Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3037

Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3037 (25 August 2021)
Division:GENERAL DIVISION
File Number: 2021/3815
Re:Rosie Short
APPLICANT

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

DECISION
Tribunal:Member S Burford
Date:25 August 2021
Place:Perth

The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 1 June 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is affirmed.
....................[Sgd]....................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences of possession of stolen/unlawfully obtained property, possessed a quantity of substance exceeding the prescribed limit and possession of a prohibited drug with intent to sell or supply – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 29-year-old woman who settled in Australia as a 22-year-old – extent of impediments if removed to New Zealand – Reviewable Decision affirmed
LEGISLATION
Criminal Code 1913 (WA) – ss 417(1)
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Misuse of Drugs Act 1981 (WA) – ss 6(1), 14(1)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021 FCAFC 153
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Omar v Minister for Home Affairs [2019] FCA 279
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
SCJD and the Minister for Home Affairs [2018] AATA 4020
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1045
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(2), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.1(2), 9.1(6), 9.2, 9.3, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member S Burford
25 August 2021
INTRODUCTION

The Applicant is a 29-year-old citizen of New Zealand. She first travelled to Australia on 30 September 2002 for the first of a number of visits to Australia before arriving to settle in Australia on 8 July 2014, when she was 22 years old.[1] Since arriving she has held a Special Category (Class TY) (subclass 444) visa (the Applicant’s Visa).[2]
[1] R1, G26, pages 113-114, Transcript, page 17.
[2] R1, G26, pages 113-114; R2, para 4.
On 2 October 2017, the Applicant pled guilty in the District Court of Western Australia of one count of ‘Possession of stolen or unlawfully obtained property’ (Property Possession Offence),[3] one count of ‘Possessed a quantity of substance exceeding prescribed limit’ (Drug Possession Offence),[4] and one count of ‘Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)’ (Possession with Intent to Sell or Supply Offence).[5] On 29 March 2018, the Applicant was sentenced to a term of eight years’ imprisonment for the Possession with Intent to Sell or Supply Offence (the head sentence). She was also sentenced to 12 months imprisonment’ for the Property Possession Offence and six months’ imprisonment for the Drug Possession Offence.[6] The Applicant is currently incarcerated in Western Australia and will be eligible for parole in August 2022.[7]
[3] Criminal Code (WA), s 417(1).
[4] Misuse of Drugs Act 1981, s 14(1).
[5] Misuse of Drugs Act 1981, s 6(1)(a) O.
[6] R1, G6 and G8.
[7] Transcript, page 31; R1, G14.
On 19 June 2019, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that she had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Visa Cancellation Decision).[8] The Applicant requested revocation of the Visa Cancellation Decision on 19 June 2019.[9]
[8] Migration Act ss 501(6)(a) and 501(7)(c); R1, G27.
[9] R1, G12.
On 1 June 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Visa Cancellation Decision (the Non-Revocation Decision).[10] The Applicant signed an acknowledgement of receipt of the Non-Revocation Decision on 2 June 2021.[11]
[10] R1, G3.
[11] R1, G3, page 30.
The Applicant lodged her application for review of the Non-Revocation Decision on 10 June 2021.[12] The application before the Tribunal is for review of the Non-Revocation Decision. Her application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[12] R1, G2.
The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[13] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s Visa should be revoked.[14]
[13] Migration Act s 501CA(4)(b)(i).
[14] Migration Act s 501CA(4)(b)(ii).
For the reasons below, the Tribunal has decided that the correct and preferable decision is affirm the decision under review.
BACKGROUND
As noted above, the Applicant travelled to Australia a number of times between September 2002 and July 2014[15] when she testified she had relocated to live in Australia on a permanent basis.[16] The Applicant’s earlier visits were generally brief, except for one visit when she remained in Australia from 28 May 2012 to 17 August 2012.[17] When she relocated to Australia in July 2014, she was 22 years old. The Applicant is now 29 years of age.
[15] R1, G26, pages 113-114.
[16] Transcript, page 17.
[17] R1, G26, pages 113-114.
Initially the Applicant lived on the Gold Coast where she was doing freelance modelling and hosting events. She was also enrolled in a fitness college course.[18] She moved to Sydney in around May 2015 and moved in with her then boyfriend in June 2015.[19] She made several return visits to New Zealand in August 2014 and April 2015.[20]
[18] Transcript, page 19.
[19] Transcript, page 19.
[20] R1, G26, pages 113-114.
On 9 February 2016, the Applicant was arrested while in Perth with her then boyfriend when police conducted and executed a search warrant on their hotel room.[21] She was charged with a number of offences as a result of that police search for incidents occurring in January 2016 and February 2016. Some of the charges were later dropped.
[21] R3, S2.
As noted above, on 2 October 2017 the Applicant pled guilty in the District Court of Western Australia to the Property Possession Offence,[22] the Drug Possession Offence, [23] and the Possession with Intent to Sell or Supply Offence.[24] On 29 March 2018, she was sentenced to a total effective sentence of eight and a half years’ imprisonment.[25] She is currently serving her term of imprisonment in Eastern Goldfields Regional Prison.
[22] Criminal Code (WA), s 417(1).
[23] Misuse of Drugs Act 1981, s 14(1).
[24] Misuse of Drugs Act 1981, s 6(1)(a) O.
[25] R1, G6 and G8.
On 19 June 2019, the Applicant’s Visa was mandatorily cancelled.[26] The Applicant was notified of the decision by hand and was advised that she could make representations to seek revocation of the Visa Cancellation Decision.[27] The Applicant requested revocation of the Visa Cancellation Decision on 19 June 2019.[28] She made representations in support of her revocation request on the same date.[29]
[26] R1, G27.
[27] R1, G27.
[28] R1, G12.
[29] R1, G13-G25.
On 1 June 2021, the delegate decided not to revoke the Visa Cancellation Decision.[30] The Applicant was notified of the Non-Revocation Decision by letter dated 2 June 2021, emailed for hand delivery at Eastern Goldfields Regional Prison. She signed for by hand delivery of the notification at Eastern Goldfields Regional Prison on 2 June 2021.[31]
[30] R1, G3-G5.
[31] R1, G3, page 30.
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 25 August 2021.
THE HEARING
The hearing was held on 10 August 2021 at the Tribunal Registry in Perth. The Applicant appeared by videoconference from Eastern Goldfields Regional Prison. The Applicant was represented by Ms Fletcher of Kalgoorlie Consulting Services. The Respondent was represented by Mr Downie of Minter Ellison. Ms Fletcher appeared by videoconference from Eastern Goldfields Regional Prison, in the company of the Applicant. Mr Downie appeared by videoconference from Melbourne. Witnesses appeared by videoconference or telephone.
The Tribunal considers that there were no significant issues with communication during the hearing and that all parties were able to fully participate in the hearing without any impediments caused by the conduct of the hearing via videoconference.
At the hearing, the Applicant made submissions via her representative, gave evidence and was cross-examined. The Applicant submitted a number of witness statements and indicated the following witnesses were available to testify before the Tribunal:
·Stephen Allison, the Applicant’s fiancé;[32]
·Patricia Allison, the mother of the Applicant’s fiancé;[33]
·Sacha Cirri, the Applicant’s friend;[34] and
·Susan AhChee, the Applicant’s friend.[35]
[32] R1, G17; A1, Annexure D.
[33] R1, G20.
[34] R1, G21.
[35] R1, G24.
The following documents were admitted into evidence:
·Applicant’s Submission, filed 13 July 2021, with attachments A to D (Exhibit A1);
·Section 501G documents, labelled G1 to G28, comprising pages 1 to 144 (Exhibit R1);
·Respondent’s Statement of Facts, Issues and Contentions, dated 26 July 2021 (Exhibit R2);
·Respondent’s Supplementary Bundle of Documents, labelled S1 to S5, comprising pages 1 to 23 (Exhibit R3); and
·Respondent’s Further Supplementary Bundle of Documents, labelled S6 to S8, comprising pages 24 to 112 (Exhibit R4).
The Tribunal notes that Exhibit R1 contained documents and written submissions provided to the Tribunal by the Applicant when the application for review was made.[36] This included statements from:
·Kerri-Ann Allison, the sister of the Applicant’s fiancé, dated 3 June 2021;[37]
·Lauren Allison, the sister of the Applicant’s fiancé, dated 4 June 2021;[38] and
·Matthew Allison and Rachel Green, the brother of the Applicant’s fiancé and his partner, undated.[39]
The material also included a statement[40] and submissions[41] from the Applicant and additional evidence of her activities in prison.[42]
[36] R1, G1, pages 10-26.
[37] R1, G1, pages 10-11.
[38] R1, G1, page 12.
[39] R1, G1, page 13.
[40] R1, G1, pages 20-21.
[41] R1, G1, pages 22-26.
[42] R1, G1, pages 14-19.
Written submissions, additional statements, letters and other supporting material were submitted to the delegate prior to the Non-Revocation Decision being made.[43] This material was admitted into evidence as part of Exhibit R1, and the Tribunal has also had regard to these statements.
[43] R1, G13-25.
The Respondent indicated at the hearing that they only wished to cross-examine the Applicant and Mr Allison, and initially it was agreed only those witnesses were to be called. This was on the basis that the Respondent did not object to the statements of the other witnesses mentioned above at [7], being accepted into evidence.[44] Mr Allison appeared by videoconference from Eastern Goldfields Regional Prison, where he is also an inmate. Following the evidence of the Applicant and Mr Allison, the Applicant’s representative indicated she wished to call Mrs Patricia Allison to give evidence regarding matters raised in the hearing, including the impact of the decision on Mrs Allison’s grand-daughter, who is in her permanent care. The Respondent did not object to Mrs Allison being called, however they noted the limitations imposed on the Tribunal by the Migration Act pursuant to s 500(6H). Accordingly, Mrs Allison was also called to testify at the hearing and appeared by telephone.
LEGISLTATIVE FRAMEWORK
[44] Transcript, pages 4-5.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)); or …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[45] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[46]
[45] Migration Act s 501CA(3).
[46] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(d)would be the reason, or a part of the reason, for making the original decision; and
(e)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(f)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(g)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(h)the person makes representations in accordance with the invitation; and
(i)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.

On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) under s 499 of the Migration Act. Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79), which was revoked on the same date.[47]
[47] Direction No 90 paras 2–3.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[48] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[49]
[48] Direction No 90 para 5.1(4).
[49] Direction No 90 para 6.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[50]
[50] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[51]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[51] Direction No 90 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[52]
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[52] Direction No 90 para 9.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENCES
The convictions for which the Applicant was sentenced on 29 March 2018 are her only recorded convictions. The Applicant pled guilty to those offences and was later convicted and sentenced, on 29 March 2018. The three offences for which she was convicted were:[53]
·possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply to another (count 1);
·possession of a thing capable of being stolen, namely, a sum of money that was reasonably suspected to be unlawfully obtained (count 3); and
·without lawful excuse having possession of a quantity of category one item, namely gamma-butyrolactone (GBL), that exceeded the prescribed quantity in relation to that category one item under schedule three of the Misuse of Drugs Regulations 1982 (count 4).
The convictions related to offences committed on 9 February 2016 in Perth.
[53] R4, S8, pages 83-84.
Sentencing followed a trial of issues relevant to sentencing, which also occurred on 29 March 2018. According to the Statement of Material Facts, which were not disputed, and which were incorporated into his Honour’s sentencing remarks, by reference:[54]
At about 7.10 pm on Tuesday, 9 February 2016 police executed a Misuse of Drug Act search warrant at room 702 at the Four Points by Sheraton apartments located at 707 William Street in Perth.
Police conducted a search of the room safe in the room and located 2.41 kilograms of methylamphetamine. At the time no occupiers were present. The offender Ms Short had booked the apartment in her name and was staying there with her partner Damon Ben Uhrlich.
The offender knew the drugs were in the safe and she in partnership with her partner intended on supplying the drugs to others. At about 9:47pm that evening the offender and her partner returned to the address and were arrested and conveyed to organised crime squad.
A search of their luggage located a further 2.5 kilograms of methylamphetamine and $6,400 in cash. It is alleged the offender had taken possession of the drugs and the money that had been obtained from the sale of prohibited drugs.
The offender participated in a video record of interview where she admitted she and her partner were occupying the room, the cash was hers won through betting but denied knowledge of the drugs.
During the search of the wardrobe in the hotel room, police located six wine bottles, each containing approximately 725 mils of an unknown liquid. The liquid was later analysed by the ChemCentre of WA and found to be gamma–butyrolactone, which is a listed category 1 item under schedule 3 of the Misuse of Drugs Act Regulations 1982, the prescribed quantity being 3.5 mils.
Then at 9:47pm when the offender and her partner returned to the address after flying in from Sydney, they were arrested and conveyed to Organised Crime and a search of their luggage located a further 10 litres of GBL in one container.
[54] Read into the record at the trial of issues: R4, S8, pages 49-51 and incorporated in the sentencing remarks at R1, G8, page 52; statement of material facts: R3, S2, pages 4 and 7.
At the trial of issues, Stevenson DCJ found with respect to the Applicant’s involvement:[55]
[55] R4, pages 92-94.
… Ms Short played an essential role in the drug distribution enterprise of Mr Uhrlich in this state at the time of these offences. She was more than a mere courier or drug mule.
She was actively engaged, consistent with her relationship with him and the trust that he reposed in her in his business activities; in doing things which were clandestine and intended to facilitate their drug dealing not being detected.
She was intimately associated with Mr Uhrlich's drug dealing activities and involved in a wide scale of activities to assist in covering up their trails and to minimise the risk of their detection, and in particular his detection, at the relevant time, because to her knowledge he was dealing in drugs and was in fact on parole; having been sentenced for a prior drug dealing offence.
The quantity and the scale of the enterprise was high in both respects. Her role was sustained over a period of time. It was not a one-off or opportunistic offending but part of a course of conduct which she was willing to mask and facilitate to enable Mr Uhrlich to conduct his business.
As already mentioned, I make no direct finding that she was expressly or directly involved in face-to-face meetings with purchasers or suppliers of the drugs, but she was involved in facilitating drug trafficking to a high degree, including, I find, irresistibly, from the close proximity of her relationship with Mr Uhrlich and the drugs in her hotel room and her other activities, in handling those drugs at various points in time, and also she was prepared to receive and deal with drug-related money. She facilitated his operations by buying a cryovac machine and also she was prepared to allow express post bags to contain her name as the sender
The extent of her financial gain can be found in the lifestyle that she was able to lead as a result of her relationship with Mr Uhrlich in the manner that I have already described. It was a lifestyle choice by her. At the time she was excited by it and also was motivated because she herself no longer had to work in a lawful capacity.
She was a trusted and loyal lieutenant to Mr Uhrlich in respect of his activities. She knew he was a drug dealer. On her own admission, she in fact boasted about it and the extent of her knowledge in the context of her relationship with him and the fact that she had to earn his trust in order to be able to carry out the activities that she did. I accept the State's submission that she embraced her role, together with the lifestyle that it afforded to her, and that she actively assisted Mr Uhrlich by booking flights, hotel rooms and storage lockers to facilitate the business.
I find that in her record of interview she attempted to minimise her knowledge and role to the extent possible and that she was prepared on several occasions not to tell the truth to achieve that purpose. Her credibility therefore at that time in respect to the matters to which I have in part referred cannot be accepted.
Having said that and having made those findings, I accept that Mr Uhrlich was the principal in charge of the operation. He was the one consistent with his previous record and contacts, the person in control of the drugs and in charge of the money and as [the Applicant’s lawyer] put it, he was calling the shots. But I reject the contention that Ms Short was simply his "handbag", as [the Applicant’s lawyer] put it.
She was far more important to Mr Uhrlich and she was prepared by her own actions and conduct to provide a positive and important role in the offences for which she is to be sentenced.
As noted above, the Applicant was sentenced to a total effective sentence of eight and a half years’ imprisonment and was declared to be a drug trafficker.
Before the Tribunal, the Applicant accepted that she knew her partner was engaged in selling and supplying drugs and that she played a role in organising travel and hotel bookings, which assisted that endeavour. However, she maintained that she did not know the quantities or purity of drugs which were present in the hotel room at the time of her arrest or with respect to any of the other drug trafficking activities her partner was involved in. She also maintained that she did not know the origin of the money which she was found to be in possession of, and never handled money in drug transactions. She contended that she was young and involved in a relationship with a much older man who influenced her behaviour and told her she would not be convicted if the drug activity was detected because she was not involved in the drug transactions. The Applicant’s contentions in this regard are considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant has accepted that she does not pass the character test.[56]
[56] A1, para [1].
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[57]
[57] Migration Act s 501(7)(c).
The Tribunal finds that the Applicant was sentenced to a term of imprisonment of eight years on 29 March 2018 for the Drug Possession Offence and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, she does not pass the character test under s 501(6)(a) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[58]
[58] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE VISA CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Visa Cancellation Decision should be revoked.
Protection of the Australia community
The first primary consideration focuses on the protection of the Australian community. Paragraph 8.1(1) of Direction No 90 provides that:[59]
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
[59] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant submitted, in summary, that:[60]
[60] A1, paras [8]–[21] and R1, G2, pages 22-26.
(a)she left New Zealand to escape an abusive relationship and ‘low self-esteem’ and use of illicit substances impacted her decision making;
(b)she was involved with an older man who ‘reassured her that she was not involved in the illegal activities’ and ‘It was her naivety and lack of awareness as to the actual implications and laws at the time that resulted in the charges and subsequent convictions’;
(c)her sentence reflected the quantity and quality of the drugs concerned, factors the Sentencing Judge ‘recognised the Applicant did not have knowledge of’;
(d)the Sentencing Judge ‘accepted that the Applicant’s involvement in the crimes was due to the fact that she was in a relationship with Mr Uhrlich and that she was vulnerable to her partner at the time”;
(e)the Applicant had no prior criminal history and was otherwise of good character. She had no history of repeat offending and has been assessed to be at a low risk of reoffending;
(f)since being imprisoned, the Applicant has made significant changes to her life including drug counselling and is committed to not reoffending;
(g)she has undertaken courses and work in prison to improve her employment prospects on release and has been recognised as making a positive contribution during her incarceration. Her conduct in prison demonstrates her good character and commitment to making changes to her behaviour. It also demonstrates her capacity to make a positive contribution to the Australian community on release from prison;
(h)she has no history of violence including in prison; and
(i)the Applicant’s prior good conduct, lack of reoffending and demonstrated commitment to change, in particular in the work release program in prison, demonstrate her positive character and weigh in her favour.
The Respondent contended that the Applicant’s offending should be viewed as very serious, having regard to the relevant factors in Direction No 90, and particularly in light of:[61]
[61] R2, para [17].
(a)the nature and seriousness of the Applicant’s offending weigh against revocation having regard to:
(i)the social impact of drug trafficking and the Sentencing Judge’s findings that the Applicant’s offending and criminality was at a ‘high level’;
(ii)the length of the sentence of imprisonment imposed, having regard to the fact that prison is a sentence of last resort; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct weighs significantly against revocation of the cancellation decision having regards to:
(i)the significant harm which would be caused to the community should she reoffend, harm which is so serious that any risk of reoffending is unacceptable;
(ii)the Applicant’s contention there were ‘no direct victims’ of her crimes, minimising the impact and consequences of her offending; and
(iii)the limited evidence of rehabilitation to support the Applicant’s claim to present a low risk of reoffending.
Nature and seriousness of the conduct

In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to:[62]
[62] See also Direction No 90 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s offences are detailed above. The convictions for which the Applicant was sentenced on 29 March 2018 are her only recorded convictions. No other ‘conduct’ was raised by the Respondent as relevant to this consideration, outside the general circumstances of the Applicant’s conduct in the context of this offending and her involvement with Mr Uhrlich.
In sentencing the Applicant, Stevenson DCJ noted that:[63]
The offending and your criminality, based on the role that you played in the offences for which you are to be sentenced, was at a high level in the sense that the quantity of the methylamphetamine was high.
[63] R1, G8, page 52.
While acknowledging that he had not made any findings of fact as to the Applicant’s direct knowledge of the actual weight of the methylamphetamine in this circumstance, his Honour noted that the Applicant:[64]
… willingly engaged in the facilitation of and knowingly thereby assisted Mr Uhrlich in the dissemination of a large quantity of prohibited drugs, in particular methylamphetamine and liquid fantasy, into the community of this state.
[64] R1, G8, page 52.
The Sentencing Judge also observed that while the Applicant was being sentenced with respect to these particular offences, ‘they did not occur in a vacuum’:[65]
This was not a one-off opportunistic series of offences. They occurred against the backdrop of a relationship with Mr Uhrlich in circumstances where, on your own admission, you were fully aware of the extent of his involvement in the drug underworld and the activities which you knowingly and willingly were prepared to assist him to undertake in this state by your own personal actions.
You were effectively caught red-handed and the circumstances of your apprehension admit to a certain arrogance and blaseness on your part and Mr Uhrlich’s part, no doubt by reason of the fact that you had made a number of trips into and out of this state carrying the drugs that you were disseminating, including on this occasion…
[65] R1, G8, pages 52-53.
This Tribunal is obligated by Direction No 90 to take into account a range of factors including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[66] Particularly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[67] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they do not contribute to the assessment of the Applicant’s offending as serious.
[66] Direction No 90 para 8.1.1(1)(a) and (b)
[67] Direction No 90 para 8.1.1(1)(a)
In determining the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[68] crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such;[69] and any crime committed by the Applicant while in immigration detention.[70] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they also do not contribute to an assessment of the Applicant’s offending as serious.
[68] Direction No 90 para 8.1.1(1)(b)(i).
[69] Direction No 90 para 8.1.1(1)(b)(ii).
[70] Direction No 90 para 8.1.1(1)(b)(iv).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing any prior criminal offending.[71] There is no evidence before the Tribunal that the Applicant has done so.
[71] Direction No 90 para 8.1.1(1)(f).
While the Tribunal finds that the above-mentioned considerations do not contribute to an overall assessment of the seriousness of the Applicant’s offending, the Tribunal does not accept the Applicant’s submission that the absence of these features in the Applicant’s conduct or offending lessens the seriousness of the offending. Paragraphs such as 8.1.1(1)(b) of Direction No 90 prescribe that certain crimes or conduct are considered to be serious. However, Direction No 90 is clear that the categories or offending specified in such paragraphs are not an exhaustive or exclusive list. Rather, the paragraphs have the effect of directing that certain types of offending shall be considered to be serious, or very serious, ‘without limiting the range of conduct that may be considered serious’.[72]
[72] Direction No 90 paras 8.1.1(1)(a) and 8.1.1(1)(b).
In the Tribunal’s view, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences.
Such offending that can be characterised as ‘serious’ or ‘very serious’ is reflected in the Sentencing Judge’s observations regarding the offences for which the Applicant was convicted:[73]
The gravity and seriousness of your offending is reflected in the statutory maximum penalty for each offence committed. The penalty prescribed in the Misuse of Drugs Act for being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another is a term of imprisonment of up to 25 years and/or a fine of $100,000.
The penalty in relation to being in possession of unlawfully obtained cash …. is a term of imprisonment of up to seven years. The penalty for being in possession of the prohibited drug or substance the subject of count 4….is a term of imprisonment of five years and/or a fine of $20,000 or both.
Those penalties plainly indicate how serious this type of offending is regarded by the state parliament, which of course reflects the view of the community in this state.
[73] R1, G8, page 51.
While the Applicant submitted she was naive and lacked ‘awareness as to the actual implications and laws at the time’,[74] having regard to the evidence and circumstances of the offending, the Tribunal does not accept that she was unaware that her activities in supporting Mr Uhrlich were unlawful. As noted by the Sentencing Judge:[75]
At the relevant time you yourself would have appreciated that on apprehension for this type of offending you would have been required to serve an immediate and lengthy term of imprisonment.
[74] A1, para 9.
[75] R1, G8, page 51.
Paragraph 8.1.1(1)(c) of Direction No 90 requires the Tribunal to have regard to the sentences imposed by the Courts. The Tribunal accepts the Respondent’s submission that sentences of imprisonment are a last resort in the sentencing hierarchy,[76] which is reflected in the comments of the Sentencing Judges in the Applicant’s circumstances. In the Tribunal’s view, the sentence imposed for the Applicant’s offending reflects the Court’s assessment of the very serious nature of the offending. While the Applicant submitted that the sentence predominantly reflected the amounts of quantity and purity of the drugs involved, it is clear from the Sentencing Judge’s comments that the sentence reflects the totality of the offending including the degree of the Applicant’s involvement in and support for the drug trafficking enterprise. As noted above, his Honour found that the Applicant was not a mere mule but actively involved in the enterprise, including assisting in avoiding the detection of authorities, ‘thereby enabling him for a period longer than otherwise would have been the case to do what he was doing as part of his criminal enterprise that he was associated with’.[77] His Honour rejected as untrue, her assertion that she did not consider she was breaking the law.[78]
[76] R2, para [17(a)(ii)].
[77] R1, G8, page 56.
[78] R1, G8, page 55.
The fact that the amounts of drugs involved were significant, contributed to the severity of the sentence in part because it impacted the assessment of the seriousness of the offending. It also contributed to the Applicant being declared a drug trafficker. While the Sentencing Judge did not make a finding regarding the Applicant’s direct knowledge of the weights and purity of the drugs, he did not accept she was unaware of the drugs or that her lack of knowledge of the amounts significantly diminished the seriousness of her offending for the purpose of sentencing.[79]
[79] R1, G8, pages 52 and 58.
While the Tribunal accepts that the Applicant received less than the maximum sentence for her offences, the Tribunal considers that her eight and a half year effective sentence can only be properly described as a significant custodial sentence, particularly given that these were the Applicant’s first offences. Albeit the Applicant plead guilty to the offences, the sentencing followed a contested trial on factual findings relating to the Applicant’s involvement in the offences. The Tribunal therefore considers that in the Applicant’s case, the sentence imposed by the Court is a strong indication of the very serious nature of her offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.[80] The Applicant submitted that the offences were all committed in a single instance and that prior to that, the Applicant did not have any history of offending. The Tribunal acknowledges the Applicant’s lack of prior offending and considers this weighs in her favour.
[80] Direction No 90 para 8.1.1(1)(d).
The Applicant also noted that she has not reoffended since being charged and has been selected to participate in a community work program during which she is in the community on supervisor work assignment from the prison. The Tribunal acknowledges that the Applicant’s participation in such a program reflects positively on her conduct in prison. However, the Tribunal considers that a lack of reoffending while in prison is a minimum standard of conduct required of offenders and cannot be said to weigh significantly in the Applicant’s favour.
In the Tribunal’s view, as the offences relate to a single incident, they cannot be said to reflect a trend of increasing seriousness in offending. Accordingly, this factor does not contribute to the assessment of the overall seriousness of the offending.
With respect to the cumulative effect of repeated offending,[81] the Tribunal considers that this factor contributes less to the overall assessment of the seriousness of the Applicant’s offending, given the Applicant’s offending related to a single incident.
[81] Direction No 90 para 8.1.1(1)(e).
In the Tribunal’s view, it be said that the Applicant’s offending is not to be viewed as serious merely because it lacked a quality of violence or any other features specifically identified in para 8.1.1(1). The Applicant was involved in supporting and facilitating the sale and distribution of a significant quantity of illegal substances. She was not an innocent bystander. While the Court accepted she was ‘a reasonably young person and still by reference to [her] expressed protestations of love for [Mr Uhrlich], to some extent vulnerable to [Mr Uhrlich]’,[82] the Court did not accept that she was coerced into participating in the drug trafficking enterprise he was engaged in, nor that her own use of drugs was such that she ‘could not conduct [herself] appropriately’.[83]
[82] R1, G8, page 54.
[83] R1, G8, page 55.
In the Tribunal’s view having regard to the evidence and the comments and assessment of the offending by the Court, the Applicant’s offending should be considered to be very serious. This was clearly the assessment of the Sentencing Judge who made the relevant findings of fact with respect to the Applicant’s conduct and involvement in the offences. Those findings and the ultimate sentencing imposed by the Court were not legally challenged by the Applicant. The Tribunal does not consider that any basis on the material before it, to go behind those findings.
Overall, and having regard to para 8.1.1(1) of Direction No 90, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 90 states, in part:[84]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[84] See also Direction No 90 para 8.1(2)(b).
The Tribunal is required to assess the risk of harm the Applicant presents to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[85] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[86]
[85] Direction No 90 para 8.1.2(2)(a).
[86] Direction No 90 para 8.1.2(2)(b); see also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 444–5 [94]–[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at 124–5 [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[87]
[87] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
While these cases were considering character ground visa cancellations in the context of precursors to Direction No 90, the same considerations and principles are relevant to the current Ministerial Direction.
The Applicant contends that she is not a risk to the community and will not reoffend. In this regard she points to:
·the fact that she had no prior history of offending;[88]
·the fact that she was ‘not the principle in any of the dealing or suppling activities [she] was charged with, all charges were due to [her] relationship with [her] partner at the time’;[89]
·her demonstrated remorse and willingness to make improvements to her life since her arrest. Her good conduct since her arrest reflected in prison reports and her inclusion in the community work program while in prison. She submits that ‘my conduct since my arrest should also be considered as it is part of my conduct to date and demonstrated a longer period of time than the period of offending. It is also evidence of my character once removed from controlling or negative influences’;[90] and
·her assessment as a low risk of reoffending was recognised by the Sentencing Judge.[91]
[88] A1, page 5.
[89] R1, G2, page 24; A1, page 4-5.
[90] R1, G2, page 23-24; A1, pages 4-6.
[91] A1, page 5.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[92]
[92] Direction No 90 para 8.1.2(2)(a).
The Applicant has been convicted of very serious offences relating to the intended sale and supply of significant quantities of illicit drugs. The Sentencing Judge’s remarks above reflected on the seriousness with which such offending is regarded,[93] reflecting in turn the impact drug trafficking has on the Australian community. While the Applicant maintains she was unaware of the quantity of drugs involved in the operation for which she was convicted, the amount of drugs was significant. In the Tribunal’s view, the harm which would be caused to individuals who purchase and consume those drugs and to the community as a whole, which bears the costs of drug crime and drug addiction and treatment, are significant.[94]
[93] R1, G8, page 51.
[94] See for example SCJD and the Minister for Home Affairs [2018] AATA 4020 at [80]-[83] as cited by the Respondent.

In RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266, McKerracher J noted at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
This passage of his Honour’s decision was recently cited with approval by Colvin J in JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [43]–[45].
In the present case while it might be that the Applicant’s criminal activities did not cause harm to a directly identifiable victim, that does not diminish the serious harm which may flow from the offending, harm which the offences are designed to protect against: in this instance the use of illicit drugs. In the Tribunal’s view, and adopting the approach of the authorities, it does not assist the Applicant that the specific victim or victims of her offending cannot be identified. Drug trafficking attracts serious criminal sanction because of the risk of harm it represents to individual drug users and potential users and to the community which bears the costs of drug use, treatment and related crime.
The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner, through participating in drug trafficking enterprises, including through assisting to prevent their detection and disruption, would be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if she were permitted to remain in the Australian community.[95]
[95] Direction No 90 para 8.1.2(2)(b).
The Applicant contends she will not reoffend. She claims to be remorseful and to have spent her time in prison improving her skills, consequential thinking and substance abuse issues and making a contribution to her local community through the prison work program, mentoring other inmates and supporting Mr Allison and his family members. In her statement to the Tribunal she said:[96]
Although not impossible, there is without a doubt in my mind that I would never commit another offence again, that could put my freedom or my position within the Australian community in jeopardy. I took my standing back in the community back then for granted, and I engaged in behaviour that put the Australian community in danger, which was completely selfish. My consequential thinking is so strong now, as I have demonstrated throughout my prison sentence. I have encountered many negative events and negative people throughout my prison sentence, and I have never subjected myself to drug use, violence, bullying or self-harm, no matter what I see happening around me as can be seen in my prison conduct and behaviour notes. Every decision I have made while in prison, has been to benefit my future. My sights are set on building a life in the Kalgoorlie Community.
[96] R1, G2, page 21.
The Applicant provided evidence of her positive conduct and contribution in prison. She has undertaken educational courses to further her plans to own her own fitness and personal training business,[97] and personal development and rehabilitation courses including:
·The Good Way Road to Recovery Relapse Prevention Program – to slow or stop alcohol and other drug misuse, grow physical, emotional, mental health and well-being, and promote connection with self, family, community and culture;[98]
·the Standing on Solid Ground Program – focussing on self-esteem and life choices;[99]
·the Yellow Ribbon Step Up Program – a fitness and well-being program;[100] and
·counselling.[101]
She has also volunteered teaching fitness to other prisoners and has participated in the ‘section 95’ work arrangement under which she leaves the prison to work on various work projects within the community of Kalgoorlie. Through this program she has developed a range of new work skills, and has worked with Parks and Wildlife, Ronald McDonald Charities, Kari Kula Park and Kanowna Cemetery.[102]
[97] R1, G16, pages 91-97.
[98] R1, G15, page 89.
[99] R1, G15, page 90.
[100] R1, G16, page 98.
[101] R1, G5, page 40, para [35].
[102] R1, G2, page 20.
The Applicant’s work ethic and contribution was commented on positively in a number of supportive statements, including from Marche Smith, Yellow Ribbon Project, who commented on the Applicant’s assistance to the program facilitator and that she had a positive influence on other participants.[103] The Applicant also received very positive feedback in a ‘Prisoner Performance Feedback’ report, created on 8 June 2021, by Vocational Skills Officer, P Virgin. Officer Virgin notes with respect to the Applicant:[104]
I would like to comment on this prisoner on a job well done in turning herself around and proving that rehabilitation has and continues to make a difference….
Since coming on board as a Section 95 team member it is hard to believe the positive attitude to any task and how eager she is to achieve a high standard.
…
At no time has there ever been any doubt about a positive commitment and never a sign of a Risk thought. It is very rewarding to see someone with such a lengthy sentence, make change and work towards a brighter future.
I wish to speak up for R Short for her upcoming Tribunal hearing and give her support based on her work ethics if this required to share.
[103] R1, G16, page 98.
[104] R1, G2, page 16-17.
This statement was submitted at the time the application for review was made. The Tribunal notes that the Applicant did not raise calling Officer Virgin as a witness for the hearing but in any event the Tribunal accepts the report as endorsement of her work ethic and evidence of her good conduct while servicing her sentence. For this she is to be commended and this conduct weighs in her favour.
Further in the Applicant’s favour, the Tribunal acknowledges the Applicant’s prior good character and lack of offending history. The Tribunal also acknowledges the effort she has made in prison to rehabilitate herself and to lay the foundation for a positive and productive future for herself. This is to be commended and encouraged. However, as the Applicant has been in prison for the totality of this prosocial behaviour, the Tribunal gives less weight to that conduct in terms of making a positive contribution to the community. Compliance with the law while in prison is a minimum expectation. However, the Tribunal acknowledges the Applicant has attempted to proactively engage in positive and self-improving activities, which not only improve her own prospects and circumstances but contribute to those around her. The Tribunal regards that these factors weigh in her favour.
The Tribunal regards that the skills learned and maturity gained through these endeavours would also act as a protective factor against reoffending in the future. The Tribunal also accepts that the threat of further visa cancellation should she reoffend would also act as a protective factor against the Applicant reoffending. This is particularly the case given the circumstances of her fiancé who has criminal history, which includes several terms of imprisonment, from which it is reasonable to infer he may face challenges gaining a visa to enter New Zealand, were the Applicant returned there. This factor is considered further below.
The Applicant also claimed that her prosocial links to the Kalgoorlie community would act as a protective factor against reoffending and assist her to build a positive future in Australia. She offered supportive statements from Mr Allison and his family members, and other members of the Kalgoorlie community in support of this.[105] The Tribunal accepts that Mr Allison and his family strongly support the Applicant remaining in Australia and that they and other members of the local community have offered to assist her rehabilitation and integration into the community. The Tribunal accepts that this support network will act as a protective factor against reoffending to some extent. However, this is somewhat tempered by the fact that Mr Allison himself has been convicted of serious offences for which he is serving a term of imprisonment, which is not his first.[106] He admitted to having been a drug user in the past, having commenced drug use at 13 and methamphetamine use at 19,[107]and to having offended while on parole. While Mr Allison was not in a relationship with the Applicant at that time, his offending occurred notwithstanding the support of his family in Kalgoorlie. This is, in part, the same pro social support on which the Applicant seeks to rely on release.
[105] R1, G2, pages 10-11, 12, 13, 14-17, G16, page 90, G17, G20, G21, G22, G23, G24, G25.
[106] Transcript, page 42.
[107] Transcript, page 43.
Given that the Applicant’s prior offending occurred in a relationship where her partner was a serious offender and drug user, the Tribunal regards that there is a risk associated with her reliance on Mr Allison and his network as a protective factor against future offending. Likewise, Mr Allison’s reliance on his relationship with the Applicant to avoid reoffending and relapse into drug use carries a degree of risk. In this regard, the Tribunal had no evidence other than Mr Allison and the Applicant’s own testimony of his rehabilitation, both in terms of offending and its underlying causes. While he and the Applicant testified he is to undertake further treatment in prison, the success of such treatment, if it is completed, is untested in the community and Mr Allison’s history must be approached with caution in this regard.
The Applicant has been assessed to be a low risk of reoffending in the sentencing context and in the prison assessment context, where she was assessed to be at low risk/need in terms of access to general offending rehabilitation programs.[108] While the basis of that assessment is not in the information before the Tribunal and it appears to relate principally to access to programs in the prison context, the Tribunal places some weight on that assessment in terms of assessing ongoing risk of reoffending. The Tribunal also places weight on the Applicant’s selection for and successful participation in the prison work program as an indication she is assessed to be a low risk in the community, albeit in a supervised context.
[108] R3, S3, page 10.
His Honour acknowledged the Applicant presented a low risk of reoffending, however, by reference to a pre-sentence report which was not before the Tribunal he noted:[109]
It is, of course, of concern, notwithstanding your pleas as noted in the pre-sentence report there is still some degree of minimisation by you in the form of claiming naivete.
It is also, of course, of concern, as noted in the pre-sentence report that you did not question the source of the finances and the relatively wealthy world that you let yourself into as a result of your relationship with Mr Uhrlich.
[109] R1, G8, page 54.
The Sentencing Judge’s comments were consistent with the Tribunal’s assessment of the evidence before it, including the Applicant’s evidence at the Tribunal hearing. While the Applicant expressed regret at the prior offending, she continued to minimise her behaviour by reference to her naivety and vulnerability. While they were acknowledged by the Sentencing Judge to be mitigating factors to an extent, he did not accept the Applicant was an unknowing participant in the drug trafficking enterprise. The Sentencing Judge assessed the Applicant’s involvement and criminality to be significant, not only because the quantities of drugs involved but because of her willingness to engage in the activity for purely personal gain.
The Sentencing Judge was not satisfied the Applicant’s drug use was such that she was unable to appreciate the seriousness of her conduct in the criminal activity, and that choice to participate was made with the knowledge that Mr Uhrlich was involved in a senior level, in a significant trafficking operation.[110] The Sentencing Judge rejected the Applicant’s assertion she was supporting herself through legitimate work, had not lied to police and did not know the money in her possession was the proceeds of drug crime. His Honour noted:[111]
… notwithstanding your current position and statements of remorse, it would appear that the attraction you had for this type of lifestyle was such that you are still vulnerable in that regard going forward and therefore, in my view, the sentence must carry with it again, protection of the community…
[110] R1, G8, page 55.
[111] R1, G8 page 57.
In submissions to the Tribunal the Applicant stated:[112]
In regards to my crime, it states throughout my sentencing remarks that I was not the driver of this crime. I was a passenger, with no connections to the drug world apart from my personal involvement with my co-accused, knowledge on how to supply drugs or who to supply to. I have accepted my role in this crime, I benefited for ill-gotten gains and allowed myself to become involved with a man who was a lot older and wiser to illegal activities then I was at the time. I cannot un-do what I did, and what I did was abhorrent, I completely accept and agree.
The weight/quantity and purity of the drugs seized is a recurring factor of the decision regarding my visa being cancelled. The judge made mention of these things and agreed that I did benefit from the crimes committed by my co-accused and ex-partner but I did not have any knowledge or understanding of quantities and/or purity of the drugs.
[112] R1, G2, page 20.
With respect to these comments, the Tribunal regards that these mischaracterise the Sentencing Judge’s findings and in particular his assessment of the degree of the criminality of the Applicant’s conduct. While the purity of the drugs was a factor, his Honour examined all aspects of the Applicant’s participation in the enterprise and found her participation was active and not a ‘one off’.[113] The Tribunal is not persuaded that there is any basis on the evidence before it to go behind the findings of the Sentencing Judge, which were made on the basis of his Honours observation and assessment of the evidence presented at trial, and which were made in the context of the sentences which resulted in the Visa Cancellation Decision.[114]
[113] For sentencing considerations cited by his Honour see R1, G8, page 57 citing Rinaldi v The State of Western Australia [2017] WASCA 48 at [60].
[114] HZCP v for Immigration and Border Protection (2019) 273 FCR 121, [68], [194].
In the Tribunal’s view, the Applicant’s ongoing minimisation before the Tribunal of her involvement in the drug trafficking enterprise of Mr Uhrlich caused similar concerns regarding her risk of repeating such conduct. In the Tribunal’s view, the Applicant’s continued minimisation demonstrates a lack of insight into her offending, which causes a degree of concern regarding her rehabilitation and likelihood of engaging in further criminal conduct. This is particularly of concern where her prior offending was driven, on his Honour’s assessment, by her preference for the lifestyle it afforded her.
There is no evidence that the Applicant had undertaken any specific courses or counselling designed to address the causes of her offending, such as may be considered to further reduce the risk of reoffending. However, the Tribunal notes that no particular causes of the Applicant’s offending or program interventions to address a risk of reoffending, are identified in the material before the Tribunal. There was also evidence that the Applicant had attempted to access the programs available to her, including the Standing on Solid Ground program, education courses and counselling. As such, the Tribunal does not place weight on the fact the Applicant has not undertaken such programs.
There is no evidence before the Tribunal of psychological or other risk assessments of the Applicant relevant to reoffending undertaken in a sentencing or custodial context. Relying on the assessment of the Sentencing Judge, and the evidence before it, the Tribunal considers that the Applicant’s risk of reoffending in a similar manner is low. However, her continued minimisation of responsibility for her own part in serious criminal conduct, and the nature of core prosocial supports having similar problems of prior offending and drug use, cause the Tribunal to regard that there is an ongoing, albeit low, risk of reoffending. That is to say, there is no evidence to suggest that the Applicant’s risk is something less than a low risk.
Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be low. Given the significant impact of drug trafficking on the Australian community, the Tribunal regards that even a low risk of reoffending is unacceptable. If the Applicant does engage in offending consistent with her previous offences, there is a risk of significant harm to the community.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Visa Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 90 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal that the Applicant has engaged in acts of family violence.
Accordingly, this consideration is not relevant in the Applicant’s circumstances and the Tribunal gives it no weight.
Best interests of minor children in Australia affected by the decision
Paragraph 8.3 of Direction No 90 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child affected by the decision:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

The Tribunal notes the Applicant did not claim in submissions to the Tribunal to be owed a non-refoulment obligation with respect to her concerns regarding her former partner and the Tribunal can see no basis to conclude a non-refoulment obligation is owed to the Applicant on the material before it.
Having considered the submissions and evidence of the Applicant, the Tribunal is not satisfied that there is ‘a serious and substantive basis in fact and in law’ on which to base a finding that her return to New Zealand would breach Australia’s non-refoulement obligations.[192]
[192] Omar [82].
The Tribunal also notes that there is no information before the it to suggest that it is not open to the Applicant to make an application for protection and to provide evidence in support of that application should she chose to do so. A decision-maker on that application may be satisfied on the material before them that the Applicant satisfies the criteria for a protection visa. In the event that such a determination is made, a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such a finding on the current application.
The Applicant raised her claims to fear harm on return to New Zealand from her former partner was also raised as an ‘other reason’ in the context of impediments to her removal. The Tribunal has considered those issues in the context of that consideration.
On the basis of the evidence before it, the Tribunal does not consider that an issue of non-refoulement obligations arises with respect to the Applicant’s return to New Zealand in the event that the Visa Cancellation Decision is not revoked. Accordingly, the Tribunal finds that this consideration is not relevant to the Applicant’s circumstances and the Tribunal places no weight on this consideration.
Extent of impediments if removed
Direction No 90 requires the Tribunal to consider the extent of any impediments the Applicant may face, if removed from Australia to New Zealand, in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the Applicant’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to her in New Zealand.[193]
[193] Paragraph 9.2 of Direction No 90.
In the request for revocation, the Applicant submitted that there are less opportunities for her in New Zealand, it will be difficult to find employment, salaries are lower, rents are higher and the cost of living is higher.[194] She also said she has an aggressive and violent ex-partner in New Zealand who she believes may put her safety at risk.[195] She states that she does not have prosocial support in New Zealand and the family lives in an area which is isolated without community connections.[196] She claims that she suffers from anxiety and disordered eating and receives counselling and medication for her anxiety.[197] She submitted that she was in a relationship with an Australian citizen whom she met in prison, Mr Allison, and that she would be separated from him if returned to New Zealand.[198]
[194] R1, G12, page 69, 84.
[195] R1, G12, page 69, 84.
[196] R1, G12, page 81.
[197] R1, G12, page 83.
[198] R1, G12, page 69.
In submissions to the Tribunal, she said she was not in close contact with her mother or sister, and they did not have the capacity to provide any economic support to her.[199] In evidence to the Tribunal, she said her mother suffers from mental health issues and there is no room for her to live with her, and she is unable to provide the Applicant with advice or encouragement.[200] She said her father had never been supportive of her in many of her choices in life, and was embarrassed about her circumstances and he ‘wants to keep it a secret from his friends or people that he associates with’.[201]
[199] R1, G2, page 25.
[200]Transcript, page 34.
[201] Transcript page 35.
The Respondent submitted that this consideration should not be found to weigh in favour of revocation to an extent that it would outweigh other primary considerations. The Respondent submitted that the Applicant was a young person of working age and is ‘reported to be an above average worker who is organised and conscientious and completes her work to a very high standard, with a desire to learn skills to increase the chances of gaining employment and these matters indicate the applicant will not be impeded from establishing herself and maintaining living standards in the context of what is generally available to other citizens of New Zealand’.[202] The Respondent also submitted that there is no evidence that the Applicant would face any cultural or linguistic barriers in New Zealand, and there is no evidence that she suffers from any significant health conditions that could not be supported with access to the same social and medical services that are available to other citizens of New Zealand. As a citizen of New Zealand, the Applicant would have the same access to social, medical, and economic support as other citizens.[203]
[202] R2, page 5.
[203] R2, page 5.
The Applicant is currently 29 years of age. She relocated to Australia as a young adult. The Tribunal finds that there are no substantial language or cultural barriers that the Applicant would face if returned to New Zealand, being returned to a country that she grew up in, was educated and lived, until she was 22 years old. The Tribunal notes that based on movement records and the Applicant’s evidence, she has returned to New Zealand twice since relocating to Australia to live in July 2014, and prior to arrest in February 2016. Her immediate family members including her mother, father and sister remain living in New Zealand. While the Applicant claimed to have limited contact with them, the Tribunal notes that the Applicant’s mother and sister provided statements in support of her application for revocation before the Department.[204] Her father also sought a supportive statement from a friend and business colleague in Australia.
[204] R1, G18 (Julie Short); G19 (Holly Short), G22 (John Cramp)
The Tribunal finds in the evidence that the Applicant has contact with family members in New Zealand who may be able to provide her with some level of social support on return to New Zealand. However, the Tribunal also accepts that their own personal circumstances may limit the capacity to provide substantial emotional, economic or financial support to the Applicant on her return.
The Applicant maintained that she has limited job prospects in New Zealand, however, the Tribunal notes the Applicant’s endeavours to improve her vocational skills, in particular, in the area of personal fitness and well-being. The Tribunal also notes the Applicant’s positive employment references in the present context. The Tribunal considers that the Applicant is still young and has demonstrated motivation to improve her employment prospects. The Tribunal considers that these skills will enable the Applicant to obtain an income in New Zealand once settled there.
The Applicant suffers from anxiety and receives treatment for that condition. The Tribunal accepts the Respondent’s submission that there is no evidence that the Applicant would not have the same access to health and social services as other citizens of New Zealand or would be prevented from accessing those services on return. The Tribunal notes that the Applicant acknowledged at the hearing that she would have access to those services and that in addition she was aware of relocation services available to people who were returned to New Zealand due to refusal or cancellation of their visas in Australia.[205]
[205] Transcript, page 36.
The Tribunal accepts that the Applicant is likely to face emotional hardship if she is returned to New Zealand and is separated from her partner and his family. In this regard, the Tribunal notes that Mr Allison’s evidence was that he had a criminal record including more than one sentence of imprisonment and that this may make it difficult for him to obtain a visa to visit New Zealand. While this is somewhat speculative, the Tribunal accepts he may face difficulties obtaining a visa to New Zealand and that the most likely outcome of the non-revocation of the Visa Cancellation Decision would be a prolonged or permanent separation of the Applicant from her fiancée. This would undoubtably cause the Applicant and Mr Allison to suffer significant emotional hardship and impede their plans to build a life together once released.
The Applicant also claimed to fear harm from her ex-boyfriend in New Zealand. Other than the Applicant’s testimony, there was no evidence to support the claimed threats against the Applicant or the claimed efforts to reconnect with her. The Applicant’s sister refers to the Applicant having been in an abusive relationship but does not mention ongoing threats. The Tribunal is prepared to accept the Applicant has previously been in a relationship in New Zealand which included emotional or physical abuse which was not reported to authorities. The Tribunal does not accept on the evidence, that the Applicant is at risk of ongoing harm on that basis given the lack of evidence and the passage of time since the relationship ceased. In any event, while the Tribunal accepts the Applicant may be apprehensive about encountering a former partner with whom she no longer wants contact, should she feel at risk of harm, she would have access to the protection of authorities in New Zealand. There is no evidence before the Tribunal to suggest such protection would be inadequate or withheld from the Applicant for any reason. The Tribunal does not consider that her prior relationship presents an impediment to her establishing herself and maintaining basic living standards in New Zealand.
Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs only slightly in favour of revocation of the Visa Cancellation Decision. Overall, the Tribunal finds that the Applicant faces limited impediments in establishing herself and maintaining basic living standards in New Zealand. However, the Tribunal finds that the Applicant would suffer significant emotional hardship as a result of her separation from Mr Allison and his family, which would present a challenge to resettlement. While these difficulties are not insurmountable, the Tribunal finds they weigh moderately in favour of revocation of the Visa Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There were no identifiable victims of the Applicant’s offending. There is also no evidence about the impact of a s 501 or s 501 CA decision in the Applicant’s case on members of the Australian community more generally, aside from the risks of harm to the community, which are discussed above in the context of the protection of the Australian community.
The Tribunal finds this consideration is not relevant to the circumstances, and the Tribunal places no weight on this consideration.
Links to the Australian community
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the Visa Cancellation Decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant relocated to Australia at the age of 22 in July 2014.[206] Her offences were committed in February 2016. Her immediate family remain in New Zealand. Her fiancé and his family are all Australian citizens, living in Australia.
[206] R1, G14.
The Applicant submitted that she has strong ties to Australia, principally through her fiancé, Mr Allison, and his family, and through the community in Kalgoorlie where has spent her period of incarceration. She also has extended family members including Aunts and Uncles in Australia, however, she told the Tribunal that she has limited contact with them since entering prison.[207]
[207] R1, G14, page 87; Transcript, page 17.
The Applicant’s ties to Australia principally arise from her connection to her fiancé and his family members. In her statement to the Department the Applicant stated:[208]
My partner is an Australian Citizen, and being removed would have great implications on both our mental well-being. We support each-other and have some solid plans for the future, including owning our own small business in the fitness industry, marriage and children, which we would love to raise here. Both of our families are 100% supportive of our decision to be together.
[208] R1, G14, page 87.
Mr Allison is due for release on parole in April 2022 and submitted he would be unable to travel until at least April 2024 when his non-parole period is over. The Applicant stated that if she is removed, she would be unable to have contact with her fiancé for an extended period and would potentially be unable to have personal contact with his mother as she is unable to fly due to a medical condition. She stated that ‘the emotional toll of my being removed from Australia would be devastating for myself, my fiancé and his family’.[209] She noted that she plans to start a family with Mr Allison and that the inability of his parents to fly would mean they may be unlikely to be able to see their grandchildren as well.[210]
[209] Transcript, page 14.
[210] Transcript, page 14.
As noted above, Mr Allison also gave evidence that his own criminal history may prevent him from obtaining a visa to New Zealand.[211] The Tribunal accepts this may be the case, and that this would result in an extended, and potentially permanent separation between the Applicant and Mr Allison. Mr Allison stated that he and the Applicant have a plan to build a future together including getting married, having children, and building a business in Kalgoorlie. They have both been undertaking study to enable them to do this.[212] He stated that:[213]
In all Rosie not being able to stay in Australia would affect myself so badly mentally I don’t know if I would be able to cope. The love and respect and relationship we have I know is one of a kind.
[211] Transcript, page 45.
[212] R1, G17, page 99; A1, Attachment D.
[213] A1, Attachment D.
The Applicant also maintained that her removal would have a negative impact on Mrs Patricia Alison and Ms M, as Mrs Allison had health problems which make providing for all of Ms M’s needs challenging. The Applicant hoped to be able to assist with Ms M’s care, including by living in Mrs Allison’s home with them. Mrs Allison expressed a similar wish and was distressed at the prospect of the Applicant being removed from Australia, including because of the impact it would have on her son, Mr Allison. With respect to plans to assist with Ms M, the Applicant noted:[214]
[Ms M] is too young to understand the possibility of me being deported. She would like to live with me in [Mrs Allison’s] house, and I would like to help [Mrs Allison] with her care, as she has ADD in faecal alcohol syndrome. [Mrs Allison] struggles with the physical side of raising an extremely hyperactive nine-year-old. I know I can help [Ms M] by teaching her new skills and help her channel her behavioural difficulties.
[Ms M] is in the full-time care of her grandparents, and as a victim of drug abuse, as her mother abandoned her at a young age, and I know that I can be a strong female role model in her life.
[214] Transcript, page 13-14.
Other members of the family also provided statements supporting the Applicant remaining in Australia, and attesting to the importance of the Applicant to the family. Ms Kerrie-Ann Alison states that none of the family will be able to see her again if she is returned to New Zealand. She notes that everyone loves her and they would be devastated if she returned to New Zealand.[215] Ms Lauren Alison notes that the Applicant is a big part of their lives and gets on well with everyone, and is sad to hear she could be returned to New Zealand.[216] Mr Matthew Alison and Ms Rachel Green noted that the family loves her and they would be devastated by her removal.[217]
[215] R1, G2, page 10-11.
[216] R1, G2, page 12.
[217] R1, G2, page 13.
It is evident that the Applicant’s ties to Australia through her fiancé’s family are strong. The evidence given by various family members, including the evidence outlined above, indicates that she is loved and respected by the Allison family members as a loving partner, Aunt and friend, and that Mr Allison in particular, and his family members, rely on the Applicant for support and are committed to supporting her and Mr Allison to build a future together.
The Applicant was also supported by a number of members of the Kalgoorlie community including, Officer Virgin of the Eastern Goldfield’s Regional Prison, Joanne Hurrell, who is part of the prison chaplaincy, and Marche Smith of the Yellow Ribbon Project. It is clear from the statements, that the Applicant has made a positive impact on those members of the Kalgoorlie community who have interacted with her in a work and community context, and that they have been impressed by her work ethic and her commitment to rehabilitation and helping others.
The Applicant also maintained she has close friends elsewhere in Australia, including Ms Sacha Cirri, who she testified has supported her throughout her incarceration and has strong connections to business owners, and would assist her with gaining employment in the eastern suburbs of Sydney, if necessary. Ms Cirri did not indicate the Applicant’s removal would have any particular negative effect on her, however, the Tribunal accepts that she supports the Applicant staying in Australia, as her friend, evidenced by her statement to the Department.[218] Similarly Ms Bronte Ahchee and Ms Susan Ahchee who live in Esperance WA, provided statements indicating they have a positive relationship with the Applicant, and their willingness to assist her to remain in Australia. While neither indicated the Applicant’s removal would have any particular negative effect on them, the Tribunal accepts that they support the Applicant staying in Australia, as evidenced by their statements to the Department.[219] Other community members outside Kalgoorlie, including Mr Cramp, who is a friend of the Applicant’s father supported her remaining in Australia.
[218] R1, G21, page 107-108.
[219] R1, G23, page 110; R1, G24, page 111.

The Applicant claims to have been a positive member of the community when she first arrived in Australia, holding employment with Queensland Courier Mail and working as an events hostess. She also did promotional work and modelling. She noted that while living in Sydney she had a registered small business, performing spray tans from home.[220] The Tribunal notes that the Applicant was only in the Australian community for a relatively short period prior to her arrest in February 2016. Ms Cirri’s statement notes that the Applicant was a ‘hard worker’ prior to her arrest. There was otherwise very limited evidence before the Tribunal as to any positive contribution made working in Australia prior to that point. The Tribunal notes that the Sentencing Judge did not accept that the Applicant was supporting herself through work when she was living with her co-accused, but rather that she was living off the proceeds of their drug trafficking enterprise. On the basis of the limited time the Applicant spent in the community and the evidence regarding her reliance on the proceeds of drug trafficking to support a particular lifestyle in Australia prior to her arrest, the Tribunal places limited weight on her claim of making a positive contribution prior to her arrest.
[220] R1, G14, page 88.
The Applicant maintained that she had been attempting to make a positive contribution to the prison community and to the broader community during her period of incarceration. Some of those activities are noted earlier and the Tribunal again recognises that the Applicant is to be commended for her efforts in rehabilitating herself and making the most of the opportunities she has been provided within the prison, for self-growth and self-improvement. However, the Tribunal places less weight on her contributions made after she was convicted and placed in the prison community as evidence that she has made a positive contribution to the Australian community more broadly. However, the Tribunal accepts that her efforts in prison indicate a capacity to make a positive contribution to the broader community if she maintains her commitment not to reoffend or to engage in illicit drug use.
Overall, the Tribunal considers that the Applicant has developed strong ties to the Kalgoorlie community since she entered prison. However, ties to the community are of a relatively short duration. The Applicant spent a relatively short period in the community prior to her offending. This causes the Tribunal to place less weight on those ties than may otherwise be the case.
Impact on Australian business interests
Paragraph 9.4.2 of Direction No 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant testified that she has undertaken study while in prison with a view to opening a fitness and personal training business in Kalgoorlie with her partner on release. She also noted she has prospects for obtaining work in the mining sector through the prison work program and has gained a range of employment skills in prison.
While the Tribunal accepts that the Applicant has worked and studied in Australia and has plans to open a business here, there is no evidence that a decision under s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Therefore, the Tribunal gives this consideration no weight in the Applicant’s case.
Conclusions to link to the Australian community
Having considered all of the Applicant’s circumstances, the Tribunal finds that the Applicant’s links to the Australian community weigh moderately in favour of the revocation of the Visa Cancellation Decision.
Other considerations – Interests of Ms E
As noted earlier, the Applicant’s original request for revocation identified her niece, Ms E, who is a resident in New Zealand, as a minor child impacted by a decision not to revoke the cancellation of her visa.[221] The Tribunal considers with respect to Ms E’s interest that the inclusion of the words ‘in Australia’ with respect to this consideration of ‘Best interest of Children in Australia’ at paras 8(3) and 8.3, would preclude consideration of Ms E’s interests. However, there is nothing precluding the Tribunal from consideration as ‘another reason’ submitted by the Applicant why the Visa Cancellation Decision should be revoked.
[221] R1, G13, page 78.
In testimony before the Tribunal, the Applicant indicated Ms E lives with her mother, the Applicant’s sister, in New Zealand. She said her sister is a single parent.[222] In her request for revocation she noted that she had not physically seen Ms E since 2015, but had contact with her by Skype fortnightly together with the Applicant’s sister.
[222] Transcript, pages 34-35.
The Applicant stated that Ms E would be impacted because if she chose to migrate to Australia as an adult, the Applicant would not be able to help her with the move or visit her which would ‘cut out a close family tie’.[223]
[223] R1, G13, page 79.
While the Tribunal accepts that if the Visa Cancellation Decision is not revoked this may impact the family’s plans for Ms E to have her support should she chose to relocate to Australia as an adult. However, given Ms E’s age and the lack of evidence about her own circumstances and plans, the Tribunal regards this submission as largely speculative and the Tribunal finds that this consideration does not weigh in favour of revocation of the Visa Cancellation Decision, The Tribunal finds this consideration to be neutral in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked, having regard to the relevant primary and relevant other considerations in Direction No 90.
In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including her connections to Mr Allison and his family in Australia.
The Tribunal has considered all the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending was very serious. This was reflected in the Sentencing Judge’s finding regarding the Applicant’s role in the offences and in the significant sentence ultimately imposed by the Court. The Tribunal has had regard to the risk of very serious harm to the community should she commit further offences or other serious conduct, albeit the Tribunal finds that the likelihood of such reoffending is low. Considering these factors, the Tribunal has found that the protection of the Australian community weighs strongly against the revocation of the Visa Cancellation Decision.
The Tribunal has also found that due to the serious character concerns arising from the nature of the Applicant’s drug related offences, the expectations of the Australian community would be that the Applicant’s Visa remains cancelled. Having regard to all the considerations and the Applicant’s circumstances, the Tribunal regards that while this consideration weighs against revocation, given the Applicant’s circumstances, and in particular, her relatively young age at the time of her offending and her efforts at rehabilitation, this consideration weighs less strongly than may otherwise be the case. Accordingly, the Tribunal has found this consideration weighs moderately against the revocation of the Visa Cancellation Decision.
The Tribunal has considered carefully the best interests of the minor children in Australia who were identified as being affected by the decision. The Tribunal accepts the Applicant has formed a relationship with Mr Allison’s niece and nephews, and in particular with Ms M, while in prison and that she desires to maintain and develop those relationships. The children and their parents or guardians love the Applicant and wish for her to remain in Australia to maintain a relationship with them. The Tribunal accepts that it is in the best interests of Ms M and to a lesser extent Mstr H, Mstr C, Mstr B, Mstr T, Mstr G, Mstr L and Mstr R that the Visa Cancellation Decision be revoked. However, having regard to the nature and length of the Applicant’s relationship with the children, the Tribunal has found that the best interests of the identified children in Australia weighs only moderately in favour of revocation of the Visa Cancellation Decision.
The Tribunal found the consideration with respect to family violence to be not relevant in the Applicant’s circumstances.
The Tribunal has had regard to the relevant other considerations, including the Applicant’s links to the Australian community and the impediments the Applicant may face if she was removed from Australia and returned to New Zealand. These weigh in the Applicant’s favour. Having regard to the Applicant’s circumstances the Tribunal found that the impediments she would face if she were to be returned to New Zealand weigh only slightly in favour of revocation of the Visa Cancellation Decision. With regard to her links to the community, the Tribunal found that the Applicant has ties to the Australian community, principally through Mr Allison and his family members, and those ties to Australia weigh moderately in favour of the revocation of the Visa Cancellation Decision. The Tribunal afforded no weight to the impact on Australian business interests in the Applicant’s circumstances. The Tribunal also considered the interest of Ms E, the Applicant’s niece who is resident in New Zealand, and found this consideration did not weigh in favour of revocation. The Tribunal affords no weight to this consideration.
The Tribunal had regard to the impact that revocation of the Visa Cancellation Decision would have on the victims of the Applicant’s offending, however, the Tribunal has found this consideration not to be relevant in the Applicant’s circumstances, as the victims of her offending were not identified. Accordingly, the consideration was not relevant to the Applicant’s case.
The Tribunal has also considered whether the Visa Cancellation Decision raised an issue of non-refoulement obligations owed by Australia to the Applicant. Both the Applicant and the Respondent contended this issue did not arise in the Applicant’s case, however, the Tribunal gave careful consideration to whether the Applicant’s claims to fear harm on the basis of a prior relationship in New Zealand gave rise to a non-refoulment obligation. The Tribunal found on the available evidence that it did not. The Tribunal found this consideration not to be relevant to the Applicant’s circumstances.
In weighing these considerations against one another, the Tribunal considers that although there are countervailing considerations which favour revocation of the Visa Cancellation Decision, including the best interests of the children, the Applicant’s links to Australia and the extent of impediments if removed, the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those considerations in the Applicant’s case.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Visa Cancellation Decision should be revoked. The correct or preferable decision is to affirm the decision under review.
DECISION
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 1 June 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is affirmed.

I certify that the preceding 238 (two hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

....................[Sgd]....................................................
Associate
Dated: 25 August 2021

Date of hearing: 10 August 2021

Representative for the Applicant: Ms S Fletcher, Kalgoorlie Consulting Services Pty Ltd

Solicitors for the Respondent:

Mr A Downie, Minter Ellison

Date of hearing:	10 August 2021
Representative for the Applicant:	Ms S Fletcher, Kalgoorlie Consulting Services Pty Ltd
Solicitors for the Respondent:	Mr A Downie, Minter Ellison