Smith and Minister for Home Affairs (Migration)

[2018] AATA 4173

Smith and Minister for Home Affairs (Migration) [2018] AATA 4173 (7 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4828

Re:Alecia Smith

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Chris Puplick AM

Date:7 November 2018

Place:Sydney

The reviewable decision made on 17 August 2018, being the decision of the delegate of Minister for Home Affairs not to revoke the cancellation of Ms Smith’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.

In substitution, the decision to cancel Ms Smith’s visa, made on 18 January 2018, is revoked.

...........................[sgd]...........................................

Senior Member Chris Puplick AM

CATCHWORDS

MIGRATION - Class TY Subclass 444 Special Category (Temporary) visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction No 65 - criminal convictions - driving offences - drug offences - dishonesty offences - protection of the Australian community - expectations of the Australian community - strength, nature and duration of ties - impact on Australian business interests - extent of impediments if removed - decision set aside

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Abebe v Commonwealth [1999] HCA 14

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
AFY18 v Minister for Home Affairs [2018] FCA 1566
Alam and Minister for Immigration and Border Protection [2017] AATA 1233
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BFXK and Minister for Immigration and Border Protection [2018] AATA 886
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Bushell v Repatriation Commission [1992] HCA 47
CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198
Commonwealth v Twyman (1985) 8 ALD 554
Contreras v Minister for Immigration and Border Protection [2015] FCA 47
Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634
Do and Minister for Immigration and Border Protection [2016] AATA 390
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Fu (Migration) [2018] AATA 732
G v Minister for Immigration and Border Protection [2018] FCA 1229
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Re KLGL and QCYY and Australian Prudential Regulation Authority [2008] AATA 452
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Murphy and Minister for Immigration and Border Protection [2018] AATA 750
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076
Shi v Migration Agents Registration Authority [2008] HCA 31
Steyn v Minister for Immigration and Border Protection [2017] FCA 1131
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Williams v Minister for Immigration and Border Protection [2014] FCA 674

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015)

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

Direction No. 75, Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b)

REASONS FOR DECISION

Senior Member Chris Puplick AM

7 November 2018

1. As will become apparent from the discussion which follows, this case presents an exceptionally difficult challenge to the Tribunal in weighing the competing considerations which present themselves. There is much weight both for and against the Applicant’s appeal that the Tribunal revoke the cancellation of her visa and any decision must be fraught with the possibility of failing to get the balance or calculus right.

   MS SMITH’S VISA HISTORY

2. Ms Alecia Louise Smith (“the Applicant”) was born in Auckland, New Zealand in April 1982. She arrived in Australia on 6 January 2001 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa and apart from a two week trip back to New Zealand she has resided here ever since. [1]

   [1] Adapted from Respondent’s Statement of Facts, Issues and Contentions dated 8 October 2018

3. On 7 August 2008 the Department indicated to the Applicant, who was then in custody at Dillwynia Women’s Correctional Centre that her offending behaviour had come to their attention and that consideration was being given to the cancellation of her visa. Apparently there was some response to this notification (no material is actually before the Tribunal) because on 7 January 2009 the Department advised that after further consideration a decision had been made not to cancel the Applicant’s visa.[2] She was advised that she was on notice that further offences could lead to visa cancellation and she acknowledged this, signing an appropriate form on 25 February 2009.[3]

   [2] Section 501 – G Documents at [77-78].

   [3] Ibid at [80].

4. Apparently there was a second warning notice issued[4] (details are not before the Tribunal) which was acknowledged again by the Applicant on 24 August 2010.[5]

   [4] See Delegate’s decision record at Section 510 – G Documents paragraph 28 at page [14].

   [5] Section 501 – G Documents at [81].

5. On 17 January 2018 a delegate of the Minister revoked her visa on the grounds that she failed the character test as set out in section 501(3A) of the Migration Act 1958 (the Act) due to her having a “substantial criminal record” as defined in that legislation.[6]

   [6] Section 501 – G Documents at [83-87].

6. On 1 February 2018 the Applicant sought a review of that decision which was nevertheless affirmed by the Delegate on 16 August 2018.[7] It was from that decision that the Applicant sought review by this Tribunal on 26 August 2018 and her case was heard over a two day period on 23 and 24 October 2018. Under the provisions of the Act a decision must be made by the Tribunal by 9 November 2018, failing which the original decision of the Delegate is taken to have been affirmed.[8]

   MS SMITH’S PERSONAL HISTORY[9]

   [7] Ibid at [7-18].

   [8] Section 501(6L).

   [9] This narrative is derived from two Statutory Declarations made by the Applicant dated 15 October 2018; 27 September 2018, together with the Applicant’s Statement of Facts, Issues and Contentions dated 17 October 2018.

7. It would be fair to say that, on the evidence presented, the Applicant’s personal history is a cycle of tragedy and trauma. Without reciting the whole of the evidence given in this regard it is perhaps most useful to outline that personal history by way of brief highlighting.

   ·The Applicant has 10 other full or half siblings (7 girls and 4 boys) born to her mother (Carla Maan) by a variety of fathers. She claims that she has no ongoing relationship with either her mother or any of the siblings.

   ·The Applicant states that her biological mother, at the time of her birth, was a member of a Black Power gang (the Manukaha Sisters) and was “heavily involved in prostitution, cultivation and distribution of cannabis in various forms.”[10]

   [10] Applicant’s Statutory Declaration of 27 September 2018.

   ·Before she was one year old the Applicant’s mother was arrested and she was placed in some sort of foster care with Ms Cheryl Smith (her “adopted mother”) who was both a friend of her biological mother and apparently a senior social worker. This Ms Smith had her own children, both biological and fostered.

   ·The Applicant spent time alternating in the custody (it would be too generous to call it care) of Ms Maan – who was involved with drugs, prostitution and gang activity and Ms Smith – who was apparently something of a martinet.

   ·At the age of eight the Applicant attests that she was abducted and raped by three men, with the suggestion that this was some manifestation of gang activity. She further attests that two of her female siblings were raped by their biological uncle and that her mother knew about this but said or did nothing. Certainly no reports were made to the New Zealand police or welfare authorities.

   ·At about the same time her mother introduced her to the use of cannabis (allegedly to help her sleep) but by the time she reached age 15 she had used numerous illicit drugs (other than heroin) and was effectively addicted to cannabis.

   ·Again at age 15 she fell pregnant to a person (Warren Taipari) with whom she was then living, together with other members of his family. Her daughter Marlene was born in October 1998.

   ·Her relationship with Mr Taipari soon descended into one of controlling and violence which persisted for many years and which resulted in the Applicant being subject to regular and violent beatings. She was even beaten while pregnant.

   ·Nevertheless the Applicant moved to Australia with Mr Taipari and daughter Marlene in 2001. They lived on the Central Coast of New South Wales. However the violent relationship continued and included the Applicant being beaten when she failed to procure drugs for her partner and his cousin. He was charged and convicted of the offences of Common Assault and Assault Occasioning Actual Bodily Harm.[11]

   [It is worth interpolating here the details of this incident to which subsequent reference will be made. In her Statutory Declaration of 27 September 2018, the Applicant writes:

   “The last time Warren hit me was in 2005 when we lived in Woy Woy. I was asked by Warren to drive and get some pot for his cousin Crystal from a dealer in Woy Woy. He was pretty drunk and I had no choice but to drive his car and get some pot for his cousin. Unfortunately on the day the dealer was out of pot. When I returned home and told him that I wasn’t able to get any. He went ballistic, he punched me and kicked me with his steel cap boots and threatened to chop me up. As he ran into the kitchen to get a knife, I ran from the house to the nearby Woy Woy Private Hospital for help. Because of the terror of what I had been though and out of any energy, I collapsed at the door of the hospital.”]

   ·Sometime in 2007 the Applicant ended her relationship with Mr Taipari (who apparently relocated to Townsville, Queensland) but very soon thereafter entered into a relationship with Mr Billy Collins. It appears that Mr Collins was little better than Mr Taipari, that he had mental health issues and was threatening to the Applicant. After a period of only some two to three months she left this relationship but Mr Collins started to stalk her. She reported this to the Police but the behaviour continued, making her feel unsafe and paranoid.

   ·Some years later (apparently in late 2010 or early 2011) the Applicant entered another relationship, this time with Mr Selcuk Diskrirk. He was a married man, something apparently not known to Ms Smith at the time she commenced their relationship.[12] The Applicant told her psychologist[13] that Mr Diskirik was “obsessive” and that “he introduced and fed her with methamphetamine”.[14] She reported that she was regretful about taking these drugs as she had been “clean” since the time of her pregnancy up until that point.

   ·This relationship lasted some 3.5 years until 2014 and again the Applicant found that Mr Diskirik also stalked her and followed her around whenever she left the house, causing her to become scared of doing so.

   ·On 16 February 2015 the Applicant entered the Guthrie House residential programme designed to help people manage their transition from custody to the community and completed the programme in question at the end of May 2015 when she moved into a transitional property until she secured her own private accommodation. The Guthrie House Case Manager attests to her successful completion of the programme and her abstinence during it.[15]

   ·In July 2016 the Applicant started work as a cashier at a strip-club (The Love Machine) in Kings Cross, Sydney. There she met Mr Laith Habeebeh and in due course they established a relationship and commenced living together in December 2016.[16] [The relationship with Mr Habeebeh forms a subsequent part of these statement of reasons.]

   [11] Police Report dated 11 September 2006 at Tender Bundle [69-70].

   [12] Applicant’s Statutory Declaration dated 15 October 2018 at paragraph [27].

   [13] The status of this report is discussed below.

   [14] Clinical Report of Ms Lois Li, psychologist, dated 9 October 2018.

   [15] Applicant’s Submission Attachment 35 at page [108-109].

   [16] Letter from Mr Laith Habeebeh to Department of Immigration dated February 2018, G Documents at [69]. Mr Habeebeh gives the date as June 2016 whereas Ms Smith gives it as July 2016 in her Statutory Declaration 15 October 2018. The latter date appears correct in terms of the time of Ms Smith’s release from custody.

8. There is a further aspect of Ms Smith’s life which her legal representative was at pains to emphasise to the Tribunal and that related to her various periods of homelessness. While it is not possible to establish any of these dates with great certainty or precision, it appears that the Applicant was homeless for the following periods:

   o1984 a period of ten months;

   ofrom September 2006 until sometime early in 2007;

   o2008/9 in the periods that she was not in custody;

   ofrom around November 2013 until late (perhaps November) 2014;

   o2107 for a period of one or two months.

9. It is, of course, not possible to verify many of the matters listed above. That is not surprising given their nature and the intimacy of many of the details exposed. However the Tribunal must take note of the fact that the matters in question were detailed in several sworn Statutory Declarations; they were repeated and tested in oral testimony given under oath and subjected to cross-examination; and the substance of them was not seriously challenged at any stage by the Respondent. The Tribunal is thus inclined to accept them as a true reflection of the lived experiences of the Applicant.

   MS SMITH’S RECORD OF DRUG USE

10. The Applicant has attested that she was first introduced to the use of drugs when she was around 8 years of age and her mother (who was a drug dealer) began giving her cannabis to help her sleep and to deal with the trauma of having been raped/sexually assaulted. She apparently then used multiple drugs (not including heroin) until she was about 15 years of age, and by that stage she was addicted to their use, especially cannabis.

11. She claims that once she fell pregnant she made the effort to get “clean” and that she managed this on her own. She relapsed into the use of drugs (methamphetamine) during her relationship with Mr Diskirik around 2010/2011. She was part of a programme under the supervision on the NSW Drug Court (see below) but did not complete the course. She continued using drugs until her most recent period of incarceration ending in January 2018.

12. She denies using drugs during her periods of incarceration either in custodial or immigration detention despite, as she told the Tribunal “drugs being easier to get on the inside than outside”. However records of the Department of Corrective Services indicated that she admitted to possession of a syringe while in custody in January 2018.[17]

    [17] Tender Bundle at [181] and [191].

    MS SMITH’S RECORD OF EMPLOYMENT

13. There is no doubt that when she has been able to work, the Applicant has made a conscientious effort to do so.

14. Shortly after her arrival in Australia she obtained work at a tele-marketing organisation in Gosford. She then worked at Mediterranean Seafoods in Woy Woy but her employment ceased after she was found to have stolen from her employer. She moved from there to work in a kebab and deli shop in Ettalong before working at another seafood establishment in Woy Woy, owned by a person whom she had met at Mediterranean Seafoods and who came to place a high value on her as an employee.[18] She then worked intermittently in various local restaurants during 2007 and 2009.

    [18] Mr Hallacoglu – see below regarding references.

15. These periods of employment were broken by periods of incarceration leading to another job in a data entry firm while she was participating in the Drug Court programme, again terminating with incarceration.

16. Upon release in July 2016 she worked as a cashier in the Love Machine (see above) until that establishment closed, whereupon she commenced working in her new partner’s tobacconist in Penrith and Windsor.

    MS SMITH’S CRIMINAL RECORD

17. It cannot be denied, disputed or disguised that the Applicant has an extensive criminal record in terms of appearances before the courts and convictions. Her offences began in 2002, shortly after her arrival in Australia when she was 20 years of age. They continued intermittently until her last conviction in August 2017.

18. In total, the Applicant has been found guilty of some 59 offences. The Tribunal does not need to detail every one, it suffices to summarise them as follows:

    ·Driving offences (25 counts) including driving while disqualified; driving uninsured vehicle; breach of licence conditions;

    ·Break and Enter (3 counts);

    ·Dishonesty offences (3 counts): fraudulent misuse of stolen credit cards;

    ·Stealing (9 counts): including stealing from employers; goods in custody;

    ·Possession of prohibited drugs (6 counts);

    ·Making a false claim to the Police about being the victim of a sexual assault;[19]

    ·Having a knife (small silver flick-knife) in possession in a public place.[20]

    [19] Section 501 – G Documents, National Police Certificate at [71-72].

    [20] Section 501 – G Documents, National Police Certificate at [19-28].

19. The Applicant has served numerous periods of incarceration. Leaving aside remand and bail detention these are as follows:[21]

    [21] Tender Bundle at [189-191].

    ·21.09.2004 to 20.06.2005 – released to parole

    ·13.07.2007 to 27.07.2007 – granted bail at court

    ·30.10.2007 to 28.02.2009 – sentence expired

    ·04.12.2009 to 03.09.2010 – released to parole

    ·07.05.2014 to 03.11.2014 – released to Drug Court

    ·19.01.2015 to 16.02.2015 – released to Drug Court

    ·06.07.2015 to 20.07.2015 – released to Drug Court

    ·08.10.2015 to 29.10.2015 – released to Drug Court

    ·18.02.2016 to 03.03.2016 – released to Drug Court

    ·14.04.2016 to 22.07.2016 – released to parole

    ·01.09.2017 to 31.01.2018 – released to parole

    ·31.01. 2018 to present – taken into and retained in Immigration Detention.

1. Overall the range of imprisonment sentences for various offences has ranged from 2 months to 2 years and 6 months.

2. It should be noted that while there have been minor infractions of prison rules; the Applicant has not committed any serious offences while in custody or immigration detention.

3. It can be seen that the overwhelming preponderance of these offences relate to the Applicants persistent and habitual disregard of the traffic laws in terms of driving without a licence and while disqualified from holding one. This is a matter for subsequent consideration by the Tribunal.

4. In submissions, the Respondent drew the attention of the Tribunal to: [22]

   ·The sheer number, gravity and regularity of the offences;

   ·The regular provision of false names and details to police when apprehended for driving offences;

   ·What the Respondent characterises as an increase in seriousness of the offences over time;

   ·The financial harm occasioned by the persons whose credit cards were stolen and misused;

   ·The nature of the stealing offences being thefts from employers and involving sums of up to $13,350.[23]

   [22] Respondent Statement of Facts, Issues and Contentions at paragraphs [22-26].

   [23] Tender Bundle at [74].

5. Perhaps most tellingly the Respondent indicated that 31 offences had been committed after the Applicant received her first warning letter and 28 after the second. Clearly they were committed knowing that their commission carried a possible sanction of loss of visa and thus the serious possibility of deportation.

6. The Applicant in her submission points out that:

   ·On each occasion that she was charged she pleaded guilty at first instance

   ·None of the offences involve acts of violence

   ·In none of the offences did any third party suffer any injury or harm

   ·None of the offences involved any degree of sexual violence

   ·All of the drug related offences were related to possession offences and none involved selling or distributing drugs.

7. The Tribunal has had the opportunity to read some of the various sentencing remarks by the presiding judicial officers.

8. Magistrate Beattie in 2007 acknowledged that the Applicant had a variety of drug and alcohol issues but that she had failed to take advantage of offered drug rehabilitation programmes.[24]

   [24] Section 501 – G Documents at [29-34].

9. Magistrate Viney in 2010 accepted that she should take into consideration the Applicant’s troubled personal history but warned that she should consider herself “on notice” about future offending and what impact further incarceration might have on her daughter.[25]

   [25] Ibid at [35-36].

10. Judge Barnett in 2016 noted that the Applicant had made serious efforts to rehabilitate herself in terms of drug using, had attended at Odyssey House and Guthrie House and completed Phase Two of the Drug Court programme but had relapsed and failed to qualify in its course of treatment. His Honour gave her credit for a genuine attempt to achieve the goals of the Drug Court programme and imposed his sentence on the basis that the Applicant had “good prospects of rehabilitation”.[26]

    [26] Ibid at [37-43], specifically at [42].

11. Magistrate Schurr quashed her habitual traffic offender declarations (noting a change in the law) although confirming that she was disqualified from driving until 2023 and commented that “There is no doubt there is ongoing problems to get away from the cycle of offending.”[27]

    [27] Ibid at [44-46], specifically at [44].

    MS SMITH’S DRIVING OFFENCES

12. It is clear from the above that the majority of instances where the Applicant has found herself in breach of the law relates to traffic and driving offences. She is a habitual offender in terms of driving while disqualified.

13. There are however some confusing aspects of this matter.

14. There is no doubt that the Applicant enjoys driving and there is no evidence (apart from one speeding offence) that she is a particularly dangerous driver or that her driving offences have caused any harm or damage to people or vehicles. The report of psychologist Ms Lois Li states that the Applicant “enjoyed driving because it gave her the feeling of freedom which she never experienced in her life even though she knew it was wrong to drive without a license.”[28] Ms Li does not come to any diagnostic conclusion about the Applicant’s alleged paranoia in this regard.

    [28] Clinical Report of Ms Lois Li, psychologist, dated 9 October 2018 at page [6].

15. The Applicant herself states that the reason she drove was that she developed a paranoid fear of using public transport because at least two of her previous abusive male partners had stalked her and followed or observed her using public transport. In her Statutory Declaration of 15 October 2018 she attests that after one particularly severe beating from Mr Taipari:

    “(19) …. He was eventually given $200 fine by the court and let out into the community after two weeks. Since that day I have never ever been able to feel safe. I know he followed me around after coming out and I knew that he would have wanted my head for getting him arrested and charged. After that incident I was always paranoid and constantly on the look out. He knew where I worked and from that point my fear if being followed and potentially killed prevented me from being in public places……”

    “(20) I was practically homeless at that point, living in cars or wherever I found a bed to sleep. I started to take a lot more drugs to cope and often drove unlicensed because of my fear of Warren. It was this reason that I had been caught so many times while driving in 2007 as I never felt safe and whenever I was caught I was always in possession of drugs.”

16. On the other hand there is a statement in the Applicant’s Statutory Declaration of 27 September 2018 to the effect that:

    “Every time I tried to turn my life around, I would relapse and the drugs would have a better of me (sic). I didn’t trust service providers that assisted drug and alcohol addicts as they would put you on more drugs to get rid of the addiction. On the other hand drugs were easily available to a young single mother who was seen as an easy prey. They would often offer me drugs in return for other favours and those favours included, driving then from place to place so they can do what they needed to.” (para 30).

17. There is no explanation as to who “they” might be in this latter context although in oral evidence to the Tribunal the Applicant implied “they” were friends or associates of Warren’s and it is to be remembered that she was forced by Warren to drive to pick up pot from a local dealer on behalf of a “cousin”, curiously in these circumstances called “Crystal”.

18. Under questioning the Applicant denied that this driving as a favour in return for the supply of drugs involved any further drug-related activity. In response to questions from her representative she denied ever seeing sums of money or drugs in any of the cars which she drove which, apparently, were not hers. She says she just drove them from place to place to “do what they needed to.”

19. From the Tribunal’s point of view this stretches the limits of credulity but that was the evidence given under oath and not further challenged by the Respondent.

20. The Tribunal thus has evidence to the effect that:

    (a)The Applicant enjoyed driving and found it liberating;

    (b)She only started to drive while disqualified to avoid using public transport because of a paranoid fear of being stalked, she says by each of her three former abusive partners;

    (c)She drove unnamed persons around on unspecified business in return for the supply of drugs for her personal use.

21. Frankly, none of this makes very much sense to the Tribunal. For the Applicant driving is thus a liberating and enjoyable experience, undertaken in part because of paranoid fears but also involving a service in return for drugs. It seems impossible for the Tribunal to come to any conclusion on this matter which is supportive of the Applicant’s exculpatory explanations for repeated offence of driving while disqualified.

22. Driving offences are not to be regarded as trivial matters, and the Tribunal does not do so.[29]

    [29] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 at [53].

    MS SMITH AND MARLENE TAIPARI

23. Although the Applicant’s daughter Marlene Taipari, is no longer a minor, having turned 18 in October 2016, the nature of the relationship between mother and daughter is, in this instance, of central importance in a number of respects.

24. In relation to her daughter, the Applicant states:

    “That because of her (the Applicant’s) actions, she (Marlene) “has self-harmed and is fragile”[30]

    “I know I have had many chances in the past, I have both my hands out to ask for one last chance for me, my daughter, for my partner and my family. If I was deported to New Zealand, it will be like signing mine and my daughters death warrant. My daughter is prone to self harm and she needs me to be with her to support her through life. When I was transferred to Villawood detention Centre, she cut up her wrist and was taken to Concort (sic)[31] Mental Hospital where she was admitted for the night, put on medication to calm her down. Its for this reason I have refused her offer to attend the hearing and give evidence in person as I know that she will not be able to bare (sic) the stress of the situation that I found myself.”[32]

    “If my daughter was to leave with me. She will suffer even more as I will not be able to provide and care for her. She does not have the financial means to simply relocate and start her life again. She also suffers from severe depression, anxiety and has the tendency to self harm. She is currently working full time at a day care and is being supported by my fiancé and his family which support will never be available to her in New Zealand. She has been here since she was 3 and has all her friends in Australia. Therefore it would be impossible for me to give her the support that she needs to deal with her mental health issues, to support her financially and provide for her on an on-going basis in New Zealand. Furthermore she is studying in Australia and if she was to move with me, she will need to leave behind her full-time job and her education, both of which are essential for her mental well-being.”[33]

    [30] Applicant’s Statutory Declaration, 15 October 2018 at [6].

    [31] Concord

    [32] Applicant’s Statutory Declaration, 15 October 2018 at [53].

    [33] Ibid at [55].

25. The psychologist (Ms Lois Li) conducted a face-to-face interview with Marlene who described her relationship with her mother as “more like a friend than a mother.” She stated that her relationship with the Applicant was complex in that she had lived with her father and step mother from age about 5 until 13 years during which time she had little contact with the Applicant. She went on the say that Ms Smith found her eventually in Facebook and that they had re-established a relationship during which she had become more understanding of Ms Smith. She had met Mr Laith Habeebeh and, after initial concerns, now accepted her mother’s relationship with him as a positive development. Finally she agreed that she would be willing to offer Ms Smith emotional support but “she also mentioned might be half and half because Ms Smith did not keep her promise.”[34]

    [34] Clinical Report of Ms Lois Li, psychologist, dated 9 October 2018 at page [6-7].

26. It appears that this latter reference is to Ms Smith promising not to re-offend but then doing so.

27. However what Ms Li’s report does not show is that Marlene expressed any degree of concern about needing the support of her mother in dealing with her own issues.

28. Members of the Habeebeh family, in their written letters of support for the Applicant make no specific mention of Marlene or her relationship with her mother. However when cross-examined on their knowledge of Ms Smith and her family they all stated that they had at least met Marlene and were aware of a closeness of mother and daughter.

29. There is one reference (Ms Alicia Tohi) which does attest to personal knowledge of Marlene and her mother going back over several years. It describes the relationship as a “normal” one for mother and teenage daughter and goes on to refer to Marlene as “employed and contributing to Australian community.”[35]

    [35] Applicant’s Submission at [82-83], reference of Ms Alicia Tohi dated 23 September 2018.

30. There is some independent evidence in the form of Police Reports[36] of Marlene’s suicidal ideation and her previous attempts at self-harm and some detailed medical records (including a mental health assessment) from the Resident Medical Officer at Concord Hospital where she had been transferred by the Police in July 2018 due to their concerns about her potential suicide.[37]

    [36] [36] Applicant’s Submission at [165-166], Request by a Member of NSW Police Force for Assessment of Detained Person, dated 19 July 2018.

    [37] Applicant’s Submission at [168-176].

31. Both of these latter assessments refer to the fact that Marlene’s feelings of depression and her suicidal ideations arose in large part due to the fact that both her mother (Ms Smith) and her then partner (Mr Sarwan Aljhelie) were in immigration detention at Villawood. Although Ms Smith remains detained, tragically Mr Aljhelie committed suicide in September 2018. It appears that Mr Aljhelie had a record of previous suicide attempts in immigration detention and finally took his own life after being transferred away from all elements of family support from Villawood to the Yongah Hill immigration detention centre in Western Australia.[38]

    [38] Applicant’s Submission at [138-143], article from The Guardian newspaper, “Suicide in detention: family wants answers after Iraqi man dies after four attempts.” 11 September 2018.

32. For reasons stated above by the Applicant, Marlene was not called to give evidence before the Tribunal. While this might be understandable, the Respondent, rightly in the view of the Tribunal, pointed out that it would have been possible for her to provide a written statement in support of her mother. The evidence from both Ms Tohi and members of the Habeebeh family is that Marlene is quite capable of independent living; she is employed and appears to be a contributing member of the community.

33. The failure to provide even a short letter or statement of support from Marlene, let alone a more comprehensive document for the Tribunal outlining her position and relationship with the Applicant is a matter of concern. The Applicant’s primary submission to the Tribunal was detailed and comprehensive, running to several hundred pages and including a great deal of material relevant to the Tribunal’s deliberations. The Applicant had the assistance of highly competent advisors throughout, who, in the opinion of the Tribunal, could have sought input from Marlene. Its absence has made the task of the Tribunal more difficult than might otherwise have been the case, but the Tribunal accepts that it is entirely up to the Applicant to determine how they seek to present their case and decide on the material they wish to put before the Tribunal.

34. The absence of anything direct and specific from Marlene, when combined with some of the comments of the consultant psychologist lead the Tribunal to be inclined to place far less weight on this contention in support of the Applicant than her representative urged upon it.

    MS SMITH AND MR LAITH HABEEBEH

35. Mr Laith Habeebeh was born in January 1990 in Jordan and came to Australia with his parents when he was a few months old. He is a naturalised Australian citizen.

36. Ms Smith met Mr Laith Habeebeh in June or July 2016[39] when he was managing the Love Machine strip club in Kings Cross and she took employment as a cashier. They became friends and this then developed into an intimate relationship. The couple began cohabiting in December 2016[40]. In evidence the Applicant indicated an intention to marry and this was confirmed in both in written[41] and oral testimony by members of Mr Laith Habeebeh’s family.

    [39] See footnote (16) above.

    [40] Section 501 – G Documents at [69], statement of Laith Habeebeh dated February 2018.

    [41] For example see Section 501 – G Documents at [70], letter of Z. Habeebeh dated 14 March 2018.

37. Formal details of Mr Laith Habeebeh’s own criminal record are not before the Tribunal, but it appears that he has had a number of interactions with the justice system involving offences related to driving, possession of marijuana, providing false identity details and possession of cocaine. He admits to being addicted to methamphetamines and to being a long-term drug user.[42] It appears that towards the end of 2016 he was charged with the ongoing supply of methamphetamines which he was providing from one of the family tobacconist shops. Further it appears that he was sentenced to a term of imprisonment of 18 months, but served a shorter term and was paroled in or about April 2017, placed on parole for two years and placed on an Intensive Corrections Order.[43]

    [42] Laith Habeebeh, Statutory Declaration dated 16 October 2018 included in Applicant’s Submission.

    [43] Section 501 – G Documents at [169], case note reports, Department of Corrective Services.

38. There was a further incident in June 2017 when both the Applicant and Mr Laith Habeebeh were questioned by the Police about entering boarded-up premises in which residual supplies of drugs were found. It appears that the Applicant had been squatting in the premises and had returned to remove some of her personal items left there, although the place (belonging apparently to the public housing authorities) had been boarded-up. A police record indicates that Mr Laith Habeebeh was charged with some offence arising from this[44] (which would have been during his period of parole) but there is no record before the Tribunal of any outcome of these proceedings, although clearly, they did not result in any custodial sentence or parole revocation.

    [44] Section 501 – G Documents at [47].

39. In evidence Mr Habeebeh indicated that he had completed his parole responsibilities and obligations and that he was seeing a psychiatrist twice a month to help deal with his drug addiction problems. He conceded that he had been an addict but that he was now clean and determined to stay so.

40. Both in written and oral testimony he detailed his strong relationship with and love for the Applicant. He indicated that she had become a positive contribution to his life and was helping him deal with his drug problems. He asserted that the Applicant was very much accepted as a member of the Habeebeh family and that they were committed to a life together, marriage and the commencement of a family.

    THIRD PARTY EVIDENCE ON BEHALF OF MS SMITH

41. The Applicant submitted a number of references in support of her application and called a number of witnesses to give direct testimony.

    (a)Written and Oral Testimony:

    oHabeebeh Family[45]: a letter was provided signed by five members of the Habeebeh family who are related to Mr Laith Habeebeh, the Applicant’s fiancé. The signatories are his mother (Nibal), his father (Zuhair), his two sisters (Janine and Lucinda) and his brother (Jacob). The gravamen of the letter is to the effect that the family is highly dependent upon Laith Habeebeh to run and manage one of their major sources of family income, a tobacconist and gift shop in Penrith. They attest that Alicia has made a positive contribution to Laith’s life and has been of help to him in overcoming his own problems of drug addiction and rehabilitation. In their letter they talk of the marginal financial nature of their business and state that they need Laith to manage the shop because “we cannot afford to employ anyone” to assist with this process.

    [45] Applicant’s Submission at [106-107], reference of Habeebeh family dated 10 October 2018.

    oZuhair Habeebeh[46]: He has known the Applicant for 3 to 4 years and occasionally visited her in Silverwater Women’s Prison, although not at Villawood. As a witness he stated that he knew something of the Applicant’s criminal history; was aware her daughter “had mental health problems”; was an active partner in the management of the family business and would certainly employ the Applicant, regardless of her criminal history. He reported that he and his wife were in the process of separating and that this imposes additional burdens on his son in relation to both care of his mother and management of the family business interests.

    [46] Written reference at Section 501 – G Documents, [70] and Applicant’s Submission at [81].

    oNibal Habeebeh[47]; She describes herself as “a very religious person of the orthodox faith” who has known the Applicant for 2 years and “see(s) her as my own daughter”. She reports that the Applicant has had a major impact on her son and has helped him “not to do drugs today”. When pressed by the Respondent about her willingness to employ the Applicant in the family business she evidenced some difficulty in reconciling her stated willingness to do so with the clear reference in the Family statement that the business could not afford any further employees.

    [47] Applicant’s Submission at [89].

    oLucinda Habeebeh: She is employed as a mortgage vendor at the Commonwealth Bank; she knew something of the Applicant’s criminal history but was anxious to stress the positive impact the Applicant had had on the rehabilitation of her brother, Laith.

    oJanine Habeebeh[48]: She is a solicitor recently admitted to practice. She provided testimony demonstrating that she knew a considerable amount about the personal background of the Applicant and some degree of her criminal history. Her testimony was of particular interest in that she indicated that her brother, Laith, had caused strained relationships in the family (especially with her) because of his drug use and offending and she was of the opinion that both the Applicant, and her brother were at risk of relapsing into drug offending behaviour in the absence of mutual support for each other. She confirmed that family’s intention of giving the Applicant employment in the family business and stated: “I believe that Alecia will immediately use a last chance granted to prove to herself and others that she can in fact be a productive member of our society.” She raised, in her written submission that the Applicant had expressed to her a fear that members of a New Zealand gang “are still looking for her”.

    [48] Applicant’s Submission at [90-91].

    oAlicia Tohi[49]: She is a family friend of the Applicant and got to know her through her daughter Marlene. She has kept in touch with the Applicant during the latter’s incarceration and regards her as a person who has genuinely come to understand her past behaviour and expresses genuine remorse about it. She believes that the Applicant would have a strong chance of rehabilitation because, “this would be the first time in her life that she has family support from her daughter and her fiancé and his parents.” She believes that the Applicant’s presence is important to Marlene “who suffers from mental health problems”; although in her oral testimony she confirmed that Marlene was living independently and managing her life quite well.

    oMalik Hallacoglu[50]: He is a former employer of the Applicant who provided two written references and gave oral evidence by telephone. It was clear from his evidence that he held the Applicant in this highest regard as an employee and found her to be highly motivated, competent and hard-working. He has known the Applicant over a 15 year period and although not fully aware of all her convictions, when they were put to him and when he was asked if he would employ her again, he showed no hesitation in stating that he would do so without qualification and do so immediately. He indicated that he generally supported government policies to cancel the visas of people who had committed serious crimes (gang violence, crimes against the vulnerable, armed offences) but in the Applicant’s case he stated “But as Australians, we are fair and reasonable people. We are a nation that sympathizes with people that have had a rough and traumatic childhood. The scourge of drugs is well known to break families down within our community and rather than being a threat, we need to help this young women (sic) find her feet.”

    (b)Written testimony only

    oVictoria Nicholson[51]: She met the Applicant when they were both in custody at Dillwynia Correctional Centre and writes now as a grandmother undergoing treatment for breast cancer. She wrote that she has known the Applicant for over a decade and finds that she is a reformed character with a commitment to keeping drug-free, building her personal relationships and caring for her daughter.

    oJoanne Kerr[52]: She is a member of “Hillsong United” and wrote that the Applicant “used to be a very active member of the church’s Sister Hood United program” and that when she participated she was a valuable member of that organisation.

    oGaspero Ladrov[53]: He is a former employer of the Applicant (Well Get You There) who wrote that she was a hard working employee who deserves a second chance to prove her worth to the community.

    oAxel Anthonisz[54]: He was the Applicant’s case manager at Guthrie House and wrote that the Applicant successfully completed their programme which is focussed upon transitioning women from custodial care back into the community. He was last in contact with her in January 2016 but during the period she was in their programme found her to be “stable, calm and motivated to achieve her goals.”

    oShop References[55]: Laith Habeebeh provided a series of pro-forma letters to be completed by people coming into his tobacconist at Windsor which asked them to state that they had known the Applicant during her period of employment there, that they knew of her offences and her period of incarceration but that they nevertheless believe that she should be given a chance to remain in Australia. There were seven such pro-forma letters.

    [49] Applicant’s Submission at [82-83].

    [50] Applicant’s Submission at [99-105].

    [51] Applicant’s Submission at [85-86].

    [52] Applicant’s Submission at [92].

    [53] Applicant’s Submission at [219].

    [54] Applicant’s Submission at [108-109].

    [55] Applicant’s Submission at [110-123].

1. It is always difficult for the Tribunal to determine the exact degree of weight to be given to any individual or set of references in support of applications such as this.

2. In relation to the Applicant’s witnesses the Tribunal has come to the following conclusions:

   (a)Members of the Habeebeh family are genuine in their support for Ms Smith, although it is clear than none of them was aware fully of the extent of Ms Smith’s offences nor the full record of her times in custody. However it is equally clear that the basis of this support is primarily because they see Ms Smith as a positive influence on Laith and it is because of that concern that they are anxious for her to remain in Australia. Although they all profess a willingness to employ her in the family business there must be, on the basis of the evidence, some doubt about the financial viability of this if she were to be paid on a full-time basis at award wages.

   (b)Ms Tohi’s evidence is useful in the extent it establishes both that Ms Smith would have future support that she has never had in the past and that her daughter is indeed far more capable and independent than some other witness suggest.

   (c)Mr Hallacoglu’s evidence was perhaps, the most persuasive, both in its written form and in his oral testimony. Both his knowledge of the Applicant and his familiarity with the general extent of her offending, his openness about employment of people with criminal records (including stealing from employers) and his general attitude towards the balance of giving “deserving” people a second chance as distinct from those committing “serious” offences weighed heavily in the Tribunal’s subsequent deliberations.

   (d)Ms Nicholson, Ms Kerr, Mr Ladrov and Mr Anthonisz evidence is formal and adds very little of value to the Tribunal’s deliberations.

   (e)The Shop References may be discounted as essentially meaningless.

   MS LI’S ASSESSMENT OF MS SMITH

3. The Tribunal also had before it a psychologist report from Ms Lois Li (Hurstville Medical Centre). This document is somewhat problematic. Ms Smith was referred to Ms Li by her migration agent (Mr Ziya Zarifi, who appeared on her behalf before the Tribunal). The report is dated 9 October 2018 and is based on three phone interviews with Ms Smith, one with Mr Laith Habeebeh and one with Mrs Nabil Habeebeh plus a face-to-face interview with Marlene. In addition Ms Li had before her documentation by way of five letters of support or character references from members of the Habeebeh family and a Statutory Declaration from Ms Smith. Ms Li administered six standard psychometric assessments and made findings in relation to each of them together with her general conclusions and opinions.

4. The Respondent asked for Ms Li to be called as a witness but this proved not to be possible within the time constraints of the Tribunal’s hearings. As such there was some objection raised by the Respondent to the inclusion of this report as material before the Tribunal. But on the basis that it had been submitted within the time limits imposed by the Act[56], the Tribunal decided to admit it.

   [56] Section 500 (6H).

5. Nevertheless as the Respondent correctly pointed out, this document must be taken to be of only marginal utility. It is based upon self-reporting by the Applicant; there were no documents from the police, courts or correctional facilities presented to the assessor; the report contains no references to the Applicant’s significant record of substance abuse; it did not involve face-to-face interviews with the Applicant; the assessor was not available for cross-examination and assumptions about attendance at therapy sessions (as distinct from any which have been court mandated) were not supported by evidence.

6. The Tribunal has made use of this report only where it makes statements which have been capable of verification from other sources or where it involved direct evidence given by interviewees which was otherwise testable.

7. Having established the material before the Tribunal consideration must now be given to the legislative framework within which that material is to be assessed.

   THE LEGISLATIVE FRAMEWORK

8. Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   ... and

   (b)the person 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.

9. This visa cancellation process is mandatory.

10. Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:

    7For 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;

11. It can thus be seen clearly in relation to Ms Smith that the cancellation of her visa was an automatic process: she was serving a sentence of imprisonment and further, she cannot meet the required “character test” because that term of imprisonment was for a period greater than twelve months.

12. Once the original decision has been made the Minister must notify the person and give them an opportunity to respond.

13. Section 501CA of the Act outlines the process:

    1This 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.

    2For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)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.

    3As soon as practicable after making the original decision, the Minister must:

    (a)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

    (b)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.

14. It is up to the individual concerned to place before the Minister whatever information they think is relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:

    4The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)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.

    5If the Minister revokes the original decision, the original decision is taken not to have been made.

15. A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[57] This is the reviewable decision.

    [57] Section 501 – G Documents at [7]-[18].

16. In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.

17. In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction/Direction 65) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).

    MINISTERIAL DIRECTION 65

18. Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.

19. Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the tribunal into jurisdictional error.

    [34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.

    [35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[58]

    [58] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.

20. However this is not entirely a black and white or automatic process.

21. As far back as 1979 the Full Federal Court held that:

    “If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[59]

    [59] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].

22. In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[60]

    [60] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].

23. In 1981 the Full Federal Court warned that:

    “On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[61]

    [61] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].

24. In 1985 the Tribunal noted:

    “Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[62]

    [62] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].

25. In 1994 the Full Federal Court opined:

    “it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[63]

    [63] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].

26. Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):

    “…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[64]

    [64] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].

27. This Tribunal draws heavily upon the recent decision by Senior Member P W Taylor SC in Aciek,[65] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:

    7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case

    [35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.

    [65] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.

28. Because of her convictions, including the most recent conviction which was for a term of imprisonment in excess of twelve months, it is clear that Ms Smith cannot pass the character test as imposed under the legislation.

29. This then brings into operation the schema of Ministerial Direction 65 in order to establish whether or not “another reason” exists to revoke the Delegate’s cancellation of the Applicant’s visa.

30. In doing so it is important to note that the Tribunal must approach this matter de novo.

    THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER

31. The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[66]

    [66] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.

32. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:

    “The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[67]

    “The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[68]

    “The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[69]

    “….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[70]

    “The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[71]

    “Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[72]

    “…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[73]

    [67] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].

    [68] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].

    [69] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4^th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.

    [70] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472 at [72].

    [71] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.

    [72] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

    [73] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.

33. It is thus clear that although the original decision-maker has found Ms Smith not to be a person of good character and to have determined that she fails the legislated character test – as indeed they had no capacity to do otherwise - in this instance that decision leads to the consideration of whether or not there is “another reason” why the visa refusal should be set aside. The original decision-maker has determined that no such reason exists, so it is now for the Tribunal to make its own decision in that regard.

34. It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:

    “The weighing of various pieces of evidence is a matter for the Tribunal.”[74]

    “In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[75]

    [74] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.

    [75] Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 at [580] per Gummow and Hayne JJ.

    A NECESSARY PRELIMINARY CONSIDERATION

35. In her written statement to the Tribunal, Ms Janine Habeebeh, who is a solicitor admitted to practice in NSW wrote:

    “Alecia would always tell me she could never forgive her biological mother for raising her in the ‘black power sister gang’ as it significantly affected her upbringing. Her purpose for moving to Australia was to escape this life and she believes that members of this gang are still looking for her.”[76]

    [76] Applicant’s Submission at [90-91], statement of Janine Habeebeh dated 20 September 2018.

1. In Ms Smith’s own Statutory Declarations there is only one brief mention of gang-related matters when she writes: “My biological mother Carla Maan was part of the Black Power sister gang Manukaha Sisters….”[77]

   [77] Applicant’s Statutory Declaration, 27 September 2018 at [6].

2. Although the Applicant did not raise the issue of her fear of retribution or retaliation of some sort by members of a gang were she to be returned to New Zealand, the fact that the matter was put to the Tribunal by one of her witnesses, and raised in cross-examination requires the Tribunal to give it some attention.

3. The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear:

   “That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.”[78]

   [78] [2017] FCAFC 96 at [48]

4. Similarly, the courts have held that, “consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality”[79] must be considered when raised before the Tribunal.

   [79] Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11] per Jagot J.

5. Although directed to deal specifically with claims for protection visas (a matter not raised in this instance) Part 2 of Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017 makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers.

6. When this matter was being discussed in oral submissions, the Respondent made it clear that it did not accept that the Applicant had a genuine fear, or a “well-founded” fear of facing gang-related problems if returned to New Zealand. The Respondent suggested that were there any validity in concerns about New Zealand gangs they would have been potentially manifest during the Applicant’s time in Australia and would have formed part of the Applicant’s initial submissions for revocation of the visa cancellation.

7. The Tribunal adopts this point of view. Presumably the Minister of Home Affairs is well placed to comment on such issues as gang-related matters fall within its portfolio responsibilities and it is true that the Applicant herself has never raised such issues as part of her submissions.

8. The Tribunal believed that it was incumbent upon it, given the ruling in BCR 16 to consider this issue, and, having done so, finds it to be a matter without substance.

   MINISTERIAL DIRECTION 65 : PRIMARY CONSIDERATIONS

9. Having addressed that question, the Tribunal returns to the provisions of Ministerial Direction 65. It establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.

10. Three “primary conditions” related to revocation requests are set out as:

    ·Protection of the Australian community;

    ·Best interests of minor children in Australia affected by the decision; and

    ·Expectations of the Australian community.[80]

    [80] Part 13.

    Protection of the Australian Community

11. The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending.

12. After stating the general principles that decision-makers must be alert to the government’s commitment to protecting the Australian community from harm and the recognition that remaining in Australia is a privilege to be earned by appropriate behaviour[81], the Direction requires decision-makers to also give consideration to:

    (a)“the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[82]

    [81] Part 13.1(1).

    [82] Part 13.1(2)

13. The Direction draws attention to matters to be considered by a decision-maker as including[83]:

    oWhether the offences committed were serious, violent and/or of a sexual nature

    oWhether the offences were committed against vulnerable members of the community

    oThe frequency of the offences, the sentences imposed and whether there was an increasing level of seriousness of the offences and their cumulative effect

    oWhether false or misleading information had been provided to the department

    oWhether the offender had received prior warnings about the possibility of visa revocation for in the event of future offending

    oWhether offences had been committed in custodial or immigration detention facilities.

    [83] Part 13.1.1

14. Set against the criteria the evidence before the Tribunal suggests that:

    (a)The Applicant’s offences were not of a violent nature nor were they perpetrated against vulnerable people, nor were any of them committed in custodial or immigration detention facilities;

    (b)Although they were frequent, their cumulative impact was not significant and they did not display an increasing level of seriousness (this assessment is contrary to the assertions of the Respondent);

    (c)While false identity statements were made to the police they do not appear to have been made to the Department;

    (d)The Applicant had received at least two prior warnings from the Department.

15. The Tribunal is required to consider, as best it can, the likelihood that the Applicant will offend again and the seriousness of that reoffending should it reoccur. This, of course, is a highly speculative enterprise. However the High Court has established some guidance in this matter:

    “The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.

    ….

    Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide to what will happen in the future.”[84]

    [84] Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567 at [578] per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ

16. This has to be considered within the context of the evidence before the Tribunal in relation to the offences, their nature and frequency and the responses of the Applicant to challenges about their future conduct.

17. The wording of the Direction suggests clearly that the Tribunal must also undertake some form of risk-assessment in relation to the Applicant’s future conduct and its potential impact.

    Assessing Risk

18. There is guidance for this Tribunal in determining what constitutes “risk” in this context. This was provided by Deputy President Forgie in QKVH[85] as follows:

    The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:

    “... 1 the chance or possibility of suffering loss, injury, damage, etc; ..

    Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases.

    [85] QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 at [13].

19. The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration) [2018] AATA 732, the Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:

    “As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[86]

    [86] Fu (Migration) [2018] AATA 732 (3 April 2018) per Member Jan Redfern at [30].

20. The Tribunal notes that Direction 65 itself directs attention to what it states to be “an unacceptable” risk.[87] Clearly then, government policy recognises that there are some risks that are “acceptable”. Indeed the guiding Annex to the Direction refers to a “more than minimal or remote” chance before the provisions of the section are enlivened.[88]

    [87] The Direction at 13.1.2 (1).

    [88] The Direction at Annex A “Application of the Character Test”, section 6(2) “Risk in regard to future conduct (section 501(6)(d)).

21. Common sense demands no less – there cannot be any entirely risk free situations.

22. The Tribunal respectfully agrees with the comments of Senior Member M J McGrowdie in KDSP v Minister for Immigration and Border Protection to the effect, in relation to admittedly a different category of offence (as outlined by the Respondent), that:

    “The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.”[89]

    [89] KDSP and Minister for Immigration and Border Protection [2017] AATA 2169 at [36].

23. The Tribunal must rely upon the evidence before it in assessing the specific risk of re-offending. Siopis J expressed this as follows:

    “It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.”[90]

    [90] Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 at [133].

24. In the case of this Applicant, and bearing in mind her written statements and testimony, the Tribunal is inclined to believe that:

    (a)There is a minimal to low risk that she will reoffend in terms of committing offences that involve theft, dishonesty, stealing, misuse of drugs, making false claims or claiming false identity;

    (b)There is some possibility, which cannot be entirely discounted, that she will reoffend in terms of driving offences. If, in fact, the Tribunal is to take seriously her claims about the aetiology of her driving offences, there is no evidence before it that these conditions have ceased or are being addressed properly.

25. The Direction draws attention of decision-makers to the need to consider “the nature of the harm to individuals”[91] of future offending by the Applicant. That having been said, the Tribunal notes that none of the Applicant’s driving offences was of such a nature or involved outcomes that caused harm to anyone or indeed to any property.

    [91] Direction 65 at 13.1.2(2)(a).

26. The Respondent submitted to the Tribunal that it should take note of the decision of Tribunal Member K Parker in RCYW[92] where, in upholding the visa revocation, the Member laid emphasis upon the significance of drug-related and drug-using offences. With great respect to the Respondent, the facts in this case are materially different from those in RCYW where the offences committed were particularly serious, the applicant took no personal responsibility and sought to shift blame onto others and failed to acknowledge his illegal drug use at the hearing. None of those factors applies in this instance.

    [92] RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076 at [138], [142], [143].

27. Nevertheless the conclusion must be reached that this consideration weighs against the Applicant, although given all the circumstances, perhaps not with any sense of overwhelming impact.

    The best interests of minor children affected by the decision

28. The best interests of minor children affected by the decision: There are no such minor children whose position has to be considered in this instance. As such, the consideration counts neither for nor against the Applicant.

    The expectations of the Australian community

29. The expectations of the Australian community: Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.

30. The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:

    “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[93]

    [93] Direction 65 at 13.3.

31. This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.

32. In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[94] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.

    [94] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].

33. Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:

    “is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[95]

    [95] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.

34. Similarly Deputy President McCabe has stated:

    “The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[96]

    [96] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].

35. In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:

    “In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[97]

    [97] Ibid at [58].

36. In Murphy v Minister for Immigration and Border Protection[98], Senior Member P W Taylor SC wrote:

    [58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”

    [98] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.

37. The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[99] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.

    [99] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].

38. Deputy President McCabe in Do and Minister for Immigration and Border Protection[100] reflected on the question of second chances when he said that:

    A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.

    [100] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].

39. In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [101]since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.

    [101] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].

1. For the reasons which the Tribunal will elaborate in more detail below, it now comes to the conclusion that this consideration, although weighing against the Applicant on the sheer basis of the number and repetition of her offences, does so, as said above, not with any sense of overwhelming impact.

   MINISTERIAL DIRECTION 65 : OTHER CONSIDERATIONS

2. The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[102] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[103].

   [102] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].

   [103] Ibid at [26].

3. This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:

   “… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[104]

   [104] CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858 at [88].

4. The “other” consideration in the Direction, in relation to visa applications[105] are:

   ·International non-refoulement obligations

   ·Strength, nature and duration of ties

   ·Impact on Australian business interests

   ·Impact on victims

   ·Extent of impediments if removed.

   [105] Direction 65 section 12.

5. Turning to consideration of each:

   International non-refoulement obligations

6. There are no direct matters arising in relation to the potential return of the Applicant to New Zealand, other than the tangential issue of possible gang-related threats which the Tribunal has discussed and disposed of above.

   Strength, nature and duration of ties

7. The Ministerial Direction references a number of matters to guide decision makers. These include the length of time the applicant has lived in Australia and the age at which they arrived (specifically if they were a “young child”). Less weight is to be given where offending behaviour commenced shortly after arrival. More weight is to be given where the applicant has been making a positive contribution to the community. Finally there are considerations related to the applicant’s ties with Australian citizens or permanent residents.[106]

   [106] Direction 65 at 14.2.

8. In the Applicant’s case, she arrived in Australia aged 18 – not as a young child. She has lived half her life here and half in New Zealand. Her offending behaviour occurred within two years of her arrival. There is no evidence that she has made any sort of a positive contribution to the Australian community, although she has, for most of her time when not in custody, been a member of the workforce.

9. She has also sought, while in immigration detention, to reach out to offer her services as a volunteer to a number of charity and welfare organisations. To date nothing seems to have been forthcoming although these initiatives are of very recent date.[107]

   [107] Applicant’s Submission at [124-134].

10. There is no doubt that the Applicant has now developed strong family or social ties in this country. Her daughter Marlene was born in New Zealand of two New Zealand parents so is, presumably, a New Zealand citizen. She has only just turned 19 and there is no evidence that she has become an Australian citizen. Her exact resident status is unclear although all the evidence suggests that she regards Australia as her home (having arrived aged less than three years) and intends to remain here where she has employment, friends and some degree of social support. The Tribunal has explained that while the Applicant and several others seems to place great emphasis upon Marlene’s “dependence” on the Applicant, and while the prospect of a return to New Zealand is described (hyperbolically) as being akin “to signing a death warrant”, it does not accord this relationship the same degree of centrality as the Applicant claims. Nevertheless, the Tribunal accepts that it is an important relationship and one which should be recognised, especially from Marlene’s point of view. On balance, it does count positively in the Applicant’s favour.

11. The Applicant has some friends made either through her employment (such as Mr Hallacoglu) or through mutual custodial experiences (such as Ms Nicholson). Her ongoing ties with the church appear to have come to an end and are certainly not sufficient to count in her favour in this application.

12. It thus primarily turns on how the Tribunal regards the relationship with Mr Laith Habeebeh and members of his family. This relationship itself is only a little over two years in duration and for part of that time the Applicant and Mr Laith Habeebeh have been separated by experiences of incarceration or immigration detention.

13. There is no reason to doubt the sincerity of the members of the Habeebeh family when they say that they regard the Applicant as now forming part of their “family”, although as the Tribunal has noted, the overwhelming sense from their testimony is that this is because they see the Applicant as a good influence on their otherwise vulnerable son. Equally, there is no reason to doubt the sincerity or strength of the relationship between the Applicant and Mr Laith Habeebeh. The Tribunal accepts that they are in love and that they plan to marry.

14. It follows that the Tribunal must conclude that this is a consideration which, on balance, weighs in the Applicant’s favour. Moreover it should be accorded a reasonable degree of weight in that the loss of the relationship for Mr Laith Habeebeh would, in the opinion of the Tribunal, be both significant and detrimental to his ability to remain free from a future of further criminal offending. Separation would, in the view of the Tribunal, impact more upon this Australian member of the partnership than upon the other member in terms of long-term consequences.

15. The Tribunal also accepts that, given the recent separation of his parents, Mr Laith Habeebeh’s sense of responsibility for his mother and his financial responsibilities to the family, it would be onerous and unreasonable to expect that he would be able, with any degree of ease, to relocate himself to New Zealand to be with the Applicant were she returned there[108].

    [108] Laith Habeebeh, Statutory Declaration dated 16 October 2018 included in Applicant’s Submission.

    Impact on victims

16. There are no matters for assessment under this consideration. Although there have been victims of the Applicant’s dishonesty in both stealing from employers and from the fraudulent misuse of other people’s credit cards their position is not one which plays any part in the Tribunal’s deliberations.

    Impact on Australian business interests

17. This criterion is qualified by the Direction, to focus on impacts on businesses, via any employment link, where an adverse decision might “significantly compromise the delivery of a major project or delivery of an important service in Australia.”[109]

    [109] Direction 65 at 14.3(1).

18. In both Alam and Ayache the Tribunal considered submissions from applicants in relation to their employment position and the impact their removal might have on either this or the prospective position of their employer. In both instances the Tribunal dismissed or gave little weight to those submissions. In Mr. Alam’s case much of his career was in prospect rather than current and there was no evidence that he was involved in the delivery of any major project or service[110]. In Mr Ayache’s case the evidence did not demonstrate that his services were particularly pivotal to the business enterprise concerned.[111]

    [110] Alam and Minister for Immigration and Border Protection [2017] AATA 1233 at [75].

    [111] Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [84].

19. In this instance, while there are prospective employment offers for the Applicant from the Habeebeh family and from Mr Hallacoglu, neither of them comes anywhere near meeting the criteria as specified for this consideration and, as such, this matter cannot be taken into account in favour of the Applicant.

    Extent of impediments if removed:

20. The items of general guidance in the Direction refer to the re-establishment, in the country of return, of basic living standards, taking into account issues of the applicant’s age, health, language and cultural understandings and social, medical or economic support available in the receiving country[112].

    [112] Direction 65 at 14.5.

21. As a New Zealand citizen who is eligible for access to that country’s comprehensive health and welfare systems; as a young and fit person with no language or cultural barriers to face; with reasonable employment prospects in jobs similar to those held in Australia and with the experience of living in and growing up in New Zealand until early adulthood; the Tribunal cannot find that the Applicant would suffer any significant impediment on return, as outlined in the Direction.[113]

    [113] TeraEuna v Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Mrs J C Kelly.

22. Although the Applicant has family in New Zealand it is apparent that she has had nothing to do with them since her arrival in Australia, nor does she wish to do so. Given her family history the Tribunal finds this perfectly understandable. Her mother continues to have problems with her lifestyle and one of her sisters has was charged with serious offences arising from a confrontation with the New Zealand police which led to the death of an innocent bystander.[114]

    [114] Applicant’s Submission: article from New Zealand Herald on Sunday, 1 February 2009 at [214-219].

23. There is no doubt that returning to New Zealand would be difficult, although not impossible for the Applicant. It would however, in the opinion of the Tribunal be deleterious both to her own ongoing prospects for rehabilitation and would have a severely negative impact for her fiancé.

24. Because of this, and taken as a whole, this consideration weighs slightly in favour of the Applicant.

    CONSIDERATIONS

25. After consideration of all the matters specified in Direction 65 the Tribunal is required to make a “calculus” (to use the term of the Federal Court[115]) as to the outcome. Which way does the balance tip?

    [115] Contreras v Minister for Immigration and Border Protection [2015] FCA 47 at [52].

26. Among “primary” considerations, there is no doubt that both the protection and expectations of the community weigh, not fatally, against the Applicant, while the best interests of minor children is irrelevant.

27. Among “other” considerations the non-refoulement, business and victims interests weight again, neither one way or the other: they do not contribute to the Applicant’s case. The strength, nature and duration of ties count in the Applicant’s favour quite considerably and the impediments or impact of removal slightly so.

28. This, in the opinion of the Tribunal leaves the matter very much in the balance and so is there anything which might serve to, figuratively, put a finger on the scales one way or the other?

29. I find that in the testimony of the Applicant, Ms Alecia Smith.

30. In Re Georges, Fisher J., then Deputy President of the Tribunal, (with reference to sections of the previous but similar legislation) stated:

    There is no dispute that the Minister is entitled to order deportation under that section, and that the Minister has a policy which governs exercise of that power of deportation. Again there was no suggestion …. That the policy was in any way inconsistent with the Act, and in my view the policy does conform with the Act. Nor was there any submission that this Tribunal should do otherwise than apply that policy for the purpose of determining its recommendation, and I propose to consider this matter within the confines of that policy.

    It is when I come to consider whether on the facts before me the Minister’s decision is the appropriate decision that difficulties arise. It is however in this area that certain principles have as Smithers J observed, been defined by previous decisions. Additionally the facts before me differ most significantly from those before the Minister and the Secretary in that they have been updated to the time of the hearing and elaborated in the witness-box. Moreover I have had the opportunity of observing the applicant, his wife and close friend of the applicant during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.[116]

    [116] Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.

31. Although it is not necessary (or even appropriate) to have too close a regard for the decision of the Delegate, given the Tribunal’s de novo role, it is nevertheless the case that several detailed submissions were put before the Tribunal by the Applicant in the form of Statutory Declarations which updated material previously available.[117]

    [117] In this the Tribunal has not included the report from Ms Li.

32. The evidence of the various witnesses was consistent in its support of the Applicant, and although some evidence from members of the Habeebeh family was shown to be problematic under cross-examination, that of Mr Hallacoglu particularly impressed the Tribunal.

33. What however was the “crucially important” matter for the Tribunal was the testimony given by the Applicant, Ms Alecia Smith. Not only did she give evidence in chief, she was subject to cross-examination by the Respondent for a period of time approaching five hours over a two day period.

34. Although occasionally emotional when recalling certain incidents in her past life, especially as a child and as the victim of domestic abuse, she was, throughout this period calm, collected, straightforward and direct. She did not equivocate or avoid answering questions either from the Respondent or from the Tribunal itself. She did not attempt to deny either the facts presented, nor to qualify findings. She accepted responsibility for her actions and avoided making excuses. She admitted to failings and indicated, to the satisfaction of the Tribunal, that she had a clear sense of self-awareness of the situation in which she found herself. The Tribunal found her answers to be plausible and her stated intentions of future behaviour to be credible.

35. She was, in all respects and under the circumstances, a witness of credibility and presented as an individual of some character and strength.

36. To the extent that these things can be judged, the Tribunal found her to be a person deserving of a final chance to get her life back on track.

37. Judge Barnett in 2016, as cited above, believed that the Applicant had good prospects of rehabilitation and the Tribunal takes the same position. It seems that she has, for the first time in her life, both the incentive and the support necessary to achieve this.

38. As this Tribunal said in Dinkha

    “Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned.”[118]

    [118] Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037 at [113].

39. This will not actually be Ms Smith’s second chance – it will be her third, and almost certainly, her last. The Tribunal however believes that she has shown that it is deserved and that indeed the Australian community might potentially benefit from granting it.

    DECISION

40. The decision under review is set aside and in substitution thereof the cancellation of Ms Smith’s visa is revoked.

I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Puplick AM

...........................[sgd].............................................

Associate

Dated: 7 November 2018

Date(s) of hearing:	23 and 24 October 2018
Advocate for the Applicant:	Ziaullah Zarifi - Migration Agent
Solicitors for the Respondent:	S Gaussen - Sparke Helmore Lawyers