019 inclusive but there is not a relevant trend of increasing seriousness.
The respondent suggests that paragraph 8.1.1(1)(e) is relevant to the Tribunal’s deliberations. It directs the Tribunal to consider the cumulative effect of repeated offending. The respondent submits that the applicant continued to offend despite the early leniency shown to her.
The Tribunal accepts that the applicant’s repeated offending caused increased financial losses to her victims. The Tribunal also accepts the respondent’s submission that the efforts made to assist the applicant’s rehabilitation represented a significant allocation of public resources which was ultimately wasted.
There is no evidence that the applicant has provided false or misleading information to the Department and no submission that paragraph 8.1.1 (1) (f) of the Direction is relevant to the Tribunal’s deliberations.
The applicant was not formally warned about the consequences of further offending as contemplated by paragraph 8.1.1(1) (g) of the Direction, which is not therefore relevant to the Tribunal’s deliberations.
Having balanced the considerations referred to in the Direction at paragraph 8.1.1(1), the Tribunal finds that the applicant’s criminal conduct is moderately serious and accords this consideration some weight.
At subparagraph 8.1.2, the Direction requires the Tribunal to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Part (1) of the subparagraph sets out that the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Part (2) of the subparagraph sets out considerations that the Tribunal must take into account in assessing the risk posed by the applicant.
The Tribunal finds that the applicant’s criminal and other serious conduct to date has essentially been related to her drug taking.
If she relapses into drug taking, she is likely to resume offending.
In that event there will be financial harm done to members of the community from whom she might steal. There may also be harm if her offending behaviour escalates to actual acts of violence rather than mere threats of violence.
The applicant’s evidence about her drug taking was shown to be unreliable.
On the other hand, although it appears likely that for at least a portion of 2020 the applicant was using heroin, there is no evidence of any offences for about a year before she voluntarily surrendered herself to authorities.
The applicant has a very poor history with rehabilitation having tried it unsuccessfully five times.
The Tribunal does not have access to any psychological or psychiatric report in relation to the risk of the applicant’s reoffending.
The applicant and her witnesses were all confident that the applicant is well motivated to stay clear of drugs if she is released into the Australian community. The Tribunal accepts that this evidence is generally given honestly but was in part motivated by a desire to avoid the applicant’s removal to New Zealand. The Tribunal further observes that none of the witnesses have any expertise in this area.
On balance, the Tribunal accepts that the applicant has been clean of drugs for over a year and that for part of that time she was not incarcerated either in prison or in immigration detention.
The Tribunal also has regard to the fact that the applicant is now 28 years of age and says that she is motivated to move to a new phase of her life.
Although rehabilitation has not worked for the applicant in the past, she has now not used heroin or ice for over a year which is the longest period of abstinence from those drugs since she started taking them.
The Tribunal notes that the applicant spent about a year in the community in 2020 without having been shown to have engaged in criminal or other serious conduct, and that she was apparently able to avoid drug use for some months while “on the run” and has not now used heroin or ice for over a year.
The Tribunal holds some hope that the applicant is motivated to remain clean of heroin and ice and has identified support that she can use to help her.
There is some relevant risk to the Australian community, but the Tribunal accords this little weight in view of the applicant’s motivation to avoid drugs.
Paragraph 8.2 – Family Violence Committed by the Non-Citizen
There is no evidence of relevant family violence committed by the applicant. The Tribunal affords this consideration no weight.
Paragraph 8.3 – Best interests of minor children in Australia affected by the decision

The applicant has two children, both of whom are minor children at the time of this decision and their interests are therefore to be considered pursuant to this provision.
The children are aged 5 and 6 years old.
The elder child, J, has been living with his paternal grandparents in the role of guardian for some time. More recently, the child’s father has been living with them as well.
The witness, Charmaine Rodricks, gave evidence that she believes it is in the child’s best interests to have a relationship with the applicant. She also believes that she is too old to be seen as an appropriate long-term guardian of a child as young as J.
The Tribunal is satisfied that the applicant has maintained some contact with J and that she hopes to resume her role as guardian of J.
Although it is not clear how long that will take, and indeed whether the applicant will ultimately be able to do so, the Tribunal is satisfied that is the plan of all relevant parties and that it is strongly in J’s best interests that the applicant is not removed to New Zealand.
The applicant’s other child, N, is being cared for by her sister Shannel. Shannel treats the child as her own and N is not aware that the applicant is in fact his mother.
The applicant says that she wishes to reunite her children as a family under her care. She accepts that it will require much effort on her part before she is in a position to start that process.
She acknowledges that she will need to be able to satisfy both children’s guardians that she has overcome her drug addiction and is capable of caring for the children before she starts a more important involvement in their lives.
She claimed in her evidence that she has discussed these matters with the relevant guardians, although that was not supported in their evidence.
The respondent has submitted that it would be possible for the applicant to maintain a relationship with the children from New Zealand using telecommunications. The Tribunal is satisfied that such a relationship will necessarily be inferior to a direct personal relationship between the children and their mother if the applicant is able to establish that.
On balance, the Tribunal is satisfied that, if the applicant is able to avoid drugs and establish a suitable home, it will be in the best interests of the children J and N that she does so and that they return to her care.
The Tribunal accords this consideration substantial weight in favour of revocation of the cancellation of the applicant’s visa.
Reference was also made to the best interests of the applicant’s nephew and her niece. There was no evidence from either of those children. The Tribunal accepts that they would probably be saddened if their aunt were removed to New Zealand but does not find that their best interests would be relevantly affected.
Paragraph 8.4 – Expectations of the Australian Community
This consideration provides that there is an expectation in the Australian community that non-citizens will obey Australian laws while in Australia.
The respondent submitted to the Tribunal that FYBR v Minister for Home Affairs[31] may be summarised as standing for the proposition that in identifying the expectations of the Australian community the Tribunal should have regard to the Direction rather than attempt to determine those expectations for itself.
[31] [2019] FCAFC 185.
The Tribunal notes that that matter involves consideration of a previous Direction, but the consideration remains substantially the same for the purposes of Direction 90.
There are certain types of behaviour that are specified as being of a type that can and should give rise to an expectation that the cancellation of a non-citizen’s visa will not be revoked. Those specified behaviours are not relevant to this application. There is no allegation that the applicant has engaged in them.
The Direction makes it clear at paragraph 8.4(1) that the Australian community expects that non-citizens will obey Australian laws while in Australia and that, as a norm, the Australian community expects that the Government will not allow a non-citizen who engages in serious conduct, in breach of that expectation, to remain in Australia.
Although the applicant’s criminal conduct is not of a type specified in subparagraph 8.4(2) of the Direction, the Tribunal finds that the applicant’s criminal conduct is of a seriousness and type that breaches the Australian community’s expectation of her behaviour while in this country.
The Tribunal affords this consideration moderate weight.
OTHER CONSIDERATIONS
Paragraph 9 the Direction provides other considerations which must be taken into account where relevant. They are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 9.1 – International non-refoulement obligations
There is no suggestion by the applicant, nor has any relevant evidence been adduced, that this is a relevant consideration.
Paragraph 9.2 – Extent of impediments if removed
The Tribunal must consider the extent of impediments that the applicant may face if she is removed to New Zealand. The Tribunal is directed by subparagraph 9.2(1) to consider difficulties the applicant may face in establishing herself and maintaining basic living standards.
The Tribunal finds that there are no impediments arising from the applicant’s age and health. She is young and on her own evidence is capable of pursuing the employment that she had previously performed in Australia.
It has been submitted by the applicant that her mental health would represent a relevant impediment to her living in New Zealand. The applicant submits that her mental health would suffer if she were removed from her children and those of her other family members who live in Australia.
There is little evidence about the applicant’s mental health. There is evidence that she has suffered from anxiety and depression. The applicant voluntarily removed herself from pharmacological treatment for these conditions and, in her evidence, said that she did not believe that she is currently suffering relevant mental health problems.
The Tribunal is not satisfied that removing the applicant to New Zealand is likely to cause a substantial change in her condition.
The Tribunal is not satisfied that the applicant will suffer significant impediments if she is removed to New Zealand. The Tribunal accords this consideration little weight in favour of revocation of the cancellation of the applicant’s visa.
Paragraph 9.3 – Impact on victims
The respondent concedes that there is no evidence before the Tribunal about this matter which is not relevant. This consideration is afforded no weight.
Paragraph 9.4 - Links to the Australian Community
Paragraph 9.4.1 - The strength, nature and duration of ties to Australia
At sub-paragraph 9.4.1(1), the Tribunal is directed to have regard to the impact of its decision in this matter on immediate family members in Australia who are citizens, permanent residents or have a right to remain in Australia indefinitely.
The interests of infant children have been considered separately.
In its Statement of Facts, Issues and Contentions, the respondent identified the following relevant persons:
(a)Jeremy Rodricks;
(b)Hamish Samuels, the applicant’s step-brother;
(c)John Samuels, her brother;
(d)Louisa Samuels, her sister;
(e)Tommi Samuels, her sister;
(f)Shannel Samuels, her sister and guardian of N;
(g)Charmaine and Nevis Rodricks, guardians of J; and
(h)Various unnamed uncles, aunts, nieces, nephews and cousins numbering about forty in total.
The evidence about Jeremy Rodricks’ likely future relationship with the applicant was ambiguous. He appeared to hold some hope for a reconciliation. The Tribunal is not satisfied that a reconciliation is likely.
Mr Rodricks expressed a preference that the applicant remain in Australia, although this was in relation to the children’s wellbeing rather than his.
Shannel Samuels is also in favour of the applicant being allowed to remain in Australia. Again, this is largely due to the wellbeing of the children rather than the applicant’s own wellbeing. The Tribunal is satisfied that Shannel Samuels will be saddened if the applicant is removed to New Zealand but is not satisfied that there will be other negative impacts.
There was nothing in Charmaine Rodricks’ (who is probably not an “immediate family member” in any event) evidence to suggest that she will be affected other than to the extent that the child J is affected.
The Tribunal is satisfied that the applicant’s immediate family members will be saddened to varying degrees if the applicant is removed to New Zealand but there is no evidence of any other substantial impact.
Subparagraph 9.4.1(2) directs the Tribunal to consider the strength, nature and duration of other ties the non-citizen has to the Australian community.
In doing so the Tribunal must consider how long the non-citizen has resided in Australia and whether she arrived here as a “young child”. Although “young child” is not defined, the Tribunal is satisfied that she arrived when she was 7 years old. As she points out, she grew up in Australia and was educated in Australia.
On balance, the Tribunal is satisfied that consideration of the strength, nature and duration of the applicant’s ties to Australia as contemplated by the direction suggests that this consideration weighs in favour of the revocation of the cancellation of the applicant’s visa and accords this consideration some weight.
Paragraph 9.4(2) – The Impact on Australian business interests
There is no evidence that this is a relevant consideration and no submission from the applicant that it is. The Tribunal finds that this consideration does not arise.
CONCLUSION
The Tribunal has had regard to the primary considerations.
The protection of the Australian community from criminal or other serious conduct weighs against revocation of the cancellation of the applicant’s visa but the Tribunal considers that the applicant is better placed to avoid drugs than she has been for some time and so accords this consideration only some weight.
The Tribunal finds that the conduct engaged in did not constitute family violence and finds that this consideration is not relevant.
The Tribunal finds that the best interests of minor children in Australia weighs in favour of revocation of the cancellation of the applicant’s visa and the Tribunal accords this consideration substantial weight.
The Tribunal finds that the expectations of the Australian community weigh against revocation of the cancellation of the applicant’s visa and accords this consideration a little weight.
Of the other considerations specified in the Direction, the Tribunal finds that international non-refoulment obligations are not enlivened.
The Tribunal finds that the extent of impediments if the applicant is removed to New Zealand weighs in favour of revocation of the visa cancellation but accords it little weight.
The Tribunal finds that the impact on victims is not a relevant consideration in this matter.
The Tribunal finds that the applicant’s links to the Australian community, and in particular the strength, nature and duration of her personal ties weigh in favour of revocation of the visa cancellation and accords this consideration some weight.
Having weighed the considerations together and considered all of the evidence to which it has been directed, the Tribunal finds that the interests of the applicant’s infant children outweigh the other considerations and constitutes a relevant “other reason” to revoke the cancellation of the applicant’s visa.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.

369. I certify that the preceding three hundred and sixty-eight (368) paragraphs are a true copy of the reasons for the decision herein of Member M O'Loughlin.

...............................[Sgnd]...............................
Legal Administrative Assistant

Dated: 22 December 2021

Dates of hearing:
6 & 7 December 2021 (by videoconference)

      Advocate for the Applicant:
Marta Mamarot, SouthWest Migration & Legal
Services

      Advocate for the Respondent: Matthew Sheedy, Sparke Helmore Lawyers

[2021] AATA 4817

22 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Dates of hearing:	6 & 7 December 2021 (by videoconference)
Advocate for the Applicant:	Marta Mamarot, SouthWest Migration & Legal Services
Advocate for the Respondent:	Matthew Sheedy, Sparke Helmore Lawyers