Staveley and Minister for Home Affairs (Migration) - [2018] AATA 2096

Staveley and Minister for Home Affairs (Migration) [2018] AATA 2096 (4 July 2018)
Division:GENERAL DIVISION
File Number: 2018/2032
Re:Kasey Staveley
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:4 July 2018
Place:Perth

The decision under review is affirmed.
.....[sgd]...................................................................
Member L M Gallagher
CATCHWORDS
IMMIGRATION – Class TY Subclass 444 (temporary) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children - expectations of the Australian community - other relevant considerations – impact on victims - strength, nature and duration of ties to Australia – extent of impediments if removed from Australia - discretion should not be exercised to revoke visa cancellation - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 499(1) and (2A), 500(1)(ba), 501(3A), 501(6), 501(7), 501CA(4)
Sentencing Act 1995 (WA) – section 6
CASES
Leota and Minister for Immigration and Border Protection [2017] AATA 1365
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 – paragraphs 6.2, 6.3, 7(1), 8(1) and 8(4), 13(2), 13.1, 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.3(1), 14(1)(b),(d) and (e), 14.2(1), 14.4, 14.5
REASONS FOR DECISION
Member L M Gallagher
4 July 2018
INTRODUCTION

This is an application lodged under subsection 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”) for a review of a decision of a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection (“the Minister”) dated 12 April 2018 (G3) not to revoke the mandatory cancellation (by virtue of subsection 501(3A) of the Act) of Ms Staveley’s Class TY Subclass 444 Special Category (temporary) visa (“the visa”) pursuant to subsection 501CA(4) of the Act. Relevantly, the delegate found that Ms Staveley had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per subsection 501(7)(c) of the Act. Therefore, Ms Staveley had not satisfied the delegate that she had passed the “character test” by virtue of subsection 501(6)(a) of the Act.
Having found that Ms Staveley had not satisfied the character test, the delegate considered whether there was another reason why the mandatory visa cancellation decision should be revoked, in accordance with subsection 501CA(4)(b)(ii) of the Act and as per the requirements of the Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 (“Direction No. 65”). The delegate was not satisfied that there was another reason and decided that Ms Staveley’s visa remains cancelled.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Ms Staveley is a citizen of New Zealand. Ms Staveley first arrived in Australia as the holder of the visa on 26 July 1995 and has remained in Australia since that date (G53, page 143). Ms Staveley had previously travelled to Australia on two occasions in 1990 and 1994 (G53, page 143).
Ms Staveley’s criminal history comprises of over 80 offences across an almost 15 year period from 29 August 2002 to 7 July 2017. Ms Staveley’s National Police Certificate (G6, pages 23 to 28) records the dates and court results of these offences and is extracted in Appendix 1 of this decision (see at page 46 below). Broadly, Ms Staveley’s offences include numerous driving offences, numerous stealing offences, numerous “breach of bail” offences, breaches of violence restraining orders and drug and weapon charges. The Tribunal also notes Ms Staveley’s “aggravated burglary and commit offence in dwelling” offences, of which she was convicted on 16 April 2012 and again on 20 May 2013 (G6, pages 24 and 25).
On 20 January 2014, a delegate of the Minister wrote to Ms Staveley to advise her that while she had decided not to cancel Ms Staveley’s visa on character grounds on that occasion, Ms Staveley was formally warned that her visa cancellation may be reconsidered if she committed further offences or otherwise breached the character test in the future (G31). The warning letter also stated that disregarding this warning would weigh heavily against her if her case was reconsidered. Ms Staveley acknowledged this letter on 24 January 2014 (G31, page 91) and continued to offend after this date (G6, page 23).
On 14 September 2017, Ms Staveley was sent a Notice of Visa Cancellation under subsection 501(3A) of the Act (G54, pages 144 to 148). The delegate’s decision to cancel the visa was made on the basis that Ms Staveley:
(a)had previously been convicted of “Aggravated Burglary” on 16 April 2012 and received a suspended sentence of 12 months; and
(b)was currently in prison serving a sentence of 8 months following a further conviction on 7 July 2017 of “No Authority to Drive – Suspended.”
That notice invited Ms Staveley to make representations about revocation of the cancellation decision.
On 18 September 2017, Ms Staveley made a request for revocation of the mandatory cancellation (G12) and made representations in support of her request, summarised by the delegate as follows (G4):
(a)her lapse of judgment at the time of her driving offences caused her to get behind the wheel and drive without a licence to escape violent peers (G4, pages 12 and 15 and refer to G13, page 62);
(b)she had a difficult upbringing from the age of nine and became involved with substance abuse as “a way of coping” (G4, page 15);
(c)much of her criminal record was from when she was on drugs and her family didn’t want anything to do with her and, at that time, she was “homeless, alone and trying to survive” (G4, page 15);
(d)she left home when she was 14 (G4, page 15);
(e)there was domestic violence in her life at a very young age (G4, page 15);
(f)she experienced depression and has been involved in substance misuse (G14, page 15); and
(g)she is remorseful for her actions and has made silly mistakes that cost her her freedom and “she has been punished enough” (G4, page 16).
On 12 April 2018, a delegate of the Minister decided, under subsection 501CA(4) of the Act, not to revoke the visa cancellation decision dated 14 September 2017 (G3, page 11). Ms Staveley was notified of this decision on 13 April 2018 (G2).
On 17 April 2018, Ms Staveley applied to this Tribunal for review of the decision not to revoke her visa cancellation (G1).
ISSUES
The issues for consideration by this Tribunal are:
·whether Ms Staveley passes the “character test”; and
·if not, if there is another reason why the original decision to cancel Ms Staveley’s visa should be revoked, taking into account the relevant considerations in Direction No. 65.
EVIDENCE
The matter was heard in Perth on 26 June 2018. Ms Staveley appeared in person and was represented by Ms Ka Yoon Kim from Visa Appeals. The Minister was represented by Mr Arran Gerrard from the Australian Government Solicitor.
The evidence before the Tribunal consisted of:
·Ms Staveley’s submissions dated 6 June 2018 (“A1”);
·Book of Exhibits as at 6 June 2018 (“A2”):
·updated Book of Exhibits as at 18 June 2018 (“A3”);
·a 191 page set of G-documents (G1 to G58) (“R1”);
·the Minister’s Statement of Facts, Issues and Contentions (“SFIC”) dated 18 May 2018 (“R2”); and
·information regarding PARS Incorporated (“R3”).
Although Ms Staveley did not provide the Tribunal with a written witness statement in support of her application, the Tribunal has noted and treated as Ms Staveley’s written evidence:
·Ms Staveley’s personal circumstances form dated 18 September 2017 (G13); and
·Ms Staveley’s numerous letters and emails of various dates that are contained within the G-documents (refer to G14, G15, G16, G17, G18, G23, G24, G25 and A2 and A3) to the extent that they refer to matters relevant to the issue for review.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
CONSIDERATION
Does Ms Staveley pass the character test?
Pursuant to subsection 501CA(4) of the Act, the Minister (and the Tribunal standing in the Minister’s shoes) may revoke a decision made under subsection 501(3A) of the Act to cancel a visa that has been granted to a person 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.
[Emphasis added].
As summarised by Senior Member Popple in the decision of Leota and Minister for Immigration and Border Protection [2017] AATA 1365 at [13]:
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[1]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[2] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[3]
[Footnotes appear as in the original]
[1] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[2] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[3] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
In accordance with subsection 501CA(4)(b)(i) of the Act, the Tribunal must first consider whether Ms Staveley passes the “character test” as that term is defined in subsection 501(6) of the Act.
Subsection 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection 501(7) of the Act).
Subsection 501(7)(c) of the Act relevantly provides that for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted at paragraph 4 above, on 16 April 2012 (and again on 20 May 2013), Ms Staveley was convicted of “aggravated burglary and commit offence in dwelling.” Each conviction resulted in a sentence of 12 months imprisonment (G6, pages 24 and 25).
As a consequence of receiving a sentence in excess of 12 months, Ms Staveley is deemed to have a substantial criminal record and does not pass the “character test” set out in subsection 501(6)(a) of the Act. Ms Staveley did not assert otherwise before this Tribunal.
Accordingly, and on the evidence before it, the Tribunal finds that Ms Staveley does not pass the “character test” as that term is defined in the Act.
Is there another reason why the original decision that cancelled Ms Staveley’s visa should be revoked?
Having determined that Ms Staveley does not pass the “character test” because she has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more, the Tribunal must now determine whether, in accordance with subsection 501CA(4)(b)(ii) of the Act, there is another reason why the original decision that cancelled Ms Staveley’s visa should be revoked.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (subsection 499(2A) of the Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles, including the following:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[Emphasis added]
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, subparagraph 7(1)(b) of Direction No. 65 states:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Subparagraphs 8(1) and 8(4) of Direction No. 65 respectively state:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case.
…
(4)Primary considerations should generally be given greater weight than the other considerations.
In relation to Ms Staveley’s application, Part C of Direction No. 65 sets out the considerations that are relevant in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are addressed below.
Primary considerations
Subparagraph 13(2) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian Community.

Each of the three “primary considerations” is addressed in relation to Ms Staveley below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 13(2)(a) of Direction No. 65 (i.e. protection of the Australian community), subparagraph 13.1 of Direction No. 65 provides:
13.1     Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australian is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)       Decision-makers should 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.
(a)       The nature and seriousness of the non-citizen’s conduct to date
In relation to subparagraph 13.1(2)(a) of Direction No. 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), subparagraph 13.1.1 of Direction No. 65 relevantly provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
…
[Emphasis added]
In determining whether Ms Staveley’s conduct should be viewed as serious, the Tribunal notes:
(a)the facts of Ms Staveley’s offences, which exceed 80 in number and include violent offences such as aggravated burglary, common assaults, breaches of violence restraining orders, offences involving dishonesty, such as stealing and gaining benefits by fraud and a series of driving offences;
(b)the sentences imposed by courts for those offences, in particular, “aggravated burglary and commit offence in dwelling,” the offence for which Ms Staveley was convicted on two occasions and later sentenced on 16 April 2012 (G11) and 20 May 2013 (G8); and, in particular,
(c)the sentencing remarks of Wager DCJ dated 16 April 2012 in relation to Ms Staveley’s first of two “aggravated burglary and commit offence in dwelling” offences. This offence took place on 3 January 2011 with Ms Staveley’s partner being her co-offender, at his parent’s home and for which Ms Staveley pleaded guilty on 18 January 2012. In those sentencing remarks, the summaries of Ms Staveley’s offending conduct and the harm caused to Ms Staveley’s partner’s parents are as follows (G11 at pages 43 to 45 and 48):
(Page 43)
…The facts upon which [sic] are sentenced are these, that there were Family Court orders in place to ensure that Mr and Mrs [victims] had the right to care for [Ms Staveley’s co-offender’s minor child]. At about 8 pm on 3 January 2011, at a time when you were in a relationship with each other, you both attended the home at [address]. You were refused entry.
However, you [Ms Staveley’s partner], then smashed your way in by ripping the metal security grille of the front security door and breaking the handle off. And you [Ms Staveley’s partner], then reached through the gap in the front door and grabbed [Mrs victim] by the shirt collar. She called out to her husband, who came to see you grabbing on to your mother. He’d heard you yelling and he knew your identity. And you, Ms Staveley, yelled to [Ms Staveley’s partner]:
You can do it.
(Page 44)
And [Ms Staveley’s partner] then forced the front door open, breaking the security chain and you both entered the home. Once inside, you [Ms Staveley’s partner], asked [Mr victim] where your daughter was and [Mr victim] said that he didn’t know. I accept that at that stage neither of the victims, nor you, [Ms Staveley’s partner], nor Ms Staveley knew where your daughter was. It was later discovered that she was hiding under a blanket in the living room where she had sought refuge when the yelling started.
You [Ms Staveley’s partner], pushed [Mr victim] to the ground in the dining area. And Ms Staveley, you pushed [Mrs victim] up against the dining room table and yelled at her. You picked up a chair and threw it at the dining room cabinet, [Ms Staveley’s partner] and thereby broke some crockery. At this stage [Mr victim] went to your daughter’s room to call the police and you both followed him. You [Ms Staveley’s partner] pushed [Mr victim] onto the bed and punched him at least two times to the left side of the face and the initial punch caused his glasses to come off.
Ms Staveley, you stood at the door of the room and prevented [Mrs victim] from aiding her husband. And when she couldn’t get past and went to the main bedroom, you followed her. And in the course of what may have been an altercation, you picked up a jewellery box and threw it at her, but it didn’t hit her. Both of you then left the house, but on the way out you, [Ms Staveley’s partner], said to [Mrs victim]:
This is not the end. We’ll be back with others.
And Ms Staveley, you said to [Mrs victim]:
It’s not over. I’ve got friends that can really fix you up.
You were told continually to leave the house while you were there. And as a result of being punched and pushed, [Mr victim] suffered bruising to his face and chest wall. And as a result of being pushed by you, Ms Staveley, [Mrs victim] suffered bruising to the top of both of her arms.
Now, I’ve received and read a victim impact statement in relation to [the victims] and they describe their sadness and dismay at your behaviour. They acknowledge, however, that you must take responsibility for what you did. They were totally shocked that they could be threatened and assaulted in this way. And they felt helpless and sick when they did not know where your daughter was.
(Page 45)
They describe the bruises that they received and noted the encouragement that Ms Staveley gave to you, [Ms Staveley’s partner], to assault them during the course of the aggravated burglary. They have each described the stress and anxiety that they have suffered since the ordeal, and the terrible way that it has impacted on your daughter, who now requires counselling, has fears for her own safety and is no longer comfortable doing simple things that one should do in childhood, such as going for rides on her bike.
The matters that the [victims] have raised in their impact statement are typical of the sort of distress and negative impact that’s caused by an aggravated burglary of this type. Your conduct towards your parents [Mr and Mrs victims] … and [Ms Staveley’s partner’s parents], Ms Staveley, was appalling. Ms Staveley, you’re equally culpable because you not only encouraged [Ms Staveley’s partner], but you were involved in an assault and making oral threats…
(Page 48)
…In the past when you’ve had orders, you haven’t complied; you haven’t done what’s required. And there are two different things now. One is this offence is, in my view, more serious than others on your record; and secondly, you’re no longer 21. You’re now 27.
It’s been put to me that you need to address your violent behaviour, your poor decision-making and your substance misuse. And it’s been put to me that you’ve reached the stage where you’re prepared to do that and that I should accept that you are making changes already by showing a motivation to do some form of training and to look to your future.
Now, the State has put to me that it’s too late; she should have done all of these things before, before she came to the court for this offence and before this age. It’s by the barest of margins that I am going to suspend the sentence that I impose on you. And that’s because, at the age of 27, in my view, it would be wrong for me to find that it is too late.
You are 27. You’re not 21. But if you do what’s required, then there’s no reason why you’d have to serve prison immediately. If you don’t however – the court’s given you latitude in the past. The court won’t give you latitude in the future…
[Emphasis added]
The Tribunal also notes a number of additional factual matters surrounding several of Ms Staveley’s offences, namely:
(a)Ms Staveley was convicted of “aggravated burglary and commit offence in dwelling” on a second occasion, being 20 May 2013 (G6, page 24) and again sentenced to 12 months imprisonment (this time a mandatory sentence, refer to G8, page 33). The circumstances of the offence are not detailed in the sentencing remarks (G8) or elsewhere in the evidence before the Tribunal.
(b)On 17 April 2012, Ms Staveley appeared before Magistrate Temby in the Magistrates Court of Western Australia, in relation to her offences of “fail to stop when called upon,” “reckless driving – dangerous to the public or any person” and “no authority to drive – disqualified/suspended,” the last of which she received a suspended imprisonment order of eight months’ imprisonment (G6, page 25 and G10, page 40). During sentencing, Magistrate Temby, relevantly said (G10, pages 40 and 41):
(Page 40)
…What I am concerned about is the history of driving unauthorised. Although this is a fourth for sentencing and a fifth overall for driving under suspension, this is the 12^th occasion that Ms Staveley has driven either as an unlicensed driver, under fine suspension or under court suspension which is a dreadful indictment on her, a person who continues to take risks by driving unauthorised…
(Page 41)
Whilst on a suspended imprisonment order for 12 months, eight months’ imprisonment suspended for 12 months, you have to be law abiding. You have to be a person who avoids breaking the law and breaking any law at all. Should you break a law and be convicted of it that carries with it the possibility of gaol then that offence can trigger the suspended imprisonment order and in fact the act says it must trigger that suspended imprisonment order unless it would be unjust to do so. Now if you commit any offence, as I say, that carries with it the possibility of that then you put yourself at risk of gaol. If you commit an offence of driving under suspension while on suspended imprisonment order for driving under suspension it’s almost a foregone conclusion that you will do this gaol plus whatever else it is that you get for the next offence. Is that understood?
STAVELEY, MS: Yeah.
HIS HONOUR: So what happens if you commit offences in the next 12 months?
STAVELEY, MS: Go to gaol.
HIS HONOUR: You go to gaol, that’s right. So you make sure that you don’t put yourself in that jeopardy.
[Emphasis added]
(c)On 7 July 2017, Ms Staveley appeared before Magistrate Atkins in the Magistrates Court of Western Australia, in relation to her offence of “no authority to drive – suspended,” for which she received a sentence of eight months imprisonment (G6, page 23). During sentencing, Magistrate Atkins stated, relevantly (G7, page 30):
As far as you are concerned your record shows a history of blatantly disregarding court orders and there are seven previous driving under suspensions and, as you have heard, three of those resulted in suspended imprisonment being imposed upon you. On this occasion, 18 February, you drove 41 days into a disqualification that was imposed on you on 17 January by this court.
I have heard the reason why you chose to drive, but the fact remains that there were other avenues that would have been open to you that you decided not to take…
[Emphasis added]
(d)As noted in paragraphs 4 and 34(a) above, Ms Staveley has numerous convictions for breaches of various judicial orders, including “breach of bail” and “breach of violence restraining order” and breaches of terms of suspended sentences of imprisonment (refer to G6). For example, on 15 March 2013, Ms Staveley appeared before Goetze DCJ in the District Court of Western Australia for breaching the 12 month conditional suspended sentence order imposed on 16 April 2012 for the first instance of “aggravated assault and commit offence in dwelling” (G6, page 25 and G11, page 49). In sentencing, Goetze DCJ stated that (G9, page 35):
So having been sentenced on 16 April, you then were required to attend court on 20 April. You didn’t and on 7 May 2012, you were convicted of a breach of your bail undertaking. Now that’s one thing. That’s four days after you were convicted, so it would seem that you just thumbed your nose at everybody and didn’t comply with your requirements at law.
Then you were required to report to your Corrections Officer. You failed to report on 11 and 14 May. On 17 July, you failed to report as directed on 3 July. These are all 2012 dates.
So again, here you are not attending and the reason in the pre-sentence report dated 5 March 2013 is due to a conflict of personalities. The author of the pre-sentence report says, “Well, that’s really questionable given your previous track record of non-compliance.”
You didn’t attend court on the day you were required to attend court because of illness and you rang and advised. Now no matter how difficult it is, no matter how great the personality conflict, when you’re given a suspended sentence you are required to comply with the law and you’re required to attend your Corrections Officer as directed. And Mr Henderson read out to you what the judge said and that included that you’ve got to take it seriously.
You’ve got to decide whether you want another year worth of gaol or not. You’d done three nights at that stage, perhaps four nights, and if you don’t want another year’s worth, then you’ve got to get yourself organised.
You’ve got to understand that you’re the one responsible for letting people know where you’re living, for going and turning up at counselling, for doing what the court has ordered because if you don’t do it, you’ll be going to prison immediately and that’s the effect of a term of imprisonment that’s suspended…
[Emphasis added]
In oral evidence before this Tribunal, including during cross-examination by Mr Gerrard, Ms Staveley stated:
(a)when she breached the conditional suspended 12 months’ imprisonment order imposed on 16 April 2012 (G6, pages 24 and 25, G9 and G11, page 49), she was aware of the consequences of doing so;
(b)she doesn’t know why she did not report (to court on 20 April 2012, following her sentence on 16 April 2012, refer to subparagraph 35(d) above), she can’t remember and her memory is “not good” from her “drug use”;
(c)she accepts that she has a substance abuse problem, having used methamphetamine “on and off” since she was 15 years old;
(d)she last used methamphetamine at the beginning of 2017, approximately six months prior to her going to jail;
(e)she attributes some, but not all, of her offending to her drug use;
(f)an example of her offending attributable to her drug use is her driving without a licence;
(g)she agrees that her criminal record is lengthy;
(h)she doesn’t remember a lot about her “stealing by clerks and servants” offence in 2002 (G6, page 28);
(i)as to her “aggravated burglary and commit offence in dwelling” offence committed with her partner, for which she was sentenced on 16 April 2012, she recalls that she and her partner were going through Family Court issues. Ms Staveley said that her partner had had custody of his daughter, then “his mum took her.” Ms Staveley said that they were “taking steps to get her back,” however they could no longer afford their lawyer who was assisting with this. Ms Staveley said that she and her partner had gone to his parents’ house to give her partner’s daughter her Christmas present and “to say Dad loves you” (refer to G33). Ms Staveley said that her partner had been drinking that night and that she had “had a few” (drinks) but she wasn’t drunk. Ms Staveley said that her partner’s daughter was eleven years old at the time and her partner’s parents were “in their 50s,” although she wasn’t sure;
(j)regarding the sentencing remarks in relation to her first “aggravated burglary and commit offence in dwelling” offence (refer to subparagraph 34(c) above):
(i)she does not recall saying to her partner “you can do it”;
(ii)she does not recall pushing her partner’s mother;
(iii)Ms Staveley said that she does recall her partner’s mother’s arms on her throat and that the bruises her partner’s mother received were from her partner pushing the door in, not from any contact with Ms Staveley;
(iv)Ms Staveley said it was out of character for her partner to have pushed his father;
(v)Ms Staveley said that she recalled throwing the jewellery box, noting that she did not throw it at her partner’s mother, although she doesn’t know why she threw it;
(vi)Ms Staveley said that she did not recall her partner saying “this is not the end. We’ll be back with others” and she did not recall saying “it’s not over. I’ve got friends that can really fix you up”;
(vii)Ms Staveley agrees with the Court that she was equally culpable as her partner;
(k)as to her more recent “aggravated burglary and commit offence in dwelling” offence, she had no intention of harming anyone and had gone to the premises to pick up her clothes;
(l)Ms Staveley said that it is correct that she failed to attend pre-sentence appointments and has no explanation for this; and
(m)Ms Staveley said that she accepts that she has not complied with previous orders and has no explanation for this.
Mr Gerrard then directed Ms Staveley to the extract from the remarks of Magistrate Temby during sentencing on 17 April 2012 for Ms Staveley’s offence of “no authority to drive – disqualified/suspended” (G10, page 41, refer also to subparagraph 35(b) above):
HIS HONOUR: So what happens if you commit offences in the next 12 months?
STAVELEY, MS: Go to gaol.
When asked if she recalled the dialogue extracted in paragraph 37, Ms Staveley said she did not remember, although she has read the remarks since and accepts that she did not take heed of that warning. Ms Staveley also said it was correct that she did not attend court three days later as required (refer to G9, page 35 and subparagraph 35(d) above), that she does not know why she failed to attend and that she has no recollection of a personality conflict.
As to having been warned by the Department of Immigration and Border Protection (“the Department”) in January 2014 as follows (G31):
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
Ms Staveley said that she had signed the acknowledgement and forgotten about it as she was excited that she could go home.

As to her “breach of violence restraining order” in 2016, Ms Staveley said that her mother had placed a restraining order on her that year, following an argument between her, her mother and her partner (a different partner to her current and past partner with whom she committed the “aggravated burglary and commit offence in dwelling” offence on 3 January 2011). Ms Staveley said that “her mum got scared of her yelling.”
Mr Gerrard noted that Ms Staveley had been convicted of driving without authority on 17 occasions and that for the last driving offence (for which she was convicted on 7 July 2017), Ms Staveley had been living in her car. Ms Staveley said that on that occasion, she had had a fight with a friend and was trying to escape. Regarding the “breach of bail granted” for which Ms Staveley was also convicted on 7 July 2017, Ms Staveley said she had no explanation.
Observing that Ms Staveley’s most recent conviction was approximately one year ago, Mr Gerrard asked Ms Staveley why the Tribunal should take the view that she had changed. Ms Staveley said that (being in immigration) detention had been a “big wake up call,” that she has two beautiful nieces and that she “does not want to ruin that.”
In considering the nature and seriousness of Ms Staveley’s conduct to date, the Tribunal notes Ms Staveley’s personal circumstances form where she gave the following response to the question “Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?”
My lapse of judgement [sic] at the time caused me to get behind the wheel and drive without a licence to escape violent peers.
In paragraphs 4 to 35 and in paragraph 44 of her written submissions, Ms Kim essentially contends the following in relation to the nature and seriousness of Ms Staveley’s conduct:
(a)the seriousness of an offence can often be determined by the nature of the penalty imposed, given that section 6 of the Sentencing Act 1995 (WA) requires that when a sentence is imposed, the sentence be commensurate with the seriousness of the offending;
(b)Ms Staveley’s offences between 2002 and 2010 and between November 2011 and April 2012 were “simple” and attracted either minor fines or other financial penalties “reflecting the non-serious nature of her offending” and hence “are of little or no impact”;
(c)Ms Staveley ought to be credited her “break in offending between November 2010 and December 2011”;
(d)Ms Staveley’s “one principal offence” that “may be considered serious” was the “aggravated burglary and commit offence in dwelling” for which she was convicted on 16 April 2012 and is “very remorseful” but that “her past conduct in committing the crimes is serious”;
(e)to Ms Staveley’s credit none of her offending is sexual in nature;
(f)Ms Staveley’s offending in 2017 was a result of her dire living circumstances during which time she was living in her car and suffering from depression;
(g)Ms Staveley is “indeed a rehabilitee member of society as shown by her decline in offending following her release following imprisonment in 2013”;
(h)Ms Staveley has not knowingly provided false or misleading information to the Department;
(i)Ms Staveley has not committed any offences outside Australia;
(j)in light of the changes to Ms Staveley’s lifestyle, the Australian community would consider that she comprehended and “greatly considered” the formal warning given to her; and
(k)Ms Staveley has been off drugs for over 16 months now and feels deep remorse for the impact that her actions have taken on her family.
At hearing, the Tribunal sought Ms Kim’s elaboration and clarification over a number of the written submissions in paragraph 44 above. From its series of questions, the Tribunal understands from Ms Kim that:
(a)the Applicant would like the Tribunal to accept that offences attracting financial penalties only are “non-serious” for the purpose of Direction No. 65, even though the premise of that submission is sourced from a provision of the sentencing legislation and even though Direction No. 65 refers to the nature and seriousness of the non-citizen’s conduct as distinct from the nature and seriousness of the non-citizen’s offence. Ms Kim contended that whilst this had perhaps been “overemphasized” in the written submissions, this is still the Applicant’s position;
(b)Ms Staveley ought to be regarded as a rehabilitee (in the sense that her rehabilitation is complete) from 2013 even though she continued to offend after that time and even though much of her efforts to rehabilitate took place in more recent times, particularly in 2017;
(c)Ms Kim maintains that Ms Staveley “greatly considered” the formal warning provided to her by the Department in 2014, despite Ms Staveley’s oral evidence that she had read and acknowledged the warning then “forgot about it” (refer to paragraph 39 above) and despite the fact that Ms Staveley continued to offend after the warning was given. When asked to articulate the meaning of “greatly considered” in this context, Ms Kim elected not to do so and confirmed she maintained her submission; and
(d)it is her oral submission that Ms Staveley’s offending conduct became serious “when her sentencing became mandatory.”
In relation to Ms Staveley’s offences, the Minister, in its SFIC (R2), contended that:
(a)given the length and nature of Ms Staveley’s criminal record, Ms Staveley’s criminal history is serious in and of itself (R2, paragraph 21);
(b)the seriousness of the offending and the resulting significant harm to victims is reflected in the relevant sentencing remarks (R2, paragraphs 22 and 23, referring to G11, pages 43 to 45);
(c)in respect of the “aggravated burglary and commit offence in dwelling” offence for which Ms Staveley was convicted on 16 April 2012, the Minister notes “…the vulnerability of the victims of the applicant’s offending as well as the impact upon a young child. Furthermore, given the series of convictions for breach of violence restraining orders the respondent notes with concern the escalation in seriousness of the applicant’s offending” (R2, paragraph 24);
(d)in accordance with the guidance given in Direction No. 65, the frequency of Ms Staveley’s offending, the cumulative effect of repeat offending and the fact that Ms Staveley continued to offend after receiving a warning from the Department are all indicative of the seriousness of Ms Staveley’s offending (R2, paragraph 25); and
(e)taking into account the nature of the offences, the sentences imposed, the comments of the sentencing Judge, and the specific guidance and principles set out in Direction No. 65, the nature and seriousness of Ms Staveley’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the visa (R2, paragraph 26).
The Tribunal notes that, in considering the nature and seriousness of Ms Staveley’s criminal offending or other conduct, in particular, the offences for which Ms Staveley was convicted on 16 April 2012 and 20 May 2013 (see subparagraphs 34(c) and 35(a) above), they are offences that are viewed seriously, which is reflected in Direction No. 65 and by the sentencing remarks extracted at subparagraph 34(c) and paragraph 35 above. Sentences involving imprisonment are the last resort in the sentencing hierarchy. Ms Staveley’s terms of imprisonment reflect the seriousness of her conduct against the community.
The Tribunal also notes in the sentencing remarks that the offence for which she was convicted on 16 April 2012 created helplessness and sickness in a particularly distressing way towards two people, who although their exact ages were unknown, are grandparents who were caring for a minor child. The child also experienced fear to the extent she sought refuge by hiding under a blanket. The Tribunal considers there can be no dispute that by the very nature of the offence (which was violent of itself) that the three victims found themselves in a position of vulnerability. Wager DCJ referred to Ms Staveley’s conduct in committing this offence as “appalling” (refer to subparagraph 34(c) above).
Ms Staveley’s offences are some 88 in number, broad ranging (refer to paragraph 4 above), repeated in some cases and regular in frequency over the 15 year period during which they have been committed. Ms Staveley’s driving offences are significant and constitute a risk to public safety.
The Tribunal has had regard to the fact that the Department’s warning to Ms Staveley in January 2014, which Ms Kim submitted she “greatly considered” despite Ms Staveley’s oral evidence that once acknowledged, the Department’s warning was “forgotten,” had no effect in that Ms Staveley continued to offend after this time. This disregard for authority and for the law appears to have translated to Ms Staveley’s failure to comply with court orders, which Magistrate Atkins said was “blatant” and which Goetze DCJ remarked was Ms Staveley thumbing up her nose to everybody (G9, page 35).
The Tribunal has also taken into account the fact that at the time of Ms Staveley’s offending, her continued drug use may have influenced her offending behaviour, although it cannot be said that this factor reduces her responsibility for those actions. The Tribunal notes Ms Staveley’s evidence that she had not used methamphetamine since the beginning of 2017.
The Tribunal finds that Ms Staveley does appear to be genuinely sorry for her offending conduct. However, given the frequency and duration of her offending, including at a time after she had verbalised to Magistrate Temby in 2012 that she understood she would go to jail if she continued to offend and after official warnings from the Department had been given in 2014, the Tribunal cannot be satisfied that Ms Staveley has accepted full responsibility for her actions, that she has “deep remorse” as submitted by Ms Kim, or that she understands the seriousness of these offences, including some of them being violent in nature and against vulnerable members of the community.
In relation to Ms Kim’s submissions at paragraph 45 and having not been offered an explanation by Ms Kim, the Tribunal finds no basis to accept that Ms Staveley’s conduct be measured on the basis of the related penalty only, that she was entirely rehabilitated in 2013 in the face of her continued offending after this time or that the Department’s formal warning to Ms Staveley was “greatly considered” by her in any sense of the phrase.
Applying the above to the principles in subparagraphs 6.3(1), 6.3(2) and 6.3 (3) and 13.1.1 of Direction No. 65, the Tribunal finds that, viewed objectively, Ms Staveley’s crimes are indeed serious and of considerable concern. In the circumstances of the matter, the crimes that Ms Staveley committed, particularly those involving burglary, those committed while under the influence of drugs (by Ms Staveley’s own evidence) and those committed with disregard for a community order in place, weigh heavily against revocation of the mandatory cancellation of Ms Staveley’s visa. Ms Staveley’s conduct in continuing to repeatedly drive without authority reflects a disregard for the law, a disregard for public safety and a degree of indifference that cannot be excused.
(b) The risk to the Australian community should further offences be committed
Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether Ms Staveley represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Subparagraph 13.1.2 of Direction No. 65 provides:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[Emphasis added]
In oral evidence before the Tribunal, Ms Staveley said that she had left home at the age of 13 and “ended up in violent relationships.” Ms Staveley said that she “used drugs to be able to cope” and lost her family due to her drug issues. Ms Staveley said that it was in jail that she learned that there is support out there.
Ms Staveley said that since the time that she has been in detention, she had completed an “anger management with mental health” course, she had been in contact with Cyrenian House, she had participated in a grief recovery program and in alcohol and drug counselling.
When asked what she had learned, in her own words, from the more recent courses she had participated in (in 2017), and how they had helped her (given she continued to offend after the courses she completed in 2013) Ms Staveley was unable to say, other than she didn’t know.
Mr Gerrard put to Ms Staveley that she had applied for parole twice and had been refused twice, as the Prisoners Review Board wasn’t going to grant parole to a person with a history of breaching court orders, who continues to offend (G30, page 87) and hence was a risk to the safety of the community. Mr Gerrard asked Ms Staveley why the Tribunal should reach a different conclusion (that is, that Ms Staveley’s risk of re-offending has reduced) Ms Staveley said she won’t re-offend, she won’t drive without her licence again and that she has had a “big wake up call.” Ms Staveley said that she has more support now than she did in the past, both in Perth and in Darwin, where her partner and his friends live. Ms Staveley said that the rental house that her partner had lived in had burned down at the end of October 2017 and her partner had moved to Darwin when she was in prison.
Ms Staveley said she had plans to work in Darwin and save some money, then to move to Perth and buy a house. Ms Staveley said that her partner had provided her a letter of support (G33). Ms Staveley said that her partner does not use drugs, that he didn’t know she had used drugs and that he may have (only) had a couple of driving offences. Ms Staveley said that she had been with her partner on and off for the last 10 to 12 years, estimating that there was a four year period during that time that they were not together. When asked what reassurance she could provide that she and her partner would not be “on and off” again, Ms Staveley said that she and her partner were stronger now than before.
Mr Gerrard put to Ms Staveley that she had engaged with Cyrenian House in 2013 and 2014 and continued to re-offend after this time, which in his submission meant that those sessions with Cyrenian House had had no effect. Mr Gerrard noted that Ms Staveley had re-engaged with Cyrenian House in more recent times and asked why the Tribunal should be confident that the outcome will be any different. In response Ms Staveley said that she did not want to lose her family.
In relation to the consideration of the risk to the Australian community, Ms Kim essentially contended as follows:
(a)Ms Staveley’s criminal history is a result of extensive drug use (for which the Applicant supported by her offending), her low-self-esteem and “emotional instability” and the hardship she has suffered and the influence of negative peers, all of which Ms Staveley has sought to address by way of several programs and with the support of her family (A1);
(b)Ms Staveley “…is a person to whom rehabilitation within society remains possible” (A1);
(c)the courses and programs Ms Staveley has completed (refer to A2 and A3) and those which she is “on a waiting list” to complete in the future demonstrate her willingness and determination to be a positive, contributing member of society, which will minimise her potential of reoffending (A1); and
(d)at hearing, Ms Kim contended that Ms Staveley was “unlikely to reoffend” and has “plans for employment.” Ms Kim asked the Tribunal to accept that the rehabilitation courses Ms Staveley had completed in more recent times (in 2017) met the treatment needs identified for Ms Staveley and to consider the “completeness of [Ms Staveley’s] ability to be rehabilitated.”
The Minister in its SFIC said the following regarding the risk should further offences be committed (R2):
28. The nature of the harm to the community should the applicant again commit similar offences means that the community should not be expected to tolerate a risk of similar offences being repeated.
29. The applicant has received convictions for 88 offences committed over a 15 year period. Those convictions cover a broad spectrum of offending behaviour and clearly demonstrate a disrespect for the law. What is particularly concerning is the escalation of the applicant’s violent offending and the repetition of similar offences.
30. The applicant has breached court orders on numerous occasions and blatantly ignored warnings from the court. In sentencing the applicant to a suspended sentence in 2012, Wager DCJ set out the applicant’s history of poor compliance [G11, p48]… (extracted at paragraph 34 above)…
31. On the following day, the applicant was sentenced by Magistrate Temby in relation to other offences at which time it was noted [G10, p40]… (extracted at subparagraph 35(b) above)…
32. Magistrate Temby referred to the suspended sentence which had been imposed on the applicant the previous day by the District Court and gave the applicant a very clear warning of the effect future offences would have [G10, p41]… (extracted at subparagraph 35(b) above)…
33. However, those warnings had no effect upon the applicant. In sentencing the applicant on 15 March 2013, Goetze DCJ said [G9, pp35-36]… (extracted at subparagraph 35(d) above)…
34. In sentencing the applicant on 7 July 2017, Magistrate Atkins said [G7, p30]… (extracted at subparagraph 35(b) above)…
35. The respondent also notes that the applicant has admitted to a history of drug and alcohol use and the evidence indicates that she has unmet treatment needs in respect of this. Whilst the applicant has recently sought to engage in rehabilitation, the respondent contends that the Tribunal should have significant concerns as to whether the applicant has significantly addressed the underlying issues which contribute to her offending. In this regard the respondent also noted that the Prisoners Review Board denied parole on 17 October 2017 on the basis of [G30, p87]:
35.1 The applicant’s unmet treatment needs (substance abuse and consequential thinking) as evidenced by the nature of the applicant’s current offences and criminal history. The Board noted that the applicant had not been assessed for any intensive treatment programmes whilst in custody due to the short direction [sic] of the current sentence. The Board also noted that the applicant had undertaken intensive treatment programs on a previous period of imprisonment but had continued to offend.
35.2 A significant criminal history including violence.
35.3 Poor respond [sic] to community supervision orders with all four orders between 2007 and 2014 breached for reoffending or non-compliance suggesting an unwillingness or inability to comply with directions.
35.4 The applicant’s release plan did not include any way to adequately address the applicant’s unmet intensive treatment needs.
36. Following an application for reconsideration, the Prisoners Review Board again made a decision refusing parole on 31 January 2018.
37. The respondent also notes that the applicant received a formal warning on 20 January 2014 [G31, p90], with evidence that the applicant acknowledged receipt of this warning [G31, p91].
38. The respondent contends that the pattern and frequency of the applicant’s offending, the pessimism of the sentencing judges and Prisoners Review Board and the disregard of warnings from the Courts and the Department are indicative of a very high risk of re-offending.
39. Given the nature of the offences and the nature of the harm to individuals, including vulnerable persons, should the applicant engage in further criminal conduct of this nature, the respondent contends that the Australian community should not be expected to tolerate such a high risk of recidivism: see paragraphs 6.3(3) and 13.1.2(1) of Direction No. 65.
40. The respondent contends that this primary consideration should weigh heavily in favour of non-revocation.

At hearing, Mr Gerrard reiterated the Minister’s concerns regarding Ms Staveley’s re-engagement with rehabilitation providers as follows:
(a)the fact that prior rehabilitation had no effect given Ms Staveley’s continued to offend after that time;
(b)that her recent measures to rehabilitate are very recent and it is too soon to see whether those recent courses or sessions have had any effect; and
(c)these measures are untested in the community and arrive on the back of a history of poor compliance.
Mr Gerrard said that there were clear and cogent reasons that the Tribunal ought to be concerned regarding the risk of Ms Staveley re-offending, including the sheer number of her offences and that the sentencing comments gave no course for optimism. Mr Gerrard submitted that Ms Staveley’s risk of re-offending was, in the Minister’s view, the determinative factor in this application.
In considering the risk of harm to the Australian community, the Tribunal notes the evidence and the parties’ submissions in paragraphs 55 to 65 above. The Tribunal has also considered:
(a)Ms Staveley’s personal circumstances form, which states her belief that her likelihood of re-offending is “nil,” given her completion of “all available courses whilst incarcerated” (G13, page 62, refer also to G18, page 72);
(b)Ms Staveley’s submission that she is remorseful for her offences, that she has made silly mistakes that have cost her her freedom and that she has been “punished enough” (G23, page 79), the latter of which the Tribunal considers demonstrates a lack of insight;
(c)Ms Staveley’s evidence that she intends to live with her partner (and co-offender) when released, which in the Tribunal’s view increases her risk of re-offending;
(d)the considerable latitude and warnings afforded to Ms Staveley, of which she failed to take heed, even in the face of the prospects of going to jail and of losing her right to remain in Australia (prospects of which Ms Staveley was aware);
(e)the letters from Ms Staveley (G14, G15, G16, G17, G18, G23, G24, G25, G32, G36, G37, G38, G43, G44, G46, G48, G50, and G51);
(f)the letters of support from Ms Staveley’s family, partner, friends, past-employer, her faith and wellbeing adviser and her learning facilitator (A2, A3, G19, G20, G21, G22, G26, G27, G33, G34, G35 and G39) and accepts that these people offer her their support and that she is well regarded by them; and
(g)the evidence regarding Ms Staveley’s participation in rehabilitation programs and counselling (A2, A3 and G40).
Having considered these matters, the Tribunal considers there is nothing in the evidence and materials before it to objectively demonstrate that if Ms Staveley was placed in similar situations again that she would not engage in serious criminal offending once again.
The Tribunal also has significant concern, notwithstanding Ms Staveley’s demonstrable sorrow regarding her offences (which in spite of Ms Kim’s submission, the Tribunal considers falls short of “great remorse” for the reasons stated above), about her ability, even at hearing, to appreciate the seriousness of her offending conduct and its consequences and to articulate how she has changed having completed numerous courses. The Tribunal is of the view that, in the circumstances, the treatment needs identified by the Prisoners Review Board (substance abuse and consequential thinking), are still largely unmet.
Based on the evidence before it, the Tribunal considers that there is a moderate risk that Ms Staveley will reoffend if returned to the community in Australia. The Tribunal also considers that this risk would be high if Ms Staveley were to return to misusing drugs. Applying the guidance in subparagraph 13.1.2 of Direction No. 65, and given the nature of Ms Staveley’s offences, her role in the commission of those offences (particularly the “aggravated burglary and commit offence in dwelling offence” for which she was convicted on 16 April 2012) and the Tribunal’s view that, even now, she fails to appreciate the serious nature and cumulate effect of these offences, the Tribunal finds that the risk of Ms Staveley reoffending is unacceptable in all of the circumstances of the case. Overall, Ms Staveley’s behaviour presents a risk of reoffending that would be too much for the Australian community to tolerate. This weighs heavily against revocation of the mandatory cancellation of the visa.
(ii) Best interests of minor children
The second primary consideration listed in subparagraph 13(2) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by a decision to revoke or not revoke the mandatory cancellation of a visa.
In relation to subparagraph 13(2)(b) of Direction No. 65, subparagraph 13.2 of Direction No. 65 relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
…
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[Emphasis added]
Ms Staveley’s partner has a daughter, who is aged 17 and who was present at the time Ms Staveley and her partner committed the “aggravated burglary and commit offence in dwelling” offence on 3 January 2011, at which time she was approximately 11 years old. Ms Staveley has also advised that her partner’s other daughter has two young children.
In oral evidence, Ms Staveley said she is now in contact with her niece and nephew, who are her brother’s children, and who are four and five years old.
The Tribunal notes the available documentary evidence regarding the best interests of minor children consists of the following:
(a)the remarks of Wager DCJ during sentencing that as a result of the commission of the “aggravated burglary and commit offence in dwelling” offence committed by Ms Staveley and her partner, there had been a “terrible impact” on Ms Staveley’s partner’s daughter, namely that she “requires counselling, has fears for her own safety and is no longer comfortable doing simple things that one should do in childhood, such as going for rides on her bike” (refer to subparagraph 34(c) above);
(b)Ms Staveley’s personal circumstances form, which relevantly states that the minor children in her life are her niece and nephew (her brother’s children), who are cared for by their parents. Ms Staveley also states that her relationship with her niece and nephew began from the day they were both born, that she is their only Aunty and that they have a very close loving relationship (G13, pages 59 and 60). Ms Staveley’s partner’s daughter who is now 17 years old is not listed on the form nor are her partner’s other daughter’s children;
(c)Ms Staveley’s email dated 17 March 2018 in which she states “I will also be a step mother to [her partner’s] kids […] who i [sic] would like to be a great role model to. [Her partner’s daughter] also has her own two kids now who adore me very much and keep asking me when i [sic] am coming home to them” (G32, page 92);
(d)Ms Staveley’s email dated 4 April 2018 in which she states “My brother now has 2 kids 4 and 5 years old who adore me very much and cry for me every night when i [sic] call them…” (G43, page 117);
(e)a letter from Ms Staveley’s brother, dated 22 April 2018, which relevantly states (A2):
kasey [sic] has a very loving relationship with my kids and they miss her dearly. Kasey is great with the kids and always going out of her way to make them happy. Kasey has video calls on a regular basis with the kids which [sic] they spend hours talking.
(f)an undated letter from Ms Staveley’s partner’s daughter which shows support for Ms Staveley and says that her two young children support and miss Ms Staveley (G34, page 95 and A2).
No written submissions have been advanced for Ms Staveley regarding the best interests of minor children (A1), nor did Ms Kim seek to make any submissions at hearing.
In relation to the consideration of the best interests of minor children, the Minister contended in writing in its SFIC that (R2):
42. The applicant has advised that she is close you her young nephew and niece. The respondent accepts this is likely to be the case and that their best interests would lie with the cancellation decision being revoked. Nevertheless, it is clear that the applicant is not required to play a parental role in any event if she moves to Darwin, as indicated, her involvement is likely to be minimal and largely indistinguishable from the situation if she returned to New Zealand.
43. The applicant has also advised that she intends to play a parental role for her partner’s daughter…who is aged 17. The respondent notes it is not clear that [her partner’s daughter] will live with her father in Darwin, the extent of her involvement with the applicant or her views. The respondent also notes that at the age of 17, she will obviously be an adult soon. Finally, the respondent notes that the applicant, and indeed [her partner], behaved in a manner entirely inconsistent with the best interests of [Ms Staveley’s partner’s daughter] when they committed the aggravated burglary offences in 2011. In the absence of any evidence, the respondent contends that the Tribunal should not find that the best interests of [Ms Staveley’s partner’s daughter] are affected by the cancellation decision but even if they were that should be afforded minimal weight in the circumstances.
44. Finally, the applicant advises that her partner’s other daughter…has 2 young children. The applicant has provided an email purporting to be from [her partner’s other daughter] [G34, p95]. The respondent has concerns about the provenance of this email but is prepared to accept that to a limited degree the best interests of the children of her partner’s daughter would lie with the cancellation decision being revoked. Once again, the respondent contends that this consideration should be given limited weight.
At hearing, Mr Gerrard reiterated that there is little evidence of the role Ms Staveley plays in the lives of the minor children identified by her and in any event the role she plays is not the parental role.
The Tribunal accepts that Ms Staveley’s intentions are to be a positive role model to her niece and nephew, to her partner’s children and to her partner’s daughter’s two children and that generally speaking, it would not be in the best interests of these children to be separated from Ms Staveley.
However, the Tribunal must consider the available evidence and submissions within the framework of the relevant principles of Direction No. 65. In doing so, the Tribunal has taken the following into account:
(a)there is no evidence that any of the minor children identified by Ms Staveley are in a position where there are no other persons fulfilling a parental role in relation to them;
(b)the negative impact of Ms Staveley’s offending conduct on her partner’s daughter (refer to subparagraphs 34(c) and 74(a) above) and the fact that she is soon to turn 18 years of age;
(c)that Ms Staveley has kept in contact with her niece and nephew via video calls and has spent a significant part of their lives to date in prison. There is no evidence that Ms Staveley saw her niece and nephew more than periodically prior to that time;
(d)if Ms Staveley were to move to Darwin to be a step-mother to her partner’s children and be in the lives of her partner’s daughter’s two children, this would result in her living away from her niece and nephew in Perth and hence rendering her unable to play a role in their lives more significant than the role she has currently; and
(e)Ms Staveley has a significant criminal history and treatment needs (including for drug misuse) which the Tribunal considers are largely unmet, which raises concerns over whether Ms Staveley’s presence in the lives of these children would, despite her genuine intentions, be beneficial at this stage.
Overall, considering the evidence and submissions at paragraphs 72 to 79 above the Tribunal finds that this factor weighs marginally in favour of revoking the mandatory cancellation of the visa and that the Tribunal finds this to be the case only in relation to Ms Staveley’s niece and nephew.
(iii) Expectations of the Australian community
In considering subparagraph 13(2)(c) of Direction No. 65 (the expectations of the Australian community), the Tribunal refers to subparagraph 13.3 of Direction No. 65 for guidance:
(1) 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 the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
[Emphasis added]
In relation to the expectations of the Australian community, Ms Kim relevantly contended for Ms Staveley in her written submissions that she has been in Australian for 23 years and that with the exception of the robbery offence, Ms Staveley has been convicted of “several minor offences,” which have been “predominantly non-violent in nature” and that Ms Staveley has accepted responsibility for these (A1, paragraph 53). At hearing, Ms Kim made no further contentions in this regard.
The Minister contended as follows in its SFIC in relation to the expectations of the Australian community (R2):
46. Whilst the Australian community may well have a greater tolerance for persons who have resided in Australia for some time and have experienced hardship in their life, there are limits to that tolerance. The applicant has committed violent offences which the Australian community would view as intolerable and has repeatedly breached the community’s trust. The respondent again refers to the stated principles in paragraph 6.3 of Direction No 65 and in particular the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
At hearing, Mr Gerrard contended further that the greater tolerance that the Australian community may have had (in the context of paragraph 46 of R2, extracted at paragraph 83 above), has long been exhausted.
At hearing, the Tribunal asked Ms Kim as to when, in her submission, Ms Staveley’s submissions became “many” and “serious” as opposed to, as contended by her, “several” and “minor.” Ms Kim stated only that she maintained her earlier submission (refer to subparagraph 45(d) above) that Ms Staveley’s offending conduct became serious “when her sentencing became mandatory.” No elaboration was offered by Ms Kim regarding her submission that Ms Staveley’s offences were “several” despite their being 88 in number. The Tribunal considers clarification of these matters relevant to the nature of the character concerns or offences referred to in subparagraph 13(2)(c) of Direction No. 65. However, the Tribunal cannot find any favourable basis upon which to adopt Ms Kim’s submissions on this point.
In the circumstances of the case, the Tribunal has considered the expectations of the Australian community as they relate to Ms Staveley who has engaged in 88 crimes over a 15 year period, some relatively recent, some involving violence and in one particular case, involving violence against vulnerable members of the community including a minor child to whom she now wishes to be a role model. The Tribunal finds that in these circumstances, and in circumstances where Ms Staveley has shown, in the Tribunal’s view no true appreciation of the serious and repeated nature of her offences or provided any satisfactory evidence that they will not happen again, she should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 14(1) of Direction No. 65 states:
14.      Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)        International non-refoulement obligations;
b)        Strength, nature and duration of ties;
c)        Impact on Australian business interests;
d)        Impact on victims;
e)        Extent of impediments if removed.
[Emphasis added].
It is not in dispute, and the evidence shows, that in relation to Ms Staveley, the only “other considerations” that are relevant are those outlined in subparagraphs 14(1)(b), 14(1)(d) and 14(1)(e) of Direction No. 65 (i.e. the strength, nature and duration of ties, the impact on victims and the extent of impediments if removed).
Strength, nature and duration of ties
With respect to the “strength, nature and duration of ties” consideration, subparagraph 14.2 of Direction No. 65 states:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where there the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
[Emphasis added]
At hearing, Ms Staveley gave oral evidence that she had no ties to New Zealand and that she came to Australia with her mum and her brother. Ms Staveley said that she had never met her real dad or her mum’s side of the family and that she did not know if her mum and brother were in contact with any of their family living in New Zealand.

Ms Staveley said that her relationship with her family members in Australia is “very good, really supportive” and that she had more recently met some of her aunts, uncles and cousins (who live in Australia).
Ms Staveley said that her mother is 60 years old and that she would like to look after her.
Ms Staveley said that her partner, whom she had been with for 12 years “on and off,” would support her financially (if she were to remain in Australia) and would experience emotional hardship if she left.
When asked by Mr Gerrard, Ms Staveley said that if she were to return to New Zealand she would not reconnect with her family there.
In her written submissions, Ms Kim made the following submissions in relation to the strength, nature and duration of ties (A1):
(a)Ms Staveley has a responsibility to support her mother, who is 60 years old and has not much other support available to her if Ms Staveley was to leave Australia;
(b)Ms Staveley arrived in Australia at a young age and has remained here;
(c)Ms Staveley has all of her family members in Australia and no known family in New Zealand. Losing her current support system would be distressing to Ms Staveley’s family and may expose Ms Staveley to a “relapse into her old ways as such destabilisation may affect her rehabilitative state”; and
(d)Ms Staveley’s partner “deeply misses her” and would like for her to come back home so that they can buy a house together.
At hearing, Ms Kim submitted that there would be a huge impact on Ms Staveley’s family and partner in Australia if she leaves. Ms Kim additionally submitted that Ms Staveley “relies on ties as the heaviest factor” and that this factor “should outweigh primary considerations.” When asked to provide a principle or authority to support her submission that an “other consideration” could be elevated to the status of a “primary consideration” Ms Kim stated she was content to “leave it there.”[4]
[4] The Tribunal does not regard the other considerations as secondary to the primary considerations (see discussion in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 from [23]), rather it simply wanted to provide the Applicant with an opportunity to provide authority to support her submissions.
In relation to the strength, nature and duration of ties, the Minister’s written submissions in its SFIC are (R2):
50. The applicant has been ordinarily resident in Australia since at least 1995 [G53, p143]. She has provided evidence of family and social ties. Her partner and his children reside in Australia. Balance against this though, is the applicant’s history of violent and other criminal offending and substance abuse. Her criminal record clearly does not reflect a positive contribution to the Australian community.
51. The respondent contends that the applicant has some ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community.
At hearing, Mr Gerrard reiterated that Ms Staveley’s ties to Australia are punctuated by her drug use and offending history.
In considering the strength, nature and duration of Ms Staveley’s ties to Australia, the Tribunal notes the following information contained in her personal circumstances form (G13, pages 63 and 64):
(a)Ms Staveley has completed school up to including “year 9” level;
(b)Ms Staveley has worked as an offsider for a removal company from 2015 to 2016 and once released, intends to work as an offsider, packer and in “food & bev”;
(c)Ms Staveley has completed volunteer work and has applied for further volunteer work;
(d)if she were to return to New Zealand, Ms Staveley “…would be left alone homeless, no family. No way to support myself” as she has no ties in New Zealand; and
(e)Ms Staveley would like the Minister to consider that:
All my life it has just been myself [sic] my mum and Brother. and [sic] now my brother’s kids.
I don’t know my father or his side of the family, nor do I no [sic] mums [sic] side of the family.
To be sent to NZ I would have no support, no home, no Income [sic] which then would cause me more problems.
Upon my release I have employment…,have applied…to commence volunteer work.
I have support from church.
In considering the strength, nature and duration of Ms Staveley’s ties to Australia, the Tribunal has taken into account the matters addressed at paragraphs 89 to 99, along with:
(a)the letters of support Ms Staveley has provided (within the G documents, A2 and A3) from her partner, family, friends and others. The authors of these letters, relevantly, offer their support for Ms Staveley to remain in Australia;
(b)the lack of letters of support from her past employers (paid and voluntary); and
(c)the lack of evidence regarding her purported involvement with, and ties to, her church and her support network in that context.
The Tribunal accepts that Ms Staveley has family and social ties in Australia and that her immediate family would experience some hardship if Ms Staveley returned to New Zealand. Ms Staveley arrived in Australia at a relatively young age and hence the Australian community may afford her a somewhat higher tolerance of her offending conduct. However, the Tribunal considers the positive contributions Ms Staveley has made in the community through her work (paid and voluntary) and education are limited and of short duration and are far outweighed by the duration and seriousness of her criminal conduct and the related burden it has placed on community resources.
The Tribunal finds that on balance, the strength, nature and duration of Ms Staveley’s ties to Australia weigh in favour of revocation of the mandatory cancellation of the visa.
Impact on victims
With respect to the “impact on victims” consideration, subparagraph 14.4 of Direction No. 65 states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In her written submissions, Ms Kim notes that the victim of the second of Ms Staveley’s two “aggravated burglary and commit offence in dwelling” offences (for which sentencing was mandatory) holds no grudge against Ms Staveley for “past” and describes her as a “loving caring person” hoping she stays in Australia with her family (refer to victim’s handwritten statement in A3). Nothing further was advanced by Ms Kim at hearing.
In relation to the impact of a decision not to revoke, the Tribunal again notes the letters of support Ms Staveley has provided (within the G-documents, A2 and A3), including from her partner’s father who was a victim of her first “aggravated burglary and commit offence in dwelling” offence and considers these letters raise no additional matters for consideration in this regard.
As such, the Tribunal finds that the “impact on victims” consideration weighs neither in favour nor against the revocation of the mandatory cancellation of the visa.
Extent of impediments if removed
With respect to the “extent of impediments if removed” consideration, subparagraph 14.5 of Direction No. 65 states:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are any substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
At hearing, Ms Staveley gave oral evidence that she did not know if New Zealand “was the same as” Australia or if “the benefits were the same.” Ms Staveley did accept the proposition that there are no language or cultural differences between the two countries.
When asked by Mr Gerrard, Ms Staveley said that she was aware of the existence of PARS Incorporated (refer to R3) as someone had mentioned it to her before and said that if she did return to New Zealand she would have to seek their assistance.
As to whether Ms Staveley and her partner had discussed him returning with her to New Zealand, Ms Staveley said that they had had such a discussion and her partner said he would come for a holiday “and that’s it” because “he has his kids and his life in Australia.”
Ms Staveley said that her mother can’t move with her, if she were to move to New Zealand.
In her written submissions, Ms Kim relevantly contended that, if removed (A1):
(a)Ms Staveley would have no social support available to her in New Zealand;
(b)Ms Staveley would not have anywhere to go or to stay (in New Zealand); and
(c)Ms Staveley would be “severely impeded” as she has no “familiar connections.”
In relation to the “extent of impediments if removed” consideration, the Minister contended that (R2):
55. The respondent concedes that the applicant may experience some hardship as a consequence of moving to New Zealand but notes New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security.
At hearing, Mr Gerrard submitted further that, in relation to Ms Staveley’s partner:
(a)his relationship with Ms Staveley has been “on and off”;
(b)he is also her co-offender;
(c)he has started a new life in Darwin (without her); and
(d)while it would be a difficult decision for him, there is no real reason why he would be unable to go to New Zealand with Ms Staveley.
In considering the extents of impediments to Ms Staveley if she were removed to New Zealand, the Tribunal has taken into account the matters raised at paragraphs 107 to 114, along with:
(a)there being no evidence or claims of Ms Staveley having any health concerns for medical issues other than her drug misuse (for which the Tribunal considers there would be similarities between Australia and New Zealand in treating this misuse); and
(b)Ms Staveley’s concerns expressed in her personal circumstances form that she has “…no ties to NZ whatsoever,” that all her family are in Australia and that she has built her life here (G13, page 65).
While the Tribunal accepts that Ms Staveley may experience some initial difficulties in establishing herself in New Zealand, if removed, the Tribunal finds that as New Zealand is culturally and linguistically similar to Australia, and has comparable standards of social, medical and economic support, Ms Staveley would be entitled to the same level of services as other New Zealand citizens in similar circumstances.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, Ms Staveley has a substantial criminal record and does not pass the character test in subsection 501(6) of the Act. This is not in dispute.
In determining whether to exercise its discretion to revoke the mandatory cancellation of the visa, the Tribunal has attached significant weight to the fact that Ms Staveley committed 88 offences over 15 years, a number of these offences being regarded as objectively very serious, some carrying with them terms of imprisonment, some involving violence, and being committed against, at times, vulnerable members of the community and with a repeated disregard to public safety. The Tribunal has also attached weight to the fact that Ms Staveley drove without a licence, committed offences while under the influence of drugs and breached community based orders.
On the evidence before it, the Tribunal finds that Ms Staveley should, as per paragraph 6.3(3) of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that Ms Staveley may engage in further criminal conduct if she remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the likelihood of further criminal or other serious conduct, taking into account its view that even now, Ms Staveley still fails to appreciate the serious nature of her offences, the extensiveness of her criminal record and her role in the commission of her offences. In the circumstances, the Tribunal finds that there is an ongoing risk of reoffending, and as such, an unacceptable risk to the Australian community.
The Tribunal considers that the best interests of the minor children identified by Ms Staveley weigh in favour of the revocation of the cancellation of the visa, however only in relation to her niece and nephew and only marginally so, and in the circumstances are far outweighed by the other “primary considerations.”
The Tribunal finds that on balance, the primary considerations addressed in this decision (see paragraphs 30 to 86 above) lead to the conclusion that the Australian community would expect that the mandatory cancellation of the visa would not be revoked.
The Tribunal has also had regard to the countervailing “other considerations” of the impact on victims, the strength, nature and duration of ties and the fact that Ms Staveley would not face any notable impediments if removed from Australia to New Zealand.
Overall, the Tribunal finds that having regard to all of the primary considerations and relevant other considerations required to be taken into account by the Tribunal under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa.
DECISION
For the reasons outlined above, the decision of the Minister’s delegate under subsection 501CA(4) of the Act, dated 12 April 2018, not to revoke the visa cancellation decision dated 14 September 2017, is affirmed.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

...[sgd].....................................................................
Associate
Dated: 4 July 2018

Date of hearing: 26 June 2018

Representative for the Applicant: Ms Kim

Solicitors for the Applicant: Visa Appeals

Counsel for the Respondent: Mr Arran Gerrard

Solicitors for the Respondent: Australian Government Solicitor
APPENDIX 1

Court

Court Date

Offence

Court Result

Rockingham Magistrates Court 07 Jul 2017 Breach of Bail Granted (fail to appear soon after).; Bail Granted ACT 1982; 51 (2) [counts 1]imprisonment: 2 months concurrent from 07-jul-2017, - concurrent, fine: $500.

No authority to drive - suspended [counts 1]imprisonment: 8 months concurrent from 07-jul-2017, - concurrent, mdl disqualified : 9 Months - cumulative

Rockingham Magistrates Court 17 Jan 2017 No authority to drive (never held) [counts 1] fine: $1000 (global); mdl disqualified: 6 Months - cumulative

No authority to drive (never held) [counts 1] fine: $1000 (global); mdl disqualified: 6 Months - cumulative

Rockingham Magistrates Court 30 Aug 2016 Breach of violence restraining order;
restraining orders ACT 1997; 61(1) [counts 1] fine : $100.

Perth
Magistrates Court 12 Jan 2015 No authority to drive - never held and disqualified [counts 1]susp imp order; 7 Months conc suspended 12 Months from 12-jan-2015.; mdl disqualified: 9 Months - cumulative

Perth
Magistrates Court 20 May 2013 Breach of Bail Granted (fail to appear soon after); Bail Granted ACT (wa) 1982; 51(2) [counts 1]imprisonment: 1 months concurrent from 20-may- 2013

Possess a prohibited drug (amphetamine); misuse of drugs ACT (wa) 1981; 6(2)a [counts 1]fine: $300.

Stealing; criminal code (wa); 378 [counts 1]fine: $200.

Aggravated burglary and commit offence in dwelling; criminal code (wa); 401(2)(a) [counts 1]imprisonment: 12 months concurrent from 20 May 2013

Stealing [counts 1] no penalty s.11

Fremantle
Magistrates Court 02 Apr 2013 Stealing; criminal code (wa); 378 [counts 1] fine: $500

Perth District Court of Western Australia 15 Mar 2013 Breach of conditional suspended imprisonment order [counts 1] fine: $100

Breach of cond suspended sent (order of 16.4.12)
[counts 1] imprisonment: 10
Months from 24.1.13

Rockingham Magistrates Court 14 May 2012 Common assault; criminal code (wa); 313(1)(b) [counts 1] adult cro: 12 months
from 14-may-2012 $500 undertaking.

Court

Court Date

Offence

Court Result

Midland Magistrates Court 07 May 2012 Reckless driving - dangerous to the public or any person [counts 1] fine: $500; mdl disqualified: 6 Months

Possessing stolen or unlawfully obtained property; criminal code (wa); 428(1)
[counts 1] fine: $500.

Breach of Bail Granted undertaking.; Bail Granted ACT (wa) 1982; 51(1) [counts 1] fine: $200.

Steal motor vehicle and drive recklessly;
criminal code (wa); 378 (2)(a) [counts 1] susp imp order; 12 months concurrent suspended 12 months from 07-may- 2012

Reckless driving - dangerous to the public or any person [counts 1] fine: $500; mdl disqualified: 6 Months

Fail to stop when called upon [counts 1] fine: $200;

No authority to drive - disqualified/suspended [counts 1] susp imp order; 12 Months conc suspended 12 Months from 07-may-2012; mdl disqualified: 9 Months - cumulative

Rockingham Magistrates Court 17 Apr 2012 Fail to stop when called upon [counts 1] fine: $250;

Creating false belief; criminal code (wa); 171(2) [counts 1] fine: $400.

Breach of Bail Granted (fail to appear soon after); Bail Granted ACT 1982; 51 (2) [counts 1] fine: $200.

Reckless driving - dangerous to the public or any person [counts 1] fine: $500; mdl disqualified: 6 mth(s)

No authority to drive - disqualified/suspended [counts 1] susp imp order; 8 Months conc suspended 12 Months from 17-apr- 2012.; mdl disqualified: 12 Months - cumulative

Perth District Court of Western Australia 16 Apr 2012 Aggravated burglary and commit offence in dwelling [counts 1] cond susp imp order; 12 Months imp suspended 12 Months from 16.4.12, conditions: programme & supvsn

Perth
Magistrates Court

21 Dec 2011

Possess a prohibited drug (cannabis); misuse of drugs ACT (wa) 1981; 6 (2) (b)

[counts 1] fine: $400.

Rockingham Magistrates Court 17 Nov 2010 No authority to drive - disqualified/suspended
[counts 1] fine: $1000; mdl disqualified: 9 Months – cumulative

Court

Court Date

Offence

Court Result

Rockingham Magistrates Court 09 Oct 2009 Drive veh contrary to compliance notice (specified period) [counts 1] fine: $600

Exceed 0.05g alcohol per 100ml of blood; >=0.05g/100ml but <0.06g/100ml [counts 1] fine: $150; mdl disqualified: 3 Months - concurrent

No authority to drive - disqualified/suspended [counts 1] fine: $1000; mdl disqualified: 12 months - cumulative

Possessing stolen or unlawfully obtained property [counts 1] fine: $300

Possessed a prohibited weapon [counts 1] fine: $250

Breach of cro (order of 28.08.09) [counts 1] fine: $750

(Att) gains benefit by fraud [att][counts 1] fine: $300

Rockingham Magistrates Court 29 Sep 2009 Breach of violence restraining order [counts 1] fine: $450

Criminal damage [counts 1] fine: $400

Common assault [counts 1] fine: $500

Rockingham Magistrates Court 28 Aug 2009 Stealing [counts 1] adult cro: 6 Months;
$750 undertaking

Joondalup Magistrates Court 26 Aug 2009 Stealing [counts 1] fine: $300 (global)

Rockingham Magistrates Court 24 Sep 2008 Stealing [counts 1]fine : $1000 (global)

Stealing [counts 1] fine: $1000 (global)

Stealing [counts 1] fine: $1000 (global)

Stealing [counts 1] fine: $1000 (global)

Armadale Magistrates Court 20 Jun 2008 Unlicensed vehicle (not owner) [counts 1] fine: $100

No driver’s licence (disqualified from holding or obtaining) [counts 1] fine: $800; mdl disqualified: 9 Months - cumulative

Driver fail to wear seat belt [counts 1] fine: $250;

Court

Court Date

Offence

Court Result

Rockingham Magistrates Court 17 Jun 2008 Breach of iso (order of 19.10.07) [counts 16] fine: 1. $2000 2-14.
$500 ea 15-16. $200 ea charge

No driver’s licence (disqualified from holding or obtaining) [counts 1] fine: $400; mdl disqualified: 9 Months - cumulative

Unlicensed vehicle (not owner) [counts 1] fine: $200;

Breach of cbo (order of 25.10.06) [counts 1] fine: $500

Rockingham Magistrates Court 26 May 2008 No driver’s licence (fines suspension) [counts 1] fine: $500; mdl 7 day delay: 5 Months

Rockingham Magistrates Court 03 Apr 2008 Removed a compliance sticker that was in force [counts 1] fine: $300;

No driver’s licence (fines suspension) [counts 1] fine: $600; mdl disqualified: 6 Months - concurrent

Paint or interfere with number plate [counts 1] fine: $300;

Rockingham Magistrates Court 10 Mar 2008 No driver’s licence (fines suspension) [counts 1] fine: $600; mdl 7 day delay: 6 Months

Perth
Magistrates Court 04 Mar 2008 No driver’s licence (never held) [counts 1] fine: $250; mdl disqualified s51: 3 months; mand conc

Rockingham Magistrates Court 19 Oct 2007 Breach of cbo (order of 25.10.06) [counts 16] intensive supvsn order: 18 mths, community work: 120 hrs

Stealing [counts 1] intensive supvsn order: 18 Months (supvsn), community work: 120 hrs

Give false personal details to police [counts 1] fine: $100

Perth
Magistrates Court 25 Oct 2016 Stealing [counts 1] comm based order: 6 Months (supvsn)

Gains benefit by fraud [counts 1] comm based order: 6 Months (supvsn)

(Att) gains benefit by fraud [att][counts 1] comm based order: 9 Months (supvsn)

Court

Court Date

Offence

Court Result

Perth
Magistrates
Court 25 Oct 2016 Stealing [counts 1] comm based order: 6 Months (supvsn)

Gains benefit by fraud [counts 1] comm based order: 6 Months (supvsn)

(Att) gains benefit by fraud [att][counts 1] comm based order: 9 Months (supvsn)

Stealing [counts 1] comm based order: 6 Months (supvsn)

Burglary and commit offence in dwelling [counts 1] comm based order: 12 Months (supvsn), community work: 60 hrs

Gains benefit by fraud [counts 1] comm based order: 6 Months (supvsn)

Possess a smoking utensil [counts 1] comm based order: 6 Months (supvsn)

Possess a prohibited drug (cannabis) [counts 1] comm based order: 6 Months (supvsn)

Breach of violence restraining order [counts 1] comm based order: 6 Months (supvsn)

Breach of violence restraining order [counts 1] comm based order: 6 Months (supvsn)

Breach of violence restraining order [counts 1] comm based order: 6 Months (supvsn)

Breach of Bail Granted undertaking [counts 1] comm based order: 6 Months (supvsn)

Breach of Bail Granted undertaking [counts 1] comm based order: 6 Months (supvsn)

Breach of Bail Granted undertaking [counts 1] comm based order: 6 Months (supvsn)

Joondalup Magistrates Court 16 Jan 2006 No motor drivers licence - under fines suspension [counts 1] fine: $200; disq hold/obt mdl 3 Months mand - sect. 51

Unlicensed vehicle [counts 1] fine: $100;

Joondalup Magistrates Court 09 Jan 2006 No motor drivers licence - under fines suspension [counts 1] fine: $300; disq hold/obt mdl 3 Months mand - sect 51

Unlicensed vehicle [counts 1] fine: $100;

Court

Court Date

Offence

Court Result

Joondalup
Magistrates
Court 09 Jan 2006 No motor drivers licence [counts 1] fine: $250; disq hold/obt mdl 3
Months mand conc - sect. 51

Joondalup Magistrates Court 07 Jul 2005 Stealing [counts 1] fine: $200

Breach of Bail Granted [counts 1] fine: $200

Rockingham Court of Petty Sessions 24 Apr 2003 Possess prohibited drug [counts 1] fine: $100

Stealing [counts 1] 6 Months cro (adult)

Hervey Bay Magistrates Court 29 Aug 2002 Cc stealing by clerks and servants (on 08.08.02) as staveley, kasey georgette No conviction recorded
fined $300
i/d imp. 30 days
time to pay 6 months

Date of hearing:	26 June 2018
Representative for the Applicant:	Ms Kim
Solicitors for the Applicant:	Visa Appeals
Counsel for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitor

Court	Court Date	Offence	Court Result
Rockingham Magistrates Court	07 Jul 2017	Breach of Bail Granted (fail to appear soon after).; Bail Granted ACT 1982; 51 (2)	[counts 1]imprisonment: 2 months concurrent from 07-jul-2017, - concurrent, fine: $500.
No authority to drive - suspended	[counts 1]imprisonment: 8 months concurrent from 07-jul-2017, - concurrent, mdl disqualified : 9 Months - cumulative
Rockingham Magistrates Court	17 Jan 2017	No authority to drive (never held)	[counts 1] fine: $1000 (global); mdl disqualified: 6 Months - cumulative
No authority to drive (never held)	[counts 1] fine: $1000 (global); mdl disqualified: 6 Months - cumulative
Rockingham Magistrates Court	30 Aug 2016	Breach of violence restraining order; restraining orders ACT 1997; 61(1)	[counts 1] fine : $100.
Perth Magistrates Court	12 Jan 2015	No authority to drive - never held and disqualified	[counts 1]susp imp order; 7 Months conc suspended 12 Months from 12-jan-2015.; mdl disqualified: 9 Months - cumulative
Perth Magistrates Court	20 May 2013	Breach of Bail Granted (fail to appear soon after); Bail Granted ACT (wa) 1982; 51(2)	[counts 1]imprisonment: 1 months concurrent from 20-may- 2013
Possess a prohibited drug (amphetamine); misuse of drugs ACT (wa) 1981; 6(2)a	[counts 1]fine: $300.
Stealing; criminal code (wa); 378	[counts 1]fine: $200.
Aggravated burglary and commit offence in dwelling; criminal code (wa); 401(2)(a)	[counts 1]imprisonment: 12 months concurrent from 20 May 2013
Stealing	[counts 1] no penalty s.11
Fremantle Magistrates Court	02 Apr 2013	Stealing; criminal code (wa); 378	[counts 1] fine: $500
Perth District Court of Western Australia	15 Mar 2013	Breach of conditional suspended imprisonment order	[counts 1] fine: $100
Breach of cond suspended sent (order of 16.4.12)	[counts 1] imprisonment: 10 Months from 24.1.13
Rockingham Magistrates Court	14 May 2012	Common assault; criminal code (wa); 313(1)(b)	[counts 1] adult cro: 12 months from 14-may-2012 $500 undertaking.
Court	Court Date	Offence	Court Result
Midland Magistrates Court	07 May 2012	Reckless driving - dangerous to the public or any person	[counts 1] fine: $500; mdl disqualified: 6 Months
Possessing stolen or unlawfully obtained property; criminal code (wa); 428(1)	[counts 1] fine: $500.
Breach of Bail Granted undertaking.; Bail Granted ACT (wa) 1982; 51(1)	[counts 1] fine: $200.
Steal motor vehicle and drive recklessly; criminal code (wa); 378 (2)(a)	[counts 1] susp imp order; 12 months concurrent suspended 12 months from 07-may- 2012
Reckless driving - dangerous to the public or any person	[counts 1] fine: $500; mdl disqualified: 6 Months
Fail to stop when called upon	[counts 1] fine: $200;
No authority to drive - disqualified/suspended	[counts 1] susp imp order; 12 Months conc suspended 12 Months from 07-may-2012; mdl disqualified: 9 Months - cumulative
Rockingham Magistrates Court	17 Apr 2012	Fail to stop when called upon	[counts 1] fine: $250;
Creating false belief; criminal code (wa); 171(2)	[counts 1] fine: $400.
Breach of Bail Granted (fail to appear soon after); Bail Granted ACT 1982; 51 (2)	[counts 1] fine: $200.
Reckless driving - dangerous to the public or any person	[counts 1] fine: $500; mdl disqualified: 6 mth(s)
No authority to drive - disqualified/suspended	[counts 1] susp imp order; 8 Months conc suspended 12 Months from 17-apr- 2012.; mdl disqualified: 12 Months - cumulative
Perth District Court of Western Australia	16 Apr 2012	Aggravated burglary and commit offence in dwelling	[counts 1] cond susp imp order; 12 Months imp suspended 12 Months from 16.4.12, conditions: programme & supvsn
Perth Magistrates Court	21 Dec 2011	Possess a prohibited drug (cannabis); misuse of drugs ACT (wa) 1981; 6 (2) (b)	[counts 1] fine: $400.
Rockingham Magistrates Court	17 Nov 2010	No authority to drive - disqualified/suspended	[counts 1] fine: $1000; mdl disqualified: 9 Months – cumulative
Court	Court Date	Offence	Court Result
Rockingham Magistrates Court	09 Oct 2009	Drive veh contrary to compliance notice (specified period)	[counts 1] fine: $600
Exceed 0.05g alcohol per 100ml of blood; >=0.05g/100ml but <0.06g/100ml	[counts 1] fine: $150; mdl disqualified: 3 Months - concurrent
No authority to drive - disqualified/suspended	[counts 1] fine: $1000; mdl disqualified: 12 months - cumulative
Possessing stolen or unlawfully obtained property	[counts 1] fine: $300
Possessed a prohibited weapon	[counts 1] fine: $250
Breach of cro (order of 28.08.09)	[counts 1] fine: $750
(Att) gains benefit by fraud	[att][counts 1] fine: $300
Rockingham Magistrates Court	29 Sep 2009	Breach of violence restraining order	[counts 1] fine: $450
Criminal damage	[counts 1] fine: $400
Common assault	[counts 1] fine: $500
Rockingham Magistrates Court	28 Aug 2009	Stealing	[counts 1] adult cro: 6 Months; $750 undertaking
Joondalup Magistrates Court	26 Aug 2009	Stealing	[counts 1] fine: $300 (global)
Rockingham Magistrates Court	24 Sep 2008	Stealing	[counts 1]fine : $1000 (global)
Stealing	[counts 1] fine: $1000 (global)
Stealing	[counts 1] fine: $1000 (global)
Stealing	[counts 1] fine: $1000 (global)
Armadale Magistrates Court	20 Jun 2008	Unlicensed vehicle (not owner)	[counts 1] fine: $100
No driver’s licence (disqualified from holding or obtaining)	[counts 1] fine: $800; mdl disqualified: 9 Months - cumulative
Driver fail to wear seat belt	[counts 1] fine: $250;