Tyson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1478

Tyson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1478 (30 May 2023)
Division:GENERAL DIVISION
File Number(s):2023/1495
Re:Rebecca Tyson
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 30 May 2023
Date of written reasons: 1 June 2023
Place:Canberra

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision made by a delegate of the Minister on 1 March 2023 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa under subsection 501(1) of the Migration Act 1958.
......................[SGD]..................................................
Member W Frost
Catchwords
MIGRATION – decision of the delegate to refuse to grant the applicant a visa pursuant to subsection 501(1) of the Migration Act 1958 – whether the applicant passes the character test – where the applicant has a substantial criminal record pursuant to subsection 501(7) of the Migration Act 1958 – applicant does not pass the character test – whether the discretion to refuse to grant the applicant a visa should be exercised – application of Direction No 99 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 39, 43
Migration Act 1958, ss 189, 197C, 198, 499, 500, 501, 501CA, 501F, 501G
Cases
Ali v Minister for Home Affairs [2019] FCAFC 93
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33
Cameron v The Queen (2002) 209 CLR 339
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158
Pavey and Minister for Home Affairs [2019] AATA 4198
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
1 June 2023
INTRODUCTION

This proceeding concerns a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), to refuse to grant the Applicant, Ms Rebecca Tyson, a Student (Temporary) (Class TU) visa (Visa).
In March 2023, Ms Tyson’s application for the Visa was refused under subsection 501(1) of the Migration Act 1958 (Act), because a delegate of the Minister was not satisfied that Ms Tyson passed the ‘character test’ under the Act due to having a ‘substantial criminal record’, in circumstances where she had been ‘sentenced to a term of imprisonment of 12 months or more’. In this regard, in 2018, Ms Tyson was convicted of stealing, among other convictions, by a Queensland Magistrates Court and sentenced to a term of imprisonment of 18 months, which was suspended for a period of three years. Ms Tyson has remained in the community since her convictions in 2018.
Ms Tyson applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision to refuse to grant her the Visa. The Tribunal has considered all of the documents in the bundle of documents filed in this proceeding, pursuant to section 501G of the Act,[1] together with the parties’ respective Statements of Facts, Issues and Contentions,[2] and the additional documents filed by the parties.[3]
[1] Exhibit 1, known as the ‘G-Documents’.
[2] Applicant’s Statement of Facts, Issues and Contentions dated 2 May 2023 (Exhibit 2), Respondent’s Statement of Facts, Issues and Contentions dated 27 April 2023 and the Applicant’s Amended Statement of Facts, Issues and Contentions dated 23 May 2023 (Exhibit 20).
[3] Exhibits 3-20.
BACKGROUND
Ms Tyson is a 37-year-old citizen of the United Kingdom.[4]
[4] Exhibit 1, pages 104-105 and 139.
In January 2011, Ms Tyson first arrived in Australia on a working holiday visa.[5]
[5] Ibid., pages 79 and 213.
In May 2011, Ms Tyson left Australia.[6]
[6] Ibid., page 79.
In October 2012, Ms Tyson re-entered Australia on a tourist visa.[7] Since this time, Ms Tyson has left Australia once, for four weeks in July 2018, but has otherwise resided in Australia on various temporary visas.[8]
[7] Ibid., pages 79 and 213.
[8] Ibid.
On 30 November 2018, Ms Tyson was convicted in the Southport Magistrates Court in Queensland of the following offences:[9]
(a)‘stealing by clerks and servants’, between 19 October 2016 and 14 May 2018, for which Ms Tyson was sentenced to 18 months imprisonment, suspended for a period of three years, and ordered to pay $14,279 in restitution within 24 months;
(b)‘stealing by clerks and servants: fraud-dishonestly obtains property from another person’, on 2 June 2017, 3 February 2018 and 26 February 2018, for which Ms Tyson was sentenced to one month imprisonment, and which was also suspended for three years; and
(c)‘breach of bail condition’ on 14 September 2018, for which Ms Tyson was not further punished.
[9] Ibid., page 27.
These convictions resulted from Ms Tyson offering memberships to the gym at which she worked in exchange for cash payments on 36 occasions to the value of $16,341 and stealing $14,279 of that money from her employer, together with selling or pawning various items of equipment owned by the gym.[10]
[10] Ibid., pages 28-34.
On 14 February 2019, Ms Tyson applied to the Department of Home Affairs (Department) for the Visa, being a Student (Temporary) (Class TU) visa.[11]
[11] Ibid., pages 103-130.
On 29 November 2022, the Department sent Ms Tyson a ‘Notice of intention to consider refusal of your visa application under section 501(1) of the Migration Act 1958’, because of information indicating that she did not pass the ‘character test’ under the Act, due to having a ‘substantial criminal record’.[12] Ms Tyson was invited to comment on the information and provide reasons why her application for the Visa should not be refused.[13]
[12] Ibid., pages 37-40.
[13] Ibid.
In December 2022, Ms Tyson’s legal representative provided a written statement and supporting evidence in response to the Department’s notice of November 2022.[14]
[14] Ibid., pages 41-78.
On 1 March 2023, a delegate of the Minister decided to refuse Ms Tyson’s application for the Visa under subsection 501(1) of the Act.[15] On 7 March 2023, Ms Tyson was notified of the decision by letter of the same date addressed to her legal representative.[16] The letter notifying Ms Tyson of this decision also confirmed that her Bridging A (Class WA) visa granted in May 2022 ‘has now been cancelled for the purpose of section 501F(3)(b)’ of the Act.[17]
[15] Ibid., pages 14-24.
[16] Ibid., pages 11-13.
[17] Ibid., page 12.
On 10 March 2023, Ms Tyson applied to the Tribunal for review of the decision to refuse to grant her the Visa.[18]
[18] Ibid., pages 5-10.
PROCEDURAL ISSUES
The Tribunal sets out below the procedural issues that arose in this proceeding, which explain the delivery by the Tribunal of its written reasons after the date of the Tribunal’s decision made on 30 May 2023 in accordance with subsection 500(6L) of the Act.
From the time of Ms Tyson’s application to the Tribunal on 10 March 2023, she was legally represented in this proceeding.[19] However, that legal representative did not further correspond with the Tribunal after 6 April 2023, being the date on which he filed witness statements and evidence in support of Ms Tyson’s application. This was one month before the Tribunal hearing scheduled to be held on 8 May 2023. Ms Tyson’s legal representative did not file a Statement of Facts, Issues and Contentions on her behalf by 6 April 2023, as directed by the Tribunal pursuant to Directions made on 21 March 2023. In advance of, and up to, the date of the hearing on 8 May 2023, Ms Tyson’s legal representative remained on the Tribunal’s record as her legal representative in this proceeding and neither he nor Ms Tyson provided any correspondence to the contrary.
[19] Ibid., page 7. See also Exhibit 1, pages 41-42.
As a result of Ms Tyson’s legal representative remaining the listed contact for all correspondence to be sent to Ms Tyson by both the Tribunal and the Minister in this proceeding, Ms Tyson herself did not receive, or have the benefit of considering, the Minister’s Statement of Facts, Issues and Contentions dated 27 April 2023, which was filed with the Tribunal and served on Ms Tyson’s legal representative on the same date, until Ms Tyson herself was provided with a copy by the Minister’s representative on 3 May 2023. This was the final day before the commencement of the then-applicable ‘two-day rule’ period stipulated by subsections 500(6H) and (6J) of the Act. Ms Tyson had provided the Tribunal with a Statement of Facts, Issues and Contentions on 2 May 2023, being the second last day under the Act for her to provide any documentation in support of her application before the scheduled hearing on 8 May 2023.
Ms Tyson’s legal representative did not attend the hearing on 8 May 2023 to represent his client in this proceeding. As a result, Ms Tyson represented herself at that hearing. She made submissions and gave evidence to the Tribunal. At the close of the Tribunal hearing on 8 May 2023, the Tribunal reserved its decision and thereafter began preparing its written reasons with a view to publishing the decision and reasons by 30 May 2023, as required under subsection 500(6L) of the Act.
On 15 May 2023, Ms Tyson emailed the Tribunal requesting consideration be given by the Tribunal to allowing her to make further submissions because, without legal representation, she felt not all documentation in support of her case and, specifically, her rehabilitation had been provided at the hearing on 8 May 2023. Additionally, Ms Tyson enquired whether further time would be granted to allow her to seek new representation before the Tribunal made its decision and also whether the Tribunal would extend the time for making a decision beyond 30 May 2023 to allow for the appointment of a new legal representative.
As a result of this correspondence from Ms Tyson of 15 May 2023, on the same date, the Tribunal sought the parties’ availability for an urgent Telephone Directions Hearing on either 16 or 17 May 2023 to discuss Ms Tyson’s abovementioned requests. Ms Tyson informed the Tribunal that she was available on 17 May 2023 and the Tribunal held a Telephone Directions Hearing on that date. At that Directions Hearing, Ms Tyson told the Tribunal that she was in the process of appointing a new representative and the Tribunal decided to re-open the substantive hearing and list it for 26 May 2023, in order to allow Ms Tyson as much time as possible to provide any further documentation in support of her application before the date by which the Tribunal was required to make a decision, being 30 May 2023, and also to provide the Minister time to provide any material in response to Ms Tyson’s further documentation. That is, in order for Ms Tyson to provide her foreshadowed further submissions in support of her application to the Tribunal, and avoid the bar imposed by subsections 500(6H) and 500(6J) of the Act, the Tribunal decided to re-open its hearing in this proceeding and listed it to be held on Friday, 26 May 2023. In this regard, at the Directions Hearing, the Tribunal informed Ms Tyson of the effect of subsection 500(6L) of the Act requiring the Tribunal to make a decision by 30 May 2023 or otherwise the decision under review was taken to be affirmed. That is, the Tribunal told Ms Tyson that it was statutorily precluded from extending the time for the making of its decision. Accordingly, the Tribunal made the following Directions on 17 May 2023:
The hearing be re-opened and listed for a one (1) day video hearing on 26 May 2023 and, as soon as practicable, the Tribunal make available to the parties the audio recording from the hearing held on 8 May 2023.
On or before 22 May 2023, the Applicant must give to the Tribunal and the Respondent any amended Statement of Facts, Issues and Contentions and any further evidence on which she seeks to rely at the re-opened hearing on 26 May 2023.
On or before 24 May 2023, the Respondent must give to the Tribunal and the Applicant any further material on which he seeks to rely at the re-opened hearing. [emphasis in original]
As set out in the above Directions, the Tribunal sought to ensure that both parties had access to the audio recording from the hearing on 8 May 2023, primarily so that Ms Tyson’s new representative would be apprised of what had occurred at that hearing in advance of the re-opened hearing on 26 May 2023. Additionally, the Tribunal considered that provision of the audio recording was the most efficient means of achieving this aim, noting that the re-opened hearing was a little over one week away and the Tribunal considered it unlikely that a Transcript of Proceedings from the hearing on 8 May 2023 would be available in sufficient time to allow the parties to review that document ahead of the reconvened hearing.
The Tribunal’s Directions of 17 May 2023 also contained notations regarding the provision of documents and publication of the decision, of which one notation relevantly stated that:
the two-day rule contained in sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth) means the Tribunal can only have regard to information presented orally in support of the Applicant’s case at the hearing of this matter if that information was set out in a written document given to the Tribunal and to the Respondent on or before 23 May 2023. [emphasis in original]
As previously stated, the day by which the Tribunal was to make a decision in this application and avoid the effect of subsection 500(6L) of the Act, was Tuesday, 30 May 2023. The Tribunal also notes that the preceding day, Monday, 29 May 2023, was a public holiday in the Australian Capital Territory (ACT), in which this constituted Tribunal is located, noting also that the Minister’s representative is located in the ACT. As a result, save for holding the re-opened hearing on the day by which the Tribunal was to make a decision under the Act, being 30 May 2023, the Tribunal scheduled that re-opened hearing on the latest possible business day in order to allow Ms Tyson to make any further submissions and file any further material, while also allowing the Minister to do the same.
On Monday, 22 May 2023, Ms Tyson’s newly appointed migration agent, Ms Debbie Masih, requested a one-day extension in which to file further documentation. The Tribunal granted this request and varied its Direction of 17 May 2023 so that Ms Tyson was to file any amended Statement of Facts, Issues and Contentions and any further evidence by Tuesday, 23 May 2023, being the final day to do so before the application of the ‘two-day rule’ in subsections 500(6H) and 500(6J) of the Act.
At 6:05pm on 23 May 2023, the Tribunal received documentation from Ms Masih in support of Ms Tyson’s application.
On 24 May 2023, the Tribunal received email correspondence from both Ms Tyson and her representative, Ms Masih, attaching further documentation in support of Ms Tyson’s application. That is, the Tribunal received this additional documentation less than two business days before the scheduled re-opened hearing on 26 May 2023.
On 24 May 2023, the Minister’s representative informed the Tribunal that he would not be filing any further written submissions or evidence in advance of the re-opened hearing. He also informed the Tribunal that the issue of the documentation filed with the Tribunal by or on behalf of Ms Tyson would be addressed at the hearing.
On Friday, 26 May 2023, the Tribunal held the re-opened hearing in this proceeding. The Tribunal took the abovementioned documentation it received on 23 May 2023 into evidence, and also received the parties’ further oral submissions, further evidence from Ms Tyson and from another witness, Ms Debbie Lindsay, in support of Ms Tyson. In respect of the additional documentation supplied on 24 May 2023, the Tribunal referred the parties to its Directions noting the ‘two-day’ rule and its inability under the Act to consider such material filed by or on behalf of Ms Tyson. In assisting the Tribunal and Ms Tyson, the Minister’s representative agreed to tender this material so as to avoid the effect of subsections 500(6H) and 500(6J) of the Act after the commencement of the ‘two-day rule’ period. The Tribunal therefore took this further material into evidence.
On Tuesday, 30 May 2023, the Tribunal decided to affirm the decision under review in this application under subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act). A copy of that decision was published to the parties on that day. The decision also noted that the Tribunal would give written reasons for its decision within a reasonable time of the decision. These are those written reasons, published on 1 June 2023.
As a result of the above re-opening of the hearing, the Tribunal does not consider that either Ms Tyson, or the Minister, has suffered any prejudice as a result of:
(a)the relisting of the hearing to accommodate the filing of further material and further ventilation of specific issues at the hearing; and
(b)the slight delay between the Tribunal’s publication of its detailed written reasons on 1 June 2023, after publication of its short-form decision on 30 May 2023, such that the Tribunal could meet the statutory deadline mandated by subsection 501(6L) of the Act.
At all material times in re-opening this hearing, the Tribunal sought to allow Ms Tyson as much time as possible under the Act to fully ventilate her case and to otherwise ensure procedural fairness was afforded to both parties in this proceeding.
For the avoidance of doubt, despite these above-mentioned unfortunate circumstances in relation to Ms Tyson’s representation in this proceeding, the Tribunal is satisfied that Ms Tyson was given a reasonable opportunity to present her case across the two scheduled hearing dates, and that she had access to all of the relevant material that formed the basis of the Tribunal’s decision and had the opportunity to make submissions in relation to those documents, as required by section 39 of the AAT Act. For example, as referred to above, Ms Tyson filed a Statement of Facts, Issues and Contentions and an amended version of that document in support of her application to the Tribunal and all of the documentation she sought to rely upon in this proceeding, some of which was provided to the Tribunal before both hearing dates but after commencement of the ‘two-day rule’ period under the Act, has been considered by the Tribunal.
To this end, with the Minister’s consent and cooperation, this additional material was taken into evidence and considered by the Tribunal in reaching its decision. Additionally, as set out above, by way of procedural fairness to Ms Tyson and despite having closed the hearing on 8 May 2023 and reserved its decision, the Tribunal re-opened the hearing to allow Ms Tyson to provide further submissions and evidence. Ms Tyson made further submissions, provided further documentation and gave additional evidence at that re-opened hearing and also called a witness to give evidence, noting also that Ms Tyson was represented at the re-opened hearing by Ms Masih, a registered migration agent.
LEGISLATION & POLICY
The Act
Section 501 of the Act relevantly provides that:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;... [emphasis in original]

Subsection 500(1)(b) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act.
The Ministerial Direction
Under section 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers (subsection 499(1) of the Act) and are not inconsistent with the Act or the Regulations made under it (subsection 499(2)). The person or body to whom the directions are given must comply with them (subsection 499(2A) of the Act).
The Minister has made a direction under section 499 of the Act for the purposes of decisions made under, among others, section 501 of the Act, being Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which applies to a decision made in relation to the application for the Visa made by Ms Tyson.
The Preamble to Direction 99 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa (paragraph 5.1(1));
(b)under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test (paragraph 5.1(2));
(c)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion (paragraph 5.1(2));
(d)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 (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(h)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5); and
(i)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation (paragraph 5.2(6)).
Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501(1) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3)
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501(1) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal in this proceeding are:
(a)whether Ms Tyson passes the ‘character test’ as defined in subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant the Visa to Ms Tyson.
EVIDENCE
Ms Tyson
Ms Tyson filed a written statement dated 3 April 2023 in support of her application to the Tribunal, which relevantly said:[20]
[20] Exhibit 2.
I wish to express to you just how remorseful I am about my actions in the past, it is without a doubt the worst decision I made in my life and the hardest period in my life which resulted in me stealing money from a small business and being charged with stealing by servants and fraud.
I am extremely embarrassed, ashamed and I am aware of the seriousness and the effects it would have had on the business I took the money from. It is difficult to put into words just how very sorry I am for my actions and completely hold my hands up that I did the wrong thing. This behaviour and actions were very out of character for me, and my family, friends and work colleagues would agree with me.
I had multiple debts far beyond the amount I was earning, and it completely spiralled out of control and pushed me to the point of desperation at time I felt suicidal and did not tell anyone including my family in the UK how bad things were whilst living on my own…
I was not living any kind of “luxurious lifestyle”, my Mother was sending me small amounts of money from the UK unbeknown to her the [sic] I was in a financial mess with debts and hassle from multiple creditors, so any money she sent me I used to try and live an as normal life as possible, this included my flight ticket to the UK to see her in 2018…
This does not excuse my actions and behaviour but in the first 2 weeks of my employment with Jetts Gym I experienced extreme trauma triggered by an Ectopic Pregnancy and almost died, I had to have life saving surgery to save my life. Leading up to starting the job as Gym Manager I was under extreme financial hardship and had not confided in anyone or asked for help, all my family were in the UK, I was depressed, had bad anxiety, and was taking antidepressants and I was not feeling at all mentally myself and at times suicidal. These events were the catalyst for my very out of character behaviour.
I served my suspended sentence, apologised in writing to the employer and no further convictions have or will ever be recorded.
…
I am so very sorry and remorseful for what I did and feel I have redeemed myself.
I would never dream of doing anything criminal again that would ever hinder my good character traits and reputation I have rebuilt in the community.
I would love to be given a second chance in Australia and continue to prove I am of good character.
Ms Tyson gave evidence by video at the Tribunal hearing on 8 May 2023. She told the Tribunal that she has rehabilitated herself over the years and is ‘extremely remorseful’ for her actions. She acknowledged that between 2016 and 2018, she was suffering ‘quite badly’ with mental health, being anxiety, depression and emotional abuse from a former partner. She had an ectopic pregnancy, which was, understandably, ‘extremely traumatic’ and was said to be ‘a couple of hours away from pretty much passing away’. This event was two weeks before commencing the employment that led to her offending. She had not divulged these and other issues to friends or family and had ‘constant’ financial stress in addition to these matters. Ms Tyson said that her creditors were seeking money on a sustained basis. Ms Tyson received food hampers and received money from her mother; she was ‘not in a good place’ and it was ‘not my character’, she was under ‘extreme financial, emotional stress’. She sought help from Centrelink, but was ineligible for assistance.
In relation to Ms Tyson’s ties to Australia, she told the Tribunal that she has long-term friends since her arrival in Australia 12 years ago. She does not own property and is not married, but has had a partner since September 2021, and has owned a dog for eight years. Ms Tyson has been employed for two years as a remedial massage therapist at a health retreat. She has been offered a place at Southern Cross University to study a Bachelor of Clinical Sciences (Osteopathic Studies) to become an osteopath and give back to the Australian community. Ms Tyson would like to pursue this offer in the future.
Ms Tyson told the Tribunal she has extended family in Perth, Western Australia, being her father’s cousins, whom she lived with in 2012 and described being ‘quite close’ with them and ‘always welcome’ to stay with them. Ms Tyson also told the Tribunal she does not own property in the United Kingdom, she has no job prospects and has not worked there as a remedial massage therapist.
Ms Tyson also said that she is an only child and does not have a close relationship with her father, but her elderly mother lives in the United Kingdom, with whom she is ‘very close’, although her mother cannot support Ms Tyson on the pension when she retires in around November this year.
In relation to the restitution ordered to be repaid by the Court, Ms Tyson said those repayments were approximately $250 per fortnight. She has been ‘making regular repayments over the years’ and wants to repay this debt ‘as soon as possible’. During the COVID-19 pandemic, the payment administrator, ‘SPER’ [State Penalties Enforcement Registry],[21] paused repayments for 6 months due to the multiple lockdowns, also noting that Ms Tyson had been stood down from her job. Therefore, no payments were made for six months. She asked SPER what else could be done to reduce the debt and was informed that TAFE courses could be undertaken.[22] Ms Tyson told the Tribunal that these were all aimed at drug and alcohol abuse, and not relevant to her circumstances. Instead, she volunteered her time with the Salvation Army one day each week, taking time off work, in their retail stores on the Gold Coast. Ms Tyson also noted that she had ‘limited working rights’ up to May 2022. She told the Tribunal her debt is now ‘down to two-thirds’ and that the balance will ‘hopefully be paid by the volunteer work’ of 6 to 8 hours each week, together with fortnightly payments of $160 from her paid employment. Ms Tyson told the Tribunal that she would like to reduce this amount ‘a lot quicker’, but other factors such as increasing rent, cost of living and her hours of employment preclude any more being done. She also intends to apply any income tax refund towards her debt.
[21] Exhibit 20.
[22] Ibid.
Ms Tyson referred the Tribunal to the multiple character references she had provided in this proceeding, including from friends, her mother, her partner and employers. She also wanted the time since the offences to be considered and the fact she has no other criminal convictions in Australia or the United Kingdom. Ms Tyson told the Tribunal that she is remorseful for her actions and there is ‘zero chance that it will happen again’; it was ‘a huge lesson learnt’, she has ‘done the wrong thing’ and it was due to ‘extremely hard stressful, financial, emotional circumstances’. She described not feeling ‘mentally myself’ at the time and now having ‘contributed a lot to the community’.
Ms Tyson further told the Tribunal that she ‘completely’ accepts responsibility for her offending and referred to having emailed the business owner an apology for her actions. She understands that her actions affected the business owner, his family and the wider community, along with Ms Tyson’s family. Ms Tyson understands the repercussions of her offending such as on the business owner, the community, having listed convictions restricting travel, and the periods of ‘self-hate’ and ‘shame’ she experienced. Ms Tyson has attended psychology sessions with Ms Christiana Little from early 2019. Her most recent session was said to be in March this year. Ms Tyson contended that she has ‘done a lot of work on myself’ and in the community, volunteering to ‘really move my life positively’. She acknowledged having made ‘terrible mistakes’ but was seeking to rehabilitate herself and ‘move forward positively’. To this end, her sessions with Ms Little have been ‘extremely valuable’. Ms Tyson also noted that she was waiting four years for the Department’s decision regarding the Visa, and it has been ‘torment’ and this delay and uncertainty impacted her psychologically.
Ms Tyson told the Tribunal that she was ‘extremely remorseful’, and has taken steps towards rehabilitation, such as attending approximately 10 psychology sessions under a Mental Health Plan, her volunteering with the Salvation Army and involvement with Newlife Care Church, which includes volunteer work to reduce her debt. She has taken off one day each week from her paid employment to undertake this volunteering. Ms Tyson also described helping disadvantaged women in the ‘Princess for a Day’ program which she attends for a full day once a month, demonstrating ‘the kind of person that I am’, and not a ‘terrible, greedy person’. She wants to ‘give back to the Australian community’, she is ‘not a risk’, but the circumstances ‘pushed me into a very desperate situation’, she was ‘not mentally feeling myself at all’ and it was ‘very out of character’. Ms Tyson told the Tribunal that she would continue her volunteering ‘far into the future’; it is an enjoyable and positive experience.
Ms Tyson told the Tribunal that she has been in a ‘stable relationship’ with her partner, Mr Shanahan, since September 2021. They have ‘future plans’ and are trying to save to purchase a house and are looking to get engaged and married ‘within the next few years’. If the Visa is approved, they plan to lodge an application for a partner visa, and she does not plan on returning to the United Kingdom. She has been compliant with restitution payments and is ‘in a good place mentally’, and no longer has ‘anxiety and depression’. Ms Tyson also referred to having her finances in order and attending telephone financial counselling through ‘MoneyCare’, delivered by the Salvation Army, where they discuss budgeting, having a healthy relationship with money and saving techniques. This was said to have been ‘really good’ in providing Ms Tyson with an ‘insight into my relationship with money’ and how to improve her spending habits. Ms Tyson estimated having monthly calls with this service since 2019. Finally, Ms Tyson told the Tribunal that she plans to be a positive member of the community and would really like the opportunity to continue moving forward with her life in Australia.
By way of cross-examination, Ms Tyson was referred to the Queensland Police Service Court Brief (Police Court Brief) in relation to her offending.[23] She confirmed that she was employed as the gym manager and her duties included receiving payments from existing members, signing up new members, looking after the gym equipment and the day-to-day running of the gym.[24] Ms Tyson also agreed that the process for new or renewing gym memberships included the client signing a membership agreement form and generally a direct debit form.[25] She also agreed that she had sent text messages to gym members offering discounted 12-month memberships if they paid for those memberships in cash.[26] Ms Tyson told the Tribunal that she was provided by the gym with a $50 mobile phone allowance to send communications about the gym, including regarding memberships. Ms Tyson agreed that she had no authority to offer discounted gym memberships.[27] She also agreed this occurred on 36 occasions between October 2016 and May 2018.[28] Ms Tyson further agreed with the Police Court Brief stating that cash takings should have been around $16,341 if she had banked these cash membership payments, but that she had retained approximately $13,779 from this amount and banked the balance.[29] Ms Tyson said she messaged gym patrons about their memberships being due for renewal and told them that it ‘would be cheaper’ if they paid cash. Ms Tyson took responsibility for these communications and acknowledged that they were sent in order for her to retain some of these monies. She also agreed that she was not supposed to keep any of this money.
[23] Exhibit 1, pages 28-34.
[24] Ibid., page 30.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
Ms Tyson was referred to the statement in the Police Court Brief that, between 1 June 2017 and 27 February 2018, she ‘had pawned numerous items’ from the gym at Cash Converters, including ‘gym equipment (boxing bags, gloves, running ladder and exercise wheel), a Dyson vacuum cleaner and TV wallet brackets’.[30] Ms Tyson agreed that she did not own this property and that it belonged to the gym and its owner. She also confirmed that she knew at the time that she took the items and pawned them that she did not own the property. Ms Tyson said some items, such as boxing gloves and resistance bands, were shared among the personal trainers but the particular items referred to in the Police Court Brief belonged to the business owner. However, Ms Tyson subsequently disagreed that she took the vacuum cleaner; she told the Tribunal she had pawned a vacuum cleaner she purchased second-hand from a friend and therefore could not prove that it was her property because there was no receipt. In response to a question about whether this friend could have given evidence to the Court corroborating Ms Tyson’s account, she told the Tribunal her friend had moved overseas, and Ms Tyson could not confirm she had previously owned the vacuum cleaner. She otherwise pleaded guilty in relation to pawning the other items.
[30] Ibid., page 31.
The Minister’s representative referred Ms Tyson to the statement in the Police Court Brief that she told Police, when asked what happened to the monies, that she ‘had placed them in the safe’.[31] Ms Tyson told the Tribunal she informed the Police she put the cash in ‘a money tin’, there was no safe, but there was a ‘built-in cabinet’ and underneath there was a money tin from which she ‘took the money’ at the end of her shift that she had earlier placed in that tin upon receiving it from the gym’s patrons.
[31] Ibid.
Ms Tyson agreed with the statement in the Police Court Brief that she commenced taking monies from her employer approximately three weeks after commencing that employment and that she had no authority to take the monies and gym items and to pawn the latter.[32]
[32] Ibid.

Ms Tyson was referred to her letter dated 11 February 2019, which was a ‘Genuine Temporary Entrant’ statement that accompanied her Visa application.[33] She agreed knowing that it was important to provide truthful information to the Department and that she had this in mind when preparing the statement in 2019. Ms Tyson further agreed that her offending was a ‘wakeup call’ regarding the importance of honesty. She was referred to the following passage:[34]
Last but not least, I would like to address a listed conviction from November 2018, which perspired as two events in 2016. I was regrettably charged with Fraud, dishonesty [sic] obtaining property from another and Stealing by clerks and servants. Both cases occurred due to severe miscommunication between my former employer and myself. In first, I was accused of unlawfully retaining the business property (personal training equipment) upon the cessation of my employment; however, these items had been gifted to me personally and I generally left them at the business premises to be shared and used by everyone. Unfortunately, there was no way for me to prove the donation, which is why I got convicted.
[33] Ibid., pages 140-141.
[34] Ibid., page 141.
The Minister’s representative put to Ms Tyson that her statement that the items had been ‘gifted’ to her was not true.[35] She initially told the Tribunal that she had brought some items into the gym herself, which all trainers used, and they were packed away at the end of the day. Ms Tyson then confirmed that this was not the equipment for which she was convicted of stealing and agreed that it was not gifted to her and had no right to take this equipment. As a result, Ms Tyson agreed that her statement to the Department from 2019 was slightly misleading.
[35] Ibid.
Ms Tyson was then referred to the subsequent paragraph from her 2019 letter, which relevantly contained the following passage regarding the conviction for stealing by clerks and servants:[36]
The verbal agreement with my employer was that I was paid a salary for managing the gym but the proceeds for any personal training over 6 hrs/week were to got to the company. This was confusing, with no clear way of reporting or tracking the number of clients I trained outside of my managerial shifts and changed on several occasions as my employer found convenient, which ended up in a complaint raised against me for retaining proceeds belonging to the gym. It was only a month after I ceased the employment that my former employer raised the complaints discussed above against me, which escalated into a court mater; although I disagreed, I could not prove otherwise.
[36] Ibid.
Ms Tyson told the Tribunal that some of her personal training work was paid in cash and that her employer was not happy with that arrangement, but that she pleaded guilty to the offences and said she took the monies. Ms Tyson also referred to being in ‘quite a bad mental health headspace’ at the time of this statement, and agreed that she was guilty of the offences. To this end, Ms Tyson told the Tribunal that she did commit the offence of ‘stealing by clerks and servants’. She was asked to what she ‘disagreed’, as set out in the statement. Ms Tyson said that after she ceased employment, her employer contacted her regarding outstanding personal training for which people had paid her, but which had not been delivered. She accepted this ‘hasn’t really got anything to do with the Court matter’, but was additional information she ‘wanted to express’. Ms Tyson was referred to the final sentence regarding her former employer making complaints which escalated to Court and with which she disagreed, but ‘could not prove otherwise’.[37] Ms Tyson agreed that this statement indicates that she disagreed with the Court matter and that it was ‘not very clear’; she ‘was crying in my lawyer’s office and he was helping me write this’. Ms Tyson confirmed that her evidence to the Tribunal was that she had no intention of misleading anyone in the letter of February 2019.
[37] Ibid.
The Minister’s representative then referred Ms Tyson to her Statutory Declaration made on 7 May 2019.[38] She told the Tribunal she understood the seriousness of such a document and that providing false and misleading information in a Statutory Declaration is a very serious matter. Ms Tyson further agreed that when compiling this document she would have been very careful to not include false and misleading information. She was taken to the first paragraph of this Statutory Declaration, regarding the charge of ‘stealing by clerks and servants’, which relevantly stated that:[39]
My employer was very vague and confusing about the opportunity I had as a Manager but confirmed I had the go ahead to earn additional income around my Manager position earning a salary if I wished. I trained personal training clients and they paid me direct so I retained that money intermittently over the 18 month period of my employment not thinking I was doing anything wrong…There was a routine annual audit carried out by the administration manager about 4 weeks after I left. This showed that I had trained clients and received payment directly from personal training clients and members of the gym equating to 3-4 personal training clients, training once per week. It’s only after I left that this was queried and during my employment my employer stated he was happy for me to do this. Upon my leaving he disagreed and suddenly began to say that the income I received was his because my clients were also his customers and that I should never taken payments directly from clients. I couldn’t prove otherwise what he had verbally granted and this escalated to court.
[38] Ibid., page 35.
[39] Ibid.
It was put to Ms Tyson that she did not mention sending text messages to gym clients asking for cash payments with the intention of keeping that cash. Ms Tyson agreed. She also agreed that she did not refer to taking money out of the tin as she had recounted to the Tribunal. Ms Tyson’s explanation was that she had pleaded guilty to the offences and was found guilty. She said this was ‘another issue’ the gym owner had with her personal training, but agreed that this did not relate to the aforementioned charge and was not the issue that escalated to the Court. As a result, the Minister’s representative put to Ms Tyson that her statement was misleading. She admitted to the Tribunal that, ‘in the written form, yes, I understand it’s misleading’ but that, to the Court in 2018, she admitted taking the monies over a period of time. Ms Tyson again admitted that what she had written in the Statutory Declaration in 2019 was misleading.
Ms Tyson was referred by the Minister’s representative to the second paragraph of her 2019 Statutory Declaration, regarding the charge of ‘fraud – dishonestly obtains property from another’, which relevantly stated that:[40]
this again was a huge misunderstanding but I could not prove otherwise. I was gifted items of fitness equipment such as boxing gloves, 3 kick shields, resistance bands and an ab roller…When I was leaving house and no longer was using these items I sold them at cash converters along with some other household items that I now [sic] longer needed to de clutter. The employer disagreed and said that I took his property but unfortunately again I had no way to prove the items were mine. Unfortunately again this escalated to a court matter.
[40] Ibid.
Ms Tyson told the Tribunal she was gifted a pair of boxing gloves by a personal training client, but the pair she pawned were owned by the gym. She also confirmed that she was not gifted three ‘kick shields’. Ms Tyson’s explanation for referring to being gifted these kick shields was that it ‘wasn’t really relevant to the offence that I was gifted’. She agreed that she took the gym owner’s equipment. Again, Ms Tyson said her lawyer at the time ‘helped me write the description and I was extremely upset when I was telling him and embarrassed’. She said she was ‘ashamed and embarrassed’ of what she had done and in explaining it to her lawyer she ‘didn’t 100% tell him the full story because I was embarrassed, he was a little bit judgmental of what I had done’ and she signed the statement, but said it was not her intention to ‘mislead anyone’. Ms Tyson again said she took ‘full responsibility for the charges’ and the items she stole from the gym. Ms Tyson also confirmed that she read the Statutory Declaration before she signed it and told the Tribunal she understood that it ‘does look misleading’, but at the time she was in a ‘really bad mental place’, attending psychological counselling and had anxiety and depression. She was ‘so ashamed and embarrassed’ about what she had done and ‘even felt embarrassed to tell the lawyer’.
In relation to the statement in the Statutory Declaration about selling ‘household items’, Ms Tyson told the Tribunal this was a reference to the vacuum cleaner, but acknowledged this was not specifically referred to in the document. The Minister’s representative put to Ms Tyson that she knew at the time of signing the Statutory Declaration that is was not true. Ms Tyson told the Tribunal that ‘yeah, I mean, yeah I admitted to the offences and, yeah, I suppose it wasn’t the full story, but again like I wasn’t in like a good mental health place’ and had never faced such a situation.
Ms Tyson confirmed that her interview with Police was conducted on 10 September 2018. In July 2018, Ms Tyson travelled from Australia to the United Kingdom, Croatia, Spain and Italy for a four-week holiday.[41] She spent 10 days visiting her mother in the United Kingdom and the balance in the other three countries. Ms Tyson told the Tribunal her mother paid for the holiday, and she took her own ‘savings and whatever I had as well’.
[41] Ibid., pages 123-124 and 213.
The Minister’s representative referred Ms Tyson to her Visa application from 14 February 2019.[42] Specifically, Ms Tyson was taken to her agreement in the application that she had ‘access to sufficient funds to support themselves for the total period of stay in Australia’ and that this was through ‘[f]inancial support from an individual’, which she confirmed was her mother and the funding type being referred to as ‘[d]eposit in financial institution’.[43] Ms Tyson confirmed to the Tribunal that her mother had agreed to support her during stay in Australia. She was further referred to the entry against the value of this funding as being ‘30000’.[44] Ms Tyson agreed that, ‘approximately’, she had this amount available to her. It was based on her mother still working and earning an income, together with her mother’s savings and money left to her mother by Ms Tyson’s late grandfather. In this way, Ms Tyson described this as being an ‘approximate figure’.
[42] Ibid., page 103-130.
[43] Ibid., page 109.
[44] Ibid., page 110.
The Minister’s representative referred to this Visa application being made in February 2019, after Ms Tyson pleaded guilty to the offences in November 2018 and being ordered to pay restitution in the amount of $14,279. Ms Tyson was asked why, if she had access to $30,000, she did not immediately pay the full amount of the restitution. Ms Tyson said she did not have ‘instant access’ to this amount, her mother had provided this figure as she was working full-time and had savings from Ms Tyson’s grandfather, but not the full amount ‘sat in the bank’. Ms Tyson was again referred to the statement in the Visa application: ‘Deposit in financial institution’ to the value of $30,000.[45] When asked whether or not it was a deposit in a financial institution, Ms Tyson told the Tribunal that ‘it was deposits’ in smaller instalments following wage payments her mother received. Ms Tyson further stated that her mother did not have this lump sum amount. She said the reference to $30,000 was to the ‘approximate cost’ of her life as a student for two years over the life of the Visa. The Minister’s representative put to Ms Tyson that the question concerned the financial support that was available to her in Australia, not the cost of her proposed education. Ms Tyson stated that the question was ‘a little bit misleading’ and the ‘deposit’ was the method for her mother to transfer her funds.
[45] Ibid., pages 109-110.
As a result, Ms Tyson was taken through the relevant individual questions in the Visa application.[46] She stated that the question of the funding type was clear, to which ‘[d]eposit in financial institution’ was listed. Ms Tyson also agreed that the question regarding the value of the funding, listed as $30,000, was clear. Accordingly, Ms Tyson was asked what was confusing about the questions. She again told the Tribunal her mother did not have this amount as a lump sum. It was put to Ms Tyson that she provided misleading information in her Visa application. She disagreed. Ms Tyson also disagreed that she was trying to give the impression that she had access to a lump sum amount of $30,000 in a financial institution. The Minister’s representative further put to Ms Tyson that she was not retreating from this information because she realised that she could, and probably should, have used this money to pay the restitution. She again said that her mother did not have $30,000 in a bank account and that she did not know of the offences until informed by Ms Tyson.
[46] Ibid.
Ms Tyson told the Tribunal that her mother still provides her with regular deposits, which ‘helps out’. This was said to be, ‘here and there’, about $100 each month, although it was also said to be ‘not really needed’ because Ms Tyson is working full-time. It is not a ‘consistent’ payment as it was from 2019 onwards when Ms Tyson’s mother helped pay for her vocational education fees. Ms Tyson said she would not want her mother to help pay for the restitution because it is her ‘responsibility’; she was the person that made the mistake.
Ms Tyson told the Tribunal that the stolen money ‘went on debts, payday loans’, visa fees, and utility and other bills. She said it did not go ‘on the holiday’ in 2018, it was ‘just the debts’, migration lawyer fees and health insurance costs. Ms Tyson was referred again to the Police Court Brief which stated that a ‘perusal of [Ms Tyson’s] bank statements revealed [she] had been leading a very active lifestyle including regular trips to a local tavern, nightclubs, cafes and a holiday to the UK’.[47] Ms Tyson agreed the impression from this statement was that she spent fairly freely. However, Ms Tyson told the Tribunal she was using the money sent by her mother for these social activities and referred to having ‘numerous mental breakdowns’ during this time; she attended these venues with friends for a ‘sense of normality’, which required money, because she otherwise would have been at home, ‘depressed’ and ‘suicidal’, due to her debts, which had ‘spiralled out of control’. Ms Tyson said that she ‘could not get out of bed in the morning’, she slept all day and had not told her mother about her ‘financial mess’. She accepted that this money could have been used to pay down her debts, but her outgoings far exceeded her incomings and she was ‘not in a good place’.
[47] Ibid., page 31.
Ms Tyson was referred to her earlier evidence that she is saving for a house. Ms Tyson said that she and her partner are paying rent and trying to put some money aside. Ms Tyson acknowledged she still had a sizeable amount of restitution to repay and said that she wants to finalise the debt in the ‘next six months’. Ms Tyson told the Tribunal she is ‘trying to make it as much as a priority as I can’, while covering living expenses, and she is ‘trying my best’ to get it repaid.
Ms Tyson was referred again to her Visa application and the section regarding funding for her stay in Australia which asked whether applicants ‘have access to sufficient funds to support themselves for the total period of stay in Australia’, to which she answered ‘Yes’.[48] Ms Tyson was asked whether this response was correct. She said ‘at that time’ in 2019 it was ‘correct’, due to mother’s financial support, plus Ms Tyson’s ability to work and earn a wage.
[48] Ibid., page 109.
In reference to Ms Tyson’s volunteering, she agreed that this formed part of her restitution and she was in effect being paid but the funds were applied towards the restitution and reduced the actual monetary repayments she was required to make. Ms Tyson is also investigating whether the time she volunteers for the ‘Princess for a Day’ program, administered by Newlife Care Church, can also contribute to the restitution; it currently does not and she also volunteers approximately three hours each month working in their ‘Op Shop’.
Ms Tyson confirmed she arrived in Australia in January 2011, she lived in Perth with her father’s cousins for around 11 months, then returned to the United Kingdom for around 18 months. During this time, Ms Tyson lived with her mother and worked in the United Kingdom. Since returning to Australia in 2012, Ms Tyson has thought of returning to the United Kingdom and using her skills and qualifications, which are ‘highly regard internationally’, but it is only in recent years, ‘after the pandemic’, that she has wanted to remain permanently in Australia. Ms Tyson said her mother told her that the economy in the United Kingdom is ‘really bad’, ‘all the shops are shut down’, ‘there’s not many jobs’, she is from an industrial town and there is ‘more opportunity in Australia’ to ‘personally develop’ and progress her career, as well as settling down with her partner.
To this end, Ms Tyson was referred to the ‘Civil Partnership Certificate’ issued by the Registrar-General of Queensland, dated 2 May 2023, and endorsed on 29 April 2023.[49] She told the Tribunal that she did not apply for the certificate due to this proceeding, she had applied for it in December last year, but the Registry of Births, Deaths and Marriages had her partner’s date of birth wrong so she needed to re-apply for the documentation. It was primarily sought for the purpose of preparing an application for a New Zealand partner visa in Australia, which has not been submitted due to the decision under review in this application having been made in the interim, but also so as to register their relationship.
[49] Exhibit 17.
Ms Tyson was asked whether her partner would also move to the United Kingdom if she was removed from Australia. She said he would not, because it is ‘too far from his family’. Ms Tyson told the Tribunal that she could temporarily live again with her mother, for ‘a couple of months’, but not ‘long-term’. Ms Tyson was referred to her evidence that the qualifications she has obtained are well regarded and said she has a large network of associates in the ‘health and wellness industry’, she has made good employment connections and undergone training. Ms Tyson told the Tribunal the United Kingdom does not have a similarly strong industry and when she last resided in the United Kingdom, she worked in a real estate office.
Ms Tyson said she did not mean to mislead the Department in her written statements, at the time she was experiencing ‘a lot of trauma’ from the Court process and suffering emotionally and financially; she is ‘genuinely very sorry’ for her actions, including its impact on the business owner, the community and herself and wants ‘a second chance’. She feels that she is ‘a person of good character’, she has ‘redeemed’ herself and wants to continue to do so. Ms Tyson also noted that it has been a psychologically exhausting process waiting four years for the Visa application to be refused.
Following cross-examination, the Tribunal asked Ms Tyson about her written statement that she attended psychology sessions with Ms Little ‘from 2019-present day’ and her oral evidence to that effect.[50] Ms Tyson told the Tribunal that, on average, she attended approximately ‘20 to 30’ sessions with Ms Little from 2019 onwards and met with her ‘four weeks ago’. The Tribunal referred to Ms Little’s written statement from 24 March 2019 regarding Ms Tyson attending therapy sessions on ‘five occasions’ and that the ‘positive’ Court outcome ‘has resolved her symptoms’.[51] The Tribunal further referred to Ms Little’s letter dated 20 March 2023, which stated that she ‘consulted Miss Tyson on two occasions’, being once in ‘July and once in September 2019’.[52] The Tribunal asked Ms Tyson to explain the discrepancy between what she told the Tribunal and what was contained in Ms Little’s written statements regarding the frequency of her attendance at psychology sessions. Ms Tyson said that Ms Little had since moved locations, they speak on the phone, Ms Little has texted her, they meet for coffee, and she ‘just bulk bills’ the sessions. When the Tribunal again referred to Ms Little’s recent letter only stating that sessions were provided in 2019, and there being no reference to any other year, Ms Tyson said she was seeing another psychologist, but maintained her evidence that she saw Ms Little for ‘about 10’ sessions between 2019 and 2023. Ms Tyson however also confirmed her earlier evidence that she no longer has anxiety and depression. As a result of the Tribunal’s questions, the Minister’s representative asked about the other psychologist referred to by Ms Tyson. She said these sessions occurred ‘before the Court matter’ and ‘over two years’ prior to the offending. Ms Tyson has not seen this psychologist after the offending, but has seen counsellors through her church.
[50] Exhibit 2.
[51] Exhibit 16.
[52] Exhibit 12.

At the re-opened hearing on 26 May 2023, Ms Tyson again gave evidence and told the Tribunal that ‘some’ of the people that have provided character references are aware of her offending, being the seven people that have referred to this offending in their written statements.[53] The other people who have provided statements have not been told about Ms Tyson’s offending, due to it being embarrassing, her feeling ‘ashamed’ and the potential damage to those friendships.[54]
[53] Exhibits 4, 5, 7, 9, 10, 11 and 19.
[54] Exhibits 6, 8, 13 and 14.
Ms Tyson confirmed that her partner, Mr Shanahan, is aware of her offending, convictions and sentences, and that his statement was written freely and without coercion from Ms Tyson.[55] She told the Tribunal that her mother was informed in July 2018 about the offending when Ms Tyson was in the United Kingdom, but not at that time of that offending. She was also said to be ‘fully aware’ of the restitution. Ms Tyson told the Tribunal her mother has not offered to pay this debt and Ms Tyson has not asked nor expects her to, because it is ‘my mistake’ and ‘debt to pay’. Ms Tyson further said that her mother has sent her ‘a lot’ of money over the years to pay for accommodation and educational costs. Ms Tyson again confirmed that she regrets the length of time it is taking to repay this money. She again also said that any income tax refund will be applied towards this amount.
[55] Exhibits 19 and 20.
In relation to volunteering, Ms Tyson told the Tribunal that she volunteered at the Commonwealth Games on the Gold Coast, which she said occurred prior to her offending, although the Tribunal notes that this event was held from 4 to 15 April 2018 and her offence of ‘stealing by clerks and servants’ ranged from October 2016 to May 2018 and the other stealing conviction was for offending before March 2018.[56] Ms Tyson also confirmed that there was no supporting evidence regarding this volunteering activity.
[56] Exhibit 1, page 27. See also accessed on 26 May 2023.
Ms Tyson further told the Tribunal that she had performed charity work through her twenties and thirties, both in Australian and in the United Kingdom. For example, Ms Tyson said in 2015 she held a seminar with a chef regarding Alzheimer’s disease to discuss foods that can ‘delay the onset’ of Alzheimer’s and also referred to assisting a multicultural organisation.[57] She also told the Tribunal that she is using her experience to be a ‘role model’ in demonstrating the ability to move forward and make ‘positive changes’.
[57] Exhibit 20.
Ms Tyson told the Tribunal that since her offending, the other steps she has taken to ensure it will not happen again were the financial counselling she has received, through the Salvation Army, which was said to be ‘five or six’ sessions. She now makes a budget and carefully spends her money. Ms Tyson has emotional support from her partner, mother and her wider support network. She lives a healthy lifestyle, rarely drinks alcohol, exercises, and works in a health retreat delivering treatment to people with their own physical and mental issues. In this regard, Ms Tyson said that work is now more consistent, and it helps to emotionally ‘balance’ her. In contrast, at the time of her offending, Ms Tyson said that she would ‘cry all the time’, she was ‘irrational’, ‘paranoid’, would sleep during her lunchbreak, and was on antidepressants and anti-anxiety medication. To this end, Ms Tyson said that she was a ‘completely different person’ now than at the time of her offending, which period she described as a ‘glitch’, triggered by ‘emotional’ and ‘financial’ stress, including her ectopic pregnancy. Ms Tyson told the Tribunal that she wants to continue showing Australia she is of good character.
Ms Tyson was asked what she would do, if she was ‘given a second chance’ at life in Australia, to ensure she did not return to the situation she was in at the time of her offending. Ms Tyson referred to her earlier statements and told the Tribunal she adheres to a budget, would ensure she has full-time work to cover her costs and will use her support network, including her mother and partner. Additionally, Ms Tyson said that if her mental health was again unbalanced, she would seek medical support. In this regard, Ms Tyson told the Tribunal that she has attended a psychologist ‘maybe once or twice’ in the past year; her emotions are ‘good’ and ‘everything has been really consistent’. She said there is ‘zero chance’ of her reoffending. Ms Tyson has a stable job and relationship and wants to ‘stick to those things’ that work and ‘not ever slip back into that’.
Finally, Ms Tyson told the Tribunal that, at the time of her offending, she was aware that she was on a temporary visa and the potential repercussions if she committed a crime in Australia. Ms Tyson said her mental health was ‘not in the right headspace’ at the time; she risked ‘everything’ by committing the offences and ‘ruined’ her early thirties due to those actions, while also acknowledging the impact on the business owner and the community.
Ms Debbie Lindsay
At the re-opened hearing on 26 May 2023, Ms Tyson called her friend, Ms Lindsay, to give evidence in support of her Tribunal application. Ms Lindsay had provided an undated letter in support of Ms Tyson, which was filed with the Tribunal on 6 April 2023, and which has been considered in making this decision.[58] While giving evidence at the hearing, Ms Lindsay confirmed adherence to that document.
[58] Exhibit 10.
Ms Lindsay told the Tribunal that she has known Ms Tyson for approximately 18 months. They met at Ms Tyson’s current place of employment. Ms Lindsay said that Ms Tyson has been ‘completely forthcoming’ in relation to the offending and she was ‘shocked’ when informed by Ms Tyson; Ms Lindsay had not known her to do something ‘out of character’ during their friendship. Ms Tyson was described by Ms Lindsay as an ‘amazing’ colleague, she was doing her best to pay bills and study in addition to working and maintaining a relationship.
By way of cross-examination, Ms Lindsay confirmed that she did not know Ms Tyson at the time of the offending. Ms Lindsay told the Tribunal her knowledge of the offending was based on what she was told by Ms Tyson, who was said to be forthcoming about what occurred at the time. She confirmed that she had no independent knowledge of this offending and first became aware of it in March 2023. However, Ms Lindsay noted that she had previously considered that Ms Tyson was ‘always’ concerned about working ‘long hours’, there was something ‘not quite right’ and Ms Tyson was ‘very stressed’ on a regular basis. Ms Lindsay said that she considered Ms Tyson was ‘scared’ to tell her about the offending and its impact on their friendship and work relationship. Ms Lindsay was asked whether she was only told about Ms Tyson’s offending in the context of her application to the Tribunal. Ms Lindsay said she was unsure, but when she was told of the offending Ms Tyson was ‘really concerned’ and ‘upset’, and had said she was possibly ‘going to be sent home’ due to the Tribunal proceeding.
In re-examination, Ms Lindsay told the Tribunal that she did not know of the Tribunal hearing at the time she was informed by Ms Tyson of her offending, but Ms Tyson had telephoned her ‘stressed’ about her life and what was happening.
There were no other witnesses called to give evidence at the Tribunal hearing.
CONTENTIONS
Ms Tyson
Ms Tyson contended that the Tribunal should set aside the decision under review and not exercise the discretion in subsection 501(1) of the Act to refuse her the Visa. She submitted that she has rehabilitated herself and is extremely remorseful for her actions. Ms Tyson said she was experiencing financial distress and enduring a very emotionally difficult time when she committed the offences, it was out of character and there was no chance of her reoffending. Ms Tyson submitted that she had no prior convictions before the relevant offending and none since that time.
She also contended that the strength, nature and duration of her ties to Australia weighed in favour of not exercising the discretion. Ms Tyson has a stable relationship, her finances are in order, she is employed, paying off the debt, volunteering and wants to remain permanently in Australia. In this regard, Ms Tyson also submitted that her life is now in Australia and there would be limited employment opportunities for her in the United Kingdom, in addition to the difficulties this would present for her relationship with Mr Shanahan.
Minister
The Minister contended that Ms Tyson does not pass the character test in section 501 of the Act because of her ‘substantial criminal record’, as defined by subsection 501(7) of the Act, in circumstances where she was sentenced to a term of imprisonment of 12 months or more. As a result, the Minister submitted, the discretion to refuse to grant the Visa to Ms Tyson was enlivened under subsection 501(1) of the Act, which must be exercised with reference to Direction 99. The Minister contended that Primary Consideration 1 in Direction 99, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, weighed in favour of refusing to grant the Visa to Ms Tyson and that Primary Consideration 3, the strength, nature and duration of ties to Australia, and the relevant other consideration in Direction 99, weighing in Ms Tyson’s favour, did not outweigh those primary considerations in favour of refusing her the Visa. Accordingly, the Minister contended that the Tribunal should affirm the decision to exercise the discretion in subsection 501(1) of the Act to refuse to grant Ms Tyson the Visa.
CONSIDERATION
Does Ms Tyson pass the character test under the Act?
As set out above in these reasons, subsection 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the ‘character test’. Under subsection 501(6)(a) of the Act, 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. Pursuant to subsection 501(7)(c) of the Act, a person has a substantial criminal record if the person has been ‘sentenced to a term of imprisonment of 12 months or more’.
On 30 November 2018, the Southport Magistrates Court sentenced Ms Tyson to 18 months imprisonment for the crime of ‘stealing by clerks and servants’ between 19 October 2016 and 14 May 2018.[59] The Southport Magistrates Court also sentenced Ms Tyson to one month imprisonment for the offence of ‘stealing by clerks and servants: fraud – dishonestly obtains property from another’, which occurred on three occasions between June 2017 and February 2018.[60] Ms Tyson was also convicted of breaching a bail condition in September 2018, but not further punished by the Magistrates Court.[61] The terms of imprisonment imposed on Ms Tyson were suspended for a period of three years.[62]
[59] Exhibit 1, page 27.
[60] Ibid.
[61] Ibid.
[62] Ibid.
As the Full Court of the Federal Court of Australia said in Ali v Minister for Home Affairs:[63]
if an applicant is sentenced to a term of imprisonment of 12 months or more, such a sentence, even if suspended, amounts to a “substantial criminal record” for the purposes of s 501(7)(c) of the Act.
[63] [2019] FCAFC 93 at [20]. Citing, with approval, Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [114].
In addition, the Full Court in Minister for Immigration and Border Protection v Eden stated that:[64]
A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113 at [4].
[64] [2016] FCAFC 28; 240 FCR 158 at [73]. Quoted, with approval, by the Full Court in Taulahi v Minister for Immigration and Border Protection[2016] FCAFC 177; 246 FCR 146 at [184].
As a result, in circumstances where Ms Tyson was sentenced to ‘a term of imprisonment of 12 months or more’, and despite her custodial sentence being suspended, the Tribunal is satisfied that she has a ‘substantial criminal record’ pursuant to subsection 501(7)(c) of the Act.
Accordingly, the Tribunal finds that Ms Tyson does not pass the ‘character test’ as defined in subsection 501(6)(a) of the Act.
Should the Tribunal exercise the discretion in subsection 501(1) of the Act to refuse to grant Ms Tyson the Visa?
As a result of the Tribunal’s finding that Ms Tyson does not pass the ‘character test’ under subsection 501(6) of the Act, it turns to consider whether the discretion in subsection 501(1) should be exercised to refuse to grant her the Visa.
Pursuant to subsection 499(2A) of the Act, in exercising the discretion in section 501 of the Act, the Tribunal must comply with Direction 99. Paragraph 6 of Direction 99 provides that a decision-maker must take into account the primary and other considerations identified in Direction 99, where relevant to the decision. Accordingly, set out below is the Tribunal’s evaluation of Ms Tyson’s circumstances against the relevant considerations in Direction 99.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 99, regarding Primary Consideration 1, states that:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(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.
The nature and seriousness of Ms Tyson’s conduct
Paragraph 8.1.1 of Direction 99 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending, in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)    where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As set out above in these reasons, Ms Tyson was convicted by the Southport Magistrates Court of the criminal offences of ‘stealing by clerks and servants’ between 19 October 2016 and 14 May 2018, ‘stealing by clerks and servants: fraud-dishonestly obtains property from another person’ on 2 June 2017, 3 February 2018 and 26 February 2018, and ‘breach of bail condition’ on 14 September 2018.[65] In 2018, Ms Tyson was sentenced for these offences and received a term of imprisonment of 18 months for the first offence, suspended for three years, and ordered to pay $14,279 in restitution within 24 months.[66] She was also sentenced to one month imprisonment for the second stealing offence, also suspended for three years, but not further punished for the breach of bail condition offence.[67]
[65] Exhibit 1, page 27.
[66] Ibid.
[67] Ibid.
While the Tribunal did not have the benefit of any sentencing remarks made by the Southport Magistrates Court, the Police Court Brief prepared for the Court was taken into evidence in this proceeding.[68] In relation to the most serious offence of ‘stealing by clerks and servants’, the Police Court Brief stated:[69]
That between the 19^th day of October 2016 and the 14^th day of May 2018 at Maudsland in the State of Queensland one Rebecca Tyson being the servant of Baildon Aquatics Pty Ltd trading as Jetts Pacific Pines stole a quantity of monies the property of Baildon Aquatics Pty Ltd trading as Jetts Pacific Pines which had come into her possession on account of Baildon Aquatics Pty Ltd trading as Jetts Pacific Pines.
[68] Ibid., pages 28-34.
[69] Ibid., page 30.
The facts of this offence were set out in the Police Court Brief and included that Ms Tyson was employed as the Gym Manager at Jetts Pacific Pines from 15 August 2016 to 26 May 2018.[70] Her duties included receiving payments from existing members for renewals, signing up new members, looking after gym equipment and the day-to-day running of the gym.[71] After Ms Tyson left the employ of the gym, the new manager was approached by numerous gym members ‘complaining that their fobs were not working’ to access the facilities.[72] These members were listed as ‘non-active’ members on the gym’s computer system.[73] The affected members informed the new manager that they had received a text message from Ms Tyson ‘offering them a discount on their memberships if they paid $395 in cash for a 12 month membership which normally would cost $549’.[74] At no time was Ms Tyson authorised to issue any discounted memberships to any persons in exchange for cash payments.[75] Further investigations by the gym revealed that Ms Tyson had ‘offered cash discounts on approximately 36 occasions between October 2016 and May 2018’.[76] Ms Tyson told the Tribunal that she accessed the gym’s computer database for the telephone numbers of the relevant members whose gym memberships were expiring in order to facilitate this offence. The cash takings from these memberships should have been approximately $16,341 if they had been deposited into the gym’s bank account by Ms Tyson.[77] However, only $2,562 in cash was deposited.[78] The total amount taken by Ms Tyson was approximately $13,779.[79]
[70] Ibid.
[71] Ibid.
[72] Ibid.
[73] Ibid.
[74] Ibid.
[75] Ibid.
[76] Ibid.
[77] Ibid.
[78] Ibid.
[79] Ibid.

However, the Tribunal again notes that the bulk of Ms Tyson’s volunteering has occurred recently, from approximately October 2021, and a significant amount of that charitable work is undertaken in an effort to reduce the amount of restitution she is required to pay as a result of her offending.[145] Despite the recent commencement of a large portion of Ms Tyson’s volunteering, the Tribunal considers that she has made a positive contribution to the Australian community as a result of this work, which weighs in her favour, although it is again noted that a large amount of this work is not completely freely given by Ms Tyson, it counts towards the reduction of restitution arising from the offences. The Tribunal also had evidence of Ms Tyson attending church and of the large network of friends she has made during her time in this country. The Tribunal also had multiple letters or statements of support from friends and associates in Australia in relation to Ms Tyson, which the Tribunal has considered in making this decision.[146] While only one of these people gave evidence at the Tribunal hearing, and there was no direct evidence about their right to stay indefinitely in Australia, the Tribunal gives them the benefit of the doubt and considers the strength, duration and nature of Ms Tyson’s ties to these people under this consideration.
[145] Exhibit 1, page 78 and Exhibit 15.
[146] Exhibit 1, pages 60-62 and Exhibits 5-11 and 13-15 and 20.
To this end, two of these letters in support were addressed to the Sentencing Magistrate in November 2018, when Ms Tyson was sentenced for the offences referred to in these reasons.[147] The Tribunal did not receive updated letters from these individuals for the purpose of this proceeding and, as stated above, they did not give evidence at the hearing. However, both people had known Ms Tyson for some years by 2018, approximately six and five years respectively, and met her at the gym at which she was employed, being a different gym to that from which she stole. A theme running through almost all of the letters in support of Ms Tyson that referred to her offending, and not just these two letters from 2018, is that it was ‘out of character’.[148] Ms Lindsay, who gave evidence at the re-opened hearing on 26 May 2023, and has been a work colleague and friend for approximately 18 months, also told the Tribunal Ms Tyson’s offending was out of character and she was ‘shocked’ when recently told about it. Another theme from these individuals, understandably, is the strength of the ties that Ms Tyson has to the Australian community. They speak of her dedication to work, remorsefulness for her offending, commitment to make good following those convictions and her volunteering. The Tribunal does note that not all of these support letters referred to Ms Tyson’s offending and, at the re-opened hearing, Ms Tyson confirmed that not all of these people are aware of, or have an understanding of, her criminal convictions.[149] Nevertheless, for the purpose of this consideration, the Tribunal is satisfied that Ms Tyson has strong ties to the Australian community through her various friendships, employment history and volunteering in this country. This necessarily weighs in her favour.
[147] Exhibit 1, pages 60-62.
[148] See, for example, Exhibits 4, 5, 7, 9, 10, 11 and 19.
[149] See, for example, Exhibits 6, 8, 13, 14 and 15.
However, despite the above factors weighing in Ms Tyson’s favour, her positive contributions to the Australian community are necessarily diminished due to her criminal offending that began in 2016 and continued for over 18 months, into 2018. This offending was sustained, involved stealing from her employer and fraud. However, the weight attributable to this aspect is somewhat moderated because Ms Tyson’s offending did not begin ‘soon after arriving in Australia’. Accordingly, on balance, the Tribunal finds that Ms Tyson’s social links and other ties that Ms Tyson has to the Australian community weigh moderately in favour of not exercising the discretion to refuse to grant her the Visa.
In conclusion, and having regard to all the evidence, the Tribunal finds that the strength, nature and duration of Ms Tyson’s ties to Australia weigh moderately in favour of not exercising the discretion to refuse to grant her the Visa.
Primary Consideration 4 – Best interests of minor children in Australia
Paragraph 8.4 of Direction 99 requires decision-makers to make a determination about whether refusal under section 501 of the Act is, or is not, in the best interests of a child affected by the decision. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made (paragraph 8.2(2)). There was no evidence before the Tribunal indicating that this consideration was relevant in this proceeding. Accordingly, the Tribunal finds that Primary Consideration 4 is not relevant and affords it no weight in this decision.
Primary Consideration 5 – Expectations of the Australian community
Paragraph 8.5(1) of Direction 99 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, paragraph 8.5(2) of Direction 99 provides that visa refusal may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted a visa. In accordance with paragraph 8.5(3), the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Moreover, paragraph 8.5(4) of Direction 99 states that Primary Consideration 5 is about the expectations of the Australian community as a whole and decision-makers should proceed on the basis of the Government’s views articulated in relation to this consideration, without independently assessing the community’s expectations in the particular case.[150] Furthermore, as the Federal Court said in YNQY v Minister for Immigration and Border Protection, the consideration is ‘in substance...adverse to any applicant’.[151] However, it is necessary to assess the circumstances particular to Ms Tyson in weighing up whether to exercise the discretion in section 501 of the Act. In this regard, Justice Stewart in FYBR v Minister for Home Affairs[152] said as follows:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 [now Direction 99] does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[150] See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75].
[151] [2017] FCA 1466 at [76].
[152] (2019) 272 FCR 454; [2019] FCAFC 185.
Paragraph 8.5(1) of Direction 99 makes plain that the Australian community expects that non-citizens will obey Australian laws. Ms Tyson has breached this trust and she has been convicted of criminal offences in Australia. Ms Tyson was found guilty of stealing offences and breaching a condition of her bail related to those offences. The Tribunal has found that this offending was serious. To reflect the gravity of her offending, Ms Tyson was sentenced to a term of imprisonment of 18 months for one of the stealing offences and for one month for another stealing offence, both of which were wholly suspended for three years. The Tribunal finds that Primary Consideration 5 weighs against the granting of the Visa to Ms Tyson. That is, the Tribunal is satisfied that it is appropriate to exercise the discretion to refuse to grant the Visa to Ms Tyson. However, this finding is moderated by the further considerations under this primary consideration discussed immediately below in these reasons.
The Tribunal notes the principle at 5.2(3) of Direction 99 that the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. This consideration is applicable in relation to Ms Tyson and the Tribunal finds that it weighs against her and in favour of exercising the discretion to refuse to grant the Visa. In addition, the principles at paragraphs 5.2(2) and 5.2(4) of Direction 99 are, relevantly, that non-citizens who have engaged in criminal conduct should expect to forfeit the privilege of staying in Australia and that Australia has a low tolerance of any criminal conduct by visa applicants or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. The Tribunal finds that the first of these principles is applicable in relation to Ms Tyson and also weighs in favour of exercising the discretion to refuse to grant her the Visa. On this latter point, the Tribunal notes that Ms Tyson has been employed and paid income tax during a reasonable amount of her time living in the Australian community, which is approximately 12 years, albeit with an almost 18-month gap between May 2011 and October 2012. The Tribunal has also detailed under Primary Consideration 3 above the other activities undertaken by Ms Tyson to contribute positively to the Australian community. In this way, the Tribunal is satisfied that Ms Tyson has been participating in, or contributing to, the Australian community for more than only a short period of time. Ms Tyson has resided and participated in the Australian community for approximately 12 years and has largely made a positive contribution by reference to her volunteering and paid employment in this country. However, it was in the course of Ms Tyson’s employment that she committed the offences for which she was sentenced to terms of imprisonment, and this necessarily moderates the weight in favour of Ms Tyson.
Additionally, Ms Tyson arrived in Australia aged 26 in 2011. She has lived in Australia for almost all of this 12-year period. While it is true that Ms Tyson has not been in Australia for a short period of time, she has not lived in the Australian community for ‘most’ of her life or ‘from a very young age’ (paragraph 5.2(5) of Direction 99). Accordingly, the Tribunal finds that these matters only marginally moderate the weight to be ascribed under Primary Consideration 5 in favour of exercising the discretion to refuse to grant the Visa.
As previously mentioned, the Tribunal accepts that Ms Tyson has been making a positive contribution to the Australian community for a reasonable period of time, putting to one side the significantly detrimental contribution she made as a result of her criminal offending in Australia between 2016 and 2018. Ms Tyson has a strong employment record at various businesses in Queensland over a 12-year period and has received support from many colleagues and other Australian citizens and residents for her continued stay in Australia. Ms Tyson has also demonstrated a charitable side, including through volunteering with the Salvation Army, which commenced in 2021 and with other recent charitable endeavours.[153] Accordingly, the Tribunal accepts that these factors moderate the weight to be afforded to Primary Consideration 5, weighing in favour of exercising the discretion to refuse to grant Ms Tyson the Visa.
[153] Exhibit 1, page 78 and Exhibits 15 and 20.
Accordingly, on balance, the Tribunal finds that Primary Consideration 5, the expectations of the Australian community, weighs moderately in favour of exercising the discretion in subsection 501(1) of the Act to refuse to grant the Visa to Ms Tyson.
Conclusion: Primary Considerations
In concluding its analysis of the primary considerations under Direction 99, the Tribunal has found that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, both weigh moderately in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Ms Tyson the Visa. The Tribunal has also found that Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs moderately in favour of Ms Tyson and against exercising the discretion to refuse to grant her the Visa. The Tribunal again notes that Primary Consideration 2, regarding family violence, and Primary Consideration 4, the best interests of minor children, are inapplicable and afforded no weight in this decision.
Other considerations
Paragraph 9 of Direction 99 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests. The Tribunal turns to address these listed ‘other considerations’ and notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection (Suleiman):[154]
…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 99] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 99] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 99] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[155]
[154] [2018] FCA 594.
[155] Ibid at [23].
Legal consequences of the decision
Paragraph 9.1(1) of Direction 99 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
As set out in paragraph 9.1(2) of Direction 99, a non-refoulment obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. This obligation on Australia arises under international law pursuant to various international treaties and covenants. However, as noted in paragraph 9.1(3) of Direction 99, international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
That is the situation in this proceeding. Ms Tyson did not contend that any international non-refoulment obligation was applicable to her in this proceeding and, in circumstances where she was, for some time including at the hearing on 8 May 2023, essentially self-represented before the Tribunal, the Tribunal is satisfied on the available evidence that the circumstances do not indicate that there would be any non-refoulement claim, noting again that Ms Tyson is a citizen of the United Kingdom, and no protection visa application or protection finding as defined by section 197C of the Act has been made in relation to Ms Tyson. Accordingly, this other consideration in Direction 99 is not relevant and the Tribunal gives it no weight in this decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 requires consideration of 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 substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Ms Tyson is a citizen of the United Kingdom and lived there until she was 26 years old; she is now 37.[156] There was no evidence that Ms Tyson presently has any physical or mental health issues, although she previously suffered from anxiety and depression.[157] In this regard, the general practitioner, Dr Derrick confirmed in mid-November 2018 that Ms Tyson ceased taking any anti-depressant medication in May 2018, it having been prescribed for ‘Anxiety symptoms, caused by financial & relationship stressors’.[158] Furthermore, Ms Tyson told the Tribunal that she did not currently have any mental health condition. For the avoidance of doubt, the Tribunal is satisfied that Ms Tyson does not have a mental health condition and no weight is given to this particular issue in her favour, although noting the below discussion in relation to what is described as emotional distress. Ms Tyson has completed a range of vocational education in the United Kingdom and Australia and worked in a variety of jobs in the health and wellness sector.[159] For these reasons, the Tribunal is satisfied that Ms Tyson’s age and health do not present impediments if she is removed from Australia.
[156] Exhibit 1, pages 6 and 64.
[157] Exhibit 16.
[158] Exhibit 1, page 77.
[159] Ibid., pages 110-114.
Ms Tyson spent her formative years in the United Kingdom. She was born in the same town, Barrow-in-Furness, that she usually resided in while in the United Kingdom and in which her mother continues to live and to which Ms Tyson will likely return if removed from Australia.[160] She speaks, reads and writes in the English language, as demonstrated by her participation in the Tribunal hearing, her written documentation provided in this proceeding and as stated in her Visa application.[161] In addition, Ms Tyson undertook vocational education in the United Kingdom.[162] In all these circumstances, the Tribunal is satisfied that Ms Tyson would face no substantial language or cultural barriers if removed from Australia.
[160] Ibid., pages 105-109.
[161] Ibid., page 122.
[162] Ibid., pages 110-111.

Furthermore, as a citizen of the United Kingdom, Ms Tyson would be able to access the same level of support that is generally available to other citizens of the United Kingdom, such as from the social security and health systems. Ms Tyson told the Tribunal she would be able to stay with her mother, who is approaching retirement age, for the initial period upon her return to the United Kingdom, but that she would need to secure housing independently. Ms Tyson’s father also lives in the United Kingdom, but they only correspond on birthdays and at Christmas. Ms Tyson also referred to having friends from her time as a child and young adult in the United Kingdom. However, Ms Tyson also referred to her hometown as being ‘industrial’, with high unemployment, businesses having closed down, and there being limited employment opportunities in the health and wellness sector.[163] Additionally, Ms Tyson said that her mother had informed her that the health system and wages had declined in the United Kingdom. While the Tribunal acknowledges that there would be a period of adjustment for Ms Tyson if she were removed from Australia and returned to the United Kingdom, given her age, health and educational background, it is satisfied that she would not face substantial impediments if removed and that they would, due to those factors, be limited. For example, when Ms Tyson returned to the United Kingdom in 2011 for approximately 18 months, she worked from January 2012 to August 2012 as a ‘Property & Rental Salesperson’ and from August 2012 to January 2013 as a Personal Assistant, demonstrating that she can secure employment outside the health and wellness sector and her educational background.[164] However, the Tribunal does accept that the current economic and social conditions in the United Kingdom may present some difficulties for Ms Tyson, although it is satisfied that, as a citizen, she would enjoy the same rights and support available to other citizens of the United Kingdom and would therefore be able to establish herself and maintain basic living standards in the context of what is generally available to other citizens. In this regard, the Tribunal is satisfied that the United Kingdom has broadly comparable economic, health and social supports to Australia and she would have access to the same level of supports as any other citizen of the United Kingdom. There was no evidence before the Tribunal to the contrary.
[163] Ibid., page 75.
[164] Ibid., page 120.
Ms Tyson told the Tribunal that she would be devastated if removed from Australia given the life she has established in this country, including through her employment, relationship with her partner, Mr Shanahan, and her friends. The Tribunal acknowledges that being removed from Australia would be very difficult emotionally for Ms Tyson. She has held stable employment for the majority of her time in Australia, has a stable relationship and friendship network and wants to advance her career in this country through further study to become an osteopath. As a result, the Tribunal accepts that the accompanying emotional distress and hardship if removed would present challenges for Ms Tyson, including the possibility that her relationship may not continue and that she would have to leave behind the life she has established in Australia and re-start her life in the United Kingdom, where she has not spent any substantial period of time for over 10 years. In this regard, the Tribunal also accepts that it is possible that Ms Tyson may again suffer anxiety and depression during this period and, although this would be very difficult, there was no evidence before the Tribunal that she could not access the same health support, including similar medication to that previously prescribed, that is available to other citizens of the United Kingdom to address this potential medical condition. The Tribunal accepts that there are very real, and potentially dramatic, human consequences of its decision and finds that these matters weigh in favour of Ms Tyson and against the exercise of the discretion to refuse to grant her the Visa.
However, as set out above, the Tribunal is satisfied that, if removed from Australia, Ms Tyson would be able to establish herself and maintain basic living standards in the United Kingdom, in the context of what is generally available to other citizens of the United Kingdom. The Tribunal again notes that Ms Tyson would have no language or cultural barriers to overcome if she returned to the United Kingdom in circumstances where she left that country as an adult, her parents live in the United Kingdom and they can provide her with emotional support, and there was no evidence that Ms Tyson could not access social, medical and economic support in the United Kingdom that is generally available to other citizens.
Accordingly, having regard to the totality of the evidence, the Tribunal finds that this other consideration weighs in Ms Tyson’s favour. However, for the reasons set out above, the weight attributed by the Tribunal is marginal, including because Ms Tyson is relatively young and healthy, there are no language or cultural barriers, she has immediate family in the United Kingdom who can emotionally support her if removed from this country and there was no evidence that she could not access the medical and other support services available to other citizens of the United Kingdom. As a result, the Tribunal finds that this other consideration weighs marginally against the exercise of the discretion to refuse to grant Ms Tyson the Visa.
Impact on victims
Paragraph 9.3 of Direction 99 relevantly states that decision-makers must consider the impact of the section 501 decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available. In the absence of any evidence in relation to this consideration, the Tribunal finds that it is inapplicable. Accordingly, the Tribunal gives this other consideration no weight in its decision.
Impact on Australian business interests
Paragraph 9.4 of Direction 99 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that Ms Tyson has been employed during most of her time in Australia. However, paragraph 9.4 of Direction 99, set out above, relevantly states that an employment link would generally only be given weight where the decision under section 501 of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have such an impact and Ms Tyson made no such submission. Accordingly, the Tribunal finds that this other consideration is not relevant and is given no weight in its decision.
For the avoidance of doubt, the Tribunal is not satisfied that the potential impact on Mr Shanahan’s employment is relevant under this consideration. No such submission was made by or on behalf of Ms Tyson. Mr Shanahan’s written statement dated 15 May 2023 noted that he is a Construction Supervisor and has ‘responsibilities to run extremely busy high rise construction sites on the Gold Coast’, with ‘large teams of people’ and workers for whom he is responsible ‘to help direct their daily work tasks leading to the completion of high-rise buildings containing residential and holiday apartments’.[165] He has ‘worked for the same construction company in Australia for over 12 years’.[166] Mr Shanahan further stated that he ‘would not be able to function properly at work’ if Ms Tyson were not allowed to remain in Australia.[167] While the Tribunal again acknowledges the previously discussed likely impact such a decision would have on Mr Shanahan, among others, the Tribunal finds that, on the available evidence, the decision would not significantly compromise the delivery of a major project or an important service in Australia, as required by paragraph 9.4 of Direction 99. The evidence suggests that there may be some disruption to construction work undertaken by Mr Shanahan’s unidentified employer, due to the impact on Mr Shanahan of Ms Tyson not being allowed to remain in Australia, but there was no independent evidence that this work included the delivery of a ‘major project’ or ‘important service’ in Australia that would be significantly compromised by a decision to exercise the discretion in subsection 501(1) of the Act to refuse to grant Ms Tyson the Visa. While not diminishing the importance of Mr Shanahan’s employment and stated role in the construction industry, the Tribunal finds, on the available evidence, that the nature of that construction work is not in the delivery of a ‘major project’ or ‘important service’ in Australia or that this decision would significantly compromise the delivery of such a project or service. Accordingly, the Tribunal gives no weight to this consideration.
[165] Exhibit 20.
[166] Ibid.
[167] Ibid.
CONCLUSION
As a result of being sentenced to a term of imprisonment of 12 months or more, Ms Tyson does not pass the ‘character test’ as defined in subsection 501(6) of the Act because she has a ‘substantial criminal record’. Accordingly, pursuant to subsection 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. As a result of her failure to pass the character test and the application of Direction 99, Ms Tyson was refused the Visa by a delegate of the Minister in March this year. Ms Tyson applied to the Tribunal for review of that decision. Following this Tribunal’s finding regarding the character test under the Act, the critical issue for determination was whether it should exercise the discretion under subsection 501(1) of the Act to refuse to grant Ms Tyson the Visa. This required a consideration of Direction 99.
The Tribunal is satisfied, based on its assessment of all relevant considerations in Direction 99, that the one relevant listed ‘other’ consideration, together with Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, do not outweigh the remaining relevant primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community. That is, the Tribunal has found that Primary Consideration 3 and the other consideration of the ‘extent of impediments if removed’ both weigh against exercising the discretion to refuse the Visa, but they do not outweigh Primary Consideration 1 and Primary Consideration 5, both of which weigh moderately in favour of exercising the discretion to refuse to grant Ms Tyson the Visa. The Tribunal also again notes that, pursuant to paragraph 7(2) of Direction 99, primary considerations should generally be given greater weight than the other considerations.
The Tribunal empathises with Ms Tyson’s position; it accepts that her remorse for the criminal offending is genuine and acknowledges her strong desire to remain in Australia to continue the life she has established in this country. However, on balance, and applying the terms of Direction 99, the Tribunal has found that the weight afforded to the protection of the Australian community and the expectations of that community in favour of exercising the discretion to refuse to grant her the Visa outweighs the other relevant primary consideration and the other consideration that weigh in favour of Ms Tyson. That is, the weight attributable to Primary Consideration 1 and Primary Consideration 5 outweighs those in favour of Ms Tyson. Accordingly, Ms Tyson’s application before the Tribunal is unsuccessful. The Tribunal acknowledges that this decision will be very difficult, primarily for Ms Tyson, but also for her partner, Mr Shanahan, and others including her family and friends. However, based on all of the available evidence and applying the terms of the Act and Direction 99, as the Tribunal must, the Tribunal is satisfied that it has reached the requisite correct or preferable decision in this proceeding.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision made by a delegate of the Minister on 1 March 2023 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa pursuant to subsection 501(1) of the Act.

I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

............................[SGD]............................................
Associate
Dated: 1 June 2023

Date(s) of hearing: 8 and 26 May 2023

Representative for Ms Tyson: Ms Debbie Masih, Masih Migration

Solicitor for the Respondent: Mr Oliver Morris, Clayton Utz Lawyers

Date(s) of hearing:	8 and 26 May 2023
Representative for Ms Tyson:	Ms Debbie Masih, Masih Migration
Solicitor for the Respondent:	Mr Oliver Morris, Clayton Utz Lawyers