The Applicant and Minister for Immigration and Citizenship
[2013] AATA 6
[2013] AATA 6
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4807
Re
The Applicant
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member
Date 10 January 2013 Place Sydney The decision under review is set aside and substituted with a decision that the Applicant’s visa not be cancelled.
........................[sgd].........................
Ms J L Redfern, Senior Member
Catchwords
MIGRATION AND CITIZENSHIP – visa cancellation – character test – criminal history – seriousness of conduct and risk of further offending – protection of Australian community - visa holder committed criminal offences soon after arrival - leniency in sentencing because of exceptional circumstances - best interests of minor child in Australia – factors to be considered where child is in foster care - decision under review is set aside.
Legislation
Migration Act 1958 (Cth) ss 501, 499, 500
Administrative Appeals Act 1975 (Cth) s 33 (1AA)
Children and Young Persons (Care And Protection) Act 1998 (NSW) s 90Cases
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
Spruill and Minister for Immigration and Citizenship [2012] FCA 1401
Re Elizabeth (Unreported, District Court of New South Wales, Letherbarrow DCJ, 21 September 2011)Secondary Materials
Direction [no. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Ms J L Redfern, Senior Member
10 January 2013
The applicant is a 30 year old woman who migrated to Australia from Vietnam with her husband, an Australian citizen, in October 2007 under a provisional spousal visa. The applicant is a citizen of Vietnam and has two children from a prior marriage - a daughter who resides in Vietnam with her family and a younger daughter who migrated with her but is currently under the care of the Minister, the Department of Families and Community Services in New South Wales and is living in foster care. The applicant’s children are 10 and 8 years old.
On 2 May 2009 the applicant was granted a Class BC subclass 100 Spouse (resident) visa which allowed her to remain in Australia indefinitely.
The applicant separated from her husband in late 2008 and formed a new relationship in early 2009. She was convicted of cultivating a prohibited plant on 1 October 2010 and sentenced to two years imprisonment, fully suspended on entering a good behaviour bond. She was convicted of a similar offence on 1 May 2012 and was sentenced to three years imprisonment, with a non-parole period of 18 months. The applicant was arrested on 29 April 2011 in respect of the second offence and was taken into custody at that time, where she remained until her sentencing. Given the time served, the applicant became eligible for parole on 28 October 2012.
On 16 October 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel the applicant’s visa. The applicant seeks a review of this decision. She was transferred from gaol to immigration detention on 28 October 2012 and therefore has not lived in the community or with her youngest daughter since she was taken into custody in April 2011.
The Minister has discretion to cancel a visa if a visa holder does not satisfy the character test set out in the Migration Act 1958 (Cth) (the Migration Act). The applicant does not satisfy this character test because of her criminal history and the issue for determination is how the discretion should be exercised in the circumstances of this case. If the applicant’s visa is cancelled, she must return to Vietnam.
LEGAL FRAMEWORK
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more. Over the past 2 years, the applicant has been sentenced to two terms of imprisonment for a period of 12 months or more and, as such, has a substantial criminal record. She therefore does not pass the character test and the discretion under s 501(2) is enlivened.
Section 499(1) of the Migration Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers. The decision-maker, including the Tribunal, must comply with the written directions (s 499(2A)).
The Minister has delegated the exercise of the discretion under s 501(2) and from time to time has issued written directions under s 499(1) of the Migration Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. On 28 July 2012, the Minister issued a new direction, Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55), which came into effect on 1 September 2012. At the time the delegate made the decision to cancel the applicant’s visa Direction no. 55 was in effect and the delegate considered the applicant’s case by reference to this direction. There is no dispute that I am also bound by this Direction.
Direction no. 55 states 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” (cl 6.2(1)). It also sets out six principles “of critical importance in furthering that objective”, which are stated to “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (cl 6.2(1)). These principles must inform the exercise of the discretion and involve a balancing exercise (cl 7(1)). The principles are as follows:
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)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.
(3)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.
(4)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.
(5)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.
(6)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.
Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55 and information and evidence from independent and authoritative sources should be given “appropriate weight”. The primary considerations should generally be given greater weight than the other considerations and one or more of the primary considerations may outweigh other primary considerations. Both primary and other considerations may weigh in favour of, or against, cancellation.
There are four primary considerations, three of which are relevant to this case, being: protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia and the best interests of minor children in Australia. It is common ground that the fourth primary consideration relating to international non-refoulement obligations is not relevant.
The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims) and the extent of any impediments the person may face if removed from Australia.
PRELIMINARY EVIDENTIARY ISSUES AND CONFIDENTIALITY
The Minister's legal representative summonsed documents from the Department of Family and Community Services about the applicant's daughter. These documents comprised the transcript of an interview between the applicant and officers of the Department and extracts of reports from Axis Solutions, a service provider to the Department, which provided transport and supervised contact between the applicant and her daughter from February 2012 to November 2012. The applicant sought to tender the Axis documents but as they were not made available by the Department of Family and Community Services until the day before the hearing was due to commence, the Tribunal could not have regard to those documents as part of the applicant’s case under the strict rules set out in section 500 (6J) of the Migration Act. Section 500(6J) provides that “the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing”.
Given both parties acknowledged that the best interests of the applicant's daughter was one of the key issues in the case, at the end of the hearing the legal representative for the Minister agreed to tender those documents to ensure the Tribunal had access to all relevant information. The applicant supported this tender and both parties included references to the documents in their written submissions lodged after the hearing.
Even though the case was listed for hearing for two days the parties requested that the hearing be finalised on the first day with extended hours and written submissions to minimise costs. To assist the parties, I agreed with this course but this gave little time for consideration of the documents from the Department of Family and Community Services or the basis for their tender. It was assumed by both parties in their initial submissions on the tender that s 500 (6J) of the Migration Act limited the Tribunal having regard to the documents if the applicant submitted the documents in support of her case but not if the Minister tendered the documents in furtherance of his obligations under s 33 (1AA) of the Administrative Appeals Tribunal Act 1975 to use best endeavours to assist the Tribunal to make the correct and preferable decision in the case. It is clear from its terms that s 500 (6J) is intended to disadvantage the applicant not the Minister. There is no limitation on the Minister in seeking to rely on any document or evidence not previously provided to the applicant in response to the case served by the applicant at least 2 business days before the hearing. The Axis documents were not tendered in support of the Minister’s case but in reality they were tendered in support of the applicant’s case. As such, it is not free from doubt as to whether these documents would be caught be s 500 (6J) of the Migration Act.
Ultimately there is no dispute that the applicant has had regular contact with her daughter while she has been in gaol and detention, the applicant and her daughter have a close relationship and separation of the applicant’s daughter from her mother would be, in the words of the delegate, “traumatic”. There is ample evidence about this from Mr Green, the applicant, various presentencing reports and in the transcript of the sentencing remarks from Judge Maiden and Acting Judge Madgwick. Rather than risk tainting the decision-making process by having regard to the Axis reports, I decided this was unnecessary and have not had regard to those documents in making this decision.
For completeness it is relevant to note that I made confidentiality orders about the hearing and in respect of certain documents produced by the Department of Family and Community Services. Given the sensitive evidence involving the applicant’s daughter and about the applicant’s marriage, the names of the witnesses and the applicant have not been disclosed.
THE EVIDENCE
The evidence was contained in the documents served by the Minister pursuant to s 500 (6F) and s 501G of the Migration Act in addition to information in documents obtained from third parties about the applicant’s criminal history and her sentencing. Statements of support were provided by the applicant’s second husband, friends and a community leader. The Tribunal was also provided with experts reports from Mr David Green, Psychologist. The applicant, her second husband, a friend, the community leader and Mr Green also gave evidence based on their statements and reports.
The applicant was born in Quang Ninh province in a fishing village in North Vietnam. Her father reportedly had a mental illness and this put pressure on the family finances. The applicant left school when she was about nine years old and stayed at home to help in the family business. The applicant met her first husband when she was 18 years old and they married when she was 19. Her first daughter was born in October 2002 and her second daughter was born in July 2004. The applicant was 19 years old when her first child was born. The marriage broke down soon after the birth of her second daughter and the applicant's first husband was given custody of the eldest child, although it appears that the eldest daughter began living with the applicant’s parents sometime after the applicant moved to Australia.
The applicant met and married her second husband, a Vietnamese man who resided in Australia, in 2006. He sponsored the applicant and her youngest daughter to move to Australia and on 8 October 2007 they arrived in Australia on a provisional spousal visa. This marriage broke down in late 2008/early 2009 and the applicant moved in with a new partner in about March 2009. Notwithstanding that she had separated from her husband, the applicant was granted a permanent spousal visa on 2 May 2009 giving her permanent residency in Australia.
Less than two months after being granted this visa, the applicant was arrested and charged with offences relating to the cultivation of prohibited drugs in commercial quantities in her home at St Mary's. She was released on bail until her conviction and sentencing on 1 October 2010.
According to the sentencing remarks of Madgwick DCAJ in the District Court of New South Wales, the applicant was cultivating 172 prohibited cannabis plants at the time of her arrest. He noted that the applicant’s offence itself was “moderately serious” but also noted that the applicant's role was limited given her then boyfriend had initiated the plan. Madgwick DCAJ found “exceptional circumstances” in the case and took into account the applicant’s care of her daughter, the likely effect of separation on her daughter, the applicant’s previous isolation in the community and her lack of resources and vulnerability. The applicant was sentenced to a term of imprisonment of two years, wholly suspended subject to the applicant entering into a good behaviour bond and accepting the supervision of the Probation and Parole Service.
In sentencing the applicant, Madgwick DCAJ stated as follows,
Now I want you to understand Ms [XXXX] that, but for the fact that your child had such a bad reaction, and I think would have such an even worse one, to you going to gaol, you would be spending a substantial amount of that two years in gaol before you were eligible to be let out. This is not getting out of it with a bond, like it is the end of things. This is a very particular, precarious position that you find yourself in. Under this arrangement if you commit any further offence, you will be brought back here; and the only questions for the court will be - one - can that breach of the law be excused outright? Or two, if it cannot, and usually they cannot, how long, how much of that two years you will do in gaol. It will not matter, in relation to that matter, how much harm will be caused to your daughter, because the judge will not have a discretion. So if you want to look after that little girl of yours, and I'm sure you do, you will obey these orders to the last letter.
After her release from custody, the applicant went to live with her aunt and uncle. By the time of her sentencing, the applicant had connected with some community services, was receiving Centrelink benefits (which had not been the case before) and had commenced part time employment. According to the pre-sentencing report from the New South Wales Probation and Parole Service dated 28 September 2010, the applicant had enrolled in a part-time English course at TAFE and “appears to have no apparent criminogenic factor which requires intervention or programs administered by this Service”.
The relationship between the applicant and her uncle was fraught and in March 2011 there was an argument about money. The applicant's uncle asked the applicant to move out of the house, which she did, and she and her daughter lived in the applicant’s car for a few days. The applicant did not consult with her Probation and Parole officer about her predicament and she told Mr Green this was because she was concerned her daughter may be removed from her. She apparently did not consult anyone, including Centrelink staff, about her options but told her work colleagues about her plight. One of the restaurant customers approached the applicant and asked her whether she wanted to stay at a home at Casula for five weeks for $5,000 to look after cannabis plants that were being cultivated in the home. The applicant accepted the offer and went to live at the house at Casula with her daughter within days of moving from her aunt and uncle’s home. She was arrested by police on 29 April 2011 and taken into custody. According to a Statement of Agreed Facts filed in the applicant's criminal proceedings, the police found 253 cannabis plants in the house at Casula at various stages of cultivation.
The applicant was remanded in custody and her daughter was taken into care. An interim order for care was made and the applicant's daughter was placed with foster carers. A final order was made by the Children's Court in November 2011.
The applicant pleaded guilty to cultivating prohibited drugs and exposing a child and on 1 May 2012 she was sentenced to three years imprisonment. Maiden DCJ, the sentencing judge in the District Court, observed as follows:
Critically Mr Green has undertaken an assessment of the prisoner where he confirms matters that were commented on by Dr Elliott namely that the prisoner would appear to have a low intellectual capacity notwithstanding that she was most likely to have been suffering from depressive illness at the time of the interview. This leads to the critical matter in this matter out for her reoffending and namely that she did not appear to fully comprehend the seriousness of her initial offence which she was dealt with by his Honour Judge Madgwick. Because of the failure to understand the severity of the matter and in my view she was in a vulnerable position having been asked to leave from her uncle at Fairfield’s accommodation and living in a motor vehicle with her daughter for at least three days she fell into the hands of the commercial operators of this venture.
I find that she was a minor player and in effect as Mr Russell submitted, the house-sitter in circumstances where she had been without accommodation and it gave her the opportunity to properly accommodate her daughter, and secondly a cash reward or the promise thereof of five thousand dollars.
Maiden DCJ noted that the cultivation of prohibited plants was a “very serious matter” but, given the applicant’s circumstances and her level of involvement in the offence, stated that he should “exercise leniency”. The applicant was given a non-parole period of 18 months.
While she was in gaol, the applicant was visited regularly by her daughter, initially every week but this was reduced to monthly after an application was made by the Department of Family and Community Services to reduce the number of visits for reasons that were not clear from the evidence.
The applicant gave evidence that she was very close to her daughter and regardless of the outcome of the review, she would seek an order that her daughter be allowed to live with her, whether this be in Australia or in Vietnam. She said that she and her husband had resumed their relationship when he started visiting her in gaol in about April/May 2012. Even though the applicant was reported in various presentencing reports as understanding the seriousness of her offences, she said she did not really appreciate this until she spent time in gaol after her second conviction. The applicant said she had committed the second offence because she needed the money for herself and for her parents. Her mother had cancer and needed treatment. The applicant said that it was very important to send money to Vietnam for her parents and her elder daughter, who was living with her parents rather than her first husband. This caused arguments between her and her husband. It also apparently caused arguments with her uncle and was the motivation for the applicant committing both crimes. The applicant said she had discussed this issue with her husband recently and believed that he now understood the importance to her of sending money to her family in Vietnam. When the applicant committed the second offence, she said she knew it was wrong but she did not understand the consequences and did not realise she would go to gaol. Since being in gaol and being separated from her daughter, the applicant said she realised the seriousness of the consequences and would not commit further offences, even if she needed money.
The applicant was cross-examined about her relationship with her second husband. She said it was her intention was to live with him. The applicant denied he was violent to her, although she had told Mr Green he was. She said he may have slapped her a few times but nothing serious. He had become very angry when she did not want to have any more children and terminated a pregnancy.
The applicant's second husband gave evidence that, although they had separated in late 2008, he had kept contact with her over the years. Under cross-examination, the applicant’s second husband agreed he had not seen the applicant for some time and had found out about her incarceration from others. He did not start seeing the applicant until May 2012 but said they had resolved many of their differences. He would be happy for the applicant and her daughter to return to live with him. One of the problems in their marriage was that the applicant wanted him to send money to her family in Vietnam but he was unable to do so at that time. He operated a lawn mowing business which was now more established and he could therefore now afford to send money to Vietnam. The applicant's husband said that he wanted to give the applicant another chance. He believed she had changed and he wanted to look after her.
The Tribunal was provided with statements of support from the Vice President of the Van Linh Association, a support group for migrants from the Van Linh area, a friend who now lived in Australia but knew the applicant from her village and the owner of a restaurant in Canley Vale. The owner of the restaurant stated that he would offer the applicant a job as a waitress/kitchen hand if she was released from detention and allowed to stay in Australia.
Mr Green prepared four reports in respect of the applicant - two before the first sentencing hearing, the third before the second sentencing hearing and the last on 2 December 2012 for this hearing. Mr Green also gave evidence. He conducted psychometric testing of the applicant at the first assessment and noted that the applicant's score was in the “extremely low range”. He found that the applicant ranked in the bottom one percentile for individuals in her age group. He reported that the applicant told him she regretted her first offending and that she had put her child in the situation of living without a mother. In his report of 28 May 2010, Mr Green diagnosed the applicant with a major depressive disorder of mild severity. It was his impression that the applicant did not have emotional resources or resilience and that her very limited intellectual ability was a significant factor. He recommended ongoing treatment but was of the opinion the applicant was unlikely to commit an offence of this nature in the future.
Notwithstanding this, the applicant did commit a similar offence within 12 months. Mr Green assessed the applicant on 16 February 2012 before her second sentencing hearing. He noted that the applicant could be immature and self-centred and had made a series of “exceptionally poor decisions” when she failed to report to Probation and Parole after becoming homeless and when she participated in the cultivation of cannabis, exposing her daughter to the offence, for a second time. Mr Green again recommended treatment for the mood disorder. He noted that his previous opinion the applicant would not reoffend was “clearly” wrong but also noted there had been “extenuating circumstances” exacerbated by poor decisions that had led to the offending. Mr Green remained of the view that the applicant was not likely to commit further criminal offences and had a low to moderate risk of reoffending. Mr Green repeated those opinions in his report of 2 December 2012 but reassessed the risk and opined that the applicant had a “low” risk of reoffending, largely because of the applicant's resumed relationship with her second husband. This was said to be “critically important” as it would provide the applicant with financial and emotional support. When questioned on this issue by the Tribunal, Mr Green stated that the applicant’s incarceration and separation from her daughter had a “significant and profound effect” on her. He was cross-examined about the possibility of the applicant reoffending if she found herself financially destitute but stated that he was still of the view there was a low risk of the applicant reoffending.
Mr Green interviewed the applicant's daughter in July 2010 for the purpose of preparing a further presentencing report in respect of the applicant's first offence. In his report of 26 July 2010, Mr Green reported that, because of the close relationship between the applicant and her daughter, the applicant's daughter would react and cope poorly if separated from her mother and would be likely to develop long-term psychological problems.
In his report of 2 December 2012, Mr Green was asked to opine on the effect on the applicant's daughter given the four following scenarios:
(a)The applicant is unsuccessful in her application to the AAT and successfully seeks rescission of the placement order so her daughter can accompany her back to Vietnam.
(b)The applicant is unsuccessful in her application and is removed from Australia, but leaves her daughter in her current placement in Australia.
(c)The applicant is successful in her application, remains in Australia and leaves her daughter in the current placement but maintains regular contact with her.
(d)The applicant is successful in her application and remains in Australia but seeks rescission of the placement order so that her daughter can live with her in Australia.
According to Mr Green, the first scenario was unsatisfactory because the applicant’s daughter was a “high risk” of having ongoing psychological problems having regard to her forced separations from her mother and would need considerable psychological support that would not be available in the applicant’s home village. The second scenario would be “abhorrent” because there was no evidence the applicant was neglectful or abusive and they had a close relationship. Permanent separation would be highly unsatisfactory. The third scenario was also unsatisfactory because the applicant’s daughter should have access to her mother at all times but was preferable to the second scenario. The fourth scenario was the most satisfactory because it allowed the applicant and her daughter to be reunited and to have the psychological support they were both likely to need.
Mr Green conceded he had not assessed the applicant’s daughter recently and was not a child psychologist but nonetheless remained of the view that the fourth scenario would be the most satisfactory outcome for the applicant’s daughter. Mr Green was asked whether being exposed to the crimes of the applicant would have affected the applicant’s daughter. Mr Green said that the arrests would have caused some trauma but in his view the most significant factor effecting the applicant’s daughter and likely to affect her in the future was separation from her mother. If the applicant’s daughter was reunited with her mother and received some psychological support, this would be of benefit. Mr Green was asked about the effect on the applicant’s daughter if her mother reoffended and was again incarcerated. According to Mr Green, if this were to occur within months of the applicant and her daughter being reunited, this would be detrimental because of the forced separation. Much would depend on the daughter’s age at the time of the separation. In Mr Green’s opinion, it would be important for the applicant and her daughter to be reunited and to remain together in Australia during the daughter’s developmental years. Living together in Vietnam would be less satisfactory because of the lack of psychological support and more difficult living conditions.
SUBMISSIONS OF THE PARTIES
Counsel for the applicant accepts that her criminal offences were serious but contended that the applicant’s role in each of the offences was “relatively limited and minor”. This was recognised by both sentencing judges. The seriousness of the offences are further mitigated by the fact the applicant was very vulnerable at the time, the motivation for her offences was selfless and she lacked appreciation of the seriousness of her offences and the consequences of reoffending. Given the nature of the offences and the applicant’s role, the risk to the Australian community was at the lower end of the scale. In any event, there is a low risk of the applicant reoffending. She does not have traits that put her in the high risk category, she was isolated in gaol and there is no evidence she has been influenced by or closely associated with other criminals, her time in incarceration and thereby being separated from her daughter had a “major salutary effect” on her and she now has a stable home available to her.
Counsel for the applicant contended that one of the material issues in the case is the best interests of the applicant’s daughter, which is a primary consideration. It is in the daughter’s best interests for her mother to stay in Australia so they can be reunited and continue living in Australia. Moreover, it is highly unlikely the applicant will succeed in having the care order rescinded if the applicant is deported to Vietnam. The applicant relies on the evidence of Mr Green and the documents produced by the Department of Family and Community Services however, as I have noted earlier, I have not had regard to these documents.
The Minister’s legal representative contended that the protection of the Australian community weighed heavily in favour of cancelling the applicant’s visa. Her criminal conduct was serious, the applicant lacked appreciation of the seriousness of her offence and reoffended soon after her first sentencing hearing. The fact the applicant was vulnerable and was motivated to offend for financial gain does not assist the applicant and simply highlights the risk she will reoffend if in a similar position in the future. Much emphasis is placed on the support of the applicant’s husband but this relationship broke down before and there was a risk it would fail again. There is no evidence that the applicant has completed any rehabilitation while in gaol and Mr Green’s evidence that the applicant had a low risk of reoffending should be given little weight - he had previously reported it was unlikely the applicant would reoffend yet she did so within a year.
The Minister’s legal representative also contended that the applicant commenced offending within 18 months of arriving in Australia, she has limited ties with the Australian community, apart from her daughter who was in care, and her relationship with her husband is not strong. This primary consideration therefore favours the cancellation of the applicant’s visa.
While lawyers for the Minister concede the applicant has a strong relationship with her daughter, it was contended that she has exposed her daughter to criminal offences in the past and any further reoffending would be detrimental to her daughter’s interests. Regardless of the outcome of the review, the applicant stated she would apply to rescind the care order and, if so, it was contended that the applicant and her daughter could both return to Vietnam. Limited weight should be given to Mr Green’s assessments of the daughter’s psychological needs as he had not recently assessed her and was not a specialist in this area. On balance this consideration weighs against cancellation but not strongly so and is outweighed by the other primary considerations.
Both parties conceded that the applicant will not face significant impediments in resettling in Vietnam given there are no language and cultural hurdles, although Counsel for the applicant contended she will suffer hardship if she does not receive appropriate psychological treatment, which is unlikely to be available in Vietnam. He further contended that the applicant will face a serious impediment if her daughter is not allowed to accompany her to Vietnam if she is deported. In contrast, The Minister contended that the other considerations favoured cancellation.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Clause 9.1(1) of Direction no. 55 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm. It is further stated that:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, regard must be had to the nature and seriousness of the conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct (cl 9.1(2)).
Any conduct that forms the basis of a finding that a person does not pass the character test is considered to be serious (cl 9.1.1(1)(d)). Regard must be given to: the sentence imposed; the frequency of the person’s offending; whether there is any trend of increasing seriousness; and, the cumulative effect of repeated offending (cl 9.1.1(1)(e) – (g)). Violent and/or sexual crimes are viewed very seriously (cl 9.1.1(1)(a)) and whether the person has re-offended since being formally warned about the consequences of further offending on the person’s migration status must be taken into account (cl 9.1.1(1)(i)).
In considering whether a person represents an unacceptable risk of harm to the Australian community, decision-makers should have regard to the principle that tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)). Clause 9.1.2 provides that in making this assessment decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) the likelihood of the person engaging in further criminal or other serious conduct, taking into account: information and evidence on the risk of the person re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time in the community since their most recent offence …
It is common ground that the offences were serious. The cultivation of prohibited drugs in commercial quantities is a serious offence given the effect on the Australian community of the use of illicit drugs. Counsel for the applicant contends it is relevant that the applicant’s role was limited and her motivation for offending was selfless. The Minister’s legal representative did not make submissions about the nature of the applicant’s role in the commission of the offences and it was unclear whether the Minister contended that this or the applicant’s motivation were relevant in assessing the seriousness of the applicant’s conduct.
Clauses 9.1.1(1)(e) and (f) set out two of the factors that decision-makers must have regard to when assessing the seriousness of conduct, namely the sentence imposed and the frequency of the person’s offending. In this case, the applicant offended within six months of her first sentencing hearing and after being explicitly warned by Madgwick DCAJ about the consequences of a further breach. In my view, this makes the applicant’s conduct serious and concerning, notwithstanding her later vulnerability. There is evidence from the applicant that she did not understand the consequences of reoffending and she told Mr Green she had been “pardoned”. This was her evidence, even though the sentencing remarks of Madgwick DCAJ were very clear.
The applicant was given a good opportunity and it is surprising that someone with no history of criminal conduct should reoffend so readily. Ordinarily, this would elevate the seriousness of the criminal conduct but in this case it is relevant to take into account, as did Maiden J, the applicant’s vulnerability because of her low intellect. I also take into account the findings of both sentencing judges that the applicant’s role was limited and she was not the instigator of the cultivation. This reduces the seriousness of her conduct. The applicant’s motivation was financial gain and the fact she felt driven to earn money for her family in Vietnam does not in my view ameliorate the seriousness or justify the conduct but rather raises ongoing concerns about the risk she will reoffend. However, I accept the applicant was desperate at the time the offer was made to move into the house at Casula because she was homeless and this offer must have been like a life line at a time when she was most vulnerable and seemingly alone. In conclusion, I find that the conduct was serious but at the lower end of the range.
The second issue to consider is the risk to the Australian community should the applicant reoffend. There is significant dispute between the parties on this issue. This consideration not only involves an assessment about the risk of the visa holder reoffending but the risk of harm to the Australian community in the event they do and whether this risk is “unacceptable”.
Mr Green states that the risk of the applicant reoffending is “low” but the Minister contends the risk of the applicant reoffending is “significant”. Being satisfied as to whether there is a low, high or a moderate risk, or something in between, is difficult in a case such as this. Assessing the propensity for the applicant to reoffend involves some level of guesswork because the applicant has little criminal history, has particular mental health and intellectual issues and has no track record since her release from incarceration. Despite these difficulties, I am satisfied on the available evidence that there is a real risk the applicant will reoffend if her relationship with her second husband breaks down. A ‘real risk’ of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
I accept the evidence of the applicant and Mr Green that the applicant’s incarceration has had a profound effect on her but I also note her evidence that it was very important to her to send money to her family in Vietnam and she agreed to engage in criminal conduct to, in part, further this objective. While laudable, there is evidence this has caused conflict with others and she has previously put her youngest daughter’s welfare at risk by embarking on such a reckless course. The evidence of Mr Green was that it was his impression the applicant was immature in her response to the crisis with her uncle and she made very poor decisions at this time. The limitation in the applicant’s intellectual functioning and her youth and naivety may have contributed to this. It is possible this may be a continuing problem. On the other hand, the applicant conceded her action in leaving her uncle’s premises without making alternative plans was “not a good decision” and she showed some insight that she needed support from others, including her husband, when she was questioned about what she would do in the future. In summary, the risk is not high but neither is it so low as to be insignificant.
Given this risk, the issue for consideration is the risk of harm to the Australian community if this conduct is repeated and whether the nature of the risk is “unacceptable”. Counsel for the applicant contended that the risk to the Australian community is low because the applicant was not an instigator of the crimes and would not have the resources or knowledge to be able to establish her own cannabis plantation. While I accept the applicant was not a major player, I also note that cultivation is less likely to take place without willing house-sitters like the applicant as those behind the operation may be less inclined to take on the risk of exposure by themselves cultivating plants. This is no doubt why the applicant has been approached twice to perform this role; she was a willing but naive participant in need of money. I therefore do not accept the contention that the risk of harm is low. Cultivating drugs is serious, as is recognised by the maximum penalties, and the applicant’s role was pivotal. However, this is not a case where the applicant was involved in organised crime or in the production and commercialisation of more serious and dangerous drugs.
As noted in cl 9.1.2(1), “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”. Having regard to this principle and the undisputed evidence about the nature of the offence and the applicant’s role, I assess the risk of harm to the Australian community if the applicant does reoffend as significant but not so significant that any risk would be “unacceptable”. In my view, the risk of harm is at the lower end of seriousness and therefore at the higher end of the range that the Australian community would be prepared to tolerate. The primary considerations are inter-related and must be balanced against each other and the extent to which the Australian community will tolerate risk will also depend on the circumstances of each case and, in particular, the other primary considerations.
Having regard to these matters, I find that the consideration of the protection of the Australian community weighs in favour of cancelling the applicant’s visa, but not overwhelmingly so.
Strength, duration and nature of ties to Australia
Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Migration Act, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted in the cl 6.3 principles, “a higher level of tolerance” of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a “positive contribution to the Australian community” and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations.
The applicant has spent five years in Australia but commenced her offending within 18 months of arriving and offended again within another year. She has spent most of her time in Australia either on bail, remand, incarcerated or on a good behaviour bond. She has built some links with the Australian community but they are limited. The applicant’s relationship with her husband commenced in Vietnam and the evidence is that they only lived together for about 15 months before separation. It is unclear how strong their relationship is because it is untested. The Minister’s legal representative contended that the fact the applicant was in Australia such a short time before offending weighs in favour of cancellation. I accept this submission (refer also Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390).
In summary, the applicant has limited ties with the Australian community and the strength of any relationship with her husband is untested. Importantly, the applicant commenced offending not long after her arrival and within weeks of her permanent visa being granted. This counts against her and in my view weighs in favour of cancellation.
Best interests of minor children in Australia affected by the decision
Direction no. 55 requires that the decision-maker determine whether visa cancellation is or is not in the best interests of a relevant child or children under 18 years old (cl 9.3(1)-(2)). As noted by Robertson J in Spruill and Minister for Immigration and Citizenship [2012] FCA 1401 a decision-maker bound by Direction no. 55 “must, expressly or impliedly, actually make a determination about whether the cancellation is, or is not, in the best interests of the child. It is not enough merely to have regard to those interests”.
Clause 9.3(4) lists a number of factors that must be considered where relevant. They include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in the future, the impact of the person’s prior conduct and any likely future conduct, the likely effect that any separation from the person would have on the child, whether there are other persons who already fulfil a parental role, any known views of the child, evidence that the person has abused or neglected the child and evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
It is common ground that the applicant's daughter is a minor child living in Australia whose interests would be affected by the decision to cancel her mother's visa. In the delegate’s decision of 16 October 2012 it was accepted that separation of the daughter from the applicant as a result of cancellation would be “very traumatic” and would “definitely not be in her best interests”. This view is consistent with the view of Mr Green. However, the delegate also stated he believed the more likely result would be that the applicant's daughter would return with her to Vietnam. The delegate further acknowledged that the applicant’s daughter would not have access to the same educational opportunities as in Australia but this was stated to be offset by the benefit of having access to an extended family. This is a merits review and not an appeal based on the reasons of the delegate but it is interesting to note by way of background that a broad range of factual and legal issues were raised at the hearing about the impact of the decision on the applicant's daughter that were not raised with the delegate and therefore not considered in any detail.
The applicant contended that it was relevant to consider four different scenarios in forming a view about the best interests of the applicant's daughter.
Each scenario involves the applicant seeking rescission of the care order, which is what she said she would do. The assumption of the delegate when he considered this matter was that the applicant would succeed in her application. However, at the hearing Counsel for the applicant raised the real concern that the applicant would not be successful if she was deported. Counsel referred to the case of re Elizabeth which was decided in the District Court of New South Wales on 21 September 2011 by Judge R Letherbarrow. In that case, the mother, a Cambodian national who was arrested and subsequently incarcerated for importing illegal drugs, made application under s 90 of the Children and Young Persons (Care And Protection) Act 1998 for the return of her daughter, who was in foster care. One of the issues considered by the Court was the fact that it was probable the mother would be deported. Ultimately the mother was unsuccessful and, while they were many differences between this case and the present case, the probable deportation of the mother was a matter that was considered by the experts and the court as a relevant factual matter for consideration, even though it was not the determinative factor. The decision was long and complicated and followed eight days of hearing.
This case demonstrates the complicated issues that can be raised when the Court is considering care orders. I am therefore of the view that the issue of whether the applicant will succeed in her application for rescission is not likely to be straightforward, particularly if the applicant’s visa is cancelled. Much will depend on an appropriate and thorough assessment of the daughter’s welfare and interests at the time the application is made. The migration status of the applicant is likely to be one of the factors considered by the Court. The applicant's daughter did not give evidence but the Tribunal was provided with the expert reports of Mr Green, evidence from the applicant and various presentencing reports, all of which provided the Tribunal with invaluable insight into the relationship between the applicant and her daughter and her daughter's welfare and best interests. On the evidence available to the Tribunal, it appears that the relationship between the applicant and the daughter is close. Mr Green reported that the applicant and her daughter had a somewhat co-dependent relationship because of their particular circumstances. There is no evidence of abuse, although there is clear evidence that the applicant's daughter was traumatised by her mother’s arrest, not once but twice, and their subsequent separation.
According to the evidence of Mr Green, which I accept, permanent separation would be highly unsatisfactory for the applicant’s daughter, which I note would be the case if the applicant’s visa was cancelled and the applicant was unsuccessful in her application for rescission of the care order. Mr Green was of the view that if the applicant reoffended in a relatively short period of time and there was another separation, this would be detrimental to the applicant's daughter. He did not opine on the relative merits of scenarios one and three but unreservedly supported scenario four.
The Tribunal has no control over whether the order is rescinded but I accept that if the applicant’s visa is cancelled there is a greater risk the care order will not be rescinded. I also accept that permanent separation will not be in the daughter's best interests. It therefore follows that I accept that if the applicant is not successful in rescinding the care order it would not be in her daughter's best interests for the applicant’s visa to be cancelled. It is likely the applicant would have some visitation rights with her daughter in Australia, even if her daughter remains in foster care and, according to the evidence of Mr Green, this would be in her daughter's best interests.
Mr Green did not specifically address the factors set out in cl 9.3 (4) of Direction no. 55, which must be considered by the Tribunal in forming a view about whether cancellation of the applicant’s visa is, or is not, in her daughter's best interests. Based on the evidence of Mr Green, the applicant and the various presentencing reports and sentencing remarks, I find in respect of these factors as follows:
(a)The relationship between the applicant and her daughter is strong and enduring, notwithstanding the recent separation, and the applicant has been in a parental role since her daughter's birth until April 2011. Notwithstanding the separation, there has been regular and meaningful contact between the applicant and her daughter since April 2011.
(b)Separation will have a detrimental effect on the applicant's daughter and if the applicant’s visa is cancelled and the care order is not rescinded it would be very difficult for the applicant and her daughter to continue regular contact. Personal contact is unlikely and telephone contact would be a less satisfactory substitute.
(c)The daughter’s foster carer is currently taking on a parental role and there is evidence this is intended as a long-term placement but there is no evidence about whether this would be in the daughter’s best interests.
(d)The applicant’s previous offending has had an impact on her daughter but the evidence of Mr Green and the applicant suggests that the key impact relates to the daughter’s separation from her mother rather than from the criminal conduct itself. However, if the applicant was to reoffend in the foreseeable future this would likely to be detrimental to the applicant's daughter.
(e)The applicant’s daughter has not expressed any view to the Tribunal about the cancellation of her mother’s visa or about the various scenarios. It is Mr Green's view that separation will have a lasting impact upon the applicant’s daughter and I accept that this is likely to be the case.
(f)There is no evidence of abuse or neglect and provided the applicant does not further offend, there is evidence the applicant is likely to play a positive parental role in the future, either as her daughter's carer or with regular parental visits if her daughter remains in care.
(g)If the applicant’s visa is cancelled and the care order is rescinded to allow the daughter to return to Vietnam with her mother, the daughter is unlikely to have the same educational benefits that she has had in the past five years and is less likely to have access to the psychological treatment and support services available in Australia. In this regard, I accept the evidence of Mr Green who states he has treated a number of other patients from the North Vietnamese provinces and therefore has some expertise about the level of services provided as a result of these consultations. On the other hand, I also accept that the applicant’s daughter will have the benefit of an extended family. While it is difficult to speculate, there is no definitive evidence, one way or the other, about whether these benefits are likely to offset the benefits available to the applicant’s daughter if she remains in Australia. Mr Green expressed considerable concern about the applicant’s daughter not having access to counselling and while I note he has not assessed her recently and is not a specialist in the field, his opinions are legitimate, they are based on his assessment of the daughter and three consultations with the applicant (including a recent review) and in my view they carry considerable weight.
The difficulty in this case is that until her arrest and incarceration April 2011, the applicant has been her daughter’s sole carer and support in Australia. This means that the ‘real risk’ the applicant may reoffend takes on greater significance. Not only does this impact on the Australian community but has the potential to significantly impact on the applicant’s daughter. This much was conceded by Mr Green.
Given the potential uncertainty about whether the care order will be rescinded and/or whether the applicant will reoffend at some time in the future, it is difficult to assess whether cancellation of the applicant’s visa is or is not in her daughter’s best interests but I must nonetheless form a view one way or the other. Having considered the evidence, the possible contingencies and the vulnerability of the applicant’s daughter I am strongly of the view it would be in the daughter's best interests for the applicant to remain in Australia so that the Court in any subsequent care proceedings will have the maximum flexibility in determining what care is appropriate. The Court will no doubt have access to all relevant documents and reports on the best interests and welfare of the applicant’s daughter. In my view it would not be in the daughter's best interests to have any care decision unduly fettered or influenced by her mother's deportation. This would be an unfortunate outcome.
In summary, I conclude that this primary consideration weighs strongly against cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant. There are four considerations listed, two of which are said to be relevant to the applicant.
The first non-primary consideration listed in cl 10 is the effect of cancellation on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. Other than the applicant’s second husband and her daughter, the applicant does not have close family in Australia. The applicant’s husband gave evidence that he wants to resume his relationship with the applicant and this evidence was consistent with the information he provided to Mr Green. This evidence is also consistent with the evidence of the applicant herself. While I accept the resumption of this relationship is a relatively recent development and is untested, there is no evidence the relationship is a sham or recent fabrication. The evidence of the applicant and the applicant’s husband was credible and both were challenged about this issue by the Minister’s legal representative. I therefore do not accept the Minister’s contention that a decision to cancel the applicant’s visa is unlikely to have a “real effect” on the applicant’s husband. This factor weighs against cancellation.
For completeness, I also note that if the applicant’s visa is cancelled, this will inevitably have an impact on the applicant’s daughter who is living in Australia but that consideration is more appropriately dealt with as a primary consideration under cl 9.3 of Direction no.55.
The Minister contended that the only other non-primary consideration that was relevant to the applicant’s case was the fourth matter set out in clause 10(1)(d), namely the extent of any impediments that the person may face if removed from Australia to their home country. There is no language or cultural impediment to the applicant in returning to Vietnam. Indeed, the applicant will have the benefit of her extended family and will be reunited with her eldest daughter. However, a critical issue is the impact on the applicant’s mental health if she is forced to return without her youngest daughter. Mr Green reported that the applicant previously had a major depressive disorder and needs ongoing treatment. There is evidence that the applicant had suicidal ideation when she was first incarcerated following separation from her daughter and Mr Green is concerned the applicant will need professional counselling and support in Vietnam if she is forced to leave without her daughter. Even if the applicant’s youngest daughter joins the applicant in Vietnam, Mr Green is concerned both the applicant and her daughter will need counselling. As already noted, I accept the evidence of Mr Green that the required level of such services is unlikely to be available to the applicant and, as such, this factor also weighs against cancellation of the applicant’s visa.
CONCLUSION
Two of the primary considerations weigh in favour of cancellation and one against. The other considerations tend to count against cancellation but these considerations are generally to be afforded less weight than the primary considerations. It is not a case of simply tallying the primary and other considerations against each other but rather making a qualitative assessment, having regard to those considerations, of whether “the risk of future harm from a noncitizen is unacceptable”. One or more primary considerations may outweigh other primary considerations.
Having regard to all relevant considerations and the available evidence, I do not accept the contention of the Minister that the protection of the Australian community and the applicant’s limited contribution and ties to Australia outweighs the primary consideration of the best interests of the applicant's youngest daughter. While I note that the Australian community will have less tolerance of any criminal who has participated in the community for a short period before offending, the applicant's crimes were at the lower end of the scale of seriousness and, according to the sentencing judges, there were exceptional circumstances that gave rise to the offending. Importantly, there is evidence that the consequences of cancellation may have a significant negative impact on the applicant's youngest daughter, particularly if this involves separation.
Weighing all the relevant considerations in this matter I therefore conclude that the correct and preferable decision is that the decision of the delegate should be set aside and substituted with a decision that the Applicant’s visa not be cancelled.
82. I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
..................[sgd]....................
Associate
Dated 10 January 2013
Date of hearing
10 December 2012
Date final submissions received
17 December 2012
Counsel for the Applicant
Nicholas Poynder
Solicitors for the Applicant
DPN Company Solicitors & Barristers
Solicitors for the Respondent
Clayton UTZ
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