Wallace and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Wallace and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3617 (22 September 2021)
Division:GENERAL DIVISION
File Number(s):2021/4386
Re:Leona Wallace
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance

Date:22 September 2021
Place:Sydney

The reviewable decision made 30 June 2021, being the decision of a delegate of the Minister not to revoke the cancellation of the Applicant’s TY Subclass 444 Special Category (Temporary) visa, is affirmed.
..............................[SGD].................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
A: INTRODUCTION

Ms Wallace was born in New Zealand in 1996 and is a citizen of that country. From her first arrival in July 2012 until November 2020 she held a visa entitling her to live in Australia.
Ms Wallace returned to New Zealand in July 2013 and lived there until June 2017. She has lived in Australia since June 2017, except for a period between May 2019 and September 2019 when she again returned to New Zealand.
In April 2020, Ms Wallace was sentenced to imprisonment for fourteen months in respect of three offences, each of which involved domestic violence.
By reason of her sentence being for 12 months or more, on 26 November 2020 Ms Wallace’s TY Subclass 444 Special Category (Temporary) visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[1] This decision is referred to in the Act as “the original decision”.
[1] Exhibit J1 at G2.
On 30 June 2021, a delegate of the Minister decided not to revoke the original decision.[2] The decision of 30 June 2021, referred to as the “reviewable decision”, is the subject of this application for review.
[2] Exhibit J1 at G2, 9.
The reviewable decision was made on the basis that the delegate was satisfied that Ms Wallace did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Ms Wallace provided the following statements made by herself:
·undated statement filed 3 August 2021[3];
·undated statutory declaration filed 7 August 2021[4];
·undated statement filed 9 August 2021[5];
·undated statement filed 11 August 2021[6];
·statement dated 20 August 2021[7];
·statement filed 27 August 2021[8];
·statement dated 2 December 2020 made in support of her application to have the cancellation of her visa revoked[9];
·statements included in her Personal Circumstances Form dated 3 December 2020[10].
[3] Exhibit J1 at 3a.
[4] Exhibit J1 at 5a.
[5] Exhibit J1 at 6a.
[6] Exhibit J1 at 7a.
[7] Exhibit J1 at 9a.
[8] Exhibit J1 at 10.
[9] Exhibit J1 at G2, 307.
[10] Exhibit J1 at G2, 177.
Ms Wallace was released on parole on 18 December 2020.[11] Since then she has been held in immigration detention. Her prison sentence expired on 14 June 2021.[12]
Ms Wallace’s criminal record
[11] Exhibit J1 at G2, 282.
[12] Exhibit J1 at G2, 282.
Offences committed December 2017 – January 2018
On 23 January 2018 Ms Wallace was convicted by the Penrith Local Court of the following offences:
·Destroy or damage property (DV) – fined $500;
·Stalk/intimidate intend fear physical etc harm (domestic) – T2 – 12-month good behaviour bond;
·Common assault (DV) – T2 – 12-month good behaviour bond;
·Assault occasioning actual bodily harm (DV) – T2 – fined $700 and 12-month good behaviour bond.[13]
[13] Exhibit J1 at G2, 38.
These offences occurred on 27 December 2017. Ms Wallace assaulted her domestic partner by placing her hands around her partner’s neck, restricting her airway. Ms Wallace released her partner when a witness intervened. She then threatened to kill her partner and punched her in the face, causing her to feel immediate pain. The partner and the witness then left the premises.[14] During this incident Ms Wallace destroyed her partner’s bankcard.
[14] Exhibit J1 at SM3, 63-64.
On 14 January 2018 Ms Wallace spoke to her partner by telephone requesting her to return to their former home. When her partner refused to do this, Ms Wallace threatened to “smash” her.[15]
[15] Exhibit J1 at SM3, 64.
Offences committed 3 February 2018
On 16 April 2018 Ms Wallace was convicted by the Mount Druitt Local Court of the following offences:
·Assault occasioning actual bodily harm (DV) – T2 – 24 month good behaviour bond and required to attend for counselling, educational development, drug or alcohol rehab;
·Destroy or damage property <=$2000 (DV) – T2 – 12 month good behaviour bond and required to attend for counselling, educational development, drug or alcohol rehab.[16]
[16] Exhibit J1 at G2, 37-38.
The New South Wales Police Facts Sheet tendered to the Court includes:
On Saturday the 3^rd of February 2018 at about 6:30pm police were contacted by Briane (sic) HARVEY who is the victim in relation to a domestic incident that had occurred at [Mr Harvey’s address] between himself and his step daughter who is the accused.
At around 6:50pm police attended [Mr Harvey’s address]. On arrival police were greeted at the front door by the victim who was holding a white t-shirt covered in blood over his nose. Police introduced themselves and asked if the victim needed an ambulance which the victim declined. Police asked the victim what had occurred. The victim stated to police that the accused had come to his house looking for her mother who is the victim’s partner because the mother owed the accused money.
The victim stated to police that he was lying in the front bedroom of the house on his bed which runs off the main hallway when the accused arrive at [Mr Harvey’s address] she walked through the garage as she normally does and made her way into the kitchen where her mother was. The victim told police that the accused started screaming at her mother. The victim stated that he decided to walk out to the kitchen and speak with the accused. The victim tried to calm the accused down however had no success. The victim has then said to the accused, “Fuck off, get out of my house.” The accused has replied to the victim, “I don’t need to listen to you.” The victim has started to walk the accused out of the house however in the hallway the accused has without warning thrown a head butt at the victim which has landed on the bridge of his nose causing it to bleed. The cut was approximately one centimetre long and caused the nose to swell. The victim stated that he has grabbed the accused by both arms and began to walk her outside of the property she continued to throw three to four more head butts which all connected with the victim’s face.
Once outside the accused has broken free from the victim’s grip and ran up to his Holden Commodore … which was parked in his driveway and kicked the front stone guard on the drivers side of the vehicle causing it to smash. The victim stated the accused has continued to throw a number of punches at his bonnet which has left dents on the vehicles bonnet.[17]
[17] Exhibit J1 at SM1, 15-16.
Offences committed 24 February 2019
The New South Wales Police Facts Sheet tendered to the Court includes:
About 12:10am on Sunday the 24^th of February 2019, the accused returned to [Mr Harvey’s address]. Charlotte WALLACE, Tupou FEHOKO and Brian Harvey were still seated in the garage located at the front of the house. The accused entered the garage and grabbed some belongings. The accused had turned to exit the garage. The accused grabbed an empty Somersby Apple Cider glass bottle from the table and swung the bottle at Tupou FEHOKO. The bottle has collided with FEHOKO’s mouth causing a cut to the top lip, swelling of the lips and bleeding from the top lip. The accused attempted to swing the bottle again at the FEHOKO, but Charlotte WALLACE and Brian HARVEY intervened and tried to restrain the accused. Charlotte WALLACE and Brian HARVEY used force to push the accused out of the garage and away from FEHOKO. Brian HARVEY returned to the garage to check on FEHOKO who was bleeding. The accused began to throw punches at Charlotte WALLACE out the front of the house in the driveway. Charlotte WALLACE was struck a number of times by the accused. Charlotte WALLACE then contacted 000 to report the incident. The accused left the location again.[18]
[18] Exhibit J1 at SM1, 22-23.
On 6 May 2019 an Apprehended Domestic Violence Order was made against Ms Wallace naming the protected persons as Brian Tony Harvey, Tupou Fehoko and Charlotte Wallace. The order was for a period of two years.
On 15 April 2020 Ms Wallace was sentenced by the Mount Druitt Local Court to an aggregate term of 14 months imprisonment, to be served by intensive correction order, for the following offences:
·Contravene prohibition/restriction in an AVO (Domestic);
·Common assault (DV) – T2;
·Assault occasioning actual bodily harm (DV) – T2.
At the same time, Ms Wallace was convicted and sentenced to a 12 month Community Correction Order for the following offences:
·Assault occasioning actual bodily harm (DV) – T2;
·Destroy or damage property <=$2000 (DV) – T2.[19]
[19] Exhibit J1 at G2, 37.
On 19 July 2020 a provisional Apprehended Domestic Violence Order was made against Ms Wallace for the protection of her brother, BW.[20]
[20] Exhibit J1 at G2, 228-236.
Offences committed 19 July 2020
On 1 March 2020 Ms Wallace was served with an Apprehended Domestic Violence Order listing Charlotte Wallace as the protected person.
The New South Wales Police Facts Sheet tendered to the Court includes:
Both victims in this matter regarding breach of Apprehended Violence Order and common assault are siblings of the accused. The victims live together with their mother in their family home located in Mount Druitt. The accused has been living in St Marys for an unknown amount of time.
………………..
About 10 AM on Sunday, 19 July 2020 Police attached to Mount Druitt Police Area Command were called to the house Charlotte Wallace stating that the accused was arguing with her. Police arrived at the house a short time later and saw the accused arguing with Charlotte in an aggressive manner with her fists raised.
………………..
Constable Avis and Harsh of Mount Druitt Police believed that violence was imminent and intervened by approaching the accused and moving her away from Charlotte. Police were in full uniform and said “Move back, we’ll talk about what had happened.” The accused was still yelling at Charlotte as police were using the accused’ jacket to pull her away and stop any further violent confrontation for Charlotte. The accused turn to police and said: “Don’t fucking touch me” and trashed her arms to break free of the hold police had on her. Police told the accused to move away, the accused then, using a right fist threw a punch at the head of Constable Avis. Constable Avis was able to avoid the strike and the accused was then placed under arrest and cautioned for assault police.
………………..
After the accused was placed under arrest and conveyed to Mount Druitt Police Station, police were able to canvass the scene and speak to all parties. The witness to the assault, Judy Mita made a Domestic Violence Evidence in Chief Statement. When the accused showed up, she began arguing with Charlotte and the victim of the assault, [BW]. The argument went from inside the house, to the front yard, by the garage. Judy saw the accused punch [BW] to the face. The accused and [BW] began wrestling on the ground and the accused threw [BW] into a neighbouring colour bond fence.[21][Errors in the original].
[21] Exhibit J1 at SM1, 3-4.
On 26 October 2020 Ms Wallace was sentenced by the Mount Druitt Local Court to an aggregate term of 10 months imprisonment for the following offences:
·Contravene prohibition/restriction in AVO (Domestic);
·Common assault (DV) – T2;
·Assault officer in execution of duty – T2;
·Destroy or damage property <=$2000 (DV) – T2;
·Assault occasioning actual bodily harm (DV) – T2.
At the same time the apprehended violence order in protection of her brother, BW, was extended for two years until 26 October 2022.[22]
[22] Exhibit J1 at G2, 35-36, 39-41.
Failure to pass the character test
It is not in dispute that, by reason of her criminal record, Ms Wallace does not pass the character test set out in the Act.
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides:
(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 …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original 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.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of Ms Wallace’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 90
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 15 April 2021. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 5.1(2) of the Direction provides, in part:
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 5.2 provides general guidance and directs that the “factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2”.
That paragraph also sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(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)   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.
(3)   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 measureable risk of causing physical harm to the Australian community.
(4)  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. However, 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.
(5)   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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction, contained in Part 2, sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 5.2, I must “take into account” the relevant primary and other considerations in sections 8 and 9 in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. Primary considerations should generally be given greater weight than the other considerations.[23]
[23] Direction at 7(2).
Section 8 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)   protection of the Australian community from criminal or other serious conduct;
(2)   whether the conduct engaged in constituted family violence;
(3)   the best interests of minor children in Australia;
(4)   expectations of the Australian community.
Section 9 sets out other considerations to be taken into account where relevant. It provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests
E: THE ISSUE FOR DETERMINATION

I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 26). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.
It is not in dispute that Ms Wallace has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that she does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than Ms Wallace passing the character test] why the original decision should be revoked”.[24]
[24] Subparagraph 501CA(4)(b)(ii) of the Act.
If I am satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[25]
[25] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Direction provides that I 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.
I should also consider:
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.[26]
Serious conduct “includes behaviour or conduct of concern that does not constitute any criminal offence.” Examples are provided in the Direction.[27]
F1.1: The nature and seriousness of the Applicant’s conduct to date
[26] Direction at 8.1(2).
[27] Paragraph 4(2).
Paragraph 8.1.1 of the Direction
Paragraph 8.1.1 provides, in part:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) 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));
…
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).
Discussion
Ms Wallace’s conduct must be regarded as very serious. In reaching this conclusion I have been satisfied that the Facts Sheets prepared by the Police accurately set out the facts giving rise to her convictions. I note that she pleaded guilty to the charges.
At times Ms Wallace’s recollection of the offences of which she had been convicted was vague. For reasons which I shall set out later in these reasons, I do not regard her as a reliable witness.
Ms Wallace’s conduct involved repeated acts of physical violence against family members being her partner, her sister, her brother (who at the time was 16 years old), her step-father, her sister’s partner and against a Police Officer. All the acts of violence were committed in a domestic environment. On two occasions she breached Apprehended Violence Orders made by the Courts.
When sentencing Ms Wallace for the offences committed in February 2019, Magistrate Corry said, in part:
At the time there was an AVO order in existence and the community corrections orders to which I have referred and by this stage, within a short time frame this was your third set of violent offences, there being an earlier set of assaults in January 2018, and these further offences being committed twelve months later, when you were at the time subject to the community corrections orders that I have referred to.[28]
[28] Exhibit J1 at G2, 46.
In relation to the offences committed in July 2020, Magistrate Gibson said, in part:
The difficulty for Ms Wallace is that at the time of those offences, which fall just within that broad mid-range category of offending for domestic violence offences are significantly aggravated by the fact that she was on a Community Corrections order for offences of actual bodily harm and damaging property and then she was also on an intensive corrections order for multiple other matters, both of which had been imposed in April 2020. To the extent that she was able to be supervised during those COVID periods she was in the community and ostensibly on her best behaviour and being supervised when these further domestic violence matters which represent a fourth set of offending from a domestic violence perspective were committed.[29]
[29] Exhibit J1 at G2, 39.
Ms Wallace provided false and misleading information to the Department when she lodged her Personal Circumstances Form in December 2020.[30] On the first page of the form Ms Wallace confirmed that “the information I have supplied in this form is given to assist in the consideration of my case for the purposes of a decision under s501 of the Migration Act 1958.”[31]
[30] Exhibit J1 at G2 177.
[31] Exhibit J1 at G2, 177.
Part of the false information provided related to the minor children in Ms Wallace’s life.[32] Ms Wallace stated that there were six minor children in her life with whom she had a “very strong” relationship[33]:
·CW, a niece born in 2015;
·LL, a niece born in 2010;
·SL, a niece born in 2013;
·AC, a niece born in 2015;
·MC, a nephew born in 2012.[34]
[32] Exhibit J1 at G2, 185.
[33] Exhibit J1 at G2, 186.
[34] Exhibit J1 at G2, 185.
Under cross-examination at the hearing, Ms Wallace admitted that she has never met LL and SL. They are the children of a person she met in immigration detention and are not related to her. Ms Wallace said that AC and MC are related but she was unable to say how they were related. She said that they reside in Perth, Western Australia. She has never spoken to them.
Ms Wallace said that she added the names of LL and SL to the form to show increased support of family in Australia.
In the same form Ms Wallace stated that she had no uncles, aunts, nieces, nephews, cousins, or grandparents, in any country other than Australia.[35] During the hearing, Ms Mita (Ms Wallace’s mother) gave evidence that her mother, five of her siblings and their children reside in New Zealand. Although Ms Mita did not say that these relatives were residing in New Zealand in December 2020, there was no suggestion that they were not long term residents of that country. When she was cross-examined by the Solicitor for the Minister, Ms Wallace agreed that her statement that she had no family members in New Zealand was incorrect when she lodged the form. She said that she provided the false information because “she wasn’t really thinking of them in New Zealand, my relationships are here, I am old enough to do my own thing, my life is here, I do not want to involve family in New Zealand”.[36]
[35] Exhibit J1 at G2, 192.
[36] Transcript, 16 September 2021.
In a document dated 31 March 2020 and provided to the Mount Druitt Local Court in relation to proceedings in that Court, Ms Wallace stated, in part:
3. After I was released by the police, I was made aware that my grandmother in New Zealand was very ill.
4. I was raised by my grandmother, and she is more like a mother to me.
5. I immediately got a flight to New Zealand so I could be with her.
6. I did not even think about myself at the time, and I did not think to call the police or the court to let them know I could not come to court. I wasn’t thinking straight, I was only thinking that I had to get to my grandmother.
7. I came back to Australia at the beginning of this year. I had forgotten about these charges.[37]
[37] Exhibit J1 at SM1, 34.
Ms Wallace’s Movement History shows that she departed Australia on 4 May 2019 and returned on 18 September 2019.[38]
[38] Exhibit J1 at G2, 382.
I am satisfied that Ms Wallace deliberately provided false information to the Department in an effort to improve her chances of having the cancellation of her visa revoked. She falsely increased the number of her family members in Australia and falsely stated that she had no family members in a country other than Australia. Ms Wallace did not correct the false information until she was cross-examined by the Solicitor for the Minister in these proceedings.
Based on Ms Wallace having provided false information to the Department and the delay in correcting her statements before me, I am not satisfied that she was a reliable witness.
When she gave evidence, Ms Wallace denied having punched her sister, Ms Charlotte Wallace, during the incident on 24 February 2019. I do not accept this evidence and prefer the statements of fact tendered to the Court at the time Ms Wallace was convicted.
F1.2: The risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.
Paragraph 8.1.2 of the Direction provides, in part:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.       information and evidence on the risk of the noncitizen re-offending; and
ii.       evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Under this heading it is the seriousness of potential harm to the Australian community arising from future conduct which is to be considered rather than the seriousness of the conduct itself.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
Should Ms Wallace engage in further conduct of the nature of her past offending, members of the Australian community would be subject to fear and physical injury. Taking in to account the manner in which Ms Wallace has assaulted members of her family, that injury could be very serious. Further, there would be financial loss associated with damage to property.
In addition to the financial cost already referred to, further offending or other serious conduct would result in financial harm to the Australian community in enforcing Australian laws, in dealing with Ms Wallace through the Courts and in incurring the cost of possible further imprisonment.
The likelihood of the Applicant engaging in further criminal or other serious conduct
Ms Wallace’s evidence
In her statements and in her evidence before me, Ms Wallace said that she is remorseful for her offending and that she will not re-offend as her behaviour has changed. She recognises her need to engage in programs of support, in particular to assist her in anger-management. She now understands the effect her conduct has had on her family and described the threat of being removed from Australia as “a massive wake-up call”.[39]
[39] Exhibit J1 at 3a.
In 2018 Ms Wallace completed the 20-session EQUIPS Foundation Program provided by NSW Corrective Services[40], although she does not recall details of the course. Ms Wallace did not receive any treatment directed towards rehabilitation while she was in prison.
[40] Exhibit J1 at 3e.
Ms Wallace is attending counselling sessions while in immigration detention. These are weekly sessions held for three or four weeks. In addition, she has attended two sessions discussing the abuse of drugs and alcohol and how she can manage in the community. She has completed an on-line course in anger management.[41]
[41] Exhibit J1 at G14, 528.
Ms Wallace has made initial enquiries of Lives Lived Well as to the availability of various courses to assist her in living in the community. These are residential programs covering mind skills, life skills, group work, exercise and leisure.[42]
[42] Exhibit J1 at 3f.
Should she be able to return to live in the Australian community, Ms Wallace proposes to live with her sister and young niece and to return to her previous employment with a retail business.
Pre-sentence Report of 11 April 2018[43]
[43] Exhibit J1 at SM1, 17.
This report was prepared for the Court prior to the sentencing of Ms Wallace for the assault upon her step-father and the damaging of his vehicle.
The Community Corrections Officer reported in part:
Ms Wallace claimed she was the victim of the offence although acknowledged her part in escalating the conflict. Ms Wallace demonstrated a lack of remorse for her actions and appeared to have minimal insight into the effects of behaviour on the victims and community. She appeared to have good insight into her criminogenic issues and demonstrated a willingness to engage in intervention to address her poor anger management and untreated mental health.[44]
The Officer assessed her risk of re-offending as medium.
Sentencing Assessment Report of 14 April 2020[45]
[44] Exhibit J1 at SM1, 19.
[45] Exhibit J1 at SM1, 35.
Ms Wallace was again assessed as a medium risk of re-offending.
Evidence of Ms Mita, the Applicant’s mother
Ms Mita provided a statutory declaration made 4 August 2021[46], and statements dated 16 August 2021[47] and 11 December 2020.[48] She gave evidence at the hearing.
[46] Exhibit J1 at 4e.
[47] Exhibit J1 at 9c.
[48] Exhibit J1 at G2, 371.
Ms Mita acknowledged that at times Ms Wallace suffers from uncontrollable anger. She believes that with the help of other family members she will be able to assist Ms Wallace to overcome this problem. She was uncertain whether she had been made aware of the order preventing Ms Wallace approaching her brother, who is living with Ms Mita. She said that her daughter, Charlotte Wallace, had “mentioned” that Ms Wallace wanted to live with her.
Ms Wallace had mentioned a couple of courses she was intending to take, but she (Ms Mita) did not remember what they were. Ms Wallace had spoken of courses relating to anger-management.
Asked why she believed that Ms Wallace would be different in future, Ms Mita said that she needed to pay more attention to her daughter. She said that while Ms Wallace was in prison, she had changed her attitude and body language which was not as negative as it had been.
Evidence of Ms Charlotte Wallace, the Applicant’s sister
Ms Wallace provided a statement dated 6 December 2020[49], three statements dated 3 August 2021[50], a statement dated 4 August 2021 and a statement dated 21 August 2021.[51] She gave evidence at the hearing.
[49] Exhibit J1 at G2, 373.
[50] Exhibit J1 at 3b, 4c and 9b.
[51] Exhibit J1 at 9b.
Ms Wallace has been speaking to the Applicant and is of the opinion that she has changed over the last few months.
Ms Wallace is willing to assist the Applicant should she return to live in the Australian community and is willing to have the Applicant live with her and her six year-old daughter, with whom the Applicant has a close bond. Ms Wallace is of the opinion that the Applicant will have the support of her family.
Ms Wallace has some concern that the Applicant may re-offend, but believes that, with the support of the family, she will be “OK”. In her opinion family members need to seek counselling with the Applicant.
Other statements
Ms Wallace relied upon additional statements provided in support of her application. The makers of the statements did not give evidence. I have considered all of the statements; I refer to some of these in the following paragraphs.
Ms Teao is a friend of Ms Wallace’s family. She provided a statutory declaration made 4 August 2021.[52]
[52] Exhibit J1 at 4a.
Ms Teao has known Ms Wallace for four years. She states that Ms Wallace helps her mother with domestic duties and helps her sister with the care of her daughter. In her opinion Ms Wallace regrets her past wrongdoing.
Ms Teao and her family are willing to provide accommodation for Ms Wallace to support her until she is re-established in the community.
Ms Jackson is the partner of Ms Teao and a friend of Ms Wallace’s family. She provided a statutory declaration made 4 August 2021.[53]
[53] Exhibit J1 at 4d.
Ms Jackson is aware that Ms Wallace has experienced some difficulties in her life. Ms Jackson has noticed an improvement in Ms Wallace’s attitude in that she looks towards a positive outcome in her life. In her opinion Ms Wallace is genuinely remorseful for her past misconduct.
Ms Jackson says that Ms Wallace is welcome to live with her family until she is re-established.
Ms Hackenberg is a Distribution Centre Manager and was Ms Wallace’s supervisor from June 2017 to September 2018. She provided a statement dated 16 August 2021.[54]
[54] Exhibit J1 at 9d.
Ms Hackenberg described Ms Wallace as a “star performer” as an employee. She is willing to again employ Ms Wallace.
Discussion
I am satisfied that at present Ms Wallace intends not to re-offend should she be released to live in the Australian community. I have considered that she will have family support, accommodation and employment should she remain in Australia. These are factors which mitigate against her re-offending. However, for the reasons which follow I am satisfied that there is a significant risk that she will do so.

Ms Wallace has committed ten violent offences over a period of less than three years, all but one of which were committed against members of her own family. Even after she was convicted of assaulting her partner she continued to offend and to cause physical injury to others.
Since April 2020 Ms Wallace has been in prison or immigration detention. Although she has not been charged with any further criminal offences while she has be out of the general community, I am satisfied on the basis of the reports provided by the Department of Home Affairs,[55] that she has displayed aggressive behaviour on several occasions while in immigration detention.
[55] Exhibit J1 at SG2-6.
Unfortunately, Ms Wallace has received only minimal treatment to address her anger problems. She undertook the EQUIP course while in prison, but she could not recall details of this. She completed an on-line course in anger management while in immigration detention, although she did not recall this when she gave evidence at the hearing. Ms Wallace has made only general enquiries as to treatment she could obtain if she is able to return to live in the Australian community.
I have also considered that in 2018 and in 2020 the risk of Ms Wallace re-offending was assessed by Community Correction Officers to be medium. Ms Wallace has not had significant treatment to reduce that risk.
F2: Whether the conduct engaged in constituted family violence
Ms Wallace has engaged in repeated incidents of family violence which included female victims and her brother when he was a child.
F3: Best interests of minor children in Australia
As I have already found, Ms Wallace’s statement as to the minor children who may be affected by the decision to cancel her visa, is misleading.
Paragraph 8.3 of Direction 90 provides:
8.3
Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Ms Wallace has two brothers, BW who will be eighteen in October 2021 and RW who will be eighteen in October 2022.
BW provided a statement dated 17 August 2021.[56]
[56] Exhibit J1 at 9e.
BW stated that he and Ms Wallace forgive each other for their physical altercations and that she has supported him in the past. He says that he will support her as he knows she has changed a lot. He is not scared of his sister and wishes that she can return home.
BW said that he fears that he will fret for Ms Wallace should she be required to return to New Zealand.
I am not satisfied that Ms Wallace has a close relationship with either of her brothers. She has not had contact with them since her imprisonment. She is restrained from being in contact with BW until October 2022.[57]
[57] Exhibit J1 at G2, 202.
Both brothers are approaching eighteen years of age. While they may suffer some distress if Ms Wallace is required to return to New Zealand, I am not satisfied that the interests of either of them will be significantly affected.
Ms Wallace gave evidence that she has a close relationship with CW, who is the daughter of her sister. The relationship was confirmed by Ms Charlotte Wallace when she gave evidence. Ms Wallace intends to live with her sister and niece should she be able to remain in Australia.
I am satisfied that before she was imprisoned Ms Wallace provided occasional care to CW. However, on 6 May 2019 the Court ordered that Ms Wallace not contact Ms Charlotte Wallace, CW’s mother.
Based on the evidence of Ms Charlotte Wallace and Ms Mita I am satisfied that CW’s primary carer is her mother with assistance by her grandmother, Ms Mita. I am satisfied that the contact between Ms Wallace and CW has been very limited since April 2019.
I am satisfied that CW’s interests would not be adversely affected by Ms Wallace being required to leave Australia.
When she gave evidence at the hearing Ms Wallace referred to the daughter of a step-sister as another minor child with whom she has had some contact. Based on the evidence of Ms Wallace I am satisfied that prior to her imprisonment she had occasional contact with the child when the child visited Ms Mita. I am satisfied that the interests of the child, who is about six years old, would not be adversely affected by Ms Wallace being required to leave Australia.
Ms Wallace has a step-sister who is 17 years old. Ms Wallace has not referred to her as a minor who would be affected. There is no evidence to suggest that her interests would be adversely affected if Ms Wallace is required to leave Australia.
F4: Primary Consideration 4: Expectations of the Australian community
Paragraph 8.4 of the Direction provides:
(1)   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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)    acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Ms Wallace has engaged in repeated acts of family violence, including serious crimes against women and a child. She has also committed a crime against a member of the Police Force.
As required by sub-paragraph 8.4(4), I proceed on the basis of the views articulated by the Government. I am satisfied that the Australian community would expect that Ms Wallace not be allowed to remain in Australia.
F5: Other considerations set out in the Direction
At paragraph 34 of these reasons I have set out sub-paragraph 9(1) of the Direction, which mandates that I take into account such further considerations as are relevant.
F5.1 International non-refoulement obligations
Australia does not owe any international non-refoulement obligations to Ms Wallace.
F5.2 Extent of impediments to the Applicant if she is removed from Australia
Subparagraph 9.2 provides:
(1) Decision-makers must consider 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.
Age and health
Although Ms Wallace is young, she does have some health issues which are set out in the General Health Summary prepared by International Health and Medical Services while she has been in immigration detention. In addition, Ms Wallace has given evidence that she suffers from anxiety and depression, which has been diagnosed by a medical practitioner. However, there is no other evidence of the diagnosis and Ms Wallace is not taking medication for either condition. It is recorded in the Summary on 14 July 2021 that Ms Wallace “self-diagnosed herself with bipolar disorder and depression. Stated she’s never sought professional help for same.”[58]
[58] Exhibit J1 at SG7, 21.
Given that New Zealand has a similar health system to that available in Australia, I am satisfied that all medical conditions suffered by Ms Wallace can be satisfactorily managed in New Zealand.
Language or cultural barriers
Ms Wallace will not face any language or cultural barriers on her return to New Zealand. She has spent 20 years of her life in that country.
Social, medical and/or economic support available
Despite Ms Wallace indicating that she does not wish to involve her family members in New Zealand, I am satisfied that she will have social support available to her if she wishes to contact her relatives. In particular her maternal grandmother lives in New Zealand. In March 2020 Ms Wallace described her grandmother as being more like a mother to her and that she was raised by her grandmother.[59]
[59] Exhibit J1 at SM1, 34.
Ms Wallace was able to gain employment during the times she returned to live in New Zealand. This work included warehousing and packing and unloading cargo. When asked if she was likely to be able to obtain similar work if she returned to live in New Zealand, Ms Wallace replied that she did not wish to return to that type of work. She believed she would be able to do youth work.
New Zealand has similar medical and income support services to those available in Australia. If Ms Wallace was unable to obtain employment in the short term, as a citizen of New Zealand she would be able to access government support.
I am satisfied that Ms Wallace will not suffer significant impairment should she be required to return to New Zealand.
F5.3 Impact on victims
Mr Harvey, Ms Wallace’s step-father, provided a statement dated 17 August 2021.[60]
[60] Exhibit J1, G Documents at 124.
Mr Harvey stated that he understands that Ms Wallace has been getting the help she needs to move forward in the future and that he believes she is not a threat to him or to the community. He supports Ms Wallace being able to remain in Australia.
Ms Wallace’s brother BW, who she assaulted, provided a statement dated 17 August 2021 to which I have already referred.[61]
[61] Exhibit J1, G Documents at 123.
BW wishes that his sister be able to stay in Australia.
I have considered also that Ms Charlotte Wallace, Ms Wallace’s sister, supports Ms Wallace being able to remain in Australia.
There is insufficient evidence to make a finding in relation to Ms Wallace’s former partner, but otherwise I am satisfied that a decision to allow Ms Wallace to remain in Australia would not have a negative impact on the victims of her offending.
F5.4 Links to the Australian community
Paragraph 9.4 of the Direction provides:
9.4.1. The strength, nature and duration of ties to Australia
(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.      less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.      more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9.4.2.   Impact on Australian business interests
(3)    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 strength, nature and duration of the Applicant’s ties to Australia
Based on the evidence of Ms Wallace I am satisfied that she has the following immediate family members in Australia:
·her mother;
·her step-father;
·a sister and two brothers (both of whom are minors); and
·two step-sisters, one of whom is a minor; and
·two nieces who are minors.[62]
[62] Exhibit J1 at G2, 333.
Ms Wallace has an extended family of cousins in Australia. There are other persons she regards as family but who are not related to her.
In her Personal Circumstances Form, Ms Wallace referred to her partner, Ms R and stated that she intended to live with her upon a return to the community.[63] However, Ms Wallace did not refer to her partner when she gave evidence. She said that she planned to live with her sister and niece. I have not considered any previous relationship with her partner when assessing Ms Wallace’s ties to Australia.
[63] Exhibit J1 at G2, 182.
I am satisfied that Ms Wallace has emotional ties to her immediate family members in Australia who are permanent residents. Having listened to her mother and sister give evidence and having read the statements of her brother and step-father, I am satisfied that they would be distressed by Ms Wallace being required to leave Australia. However, taking in to account the time Ms Wallace has spent in New Zealand, in prison and in immigration detention since she first arrived in Australia, I am not satisfied that her immediate family would otherwise be significantly affected by a decision requiring her to leave Australia.
Ms Wallace first offended in December 2017, less than six years after her first arrival in Australia. Four of those six years Ms Wallace resided in New Zealand. this lessens the weight to be given to her ties to this country.
Ms Wallace has spent some of her time contributing positively to Australia by being employed and paying taxes. However, as this has been for only a relatively short time before her imprisonment, I do not give this factor significant weight.
Impact on Australian business interests
I am satisfied that not allowing Ms Wallace to remain in Australia will not have any impact on Australian business interests.
PART G: THE BALANCING EXERCISE
The Minister contends that primary consideration 1 (protection of the Australian community), primary consideration 2 (conduct constituting family violence) and primary consideration 4 (expectations of the Australian community) weigh heavily against the Tribunal being satisfied that there is another reason why the initial decision should be revoked and that these considerations outweigh all others. I agree.
Ms Wallace repeatedly committed violent offences against members of her family, at times causing physical injury as well as fear and distress. Even after her first appearance in Court, Ms Wallace continued to offend, necessitating the issue of restraining orders to protect family members. The order in respect of her brother, still a minor, remains in force.
On two occasions Ms Wallace has been assessed to pose a medium risk that she will re-offend. Unfortunately, she has received only minimal treatment to control her anger which has been a major contributor to her past conduct. I am satisfied that the risk to the Australian community is unacceptable.
The need to protect the Australian community, including her own family, and Ms Wallace’s conduct involving family violence (including violence to females and a child) weigh very heavily in favour of not revoking the cancellation of her visa. The expectations of the Australian community support this conclusion.
In balancing the various considerations, the interests of minor children favour revoking the cancellation, but not significantly so. Ms Wallace has not been a primary care-giver for any of the children and has had minimal contact with them since April 2020. In addition, Ms Wallace chose to live in New Zealand for four years which would have restricted the contact she was able to have.
None of the other considerations weigh significantly in favour of revocation. Ms Wallace has ties to her family in Australia, but only minimal ties to the wider community. I am not satisfied that her deportation will cause her, or her family members in Australia, significant hardship. I have found that Ms Wallace will not suffer any significant impediments on returning to New Zealand.
PART H: CONCLUSION

The reviewable decision made 30 June 2021, being the decision of a delegate of the Minister not to revoke the cancellation of the Applicant’s TY Subclass 444 Special Category (Temporary) visa, will be affirmed.

I certify that the preceding one-hundred and thirty-eight (138) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...............................[SGD]................................
Associate
Dated: 22 September 2021

Date(s) of hearing: 6 & 16 September 2021

Applicant: Self-represented

Solicitor for the Respondent: E Letcher-Boldt, Clayton Utz

[2021] AATA 3617

22 September 2021

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Immigration

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