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

[2021] AATA 1616

Simeki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1616 (1 June 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1547

Re:Violet Simeki

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member O'Loughlin

Date:1 June 2021

Place:Adelaide

The decision under review is set aside and substituted with a decision that the cancellation of the applicant’s visa be revoked.

..........................[Sgnd]..............................................

Member O'Loughlin

Catchwords

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa  under section 501(3A) - where Applicant does not pass the character test - whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted with a decision that the visa cancellation be revoked.

Legislation

Migration Act 1958 (Cth)

Criminal Law Consolidation Act 1935 (SA)

Cases

Minister for Immigration and Multicultural Affairs V SRT [1999] FCA 1197

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

REASONS FOR DECISION

Member O'Loughlin

1 June 2021

1. The applicant has lived in Australia for about 40 years.  She has been convicted of a serious offence but the Tribunal is satisfied that she is unlikely to reoffend and that because of her ill health, her lack of ties to New Zealand and her contribution to Australian society it is appropriate to revoke the cancellation of her visa.

2. The applicant is a 55 year old citizen of New Zealand.

3. On 8 October 2019 her Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A) of the Migration Act 1958 (the “Act”) by a delegate of the Minister administering the Act.

4. On 14 November 2019, under section 501CA(4) of the Act, the applicant sought revocation of the decision to cancel her visa.

5. On the 5 March 2021 a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa.

6. The applicant has applied to the Tribunal under s 500 of the Act for review of the decision of 5 March 2021 not to revoke the cancellation of her visa.

   EVIDENCE

   Personal Background

7. The applicant provided various written statements and submissions to the Tribunal and this evidence was supplemented by her oral testimony[1].

   [1] See Exhibit R1, pp 40-62

8. The applicant was born in Auckland, New Zealand on 13 January 1966. She moved to Australia when she was about 16. She said that she came with her older sister, Havili, and that she came to avoid problems with the youth gangs which she said were prevalent in Auckland at the time.

9. After arriving in Australia, the applicant lived with her sister in Sydney. She said she started looking for a job as soon as she arrived. She said she worked in a series of unskilled occupations in order to be able to pay for courses at colleges and at TAFE. She recalled working in a factory packing stationery for a year, which was her first job after school. She said that she had always had an interest in music and was writing song lyrics while she did courses and worked.

10. When she was in her early 20s, the applicant moved to Adelaide with a friend. She began working for the Inquiry Royal Commission into Aboriginal Deaths in Custody. She was on call and would assist in the watch house when alerted by her pager. She said she started that work in 1992, and finished it in 1996, at which time she quit because it became too dangerous.

11. The applicant then concentrated on working in the music industry and although the work was variable she generally made enough money to live.

12. She was asked about the suggestion in one of her letters of support that she had worked as a presenter in a Canadian radio station but she said that that was not quite true[2]. The applicant explained that she had been part of efforts to start an indigenous music festival in Adelaide and that she had attended a conference in Canada as part of that process.

    [2] Exhibit R1, p 66

13. She said that she had also been involved in conferences related to domestic violence which is an issue of interest to her as it had been part of her childhood.

14. The applicant said that her earnings in the music industry were not reliable enough to meet her living costs and that she had supplemented them with Centrelink payments.

15. In about 2004, the applicant started receiving treatment for hepatitis C which she thinks she contracted whilst getting a tattoo. She said that the nature of the treatment and condition was such that the hospital arranged for her to be put onto the Disability Support Payment (DSP), which has generally been her primary source of income since then.

    Criminal Conviction, Visa Cancellation and Incarceration

16. The applicant told the Tribunal that in about 2005 or 2006 she moved into a block of units in the city in Adelaide.

17. Certain events took place at the apartment block on 11 March 2016, as a result of which the applicant was charged with aggravated causing serious harm with intent to cause serious harm pursuant to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).

18. The applicant entered a plea of not guilty and her denial of the important facts sustaining the charges was repeated in her evidence to the Tribunal.

19. The Tribunal has had regard to the sentencing remarks of His Honour Judge Slattery of the District Court of South Australia dated 3 August 2018[3] . The Tribunal understands that the matter proceeded without a jury and that the findings of fact expressed in the sentencing remarks presumably reflect his findings as the trier of facts in the criminal charges.

    [3] Exhibit R1, p 24-28

20. His Honour finds that the applicant was involved in a dispute with a neighbour in the apartment block in which she lived. The dispute escalated to yelled threats by the applicant who ultimately confronted her neighbour at his door and stabbed him in the left side of his chest. The victim took a piece of wood from an old chair to defend himself and tried to hit the applicant who, in the ensuing scuffle, stabbed him in the right hand and right arm. The victim then hit the applicant with the piece of wood and she retreated.

21. The victim was taken to hospital where he was treated for wounds including a punctured lung.

22. The evidence that the applicant gave about the incident was fundamentally different to the findings set out in the sentencing remarks. Under cross-examination the applicant told the Tribunal that it was her neighbour who had threatened her and beat her up. She denied attacking him with knives and said that it was the other party who “came at me with 2 knives”. She said that he tried to stab her in the stomach but could not penetrate her clothing.

23. She also said that although she had seen some pictures suggesting stab wounds to her neighbour, she did not inflict those wounds and does not know how he got them.

24. She said that she hoped to appeal the conviction but had been unable to retain a lawyer

25. The applicant gave evidence that she was taken into custody on the evening of the offence which occurred on 11 March 2016. She said that she spent about 29 days in custody and was then granted bail.

26. According to the District Court certificate of record[4], the trial of the criminal charges started on 1 August 2017 and proceeded for about 4 days.  The trial was heard by Judge alone.

    [4] Exhibit R1, p 31 - 37

27. The certificate of record shows that a guilty verdict was delivered on 26 September 2019. There was some delay in sentencing while psychological evidence was obtained and the applicant’s representation was finalised.

28. On 19 March 2018 the applicant’s bail was revoked and she was remanded in custody. She remained in custody until 3 August 2018 when she was sentenced to a term of 2 years and 6 months’ imprisonment to be served by way of home detention. A non-parole period of 15 months was set.

29. In sentencing remarks of Judge David of the District Court, her Honour notes that the applicant was remanded in custody on 23 July 2019 and it appears that that related to the applicant’s failure to comply with conditions of her home detention in that she returned 3 positive tests for methylamphetamine and amphetamine. [5]

    [5] Exhibit R1, p 29

30. The documentary evidence, which indicates that she was returned to custody on 23 July 2019[6], was supported by the applicant’s oral testimony.

    [6] Exhibit R1, p 29

31. While the applicant was in custody, on 8 October 2019, her visa was cancelled as required by s 501(3A) of the Act and on 14 November 2019 she requested that the Minister for Home Affairs revoke the cancellation of her visa as permitted by s 501CA(4)[7]. 

    [7] Exhibit R1, p 70

32. The applicant gave evidence, which is not apparently controversial, that in early February 2021 she finished serving her sentence and was taken into immigration detention where she remains.

    Medical Background

33. The applicant gave evidence that her general health is affected by some mental health issues. She said that she has suffered from depression for a long time but that generally she is able to manage that. She said that she also suffers from anxiety for which she has been seeing a psychologist and taking prescribed medication since about 2008 or 2009.

34. She said she had been seeing a counsellor since about 2001 or 2002, and that around this time she was prescribed certain medications for stress and anxiety from her general practitioner. It appears that that was in fact her first treatment for stress and anxiety.

35. The Tribunal finds that the applicant has been taking medication in relation to anxiety and related conditions since about 2001. The applicant said that she has taken medicine, possibly Valium, on prescription since about then.

36. The applicant also told the Tribunal about her breast cancer diagnosis. The applicant received her diagnosis in November 2019, whilst serving her prison sentence. She said that she had a mastectomy on 15 January 2020. Unfortunately she has now been diagnosed with lung cancer and she was expecting to undergo a biopsy about 2 weeks after the day of the hearing. After the results of that biopsy are available she will know what her treatment will be.  She understands that it will be a combination of radiotherapy and chemotherapy.

    Other Evidence

37. The applicant denied that she is a habitual drug user or an abuser of alcohol. She claims that she was assessed for counselling in relation to drug or alcohol use in prison but was assessed as not needing any.

38. She said that she had not used methylamphetamine while on home detention, although she admitted that she had “stuck her finger in a bag” of that drug, which she suggested explained her positive test results.

39. The applicant said that she has some infant relatives living in Randwick, the children of her nephews. There are some of primary school age and some pre schoolers.  She said she maintains contact with these children and they will be saddened if she has to return to live in New Zealand.

40. She said that she last saw them in March 2021 when they came to visit her in immigration detention.  She had seen them a couple of times before then.

41. She said that she expected to have trouble settling in if she had to return to New Zealand.  She had visited in the past and had been teased about her Australian accent.  She was also worried because she does not know anything about social security or health benefits in New Zealand and did not know what sort of support would be available to her.

42. She gave evidence that in the past she has been involved in various community activities such as trying to organise a Pacific Islander music festival and she has volunteered for organisations such as the Salvation Army and through her church.

43. She said that through the church she is involved in arranging meals for the homeless and teaching music to people of all ages.

    Cross Examination

44. The applicant was asked about the circumstances of the offence in March 2016. 

45. She said that there was a security door that had been propped open by the landlord.  It had been closed and that when she was retrieving the brick used to hold it open, she was attacked by a resident from a neighbouring apartment.

46. She said that he dragged her into a unit and threatened her with 2 knives.  She said that he had tried to stab her but that he had not been able to penetrate her jumper.

47. It was put to her that in fact she had threatened the unit occupant with 2 knives, which she denied.

48. She agreed that in the course of the criminal proceedings she had been shown photographs of her neighbour with stab wounds to his arms. She also agreed that she had been told that he had suffered a punctured lung. She said that she did not know how he had sustained those injuries but expressed the view that someone else may have been in the building. She said that all she knew was that she was bashed and was trying to defend herself.

49. The applicant said that she disagreed with her conviction, that she was not guilty and that she had tried to appeal the decision but had been unable to do so because she could not afford appropriate legal representation.

50. The applicant was closely cross examined about the circumstances of the revocation of her home detention and her return to prison to serve the remainder of her sentence.

51. She initially insisted that she did not actually use methylamphetamine while on home detention, but that she merely “stuck her finger in the bag”. This was a repeat of what she had said in response to questioning by the Tribunal.

52. Her evidence appears to be that she ingested the drug by tasting it.  She initially said that she had only done that once.

53. It was pointed out that she had returned two positive tests separated by a negative test which is not consistent with her only using the drug once.

54. At this point in her evidence she conceded that her memory of that time is hazy and that, although she believes she has a good memory of the relevant events, she was confused during the proceedings and she could not remember anything more save that she had bought some red wine for cooking.

55. She then said she could not help further and would leave the decision about how many times she had used methylamphetamine to the Tribunal.

56. She also said that she had probably used methylamphetamine once before but said that she does not have a history of using drugs.

57. In investigating whether the applicant has a history of harmful drug and alcohol use and dependence she was pressed on whether she had done drug and alcohol counselling while in prison. The applicant said that she was familiar with alcohol and other drug counselling, and that she had done a course whilst in prison, but she said this course was more about what to do when she was released from custody.  She agreed when it was put to her that she did not have a good recollection of the courses she had done in prison.

58. She denied that she has been dependent on alcohol although she had used it at times of stress such as the death of a family member.  She said she does not drink heavily all the time.

59. She was also asked about medication for her mental health issues and the statement in Judge Slattery’s sentencing remarks of 3 August 2018, that she had stopped taking her antidepressant medication while she was in prison[8]. She said that she had reduced her medication rather than ceasing it and agreed that she hoped to achieve a healthier lifestyle without medication.

    [8] Exhibit R1, p 26

60. When asked what she would do in relation to her mental health in general and her relationship with alcohol and drugs in particular, she said that she will go back to work and, without asking her oncologist how long she has left, she will set up a business designing and printing t-shirts.

61. She said that she believes she will be put in touch with a social worker and that psychiatric or psychological treatment will form part of her strategy to deal with her cancer.

62. The applicant said she does not want to go back to New Zealand and that her friends and pastors are in Australia.

63. It was put to her that she had asked if she could be sent back to New Zealand[9] and she agreed that she had enquired about that when she had been given the impression that there was no realistic prospect of staying in Australia. She no longer believes that her application for revocation of the cancellation of her visa is hopeless and does not want to return.

    [9] Exhibit R2, p 250

64. It was put to her that her brother, in a letter of support, had said that there is no one in New Zealand to care for her[10], with which she agreed.

    [10] Exhibit R1, p 64

65. She said that she does not know anything about the health system or the social security system in New Zealand and is concerned about the prospect of having to familiarise herself with a new system given her health.

66. She said that if she is released she will return to Adelaide to live as she sees it as her home.

67. She said that she had last been to New Zealand for her mother’s unveiling in 2011 and that had been her 5th or 6th trip back since settling in Australia.

68. In relation to minor children she said that she has nieces and nephews who are under 18 and who she believes will be sad if she is sent back to New Zealand.

69. No other witnesses were called at the hearing of the matter. 

    Sentencing Remarks

70. The Tribunal has had regard to the sentencing remarks of Judge Slattery of 3 August 2018, which relate to the imposition of the original sentence upon the applicant’s conviction on the charge of aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).

71. The applicant denied in evidence that she is guilty of that charge. 

72. In dealing with that evidence, the Tribunal has regard to the statement by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs V SRT [1999] FCA 1197 at paragraph 40:

    “It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”

73. This general approach appears to be supported in the leading decision of McKerracher J of the Federal Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, where he states at paragraph 79:

    “The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained”

74. The Tribunal accepts the essential factual findings of Judge Slattery and rejects the applicant’s evidence that it was in fact she who was the victim of an assault and attempted stabbing at the hand of her victim.

    Statutory Framework and Pertinent Findings

75. Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not satisfy the character test and that person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a State.

76. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined in s 501(7).

77. Section 501(7)(c) provides that a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.

78. The Tribunal finds that at the time the applicant’s visa was cancelled under s 501(3A), she had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a State.

79. The Tribunal finds that the applicant does not pass the character test as defined and that the Minister was therefore obliged by the terms of s 501(3A) of the Act to cancel the applicant’s visa.

1. The Tribunal notes the concession made by the respondent in submissions that the Minister (or by implication, this Tribunal standing in the Minister’s shoes) is empowered to revoke the cancellation of the applicant’s visa because the applicant has made representations as contemplated by s 501(CA)(4) of the Act.

2. Therefore, pursuant to s 501(CA)(4)(b) the Tribunal is empowered to revoke the original decision to cancel the applicant’s visa if it is satisfied that the applicant passes the character test (s 501(CA)(4)(b)(i)), or if there is another reason why the original decision should be revoked (s 501(CA)(4)(b)(ii)).

3. As the Tribunal has found that the applicant does not pass the character test, the Tribunal must decide whether there is another reason why the decision to cancel the applicant’s visa should be revoked.

4. In doing so the Tribunal must apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).

5. Paragraph 5.2 of the Direction specifies principles to provide a framework for decision makers.  It is made clear that the grant of an Australian visa is a privilege and is made in the expectation that a visa holder will be law abiding and not cause harm to individuals or the Australian community.

6. It also makes it clear that non-citizens who engage in criminal conduct should forfeit the privilege of staying in Australia and that Australia has a low tolerance of criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time, however Australia may afford a higher level of tolerance to non-citizens who have lived in the Australian community for most of their life or from a very young age.

7. That Direction sets out “primary” and “other” considerations relevant to the discretion to revoke the cancellation of a visa.

8. The Direction provides that primary considerations should generally be given greater weight and that one or more primary considerations may outweigh other primary considerations.

   Primary considerations

   Protection of the Australian Community

9. This consideration is in two parts.

10. The first is the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.

11. It is clear that violent crimes are viewed very seriously by the Australian Government and the Australian community.

12. The Tribunal finds that the crime of which the applicant was convicted was a violent crime of the type contemplated in this consideration and the conduct is therefore serious.  In his sentencing remarks, Judge Slattery describes the offence as “particularly serious” which provides support for the Tribunal’s view and suggests that the sentence imposed was viewed by his Honour as “serious”.

13. The respondent has submitted that the seriousness of the applicant’s conduct is aggravated by frequency of offending conduct and a trend of increasing seriousness.

14. In support of that submission the respondent directs the Tribunal to some offences that the applicant committed in New Zealand in the mid 1980’s as a juvenile.  The respondent further suggested that the Tribunal should regard the applicant’s offending to be increasing in seriousness as the juvenile offences were relatively minor, in the nature of shoplifting offences.

15. The Tribunal finds that the offences in New Zealand took place so long ago that they do not suggest a relevant pattern of offending or a trend of increasing seriousness of offending. 

16. The Tribunal finds that although the offending that resulted in the applicant’s imprisonment is serious, the seriousness is not compounded by frequency of offending, a trend of increasing seriousness, repeated offending, providing false or misleading information to the Department or a history of re-offending after being warned in writing about the consequences of further offending.

17. The second part of this primary consideration is the risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct.

18. In his sentencing remarks, Judge Slattery expressed the view that the applicant was “unlikely to re-offend in the future”.

19. The respondent suggests that his Honour’s view has not been borne out by subsequent events.

20. The Tribunal is satisfied that the applicant tested positive for methylamphetamines while on home detention but observes that she was tested multiple times and returned more negative tests than positive which supports her evidence that she is not a habitual drug user.

21. Further, the Tribunal observes that the applicant has spent significant periods on bail and on home detention since the crimes that gave rise to her visa cancellation, but she has not been convicted of any other crimes.

22. The evidence does not suggest to the Tribunal that the applicant is likely to re-offend and cause harm to the Australian community if the cancellation of her visa is revoked.

23. The Tribunal balances its finding that the offending was serious with its finding that the applicant is unlikely to commit further violent offences and accords this primary consideration moderate weight.

    Family Violence Committed by the Non-Citizen

24. The Tribunal is directed to consider any relevant family violence committed by the applicant.

25. The respondent concedes that there is no relevant family violence.

26. The Tribunal accords neutral weight to this primary consideration.

    Best Interests of minor children in Australia affected by the decision

27. The applicant has given evidence that there are minor children in Australia who will be “saddened” if she has to return to New Zealand.  These children are apparently her sister’s grandchildren.

28. The applicant’s evidence is that her main contact with them is via social media and that she has only met them 3 or 4 times in person.

29. The Tribunal is not satisfied that her relationship with these children will be affected in any real way if she is obliged to return to New Zealand and does not accord this primary consideration any weight in favour of revocation of the cancellation of her visa.

    Expectations of the Australian Community

30. The respondent submits, and the Tribunal accepts, that the relevant aspects of this primary consideration are those set out in cl. 8.4(1) and (4) of the Direction:

    (1) The Australian community expects non-citizens to obey Australian laws while in         Australia. Where a non-citizen has engaged in serious conduct in breach of this       expectation, or where there is an unacceptable risk that they may do so, the    Australian community, as a norm, expects the government not to allow such a non-       citizen to enter or remain in Australia.…

    (4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the         government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

31. The respondent has submitted that the seriousness of the applicant’s 2016 offence and its impact on the victim are such that the Australian community would expect the cancellation decision not to be revoked and that this consideration significantly weighs in favour of not revoking the cancellation decision.

32. The Tribunal has regard to the principles set out at cl. 5.2 of Direction 90, and notes that at (4) the principles provide as follows:

    (4) Australia has a low tolerance of any criminal or other serious conduct by… 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.

33. The Tribunal has had regard to the evidence of the applicant about her contribution to Australian society and further accepts the applicant’s evidence that she has lived in Australia for nearly 40 years.

34. The Tribunal finds that the applicant falls within the class of non-citizens for whose behaviour the Australian community may afford a higher level of tolerance. This primary consideration must weigh against the revocation of the cancellation the applicant’s visa, but the Tribunal accords it little weight.

    Other Considerations

    International non-refoulement obligations

35. There is no evidence before the Tribunal that the applicant’s return to New Zealand will engage Australia’s non-refoulement obligations.

36. The Tribunal accords this consideration no weight.

    Extent of impediments if removed

37. The Tribunal is directed to have regard to any impediments the applicant may face if removed from Australia to New Zealand and whether she will be able to maintain basic living standards in the context of what is generally available to other citizens of that country taking into account her age and health, language or cultural barriers and any social, medical and/or economic support available to her in New Zealand.

38. The applicant expressed concern that she would have difficulty engaging with healthcare providers and that there is a particular concern to her given the range of medical conditions from which she suffers. She has given evidence, which the Tribunal accepts, that she suffers from mental health issues including long-standing depression and anxiety, some heart condition, and lung cancer. She also has a history of breast cancer. It is not yet clear how serious the lung condition is and what future treatment she will require for it.

39. Although there is no evidence about the health system in New Zealand, the Tribunal understands that it should be possible for the applicant to obtain a similar standard of health care in that country to the support she gets in Australia.

40. Although the applicant would appear to have more family in New Zealand than in Australia the Tribunal notes the contents of the support letter of 16 December 2019 from the applicant’s brother, Temson Simeki, who says “I know that she is not well and there is no one here to care for her. I hope she remains in Australia.”[11] This appears to support the applicant’s concern about her ability to care for herself if she is returned to New Zealand.

    [11] Exhibit R1, p 64

41. The Tribunal has also had regard to structures that the applicant has in place in Australia including a regular GP and support from her church.

42. The Tribunal accepts that the need to establish new social and medical support networks while she is settling in to what is now a foreign country, and while she is experiencing significant and possibly life-threatening health problems, is a forbidding prospect for the applicant and accords this consideration substantial weight in favour of revocation.

    Impact on victims

43. There is no evidence about the effect, if any, that a decision to revoke cancellation of the applicant’s visa would have on the victim of her criminal behaviour. The Tribunal accords this consideration no weight.

    Links to the Australian community

44. The Tribunal has had regard to the applicant’s evidence that her sister, Havili Simeki, and her sister’s family in Sydney would be saddened if the decision to cancel her visa is not revoked. In a statement dated 15 December 2019, the applicant’s sister wrote, “I hope that she remains in Australia the place she calls home” [12]. The Tribunal does not accord this evidence any weight as it does not give rise to a sufficient consequence if the cancellation is not revoked.

    [12] Exhibit R1, p 65

45. As regards other ties to Australia the Tribunal is directed by cl. 9.4.1 (2)(a)(i) of the Direction to give less weight to the applicant’s ties to the Australian community where her offending began soon after she arrived in Australia. That is not the case in this matter and the Tribunal does not give less weight to this consideration by reason of this factor.

46. Clause 9.4.1(2)(a)(ii) of the Direction directs the Tribunal to accord more weight to the time that the applicant has spent contributing positively to the Australian community.

47. The Tribunal accepts the applicant’s evidence about her work with the Royal Commission into Aboriginal Deaths in Custody, to her volunteer work with the homeless, to her work teaching music and her work as a performance artist and gives weight to these matters.

48. On balance, the Tribunal finds that the applicant’s links to the Australian community are strong and that her contribution has been substantial.

49. The Tribunal accords this consideration significant weight.

    Impact on Australian business interests

50. Although the applicant expressed an intention to start a business designing and printing T-shirts, the Tribunal notes that this is speculative and does not accord this consideration any weight in favour of revoking the cancellation of the applicant’s visa.

    Weighing of the considerations

51. The Tribunal finds that the protection of the Australian community should be afforded some weight against revocation of the cancellation of the applicant’s visa due to the seriousness of the applicant’s criminal behaviour, but notes that this must be balanced against the remoteness of the likelihood of her engaging in further criminal behaviour.

52. There is no evidence of family violence committed by the non-citizen nor is there compelling evidence of any effect on the best interests of minor children in Australia if the decision not to revoke the applicant’s visa is affirmed. The Tribunal accords these primary considerations no weight.

53. The Tribunal finds that the expectations of the Australia community weigh against the revocation of the cancellation of the applicant’s visa but accords this consideration little weight.

54. Of the other considerations the Tribunal finds that the extent of impediments if the applicant is removed to her home country weigh heavily in favour of revocation of the decision to cancel her visa as do her links to the Australian community.

55. The Tribunal does not accord the remaining other considerations any weight.

56. The Tribunal finds that the balance of weighting of the various considerations does favour the revocation of the cancellation of the applicant’s visa.

    Decision

57. For the reasons set out above the Tribunal sets aside the decision under review and substitutes with a decision that the cancellation of the applicant’s visa be revoked.

I certify that the preceding 136 (one hundred and thirty six) paragraphs are a true copy of the reasons for the decision herein of Member O’Loughlin.

............................[Sgnd]............................................

Associate

Dated:   1 June 2021

Date of hearing:	18 May 2021
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Tom Ellison, AUSTRALIAN GOVERNMENT SOLICITOR