VPKY and Minister for Home Affairs (Migration)

[2019] AATA 352

VPKY and Minister for Home Affairs (Migration) [2019] AATA 352 (8 March 2019)

Division:GENERAL DIVISION

File Number:           2018/7404

Re:VPKY  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon Matthew Groom, Senior Member

Date:8 March 2019

Place:Melbourne

The Tribunal affirms decision under review.

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

The Hon Matthew Groom, Senior Member

Catchwords

MIGRATION – substantial criminal record - drug trafficking - mandatory cancellation – Direction 79 – five year resident return visa – citizen of the United Kingdom – Applicant lived in Australia for 50 years – fails the character test – whether another reason the mandatory cancellation should be revoked – decision affirmed

Legislation

Migration Act 1958

Cases

Re Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; (2011) 124 ALD 68

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

Secondary Materials

Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

“The Australian Methylamphetamine Market – The National Picture” published by the Australian Crime Commission - 2015

REASONS FOR DECISION

The Hon Matthew Groom, Senior Member

8 March 2019

INTRODUCTION

1. This is an expedited review of a decision made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class BB, Subclass 155 (Five Year Resident Return) visa.

2. The hearing in this matter was conducted on 25 February 2019. The applicant was self-represented and the respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers.

3. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant, her mother, father, sister, daughter, Ms G (friend), Mr T (of Emmaus Correspondence School), as well as all of the documentary evidence before it.

   BACKGROUND

   General background

4. The applicant is a 57 year-old woman who was born in the United Kingdom and migrated to Australia in 1969 with her parents and family. She was seven years of age when she arrived in Australia.

5. The applicant has lived in Australia for almost 50 of her 57 years and considers herself Australian. The applicant has spent some brief periods out of Australia between 2005 and 2006.

   Criminal history

6. The applicant has a substantial criminal history that spans from 1977 when the applicant was just 16 years of age through to her most recent convictions in March 2017. The applicant’s record includes a range of offending but her most significant offending has been drug related. The applicant gave evidence of her drug use which commenced at a young age and has continued through large periods of her adult life. She accepts that at various periods of her adult life she could be fairly described as a drug addict. Her drug use has involved a range of substances including marijuana and methylamphetamine, more commonly referred to as ‘speed’ or ‘ice’.

7. The applicant’s offending history is summarised as follows:[1]

   [1]  G Documents (GD) 36.

   
   
   

Court Date	Offence	Sentence
20 March 2017 o	Trafficking in dangerous drugs -schedule 1	Conviction recorded 6 years imprisonment
Possessing dangerous drugs -schedule 1 Drug quantity of or exceeding schedule 3 but less than schedule 4	Conviction recorded 3 years imprisonment
Possessing dangerous drug specified in schedule 1 or 2	Conviction recorded 1 month imprisonment
Possessing anything used in the commission of a crime	Conviction recorded
20 March 2017	Possessing dangerous drugs Fail to take reasonable care and precautions in respect of syringe or needle Possess utensils or pipes for use Fail to properly dispose of needle and syringe	Conviction recorded 3 months imprisonment to be served concurrently
Possess tainted property Unlawful possession of controlled drug	Conviction recorded
12 June 2015	Possession of property suspected of being the proceeds of an offence	Conviction recorded 6 months imprisonment  to be served concurrently
Possession of a knife in a public place or a school	Conviction recorded Fined $350
23 April 2007	Possessing dangerous drugs Fail to properly dispose of needle and syringe	Conviction recorded Fined $900
	12 April 2002	Receiving property and possession of property suspected of being tainted property (multiple offences)	Conviction recorded 4 months imprisonment Fined $200 Conviction recorded 3 months imprisonment Fined $200 Conviction recorded 3 months imprisonment Conviction recorded 3 months imprisonment Fined $320 Conviction recorded 3 months imprisonment Fined $180
		5 February 2002	Possession of property suspected of being the proceeds of an offence Possess property suspected of having been used in connection with the commission of a drug offence Fail to take reasonable care and precautions in respect of syringe and needle	Conviction recorded Fined $800
17 January 2002		Trafficking in dangerous drugs	Conviction recorded 3 years and 4 months imprisonment
Possessing dangerous drugs (multiple charges)	Conviction recorded 6 months imprisonment
Supplying dangerous drugs (multiple charges)	Conviction recorded 2 years imprisonment
6 December 2001	Receiving property	Conviction recorded
19 March 2001	Possession of property suspected of being the proceeds of an offence	Conviction recorded
6 December 2000	Breach of bail	Conviction recorded Fined $5000
Possess property suspected of having been used in connection with the commission of a drug offence	Convicted Fined $300
17 October 2000	Breach of bail	Convicted Fined $500
13 June 2000	Possessing dangerous drugs (multiple offences) Possess property suspected of having been used in connection with the commission of a drug offence Possession of property suspected of being the proceeds of an offence	Conviction recorded Fined $600 Conviction recorded Fined $600 Conviction recorded Fined $1000
17 April 1989	Possession of thing used in connection with smoking dangerous drug	Conviction recorded Fined $150
1 September 1986	Failed to appear Mid prescribed concentration of alcohol Unlicensed	Fined $500 Fined $500; disqualified for 12 months Fined $200

Cancellation decision

1. On 7 September 2017 the applicant’s visa was cancelled under section 501(3A) of the Act as she had a substantial criminal record by reason of having been sentenced to a term of imprisonment of 12 months or more.

2. The applicant was issued with a letter from the respondent inviting her to make submissions in relation to the cancellation decision. The applicant subsequently made representations under section 501CA(4)(a) of the Act seeking a revocation of the decision.

3. On 14 December 2018 a delegate of the Minister decided not to revoke the visa cancellation decision. The applicant subsequently sought a merits review of that decision, which is the subject of the application currently before the Tribunal.

   ISSUE

4. There was no issue between the parties that the applicant had made representations within the 28 days of being notified of her visa cancellation. Nor is there any dispute that the applicant does not pass the character test under section 501(6)(a) on account of having a substantial criminal record. The Tribunal is satisfied on both of these points.

5. The issue before the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to all relevant considerations, including those set out in Part C of Direction No. 79 made under section 499 of the Act on 20 December 2018 (“Direction 79”). Direction 79 came into effect on 28 February 2019.

   CONTENTIONS AND CONSIDERATION

6. The Preamble to Direction 79 specifies a number of principles which provide a framework within which decision-makers should approach their specific task:

   (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

7. In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of Direction 79 provides that the following are primary considerations:

   a) Protection of the Australian community from criminal or other serious conduct;

   b) The best interests of minor children in Australia;

   c) Expectations of the Australian community.

8. Direction 79 sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]

   Primary Considerations

   [2] Re Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; (2011) 124 ALD 68

   The protection of the Australian community from criminal or other serious conduct

9. Paragraph 13.1(1) of Direction 79 states:

   When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in 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. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

10. Paragraph 13.1(2) of Direction 79 states that 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.

11. The Tribunal finds that the applicant’s history of criminal offending is extensive and also includes examples of serious offending. The applicant’s offences include trafficking in substantial quantities of methylamphetamine which is a drug known to have had devastating impacts on many members of our community including, in particular, many young people. During the course of the hearing the respondent tendered a report titled “The Australian Methylamphetamine Market – The National Picture” published by the Australian Crime Commission in 2015 (“Report”). The Report concluded that:

    Of all illicit drugs, the ACC assesses that methylamphetamine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community. The following factors all support this conclusion:

    ·the rapid growth of the methylamphetamine problem across cities, regional and remote communities

    ·the harms methylamphetamine poses to the individual, including psychosis and other long term psychological and behavioural problems

    ·the links between methylamphetamine use and other crime types including violent crimes against the person and property crime

    ·the harm to the community (including families of users, innocent bystanders and road users, frontline staff in hospitals, law enforcement and emergency services, and non-government organisations)

    ·the economic impact to governments and the community, and redirection of finite resources away from other harmful activity

    ·the impact on legitimate industry sectors (such as the pharmaceutical, chemical and transport sectors) through diversion of chemicals and transport of illicit substances

    ·the significant profit to be made by organised crime groups in the importation, domestic manufacture, sale and distribution of methylamphetamine

    ·the presence of both importation and domestic manufacture of methylamphetamine, unlike other illicit drugs

12. The Report noted the following more specific comments in relation to the link between methylamphetamine use and psychosis:

    A recent Australian study concluded that users of crystal methylamphetamine are five times more likely to suffer psychotic symptoms while taking the drug than when they were abstinent. The research studies 278 methylamphetamine users from Sydney and Brisbane between 2006 and 2010 and excluded anyone with existing psychotic tendencies. The incidence of psychosis increased sharply from 7 per cent to 48 per cent as a consequence of the quantity of methylamphetamine used by the subjects.[3]

    [3] Report pg 19.

13. The Report included the following more specific comments on future impacts resulting from the increased prevalence of methylamphetamine use in the Australian community:

    The addictive nature of methylamphetamine, combined with increasing user numbers, will likely create an increased burden on law enforcement and the health sector. Violent behaviour associated with methylamphetamine use, particularly crystal methylamphetamine use, is likely to involve non-users, such as first responders, hospital staff and members of the community. The increase in addiction-related crimes such as burglaries and violent assaults and drug-impaired driving will also place an increased burden on law enforcement agencies, and increase public concern.[4]

    [4] Report pg 22.

14. The fact that the Court imposed very significant terms of imprisonment for her drug trafficking offences further supports this assessment as do the comments of the sentencing Judge for her most recent offences.  In his comments the Judge described methylamphetamine as an “evil trade” and that the applicant’s trafficking activities were “at a serious level” noting that the applicant was found with “a very substantial quantity of methylamphetamine” and also that the “level of purity is, again, high and that is another disturbing feature”.[5]

    [5] GD pg 44.

15. While the applicant did not challenge her criminal record as such, she did during her evidence seek at times to downplay her level of culpability and responsibility for her crimes. During the course of her evidence the applicant told the Tribunal that while she accepted responsibility for her actions she did challenge some aspects of the charges brought against her but she had pled guilty in order to “deal with the matter”. For example, with respect to her most recent drug trafficking offences the applicant told the Tribunal “yes I am guilty of trafficking. I accept that but not all the facts came out”. In respect of the allegation put by the prosecution that she was in possession of a tick sheet (another name for a book that records drug related debts) that showed $24,000 owing to her she claimed the figures were in fact “a mixture of what was owed and what I spent …but I plead guilty to it”. In relation to the level of purity of the methylamphetamine she was trafficking she claimed to not actually know the level of purity. She told the Tribunal “its trafficking…you get what you get…I didn’t know the purity I just bought them”.

16. While charged for being in possession of a precursor chemical used to make methylamphetamine the applicant claimed to not know anything about it while claiming someone else in the house she was living in was responsible for it. She told the Tribunal that she had never made methylamphetamine nor ever seen it being made. With respect to a 2015 conviction for possessing money together with a tick sheet the applicant accepted that she was guilty but then oscillated in her evidence between accepting that she had a tick sheet in her possession and denying that it was a tick sheet at all, insisting that she had pled guilty to the charges because “that was the only way to deal with it.”

17. The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. That, of course is not to say that an applicant cannot present to the Tribunal matters that give context to a conviction. However, the Tribunal was not in any way persuaded by the applicant’s attempts to downplay her level of responsibility or culpability. The Tribunal accepts the applicant’s criminal record as an accurate record of her offending and there is no question in the mind of the Tribunal that the record includes criminal offending of a very serious nature.

18. A number of times through the hearing the applicant expressed remorse for her offending and told the Tribunal of her determination to not reoffend. The Tribunal accepts that the applicant has a level of remorse. The Tribunal was certainly persuaded that the applicant regrets her offending and, in particular, regrets the pain it has caused her family as well as the consequences it has had for her personally. However this was somewhat tempered by the attempts the applicant made at various points in her evidence to downplay her responsibility and culpability as described above.

19. The applicant told the Tribunal that her most recent offending occurred in the immediate aftermath of the death of a very close friend whom the applicant referred to as her ‘brother’. In her evidence she described having taken on the responsibility of caring for him during his final weeks. She told the Tribunal that she had turned to drugs again at this time because of the emotional distress she was experiencing. She also told the Tribunal that the friend who had died had left her a significant amount of money which she then used to feed her drug use which ultimately led to her most recent offending. The Tribunal accepts the applicant’s evidence in this regard and is satisfied that the most recent offending occurred at a time of significant personal grief and anguish for the applicant.

1. There was also reference during the hearing and in the materials before the Tribunal of significant earlier personal trauma suffered by the applicant in the form of sexual and physical abuse when she was very young and then also during her earlier relationships. The applicant told the Tribunal that she did not want to have the abuse she has suffered seen as an excuse for her offending. She did not consider herself to be a victim and did not want to be seen as such but seen as a survivor. However she did acknowledge that she has suffered considerably during her life including through physical abuse by her former partners.

2. The material before the Tribunal included a report dated 17 May 2018 from Ms B who is a social worker with the North Queensland Domestic Violence Resource Service. Ms B was engaged for a period of time during the applicant’s time in prison and worked with the applicant to help address some of her personal issues. In her report Ms B referred to the applicant’s description of her earlier sexual and physical abuse noting that the applicant had told her:

   From the age of 8 years old she had been subjected to child sexual abuse by a close and trusted family friend. [The applicant] said this abuse continued on a regular basis until she was 11 years old. She said the perpetrator of [the] child sexual abuse was exposed, charged and incarcerated for his crime; however, [the applicant] continued to suffer emotionally and psychologically, having major trust issues and learning difficulties.[6]

   [6] GD pg 93.

3. Ms B’s report also noted the following with respect of the applicant’s earlier long term relationship:

   [the applicant] said she had been in a volatile relationship with a previous partner and suffered 11 years of horrific domestic violence. [The applicant] said that during this time her partner subjected her to many forms of abusive behaviour involving physical, verbal, psychological and emotional abuse. [The applicant] said that during this time she felt trapped and isolated. [the applicant] disclosed the severity of his violence towards her describing that she would be beaten so badly that it felt like an eternity before she could leave the house because of her emotional state as well as the physical injuries.[7]

   [7] Ibid.

4. Ms B’s report also noted the following with respect to another former relationship of the applicant:

   [The applicant] said that she found herself in another volatile relationship when she became extremely ill and was no longer receiving a financial income, when her partner became aggressive and violent. She said that her partner subjected her to severe emotional, psychological and physical abuse. [The applicant] said the abuse became out of control. She said that she was beaten so badly that both eyes were black, one completely swollen closed and both her ear drums busted.[8]

   [8] Ibid.

5. The Tribunal acknowledges that it has not heard from the former partners in relation to the applicant’s contentions, that Ms B’s report is based solely on what the applicant is said to have told her and that Ms B herself was not available for cross-examination. However, having heard the applicant’s oral testimony and considered all of the documentary evidence the Tribunal accepts that the applicant has suffered forms of sexual and physical trauma in the past and that it is relevant in understanding the context for her use of drugs at various points in her life.  Further, the Tribunal acknowledges that the applicant’s drug use is important context to her criminal offending. However, it does not excuse the applicant’s offending, it certainly does not lessen the seriousness of it and nor does it reduce the likelihood of similar offending occurring in the future.

6. There was evidence before the Tribunal of an effort the applicant has made to understand her offending, learn skills and techniques that can reduce the likelihood of repeating the offending and generally rehabilitating. This included evidence of the applicant having previously completed a range of custodial drug-based intervention programs (including on substance abuse and cognitive skills) as well as some community based interventions including Drug Arm and Bridges Health & Community Care (Bridges). There was also evidence that the applicant had previously undergone psychological consultations in an effort to address the emotional trauma she has previously experienced.

7. The applicant told the Tribunal that she was currently undergoing psychotherapy. However, when pressed under cross-examination the applicant conceded that the support she was currently receiving was more in the form of an online course by way of modules and that she had only commenced “last week”, that it involved a single phone call and that she could not recall the name of the ‘psychologist’. When pressed further the applicant conceded that she was not sure that the person she had talked to was in fact a psychologist.

8. The applicant was also pressed on her level of commitment to other courses she had claimed she was intending to engage in. The applicant told the Tribunal she was intending to take up a course with Bridges. She told the Tribunal she had booked the course but not paid for it, but when pressed conceded that she had not actually booked the course but had enquired about the services that may be available and that she was not in a position to book anything as she does not yet know if she will be released.

9. Similarly with respect to potential engagement with United Care, Drug Arm, WHOS and Lives Lived Well, in each case the applicant told the Tribunal that she had made enquiries about services but that no firm arrangements were in place. While the Tribunal acknowledges the constraints that the applicant has in seeking to firmly commit to arrangements before knowing the date of her possible release, the lack of any evidence of commitment beyond general enquiries was concerning. It raised a question in the mind of the Tribunal about the level of commitment the applicant had to ensuring that she received the necessary support to address her personal issues on release.

10. The applicant’s evidence about her own perception of the risk of her returning to drugs and reoffending was mixed. At various points in her evidence the applicant told the Tribunal that she believed there was absolutely no risk of her returning to drugs and reoffending. She told the Tribunal she had learnt her lesson and that the thought of being kicked out of the country and being removed from her family was enough motivation to ensure she did not relapse. She told the Tribunal “I would rather die if I was taken away from my family. I will do whatever it takes”. When asked why, despite this, she felt ongoing counselling was important for her she told the Tribunal it was important because she wanted to “stay on top of things” and “to make myself a better person”.

11. The applicant told the Tribunal that she intended, if released, to live with her parents in a coastal city in Queensland near where much of her earlier drug use had taken place. She acknowledged that in doing so she would be living near people she had previously associated with when using drugs. She told the Tribunal she felt that she needed to live with her parents to ensure they received the support they required given their old age and poor health and that her skills as a nurse and working with the elderly would be particularly helpful in that context. However she acknowledged that in doing so there were risks for her. She told the Tribunal if she could live somewhere else she would and conceded that previously when she has gone back to the coastal city in Queensland she has “gotten into trouble”. She told the Tribunal “I have that fear in me. But I won’t do it again. I want to care for my parents”. She asserted that through her previous counselling and various courses she has undertaken she has learnt avoidance techniques and that “I’m getting on in age. I don’t like drugs anymore”. She also referred to her parole conditions on release which she believed would reduce her risks. She told the Tribunal she would absolutely abide by her parole conditions.

12. The applicant also referred to her relapse prevention plan which she considered was important in ensuring her success in avoiding a relapse. She told the Tribunal “its good making plans. Being in custody is one thing. Being in the community is another. I want to have good plans in place”. When pressed in cross-examination the applicant conceded that an important part of the plan was avoiding old networks. She also accepted that the plan was similar to a previous release plan she had in place following her earlier trafficking conviction and that despite that plan she had relapsed back into drug use and reoffended. However the applicant told the Tribunal that it would be different this time as previously “I didn’t have the threat of deportation”.

13. The material before the Tribunal included a report from clinical psychologist Ms P who assessed the applicant for the purpose of her sentencing for her earlier drug trafficking conviction. Ms P noted that:

    [The applicant] has a drug and extensive alcohol abuse history. There is a strong correlation between her substance abuse, offending behaviour and relationship choices.

    ..[The applicant’s] relapse prevention plan is weak in as much as she relies on external constraints and avoidance of triggers and associates to manage her offending behaviour.

    …[The applicant’s] main relapse prevention strategy appears to be the use of avoidance. She feels safe and protected from her offending behaviour in a prison setting. She has some desire to return to <redacted> where her support network is based. However, it should be noted that her associates and drug offending triggers are also in <redacted>. [The applicant] needs to address her dependency in dysfunctional relationships as this is a significant contributing factor to her offending behaviour. It is advisable that for [the applicant] to expand her support network from family to more relevant resources such as drug treatment agencies. [The applicant] may benefit from undertaking psychotherapy to resolve personal issues.[9]

    [9] Supplementary G Documents (SGD) pg 180.

14. The respondent contended that many of the support structures that the applicant is relying on to ensure she does not relapse into drug use and reoffend are support structures she previously had in place following her earlier trafficking conviction and that despite them the applicant relapsed and reoffended. These support structures include various intervention programs, bible studies and the support of family and friends. The applicant conceded that these were support structures that she had relied on previously but again told the Tribunal that things were different this time because of the threat of being removed from the country. She also told the Tribunal that while she had relapsed following her earlier release from prison she had remained drug free and had not offended for a considerable period of time and had only relapsed back into drug use and reoffended in the traumatic circumstances of the death of her good friend.

15. Consultant Psychologist, Associate Professor F, conducted a telephone consultation with the applicant for the purpose of her appeal and in his report notes the following:

    …her offending history can be directly attributed to substance abuse (and an associated dependency). More specifically, when she has been able to maintain abstinence, her psychological functioning is characterised by pro-social behaviours.

    [The applicant’s] offending history suggests that she has been vulnerable to sporadically engage in impulsive behaviours with little consideration for the consequences.

    …the risk that she will reoffend is most closely linked with her ability to avoid methamphetamine relapse and associated drug networks. Encouragingly, she has an appropriate level of insight into the origins of her behaviour and is committed to avoiding past associates.

    …engagement in on-going interventions (eg Bridges program) will promote an opportunity for her to regularly revise her Relapse Prevention Plan to ensure it is relevant and achievable. Nevertheless, she will need to be vigilant of relapse as methamphetamine dependency is usually chronic and requires lasting aftercare eg treatment, support and monitoring. Taken together, and given her risks relate only to relapse, if she can avoid the above risks, the applicant’s prognosis for the future can be considered positive.[10]

    [10] GD pg 85.

16. In assessing the level of risk of reoffending the Tribunal accepts that:

    (a)the applicant has demonstrated a level of remorse and insight into her offending.  This is qualified to a degree by the applicant seeking to downplay her level of responsibility and culpability for her offending at various times during the course of her evidence. There is no question in the mind of the Tribunal that the applicant regrets her offending and the pain it has caused her personally and also her family. There is also no question that the applicant considers the ongoing threat of deportation to be a significant incentive to avoid reoffending.

    (b)the applicant is a fundamentally decent person who has engaged at various times in her life in serious drug use that can fairly be described as addiction and that, as a consequence of that drug use, has engaged in serious offending. The Tribunal also accepts that the applicant’s use of drugs is in large part emotionally driven, either as a consequence of past trauma, troubled relationships, or other emotional stresses. It has also been associated with poor choices in respect of partners and friendship groups. However, as the respondent contended, the applicant is likely to be confronted with similar circumstances again in the future and that this presents a genuine risk in terms of her potential to relapse back into serious drug use.

    (c)the applicant has previously made efforts to better understand her offending and drug use and to develop tools and skills to reduce the potential for relapse in the future. This has included both various intervention programs and also counselling. However, the Tribunal was concerned that the arrangements the applicant had in place to ensure this type of support was available on her release did not appear well developed.

    (d)the applicant will have the benefit of other support structures to ensure the prospect of relapse is minimised including her loving family, friends, her church and associated religious support networks. However, the Tribunal accepts the respondent’s contentions that these same support structures were available to the applicant on her previous release from prison and yet despite them she relapsed back into drug use and offending.

    (e)the applicant has behaved well while in custody and had significant period of abstinence while in the community previously. However, despite this there can be no denying that the applicant has been a repeat offender in the past and that her offending has increased in seriousness over time.

    (f)notwithstanding the applicant’s stated determination to not reoffend and let her family down again and also acknowledging the very significant incentive she feels to not reoffend given the overhanging threat of future deportation, the applicant’s current resolve has not yet been tested in the community.

17. Of particular concern to the Tribunal in assessing the level of risk was the applicant’s stated intention to return to the coastal city in Queensland to live with her parents. While the Tribunal accepts the applicant’s stated motive as being the obligation she feels to be able to care for her ageing parents, the applicant herself has acknowledged the importance of her avoiding old social networks associated with her previous drug use many of whom are located in and around the coastal city in Queensland in preventing relapse back into drug use. The applicant’s father also acknowledged that there were risks associated with the applicant’s proposed return to the coastal city in Queensland although he told the Tribunal that he believed the applicant’s interests would be best served by living with her parents rather than living by herself. The reports from both Associate Professor F and Ms P also noted risks associated with the applicant’s potential exposure to old social networks involved in drug use.

18. Weighing up all of these factors the Tribunal cannot be satisfied that the risk of the applicant relapsing back into drugs is minimal or trivial. In the view of the Tribunal the risk is real and that if the applicant were to relapse back into drug use the risk of her reoffending again is substantial.

19. The Tribunal is satisfied that the applicant’s risk of reoffending is sufficiently real to raise concerns about the safety of the Australian community. Should she reoffend, based on her past conduct and all of the materials before it, the Tribunal is satisfied that it is likely that the types of offending behaviours the applicant has engaged in the past would be repeated. This has the potential to cause very significant harm in the wider community. This represents an unacceptable risk.

20. For these reasons, the protection of the Australian community should weigh very heavily in favour of not revoking the mandatory cancellation of the visa.

    The best interests of minor children in Australia

21. The applicant’s only daughter and only grandson are both over the age of 18 and are therefore not relevant to this aspect of the Tribunal’s consideration.

22. With respect to relevant minors, the applicant has a great niece who is one year old and a great nephew who is two years of age. Both are citizens of Australia and reside in Australia.

23. There was very limited evidence before the Tribunal of the relationship between the applicant and her great niece and nephew. In her oral testimony the applicant acknowledged that she had not yet met them due to her incarceration although she stated that she would expect to develop a strong connection were she to be released describing her family as “a dispersed but close family”.

24. Given the absence of a close relationship between the applicant and her great niece and nephew, the Tribunal is not satisfied that it in their best interests that the mandatory cancellation of the applicant’s visa be revoked.

25. For the reasons set out above, this consideration weighs neither for nor against the revoking the mandatory cancellation of the visa.

    Expectations of the Australian community

26. Paragraph 13.3(1) of Direction 79 provides:

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

27. The Tribunal acknowledges the Federal Court decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.

28. The Tribunal accepts that in light of the findings above relating to a real risk of reoffending and an unacceptable risk of potential future harm, the Australian community would expect that the applicant’s mandatory cancellation of her visa not be revoked.

29. The Australian community has a low tolerance for the type of offending perpetrated by the applicant and would expect that this would weigh heavily in favour of not revoking the mandatory cancellation of the visa.

1. The Australian community would expect that consideration be given to the length of time the applicant has lived in Australian and the strong social ties she has established in the community and the contribution she has made to the community through her work and volunteer activities.

2. The Australian community would also expect that consideration be given to the steps the applicant has taken to better understand her offending as well as her efforts at rehabilitation.

3. The Australian community would have some sympathy for the emotional trauma the applicant has experienced at earlier points in her life and the contribution that has had to her drug use and subsequent offending.

4. The Australian community would also expect careful consideration is given to the potential impact not revoking the mandatory cancellation of the applicant’s visa could have on the applicant’s other family members including her elderly parents, sisters and daughter. This is particularly so having regard to the health concerns of the applicant’s ageing parents.

5. However, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the risk of her reoffending and the potential harm that could cause to the community is such that despite these issues the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.

6. For these reasons, the consideration of the expectations of the Australian community weighs in favour of not revoking the mandatory cancellation of the visa.

   Other Considerations

   Non-refoulement obligations

7. There was no evidence before the Tribunal of any potential for protection obligations to be owed to the applicant. Accordingly, this consideration is given no weight.

   Impact on family members (and strength, nature and duration of ties more broadly)

8. The applicant has lived in Australia from seven years of age. At the date of the hearing she was 57 years of age. Her parents, sisters, daughter, grandchild, nieces and nephews and great niece and nephew all live in Australia.  The applicant also has one other adult niece who lives in overseas.

9. A significant number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, support workers and other acquaintances. They demonstrate that the applicant has strong ties to the Australian community that have been established over a long life in Australia. The applicant’s parents, sister and daughter all gave oral testimony before the Tribunal regarding their relationship with the applicant and were all clearly concerned about her potential deportation.

10. The applicant’s daughter gave evidence of their previous estrangement telling the Tribunal that she had wanted to stay away from her mother for a period in order to teach her a lesson. However she told the Tribunal that they had now reconnected. It was very clear to the Tribunal that despite the daughter not approving of her mother’s drug use and offending there was a strong bond between them and that the daughter would be significantly impacted if the applicant were to be deported from Australia.

11. The applicant’s sister gave evidence of her relationship with the applicant telling the Tribunal that she tries to maintain regular contact with the applicant and would do so around once a fortnight. The applicant’s sister was very critical of the applicant’s offending but clearly very concerned about her future wellbeing.

12. The applicant’s parents both gave evidence to the Tribunal. They are both elderly and in declining health. The applicant’s mother is legally blind and has survived three bouts of cancer. The applicant’s mother spoke of the important role her daughter could play in caring for her and her husband as they got older and also the opportunity that would present for them to care for her. She told the Tribunal “we can all care for each other”. She told the Tribunal she would be “heartbroken” if her daughter was removed from Australia. The applicant’s father spoke of his strong commitment to helping his daughter and his concern about her returning to the United Kingdom telling the Tribunal “there is no one for her there”.

13. It was clear from the evidence that the applicant is a member of a relatively close and very loving family and that the applicant is a valued member of that family.

14. It was clear from the oral testimony of both the applicant and her parents that the applicant has a strong connection to her parents. The non-revocation of the mandatory cancellation of her visa would impact on them significantly both in terms of the stress it would cause them and also because it would prevent her from caring for them as their health continues to decline.

15. Direction 79 acknowledges a higher tolerance towards offending in respect of visa holders who have strong ties to the Australian community and where they have lived in Australia for most of their life. That is certainly the case with respect to the applicant. The Tribunal is satisfied that over her life, she has made a significant contribution to the Australian community through her hard work in retail, as a nurse, in aged care and as a farm hand. There was evidence before the Tribunal of the applicant being quite industrious and earning a reputation for hard work during the periods she was not taking drugs. There was also evidence of the applicant’s significant contribution to community groups including in particular in relation to animal welfare and the elderly. The applicant’s contribution through her strong ties and work history in Australia must of course tempered by her criminal offending.

16. Direction 79 requires that the Tribunal discount the level of tolerance for offending when the applicant has committed offences at an early stage after having arrived in Australia. The Tribunal recognises that the applicant offended during her teens. However her more serious offending occurred later in life and there have been very significant periods of her life where the applicant has not offended.

17. On balance, the Tribunal finds that the impact on the applicant’s family and the applicant’s significant and long standing ties to Australia weigh heavily in favour of revoking the mandatory cancellation of the visa.

    Impact on Australian business interests

18. There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked.

    Impact on victims

19. There was no evidence before the Tribunal of the impact a revocation of the cancellation of the applicant’s visa would have on victims of her past offending. The Tribunal therefore places little weight on this consideration.

    Extent of impediments if removed

20. There was some evidence of health issues being experienced by the applicant including Chronic Obstructive Pulmonary disease and second stage emphysema. There was also evidence of previous mental health issues. The applicant is 57 years of age and otherwise appeared to be in relatively good physical health. There was no medical evidence of any health conditions that would prevent the applicant from travelling back to the United Kingdom. There is no suggestion the applicant would not be able to secure similar health and social services to those that would be available to her here in Australia.

21. The Tribunal accepts that given the applicant’s age, health concerns, the difficulties she may face in seeking to avoid a relapse back into drugs, and the absence of close family or personal support networks would make a return to the United Kingdom challenging for the applicant. The Tribunal also recognises that in light of her age, her health concerns and also her serious criminal record securing reliable work may be challenging although her history in Australia would suggest that the applicant has an aptitude for work and a capacity to find it provided that she is able to remain drug free.

22. The Tribunal finds that this consideration should weigh slightly in favour of revoking the mandatory cancellation of the visa.

    Other

    Having reviewed the material before it, the Tribunal is satisfied that there are no other considerations relevant to deciding whether or not to revoke the mandatory cancellation of the applicant’s visa.

    CONCLUSION

23. The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 79 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 79 as set out above.

24. The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges that the risk of reoffending remains real with a potential for further harm to the community should that occur. However, this needs to be weighed against the impact on her family, the length of time she has lived in Australia, the very significant ties the applicant has to the Australian community, as well as the challenges she may face if she were to return to the United Kingdom. Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa.

    DECISION

25. The Tribunal affirms decision under review.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon Matthew Groom, Senior Member

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

Associate

Dated: 8 March 2019

Date of hearing:	25 February 2019
Applicant:	In person
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers