Walker and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 46
•28 January 2025
Walker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 46 (28 January 2025)
Applicant/s: Emily Jane Walker
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9240
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:28 January 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
................................[sgd]........................................
General Member A. Maryniak KC
Catchwords
MIGRATION – cancellation of visa – failure to pass character test – whether discretion to revoke cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children in Australia affected by the decision – expectations of the Australian community – other considerations – extent of impediments if removed – decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The 32 year old Applicant, a UK national, seeks review of a decision made 11 November 2024 declining to revoke the cancellation of the Applicant’s subclass 155 Five Year Resident Return (Class BB) visa under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
CONSIDERATION
The Tribunal has considered the documentary material before it, comprising exhibits A1,[1] A2,[2] R1[3] and R2,[4] together with the testimony of the Applicant, each of the Applicant’s parents, the Applicant’s sister, Mr Jason Lees and Dr Lisa Chantler, independent Clinical and Forensic Psychologist. The Tribunal has also considered the written and oral submissions of the parties.
[1] Applicant’s Submission Bundle.
[2] Report of Dr Lisa Chantler dated 10 January 2025.
[3] G-Documents.
[4] Respondent’s Submission Bundle.
On 8 July 2008 the Applicant, aged 14 years, arrived with her parents and sister to settle in Australia and has lived here ever since. When aged about 16 the Applicant, experiencing difficulties at a new school in a new country, moved out from her parents’ home and moved in with an older de facto partner who unfortunately introduced her to the illicit drug crystal methamphetamine also known as ‘Ice’. She had some earlier exposure to alcohol from the age of 13 and after that cannabis. That former de facto partner became abusive towards the Applicant during that relationship.
On 17 June 2014, aged 22, the Applicant was fined, without conviction, for unlawful possession. On 23 May 2016 the Applicant was convicted and fined for disorderly behaviour. On 26 August 2016 the Applicant was fined, without conviction, for possess or use a dangerous article. These three minor offences were committed whilst the Applicant was living with her former de facto partner.
In about mid to late 2017 the Applicant commenced a relationship with Mr Jason Lees, her current de facto partner. Regrettably Mr Lees, in addition to being an ‘Ice’ user, introduced the Applicant to a range of financial offending which she then became involved with, in conjunction with Mr Lees and a Mr Jones. The Applicant’s ‘Ice’ usage increased and she became addicted to it and later also the illicit drug ‘fantasy’ or GHB. By 2019 the Applicant’s drug use was daily. During this period she committed two driving offences of driving with meth amphetamine and one offence of driving under suspension or disqualification (the ‘Driving Offending’).
On 5 February 2020 the Applicant was arrested and taken into custody and on 7 July 2020 the Applicant was released from custody on home detention bail.
On 10 February 2022 the Applicant pleaded guilty and was convicted of one count of possess/control data to commit serious computer offence, one count of possession of prohibited material, seven counts of dishonestly dealing with documents and four counts of using a computer to commit or facilitate the commission of an offence outside South Australia (the ‘Financial Offending’). Following an appeal on sentencing, the Applicant was sentenced to a total of 3 years, 2 months and 15 days imprisonment.
On 9 November 2023 the Applicant was released on parole and placed in immigration detention.
LEGISLATIVE FRAMEWORK
The relevant legislation and policy is fairly summarised by the Respondent.[5] For convenience the Tribunal adopts that summary as set out below:
[5] Respondent’s Amended Statement of Facts, Issues and Contentions, [5]–[13].
5. Section 501CA(4) of the Act relevantly provides:
The Minister may revoke the cancellation decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
6. Section 501 of the Act relevantly provides:
(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)); or
...
(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; or
7.The Minister is entitled to issue, and has issued, a direction as to the exercise of the power reposed in s 501CA(4) of the Act, being Direction 110. In exercising this power, the Tribunal must comply with Direction 110 (s 499(2A) of the Act).
8.Paragraph 5.2 of Direction 110 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)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));
(b)the safety of the Australian Community is the highest priority of the Australian Government (paragraph 5.2(2));
(c)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(3));
(d)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(4));
(e)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(5));
(f)with respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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 (paragraph 5.2(6));
(g)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(7));
(h)the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(8)).
9.Part 2 of Direction 110 identifies the considerations relevant to the decision-maker’s exercise of the power to revoke the Cancellation Decision. Paragraph 8 comprises five "primary considerations" and paragraph 9 specifies several, but non-exhaustive, "other considerations", which must be taken into account where relevant.
10.The primary consideration at paragraph 8.1, being the protection of the Australian community, is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations (paragraph 7(2)).
11. The five Primary Considerations in Part 2 are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in by the non-citizen constituted family violence (Primary Consideration 2);
(c)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(d)the bests interests of minor children in Australia (Primary Consideration 4); and
(e)expectations of the Australian community (Primary Consideration 5).
12. The Other Considerations in Part 2 include:
(a) legal consequences of the decision;
(b) extent of impediments if removed; and
(c) impact on Australian business interests.
13.In applying the considerations, information and evidence from authoritative sources should be given appropriate weight: paragraph 7(1) of Direction 110. As prescribed by paragraph 7(2), Primary Consideration 1 should generally be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. However it is accepted that other considerations should not necessarily be seen as "secondary" and, in certain circumstances, it may be that other considerations may outweigh primary considerations: paragraph 7(3), Direction 110. See also: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23] - [32].
ISSUES
The parties agree and the Tribunal finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act, noting the definition of ‘substantial criminal record’ in section 501(7)(c) of the Act.
The issue for determination, de novo, is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
The Tribunal considers both the Financial and Driving Offending by the Applicant to be serious. The Tribunal notes that the Driving Offending was limited to a relatively narrow time window between late 2019 and early 2020 however it did involve one driving whilst disqualified offence and such offending does represent a total disregard for the laws of Australia.
Of greater significance is the Applicant’s Financial Offending because it caused substantial real harm and distress to members of the Australian community, occurred over an 18 month period and was systematic and not isolated. The Sentencing Judge (‘SJ’) found in respect of the Applicant that each of the offences were ‘serious examples of that type of offence. While you are not to be sentenced for offending for which you have not pleaded guilty, it is apparent that were it not for the significant efforts by South Australian police, your offending may well have been ongoing, with greater losses to innocent victims’.[6] The SJ also found that whilst the Applicant’s involvement ‘was integral to the operation, allowing the operation to run as successfully as it did, you had less involvement, consistent with the number of offences to which you have pleaded, and you received less benefit’.[7]
[6] R1 54.
[7] Ibid.
The SJ further stated in respect of the Applicant and Mr Lees:
Certainly there is no evidence of either of you leading a lavish lifestyle with the proceeds of your offending and your respective drug addictions may well explain the use to which the funds were put. While your addictions cannot excuse your offending, you have both, to your credit, made significant effort to address your addictions.
The seriousness of your offending is not mitigated by the bank stepping in to stop you receiving all of the funds you hoped to receive. You put nothing in place to limit your theft. As described by the prosecutor, it was really a matter of calculated risk management. It is unclear how the moneys were split between all parties. Even accepting, as I have, the most favourable basis to you both for the value of the benefit to you, your offending was nevertheless very serious.
While your offending does not involve the more traditional breach of trust type of offending, it is offending that undermines the faith and reliance that the community must place in financial and banking systems to operate in today's world. The issue of general deterrence is an important consideration in each of your sentences. Many victims have suffered not only financial loss but also a loss of reputation and damage to their health and wellbeing. Some were small businesses, one was a not-for-profit charity, all were likely to be easy targets, no doubt it being too burdensome to have better cyber security in place.
The Tribunal has read the victim impact statements,[8] and in any event is satisfied that the Applicant’s offending was disgraceful and caused significant consequential financial harm and distress to the victims. The Applicant should be embarrassed and ashamed by her conduct and, on the evidence, the Tribunal is satisfied that she is. The Tribunal finds that the Financial Offending in particular was serious with serious consequences upon its victims. Whilst not specifically mentioned in paragraph 8.1.1(1)(a) of Ministerial Direction no. 110 (‘the Direction’), the Tribunal is of the view that the Australian Government and the Australian community would regard the Financial Offending as serious. The Tribunal finds accordingly.
[8] R2.
However, the Tribunal is not satisfied that the Applicant’s offending is so serious that any risk that it may be repeated may be unacceptable in the context of having considered the Direction with regard to the evidence before the Tribunal. Having considered the nature of the harm as discussed above, the Tribunal is then to look at the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to re-join the Australian community.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
It is clear that the Applicant, having settled in Australia nearly 17 years ago, as a 14 year old, had great difficulties adjusting to her new life in Australia, starting in a new school in a different culture and having to make new friends and the like. Perhaps instinctively her parents were quite protective of her and being a teenager she rebelled against that, moving out at only 16 and beginning the rather tragic journey for about 11 years of her life, that she has managed to rescue herself from, to her credit, since her arrest on 5 February 2020. The Tribunal is satisfied that not only has the Applicant learnt from her years of illicit drug use and offending but she has also managed to turn her life around and has stayed off illicit drugs for nearly 5 years.
The ability to deal with, and the fact that the Applicant has dealt with and stopped, her addiction to what was essentially daily use of both ‘Ice’ and GBH is not only significant but also directly linked to any likelihood (or lack thereof) of reoffending. It is apparent that her arrest in 2020 has acted as a reality check and enabled the Applicant to break the addiction cycle from that date. The Applicant has not used illicit drugs since then, despite being in environments that are less controlled than prison, namely home detention for about 18 months and immigration detention since November 2023.
At the time of sentencing a report from Mr Balfour, psychologist, was available to the SJ, the latter noting that the former described the Applicant ‘as being of average intelligence with good literacy and numeracy skills. You have low self-esteem and are prone to feeling depressed and anxious … you are naïve and impressionable as a result of your sheltered upbringing’.[9] The SJ also found that the Financial Offending was solely conducted to fund the Applicant’s illicit drug use (and not to fund a lavish lifestyle as mentioned above) which at the time was costing her about $1000 per week.
[9] R1 51.
Apart from remaining off illicit drugs for such a significant time the Applicant has made substantial rehabilitation progress as set out in the Stepping Stones Post Treatment summary from 2023.[10] Such includes successfully engaging in drug-related counselling whilst in prison and in detention.[11]
[10] Ibid 150, see also 138–42, 145–48, 252–74.
[11] See, eg, OARS One to One Counselling report: ibid 139-140; and group work such as the SMART program: ibid 142.
In Dr Chantler’s professional opinion the Applicant ‘has successfully demonstrated remorse by changing her behaviour, attitudes and thinking patterns. Specifically, [she] has abstained from drug use since she was arrested, she accepts responsibility for her offending, and she has expressed empathy for her victims, realising that they were not simply faceless organisations but real people in small businesses who were hurt by her actions’.[12] The Applicant’s remorse ‘reduces the likelihood of recidivism’ and in Dr Chantler’s opinion the Applicant has ‘overcome her addiction’,[13] even where the evidence suggests that ‘Ice’ was relatively freely available to the Applicant in detention, where she has been since November 2023.
[12] A2 12.
[13] Ibid 13.
According to Dr Chantler, this ‘suggests evidence that Ms Walker can maintain abstinence even when substances are available and accessible from someone within close personal quarters. This constitutes strong evidence of successful abstinence with the likelihood of continuing should she be released into the community’.[14] Also if permitted to stay, the Applicant would ‘enjoy more support in the form of her family, friends, partner and drug counselling than she can access while in detention, which will provide further protection from drug use’.[15]
[14] A2 13.
[15] Ibid.
All of the testimony from witnesses at the hearing, who the Tribunal is satisfied gave truthful evidence, is supportive of and consistent with the above. The Applicant’s parents and sister stand ready to further assist the Applicant in continuing her journey back to a regular law abiding life, drug free. On the evidence, the Tribunal agrees with Dr Chantler’s assessment that there is a very low risk of the Applicant re-offending and returning to illicit drug use. The fact that nearly 5 years has passed supports the conclusion the Tribunal has reached.
The Tribunal is of the opinion that the Applicant has done a lot of growing up since her arrest and that her parents and sister are also far more enlightened and now relate to her and understand her (and support her) to a much greater and effective way than they may have when she was a young teenager finding her way in the world. As Dr Chantler noted (after the Tribunal assisted her in correcting one of a number of unfortunate typographical errors which otherwise were not picked up in her report), ‘the unawareness of [the Applicant’s] family and friends of her drug use and offending was key to them being unable to deter her from both behaviours. This positive change in the relationships between [the Applicant] and her family and friends is key to this aspect of future deterrence’.[16] The Tribunal cannot ignore the resilience that is now evident in the Applicant and trusts that she realises that she has a lot to lose. This should ensure she continues her life on a better path than the underwhelming one she went down, from her teenage years until her arrest in 2020.
[16] Ibid 17.
Dr Chantler fairly considers the ongoing relationship between the Applicant and Mr Lees, as a risk. The Tribunal has had the benefit of hearing and considering testimony from Mr Lees and has also questioned the Applicant in respect of a scenario where Mr Lees may reoffend and/or return to drug use in the future. The Applicant maintains that she would leave Mr Lees if that scenario occurred and as far as the Tribunal can assess, it seems likely that she would. However, what is also obvious is that Mr Lees has also turned his life around since his arrest in a similar manner to the Applicant. Mr Lees is supported by his parents, has remained drug free and is part way through a fitter and turner apprenticeship.
As best the Tribunal can assess, Mr Lees has good prospects for the future. The Applicant also highlighted, importantly, that both she and Mr Lees have gone down the same ‘dark’ road in the past and with that knowledge are able to assist and encourage each other, rather more uniquely than any other individuals, to not return to that road. In light of the evidence regarding Mr Lees and his rehabilitation and the like, the Tribunal is of the opinion that he represents a low risk to the Applicant, particularly because she is now more mature and not as naïve as she once was, at the time of the offending.
The Tribunal is also satisfied on the evidence that there will be sufficient supports in place to complement the Applicant’s plans for her ongoing rehabilitation and to establish a new life in the Australian community, should she be permitted to do so.[17] The Tribunal finds there is a low risk to the Australian Community from any repeat Financial and/or Driving Offending.
[17] See the Applicant’s statements: R1 75–8, 192–3.
The Tribunal finds that this Primary Consideration weighs only slightly in favour of affirming the revocation decision.
Family violence committed by the non-citizen
The second Primary Consideration is not relevant hence it is given neutral weight.
The strength, nature and duration of ties to Australia
As discussed above, the Applicant has had close family ties in Australia, since 2008, which have become closer and more important since her arrest in 2020. Each of her parents, sister and partner are close to her and ready to support her further into the future. The Tribunal is satisfied of the genuineness and closeness of these relationships on the testimony given during the hearing and documentary evidence.[18]
[18] See ibid 149–80, 186–7, 303–6; A1 7–16.
The Applicant has studied and worked in Australia relatively consistently since about 2010 until the time of her arrest and has also done hundreds of hours of volunteer work. Save for her offending she has made a positive contribution to the Australian community and has lived here for most of her formative years, since 2008. The Financial and Driving Offending occurred during a relatively narrow window of time when her illicit drug addiction was at its worst.
She plans to marry her partner Mr Lees, an Australian citizen, and eventually have children. Her removal from Australia will have a negative impact upon him, but more importantly upon each of the Applicant’s parents and sister, who now more than ever want to be physically and emotionally there for the Applicant. The latter will not really be possible by video/phone conferencing if the Applicant is removed from Australia.
The Tribunal finds that this Primary Consideration weighs heavily against affirming the visa cancellation decision.
Best interests of minor children in Australia affected by the decision
The Applicant has a, albeit limited to non-parental, close relationship with her nephew Riley who is 9 years old and who missed contact with the Applicant. The Applicant has a much less significant relationship with her twin nieces.
Obviously as time proceeds each of those three minor children will be negatively impacted without the added love and care of their Aunt, the Applicant. Further, the Tribunal has also considered the varying negative impacts upon each of the Applicant’s grandfather, the Applicant’s cousin and her Aunt any removal will cause.
The Tribunal finds that this Primary Consideration weighs against affirming the visa cancellation decision.
Expectations of the Australian Community
The expectations of the Australian community primary consideration is to be considered normatively by reference to the Direction itself. Pursuant to paragraph 8.5(4) of the Direction, the expectations of the Australian community as a whole are to be considered.
In light of the matters discussed in respect of Primary Consideration 1 above and the submissions made by the parties in respect of this primary consideration, the Tribunal finds that it weighs in favour of affirming the visa cancellation decision.
OTHER CONSIDERATIONS
Legal consequences of the decision
No substantive submissions have been made in respect of this other consideration hence it is given neutral weight.
Extent of impediments if removed
In assessing the extent of impediments if removed, the Tribunal accepts that there will be no substantial language or cultural barriers and that some health care and economic support will be available if the Applicant is removed to the United Kingdom.
However, the testimony before the Tribunal in particular, together with the report of Dr Chantler, clearly establish that any removal will have a profoundly detrimental impact upon the Applicant just when she is ready to take the next step in re-establishing her life. The various supports offered by individuals resident in Australia will be essentially taken away from the Applicant if she is removed and according to Dr Chantler there is a very real prospect of the Applicant’s mental health being severely compromised in she is removed from her family and friends in Australia at this time. The Tribunal finds that this represents a significant impediment to the Applicant if she is removed.
The Tribunal finds that this other consideration weighs heavily against affirming the visa revocation decision.
Impact on Australian business interests
No submissions were made regarding any impact upon Australian business interests therefore this other consideration is given neutral weight.
CONCLUSION
The Tribunal has carried out the evaluative exercise of weighing up the considerations in the manner required as discussed above to determine whether it is satisfied that there is another reason to revoke the cancellation.
Whilst finely balanced, the Tribunal is satisfied that Primary Considerations 3 and 4 together with the extent of impediments to the Applicant if removed ultimately outweigh Primary Considerations 1 and 5.
Accordingly, the correct or preferable decision is to set aside the decision under review and, in substitution, revoke the cancellation.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
1. I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
.............................[sgd]................................
Associate
Dated: 28 January 2025
Date(s) of hearing: 20 & 21 January 2025 Advocate for the Applicant: Mr Mitch Simmons Solicitors for the Applicant: Estrin Saul Lawyers and Migration Specialists Advocate for the Respondent: Mr Ben Nam Solicitors for the Respondent: Clayton Utz
1
1
1