WCHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 1092

WCHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1092 (16 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1186
Re:WCHR
APPLICANT

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

DECISION
Tribunal: Member R. West
Date:16 May 2024
Place:Melbourne

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent dated 22 February 2024 and substitutes a decision to exercise the discretion under section 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of the Applicant’s Subclass 444 Special Category visa.
..............................[SGD]....................................
Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – conviction for kidnapping, theft and assault - applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – 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 – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Sentencing Act 1991 (Vic)
Migration Act 1958 (Cth)
Cases
CKL21 v Minister for Home Affairs [2022] FCAFC 70
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2016) FCA 348
WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R. West
16 May 2024

This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Subclass 444 Special Category visa (the Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of New Zealand. She was born in New Zealand in June 1988.[1] She first arrived in Australia in around 1990 and last returned to Australia on 2 October 2007 as the holder of the Visa.[2]
[1] G9 at p.73-74.
[2] G53 at p.183.
In September 2023 the Applicant was convicted in the County Court of Victoria of multiple charges including kidnapping and sentenced to a cumulative term of 3 years imprisonment.[3]
[3] G3 at p.33.
On 4 October 2023 the Applicant’s Visa was cancelled under section 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.[4]
[4] G51 at p.175.
On 13 October 2023 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked.[5]
[5] G7 at pp.54-56.
On 22 February 2024 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision).[6]
[6] G2 at p.12.
On 28 February 2024 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[7]
[7] G1 at p.1.
HEARING
The Tribunal conducted a hearing of the Application on 6 and 7 May 2024. The Applicant was represented by Mr Mukesh Chand, a migration agent. The Respondent was represented by Mr Adam Cunynghame, a solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, including those produced under summons sequentially numbered G1 to G59 and paginated from pages 1 to 259 (G Documents);
(b)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(c)a Statement of Facts, Issues, and Contentions produced by the Applicant (ASFIC);
(d)the Respondent’s Supplementary Submissions (RSS)
(e)the oral evidence of:
i.the Applicant;
ii.the Applicant’s mother;
iii.Ms Jessica Pike, the Applicant’s partner;
iv.Ms L, the Applicant’s aunt;
v.Ms B, the Applicant’s aunt;
vi.Ms Suzi Scremin, Support Co-ordinator, Voyager Support Pty Ltd;
vii.Ms Siobhan Neyland, Counsellor/Advocate, WestCASA-DPFC; and
viii.Ms Emma Docherty, Arrest Referral Program Co-ordinator, Better Health Network.
(f)documents tendered by the Applicant and marked as exhibits and listed in Appendix A.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test (as defined by section 501); or
(b)there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
On 13 September 2023 the Applicant plead guilty in the County Court of Victoria, Melbourne to offences of kidnapping, theft, driving while disqualified and committing an indictable offence whilst on bail. She was sentenced to terms of imprisonment of 30 months (kidnapping), 18 Months (theft), one month (driving while disqualified) and one month (indictable offence whist on bail) to be served cumulatively as an aggregate sentence of 36 months imprisonment with a non-parole period of 24 months.[8]
[8] G5 at pp.48-50.
On the basis of these matters, the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in section 501(7)(d) and that by virtue of section 501(6)(a), the Applicant is deemed not to pass the character test.
Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[9]
[9] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, [17].
DIRECTION 99
Paragraph 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of Part 2 sets out five 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 strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Paragraph 6 stipulates that the decision-maker must be informed by the principles stated in paragraph 5.2 in assessing these considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 11 January 2024 was included in the G Documents.[10] It includes findings of guilt or convictions as follows:
[10] G3 at pp.33-35.
a.May 2005 – breach of intervention order (no conviction – accountable undertaking) – unlawful assault (no conviction – good behaviour bond);
b.September 2011 – aggravated burglary, theft and obtain property by deception (adjourned without conviction - $1,000 to Court Fund);
c.October 2014 – breach of September 2011 orders (no conviction – orders varied - $200 to Court Fund);
d.March 2017 – drive while suspended, drive unregistered vehicle and failure to answer bail (aggregate fine of $800 and licence disqualified for 6 months);
e.October 2017 – use unregistered vehicle, fraudulent use of registration label, driving while disqualified and possession of prohibited weapon (9 month community correction order (CCO));
f.February 2018 – possess dangerous article, assault with weapon and criminal damage (12 month CCO);
g.March 2021 – contravene CCO, possess methylamphetamine and ecstasy, possess prohibited weapon, drive while suspended, use unregistered vehicle and fail to answer bail (18 month CCO);
h.May 2022 – commit indictable offence while on bail (9 months CCO), possess drug of dependence (14 days imprisonment) and attempt home invasion (525 days imprisonment);
i.July 2022 – contravene CCO (proven);
j.September 2023 – possess ecstasy (7 days imprisonment), drive while disqualified (1 month imprisonment), commit indictable offence whilst on bail (1 month imprisonment), theft (18 months imprisonment) and kidnapping (30 months imprisonment) – aggregate sentence 36 month imprisonment;
k.October 2023 – negligently deal with proceeds of crime (14 days imprisonment concurrent with sentence being served).
Applicant’s Evidence
The Applicant set out her position in an undated letter to the delegate requesting revocation of the cancellation of the Visa[11] in about October 2023 and gave evidence at the hearing. She said in her undated letter:
[11] G49 at pp. 168-173 (slightly amended to correct typographical errors).
I was arrested on the 27th June 2021 and I was charged and convicted of kidnapping and received a 30-month sentence on the 13th September 2023. I now understand the seriousness of my crime and the effect it has had on the victim and also on the community and my family.
Undertaking this sentence has allowed me the time I have needed to reflect on my own behaviour and the impact it has had on others. In doing this I've been forced to confront aspects of my own history something I have never wanted to address and have spent years avoiding but am now okay dealing with it.
I am 35 years of age and I first arrived in Australia in 1992 at the age of 4. I resided in Sydney with my Mother for approximately 12 months then we returned to New Zealand temporarily. In the year 1996 we returned to Australia and since then, it has become my permanent home.
My mother's decision to return to Australia was to flee an extremely violent relationship between her and my father. I was subjected to family violence and child abuse from a very young age. I have experienced many traumatic experiences in my childhood that included being sexually abused by my father's brother on multiple occasions. I am still deeply traumatised from those events and have since been diagnosed with Complex PTSD.
Whilst in custody I have used this opportunity to address those issues and I've completed the Moringa program run by West Casa and am now receiving ongoing counselling via West Casa.
During my childhood I attended Fountain Gate Primary School and then attended Eumemmering Secondary Collage in Narre Warren. I then chose to further my education by attending Dandenong Chisholm TAFE. I always found school quite difficult and always struggled academically but I now understand this was due to having the disorder ADHD which was not diagnosed until I was in my late twenties.
I grew up with my siblings and my mother who was a single parent. My mother was an extremely hard worker and this work ethic was instilled on me from a very young age. My mother and I have a very strong relationship and she has been an extremely important family support in my life. There was a time when our relationship broke down when I was approximately 13 years of age. This resulted in me being asked to leave the family home and I found myself in a position where I became homeless. Because I did not have access to stable accommodation I often found myself in dangerous situations. Whilst still living on the streets at the age of 14, I was raped by two men. I was deeply traumatised from this abuse and at the time had nobody I could turn to for support so this is when I started using drugs and alcohol as a coping mechanism. I have since been in a constant struggle with addiction. My offending and criminal history is a direct result of my mental health, drug and alcohol use which relates to all the physical, mental, sexual and emotional abuse I have experienced in my life.
In 2011 my offending required me to complete a 2-year ARC Program and the conditions associated with the order required I abstained from using so I stayed sober for a long period of years.
I met Andrew my former partner and father to my children in 2009 and the relationship lasted 8 years. He was a single parent of a two-year-old boy. My relationship with Andrew was great in the beginning but this soon changed dramatically from a loving relationship to one of mental, emotionally (sic) and physical abuse and fear. Approximately two years into our relationship I fell pregnant with our twin daughters but with all the physical abuse I was suffering from at that time I decided I would leave the abusive relationship so I would be safe for the period of my pregnancy and give birth to my children. I was with my mother and sister when my twins were born in January 2013. That was the proudest day of my life and the most life changing. My daughters are my world and have changed me in so many ways. I was on and off again with their father, the abuse got worse and my daughters had seen so much I had to get away so I took off to a refuge for women. I received so much help from them and was able to get housing for me and my daughters. I decided to allow Andrew back into the girls lives and he was caring for them every second weekend. There was no family agreement in place just a verbal one between me and him and in June 2017, it was his weekend when I went to collect them he would not give the children to me and I was served with an interim IVO. The order was based on false accusations and all lVO's were struck out of court and dismissed. I was continually served with IVO's based on untrue information over a period of a year. One after another so I couldn't see them for such long periods that my mental health dramatically declined over this period and I started using drugs and alcohol again.
Due to my unstable mental health and serve (sic) drug and alcohol use I offended again July 2017 and got sentence to a 12months corrections order. In that time, I tried many times to stop my use of drugs and put myself into Western health DETOX that I completed and went to go on to do a Day-hab but I didn't complete due to family requirements. My uncle had a stroke and was on dialyses and I was helping care for him and taking him to constant appointments. He passed away 2022.
I put in for family law courts to get visits with my daughters. I was allowed supervised visits every weekend but had to be supervised by Andrew’s family. When it come to the final order I couldn't make it to the courts due to my partner at the time physically abusing me to the point where I was not able to make it to the final order. The Family courts went with my kids father Andrew to be sole parent and I get supervised visit per week and phone calls. Since being in prison I haven't had any contact with them for over 3 years. He has breached the order and I have requested for mediation last year in Oct 2022 and he denied it and I was granted with a Certificate so I could go back to family court. I cannot go back to family court until I'm released.
I have found myself in a cycle of abusive relationships. My past two partners were very violent and abusive towards me.
One of the abusive relationships I was in and my drug and alcohol use lead me to offend in March 2020. I was charged with attempted home invasion that resulted in me coming to prison for the first time. Whilst on remand for that attempted home invasion I got bail in January 2021 and was out for months. I offended whilst on bail which lead to my sentence now. I'm deeply ashamed and remorseful for my actions and I got sentenced in May 2022 for the attempted home invasion and received time served 525days and a 9month corrections order that I have to complete when released.
All my offending is a direct link to my mental health issues and drug and alcohol use.
I am diagnosed with: Complex Post Traumatic Stress Disorder, Bipolar Affective Disorder type 2, Attention Deficit Hyperactivity Disorder and Acquired Brain Injury.
I have been getting treated for my mental health since coming to prison with medication and therapy and I receive supports from N.D.I.S because of my acquired brain injury. They are a huge part in my growth and will be one of my main supports outside in the community if I'm granted my visa back.
In addition to working through the past, I have also spent much time and thought on hopes and goals for the future and the steps I can take to alleviate the factors that have in the past contributed to reoffending.
Whilst in custody I have been employed through Horticulture. I have shown a positive work ethic through daily attendance and a positive attitude.
Having a better mind set now has allowed me to take better care of myself physically whilst being here, I've lost 30kgs now and I'm taking what I've learnt in therapy which is meditation into account a lot now.
I have completed numerous education courses through Box Hill TAFE.
I have also completed the Fitted for Work Program and have engaged with WES which is an employment service that links you to potential employees upon release from custody.
I have completed a civil construction course that went for 4 months. The course allowed me to obtain a Forklift license, Stick Steer and Excavator Qualifications. We had an Expo where we were able to display the skills we obtained through the course to outside companies. We were able to meet and greet with individuals from these companies who hire people once released from custody. I received multiple offers for work when I am released into the community. I'm a very hands on, hardworking individual so I was thrilled to have the opportunity to complete this course. This is the type of vocation I would like to pursue when I am released. I was recently asked to be a mentor in the next group of prisoners completing the Civil Construction Course. I am grateful for the offer and I am excited about being able to continue doing something l enjoy.
l've completed multiple parenting courses and I was also asked to be a carer of a baby that come into prison and was here for (some) weeks. It made me remember how much I love and care about being a good mother and honestly everything l've done in here has been to better myself for my twin's girls because they mean everything to me and I want to show them that I can be that person they look up to and the mother they deserve. I know I will have a tough road ahead of me but I am a changed person and l'm determined to make changes and l'm willing to makes those difficult choses for a better life.
lf I was to get my visa granted back and after I get released or if I was to get parole I would be working on my on going drug addiction and still be going to self-refer myself to Rehab, I have a rehab that will take me. My drug addiction is an ongoing battle and l've learnt more coping strategies since doing a cycle of the Drug Unit by Caraniche being in here and the multiple AOD programs l've done but I know for myself that I need more help so I don't use again.
Prison saved my life. l'm not the person I was two years ago. l'm deeply ashamed and take full responsibility for all my actions. I am remorseful and have spent the last two years changing my life. I have been proactive in utilising all support networks available to me also all the programs whilst in custody including counselling for my trauma as a child and young adult. I have found it extremely helpful working through things and seeing the changes in me. Being on medication has been a huge deal to me because it's made me more stable and a lot of things clearer now so l can handle things a lot better. I understand l've had incidents in prison but please understand they have been part of my learning curves from my bad behaviour and all have been a big emotional learning process.
I am afraid to be deported because I fear for my life if I was to see my dad or his family because of all the abuse and sexual abuse I suffered as a child. l'll be homeless, jobless and most of all I would fear that my mental health would spiral out of control from not having family supports, not knowing anything or my surroundings not been able to see my daughters again and after working on myself and making great positive changes I fear it would undo everything l've worked so hard towards and honestly to me now just thinking about my headspace if I was there I would fear the suicidal thoughts because I would have nothing. l've been to New Zealand twice in 20 years and that was for funerals. All my family are here in Australia and my daughters are born here and have never left the country. I have NDIS here as a major support system for me and also my loving supporting family.
PRIMARY CONSIDERATIONS
Protection of the Australian Community

In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in paragraphs 8.1(1) and (2) of Part 2 of Direction 99.
Paragraph 8.1(2) requires decision-makers to 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.
Nature and Seriousness of the Applicant’s Conduct to Date
The factual circumstances giving rise to the Applicant’s conviction in the County Court of Victoria on 13 September 2023 were set out in some detail by Judge Lauritsen in his sentencing remarks[12] as follows:
[12] G4, pp.36-49 at [3]-[21].
3.On Saturday, 26 June 2021 at about 9:00 pm, the victim received a telephone call from two males he knew as 'Long' and 'Frankie'. Shortly afterwards, he spoke to the co-accused, who said to him 'Hey, where are you? You better come man or I'll come and fucking kill you. I'll go to your mum's house in Noble Park and smash it'. The victim agreed to meet the co-accused and give him money The victim told the co-accused where to go.
4 The co-accused and the Applicant arrived at the address after the victim had arrived. The victim got into the co-accused’s car. In the back seat was the Applicant, wearing a black facemask and a hood.
5The co-accused, picked up a tomahawk from beside his seat, raised it and said to the victim 'I'll fucking slice your face in half now'. He swung the tomahawk towards the victim stopping short of hitting him. The Applicant said 'Fuck cunt' and put some kind of hook around his neck and pulled him against the seat. He struggled to breathe. The Applicant slapped him to the right side of his face hard and the co-accused, hit his face with a hand.
6 The co-accused received a phone call from 'Frankie'. The victim tried to leave the car but his door was locked. After the call the co-accused said, 'You’re coming with us, we are taking you to the farm'. The victim understood the word 'farm' to mean kidnapping a person, taking them to the bush and killing them. With the tomahawk still raised, you, the co-accused demanded the victim give him the keys to his car. He did so and the co-accused gave them to the Applicant, who got into that car and drove it.
7 The co-accused drove to an address in the Cranbourne area followed by the Applicant. The Applicant got into the co-accused's car while he drove the victim's car away. The Applicant held the tomahawk and said to the victim 'don't go anywhere or I'll slice you'.
8 About 30 minutes later the co-accused phoned the Applicant, telling her the police were in the area. The Applicant drove to a flat in Noble Park. Previously, both of them had demanded money from the victim. While in the car, the victim spoke to 'Frankie' about obtaining the money demanded.
9 'Frankie' then drove the victim to several locations in an attempt to obtain money. He got $215 from an acquaintance.
10 Between about 2 and 3 am, the co-accused phoned the victim and demanded he come out the front with the money. He came outside, entered the car where the co-accused and the Applicant were present and handed over $165, for which, the co-accused punched him in the face. He tried to open the door to get out but, again, it was locked.
11 the co-accused said to the victim 'we want $1,000 each'. The victim replied he could not find that sort of money. the co-accused then repeatedly punched the victim in the face and said, 'that's it, you're finished'. The co-accused then produced what appeared to be a firearm and struck the victim to the right side of the head with it. The co-accused then pushed the object into the victim's neck and said, 'this thing it will get through your neck'.
12 The victim was driven to a service station and food outlet where the Applicant thought food and mobile phone credits. The Applicant and the co-accused offered the victim food but he did not respond and was struck in the head with the firearm. The co-accused demanded the victim's mobile phone and passwords or else he would put a bullet in his head. He gave both. The co-accused searched his phone.
13 The victim was driven around the Cranbourne area, stopping at locations. At each stop either the co-accused or the Applicant would place a mask over his head to prevent him from seeing. The co-accused said, 'keep quiet or I will shoot you'. When leaving each address, the co-accused and the Applicant swapped between vehicles while the victim remained in the BMW throughout.
14 The victim was driven to the co-accused's house. A mask was placed on him before taken inside. Once inside, his arms and legs were bound to a desk chair with cable ties.
15 When the victim said he was struggling to breathe with the mask on, the Applicant said 'you can't breathe, I'll put one hole in for your mouth and you will breathe easy', while pushing the barrel of the firearm and the material of the mask into his mouth.
16 The mask was removed and the victim saw two firearms, a box of ammunition and the tomahawk with which he had been threatened. The co-accused said 'you're going to die here. Have a smoke'. He gave him a cigarette. The Applicant found the victim's address in his phone and said, 'that's a job tonight'.
17 The co-accused loaded a firearm, cut the cable ties around the victim's arms. He told the Applicant 'put him in the boot and take him to the other place and dump him'. The victim managed to remove the cable tie around his ankles. The co-accused stripped him of most of his clothes and handed the firearm to the Applicant. When the co-accused realised he had removed the cable tie from around his ankles, he punched him in the face.
18 While the co-accused and the Applicant were distracted the victim took and concealed a phone. The Applicant told him 'hurry or I'll kill you'. She forced him into the front passenger seat of the Honda Civic.
19 The Applicant drove away. As she drove, The Applicant held the steering wheel with her left hand, and aimed the loaded firearm at the victim with her right hand.
20 After the co-accused's phone rang, through a series of events, The Applicant lost control of the vehicle and it struck a brick fence. The Applicant dropped the firearm and the victim punched her several times to the head. They struggled. The Applicant managed to open the car door and pick up the firearm but the victim grabbed her by the hair, punched her in the head and managed to get out of the car through the driver's door. The Applicant fell out of the vehicle onto the nature strip. The firearm was underneath her body and the victim jumped on top of her in an attempt to get the firearm. A bystander saw the two struggle and restrained The Applicant. He took possession of the firearm and handed it to another witness. The bystander restrained The Applicant until the police arrived.
21 Later, the co-accused drove up in the other vehicle. Two police members sought to stop him but he drove away.
Paragraph 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct.
Paragraphs 8.1.1(1)(a)(i)-(ii) lists certain crimes which are to be regarded as very serious. They include crimes of violence. The offences for which the Applicant was convicted on 13 September 2023 involved repeated violence. While the Applicant was not the principal offender, she was an active participant in the kidnapping and the assault of the victim. The description of the offending in the sentencing remarks of Judge Lauritsen included the following violent acts by the Applicant personally: she placed some kind of hook around the victim’s neck and pulled him against the seat so that he struggled to breathe and slapped him to the right side of his face hard; she held a tomahawk and said to the victim 'don't go anywhere or I'll slice you’; she pushing the barrel of a firearm through the material of a mask into the victim’s mouth and she forced the victim into her car and as she drove she held the steering wheel with her left hand and aimed the loaded firearm at the victim with her right hand.
The Applicant’s criminal record also includes convictions for attempted home invasion (2022), assault with a weapon (2018), aggravated burglary (2011 and 2014) and unlawful assault (2005).
Of particular concern is the use of weapons in the offending. The Applicant confirmed in her oral evidence that her conviction for assault in 2018 involved the use of a baseball bat and the attempted home invasion offence involved the use of an axe. In the kidnapping the Applicant was found to have used both a tomahawk and a firearm.
The descriptions given in paragraphs 8.1.1(1)(a) and (b) are not exhaustive and paragraphs 8.1.1(1)(c)-(h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the courts;
(b)the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness; and
(c)the cumulative effect of any repeated offending.
The Tribunal has recognised that:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[13]
[13] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The sentences imposed on the Applicant on 13 September 2023 were significant. Judge Lauritsen noted that the maximum penalty for the kidnapping offence was a term of imprisonment for 25 years.[14] His Honour commented on the nature of the offending as follows:
This offence of kidnapping is a significant example of a serious offence. It is prolonged. It involved a series of assaults on and threats to the victim.[15]
[14] G4 at [46].
[15] G4 at [47].
In addition, the Applicant received a custodial sentence of 525 days imprisonment for attempted home invasion in 2022.
The Applicant’s criminal record reveals that her offending has been frequent and has increased in seriousness over time with respect to the nature of the offences and the penalties imposed by the courts. This sustained criminal history has a cumulative effect on police and judicial resources and on the community. Moreover, her offending exhibited a pattern of repeat offences and displayed a willingness to break the law despite being aware of the consequences. Her criminal record includes four separate convictions for driving while disqualified, three instances of contravening CCOs, two cases of failure to answer bail and two convictions for offences whilst on bail including the offences for which she was convicted on 13 September 2023.[16] The commission of offences while on bail adds to the seriousness of the offending. As Judge Lauritsen noted in his sentencing remarks,[17] section 16(3C) of the Sentencing Act 1991 (Vic) imposes an additional penalty for offences committed while on bail by requiring that penalties for those offences be served cumulatively with other offences, unless otherwise ordered.
[16] See G3.
[17] G4 at [62].
Having regard to these considerations, the Tribunal finds that the Applicant’s criminal conduct to date has involved very serious offences including crimes of a violent nature, which have threatened the physical and psychological wellbeing of members of the Australian community. These offences are part of a pattern of frequent criminal conduct engaged in by the Applicant over an extended period from 2011 to 2023.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the decision-maker must have regard, cumulatively, to:
(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 available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
The Applicant’s offending, if repeated, represents a risk of very serious physical and psychological harm to members of the Australian community. The nature of the harm is illustrated by the Court’s findings in relation to the impact on the victim of the kidnapping offence. Judge Lauritsen noted in his sentencing remarks that .. the victim sustained a haematoma on the right side of his head, an abrasion on the right upper side of his chest and abrasions on both knees. He received medical treatment.[18] Although he was not furnished with a victim impact statement the judge observed that .. one can safely assume the entire incident was terrifying for the victim of the kidnapping.[19]
[18] G4 at [25].
[19] G4 at [29].
While crimes of violence have the potential to cause very serious physical and psychological injury for the victim, the antisocial nature of the Applicant’s other offending also poses a significant risk of harm to the general good order of the community.
Likelihood of Reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future must be based on a logical process of reasoning based on the known facts.[20]
[20] (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
Past Offending
One relevant consideration is the Applicant’s prior conduct.
The Tribunal notes that the Applicant’s offending as an adult was over an extended period of time. It involved eleven separate court appearances for multiple offences over the period from 2011 to 2023 culminating in a significant custodial sentence for very serious crimes committed in 2023. While the offending prior to her conviction on 13 September 2023 was of a less serious nature, it was nevertheless continuing and broadly based involving driving offences, drug and weapons possession, assaults and theft. Her offending involved repeat offences and a failure to comply with CCOs and conditions of her bail. She was not encouraged to refrain from unlawful conduct by the imposition of non-custodial penalties in the earlier years, nor was she deterred by the custodial sentences imposed on her later in May 2022. Her record demonstrates an established pattern of criminal behaviour and disregard for the law. It is a factor indicating a likelihood that she will re-offend in the future.
Remorse
It is also relevant whether the Applicant is genuinely remorseful for her past actions.
His Honour Judge Lauritsen confirmed that the Applicant and her co-accused had plead guilty to the charges before the court on 13 September 2023 but noted:
Your respective guilty pleas have come late in the process, starting with the laying of the charges and ending with a jury trial.[21] … Belated though they were I would treat your guilty pleas as evidence of remorse.[22]
His Honour concluded that the Applicant’s prospects of rehabilitation were reasonable.[23]
[21] G4 at [49].
[22] Ibid at [53].
[23] Ibid at [56].
In submissions to the Tribunal the Applicant’s representative stated that the Applicant accepted the charges and has been quite remorseful for what has happened as seen from her statement as well as from references provided by her family.[24] In their oral evidence to the Tribunal the Applicant’s mother, her partner Ms Pike, and her aunts, Ms L and Ms Beach stated that the Applicant had expressed to them her remorse for her offending.
[24] ASFIC at [35].
In her submissions to the delegate the Applicant stated that:
Undertaking this sentence has allowed me the time I have needed to reflect on my own behaviour and the impact it has had on others. In doing this I've been forced to confront aspects of my own history something I have never wanted to address and have spent years avoiding but am now okay dealing with it.[25]
[25] G49.
The Applicant also expressed remorse in her oral testimony. However, when questioned about the kidnapping offence the Applicant denied each of the factual findings stated in Judge Lauritsen’s sentencing remarks notwithstanding that, with the benefit of legal representation, she had plead guilty. She denied wearing a black facemask and hood, forcing the victim at any stage, having a weapon, striking the victim or placing a gun in his mouth. She sought to excuse her behaviour on that occasion and in the earlier attempted home invasion conviction by stating that she was under the influence of drugs and alcohol and acted on the instructions of her male accomplice because she was afraid to refuse due to prior domestic violence. The Applicant’s submission that … she was simply following the co-accused’s instructions and was unaware of what was going to unfold[26] in the kidnapping contradict the sentencing remarks. Judge Lauritsen found that the Applicant was an active participant, assaulting and threatening the victim and that there was … nothing to reduce the levels of your moral culpability.[27]
[26] ASFIC at [33].
[27] G4 at p.44 at [48].
The Tribunal accepts that the Applicant regrets having been convicted, but notwithstanding her guilty plea and her statements of remorse to the Tribunal and as reported by her family and friends, the Tribunal is not satisfied that the Applicant has fully accepted responsibility for her actions in relation to the kidnapping and earlier offences. This is a concern with respect to the likelihood of her re-offending.
Rehabilitation - Mental Health and Drug and Alcohol Use
The Applicant gave evidence that she was the victim of continuing domestic violence from a young age. She said that her father was violent toward her mother and other family members and that she was assaulted by him on many occasions as a child while in New Zealand. She said that she was also sexually abused by an uncle on four occasions when she was 5 or 6 years old. After coming to Australia she left home and lived on the streets from about 13 years of age. While living on the street she was raped by two men. In 2009 she met her partner Andrew who subjected her to domestic violence which only stopped when she left him to live in a women’s refuge. She subsequently had two other partners who subjected her to physical violence and emotional abuse.
The Applicant’s account of this violent past was confirmed by other witnesses including her mother and aunts and is consistently referenced in reports by the psychologists and psychiatrists who have examined the Applicant.[28] The Tribunal accepts that the Applicant is the victim of prolonged physical and sexual violence and that this has contributed to her mental health condition and her long standing alcohol and drug abuse.
[28] See Exhibits A8,10,12,25 and 32.
In April 2010 the Applicant (then 21 years old) was examined by Dr Loretta Evans a neuropsychologist for the purpose of Magistrate Court proceedings. In her report of 9 April 2010,[29] Dr Evans noted that the Applicant suffered from:
a.generally low average nonverbal intellectual skills and typically borderline verbal intellectual abilities;
b.mild to moderate alcohol related brain impairment;
c.significant mood disturbance, specifically depression and high levels of anxiety and stress; and
d.poor self-monitoring and impaired social reasoning that may make her vulnerable to others as well as highly suggestible.
Dr Evans recommended that the Applicant be referred to a residential detoxification program to address her excessive drug and alcohol misuse and the creation of a mental health plan supervised by a psychologist to allow for ongoing monitoring of mood state and provide follow-up support to assist abstinence.
[29] Exhibit A12.

In January 2018 the Applicant was assessed by Carla Ferrari, a consultant psychologist, at the request of the Applicant’s lawyers in the context of pending charges for various offences including assault with a weapon.[30] In her report of 18 January 2018[31] Ms Ferrari stated:
She is predisposed to mental health issues as a result of an abusive and neglectful upbringing in which she suffered physical abuse by her alcoholic father, sexual abuse by a family member which she has never disclosed, and experienced and witnessed further traumas living on the streets from age 13 … was also subjected to severe domestic violence perpetrated by her ex-partner of eight years, which serves to reinforce her early life experiences and has contributed to depression, anxiety and post-traumatic stress symptoms.[32] … exacerbated in June 2017 when her abusive ex-partner failed to return their twin daughters to her after caring for them whilst she was on holidays interstate.[33]
[30] The Applicant confirmed in her oral evidence that the weapon was a baseball bat.
[31] Exhibit A25 at [71].
[32] Ibid.
[33] Ibid at [76].
Mr Ferrari opined at the time that the Applicant was generally a low risk of reoffending, but the risk will be increased if she continues to use substances which increase her risk of impulsive and unpredictable behavior, further impairs her judgement and makes her more susceptible to exploitation by others. She noted that the Applicant … recognizes the need for psychological treatment and drug counselling to overcome her issues, and is motivated to address her chronic psychopathology and substance use which has led to her offending behavior.[34]
[34] Ibid.
The Applicant was assessed by Assoc. Prof. Andrew Carroll, consultant forensic psychiatrist, in July 2020 at the request of the Applicant’s lawyers in relation to a remittal in respect of the attempted home invasion and related charges. In his report of 28 July 2020[35] Prof. Carroll stated:
Diagnostically, (the Applicant) meets the criteria for 'Complex Post-Traumatic Stress Disorder' as articulated in ICD-1 I (code 6B414) by the World Health Organisation.
The profound damage to her personality as a result of her traumatic experiences in her formative years also mean that she meets the criteria for a moderate Personality Disorder (ICD-1 I) with a borderline pattern (6D I 1.55) as manifest predominantly by: emotional instability; a tendency to self-damaging behaviours; dysfunctional interpersonal relationships; and recurrent acts of self-harm and attempted suicide.
[35] Exhibit A10 at [170].
Prof. Carroll stated further that the Applicant … reports a desire to separate from her abusive partner and to desist from illicit drugs and alcohol abuse. She verbalises commitment to cooperate with relevant services and supports. She appears to be genuine in this intent.[36] He noted that she requires: placement in safe accommodation; psychological trauma-focused therapy; support from a domestic violence service; substance use counselling; and assistance with structuring her time in a prosocial manner, ideally in the form of employment or training.[37]
[36] Ibid at [181].
[37] Ibid.
Dr Edith Chau, consultant psychiatrist, has treated the Applicant while in prison from 13 October 2021 and in her report of 16 May 2022 diagnosed the Applicant as suffering from Bipolar Affective Disorder Type 2 (BPAD 2), Post-traumatic Stress Disorder (PTSD), Acquired Brain Injury (ABI), Substance Use Disorder (currently in remission and abstinent) and newly diagnosed Attention Deficit Disorder (ADD).[38]
[38] Exhibit A8.
The Applicant claims that she was under the influence of drugs on the day of the kidnapping and this and her mental health problems contributed to her offending,[39] and yet there is no evidence that prior to the commission of the kidnapping offence in June 2021 the Applicant had acted on the recommendations of Dr Evans, Ms Ferrari or Prof. Carroll to address her mental health condition or her substance abuse issues.
[39] See for example her submissions to the delegate at G8 at pp.57 and 68.
The Applicant now claims that following her incarceration in June 2021 and subsequent conviction on 13 September 2023 she is extremely motivated to address these issues and avoid any further offending so that she can re-gain custody of her daughters. In support of this contention the Applicant provided the following evidence:
a.Mr Michael Mazzolini, prison psychiatrist, report of 17 October 2023[40] confirming the Applicant’s mental health diagnoses as Complex Post Traumatic Stress Disorder, Bipolar Affective Disorder Type 2, Attention Deficit Hyperactivity Disorder, and an Acquired Brain Injury, and confirming that the Applicant has engaged well with mental health services to treat these diagnoses during her incarceration and is currently prescribed medication for each condition other than Acquired Brain Injury (ACB).
b.The Applicant has successfully applied for NDIS support due to her mental health diagnoses including ABI, to assist her in the community with everyday living skills and continued outreach support.[41] The Applicant provided at the request of the Tribunal a copy of the Applicant’s NDIS Plan for the period from 3 August 2022 until its review on 2 August 2024.[42] It sets out short term, medium and long term goals and identifies the support to be used to achieve those goals. The total funds made available under the Plan is $143,532.81. Ms Suzi Scremin, the NDIS Support Co-ordinator gave evidence of having worked with the Applicant since 12 May 2023[43] to assist her in preparing for her release from prison and, while not specifically related to criminal offending, the program would address the Applicant’s psychological issues.
c.The Applicant has received support from counsellors at WestCASA trauma counselling. Ms Siobhan Neyland, a counsellor/advocate gave evidence[44] that the Applicant had been allocated a counsellor under the program run in her prison and had attended regular appointments to work through an extensive history of trauma and grief. The counselling could continue after the Applicant is released from prison.
d.The Applicant has attended the Intensive Caraniche Residential Drug and Alcohol Treatment Program,[45] delivered by Sandra Kahan (Senior Psychologist) which only accepts individuals who are highly motivated to address their drug or alcohol behaviour and possess the insight and capacity to engage in intensive therapy on a daily basis.
e.The Applicant has completed many courses including counselling which have assisted her in the rehabilitation process.[46]
f.Ms Emma Docherty, the Applicant’s Arrest Referral Worker from Better Health Network, gave evidence that she has provided support to the Applicant since April 2022 to facilitate the support the Applicant decides she needs to integrate into the community upon release. She described the Applicant as a massive advocate for herself who is very motivated to seek out support and knows what she needs. She said the Applicant had requested her assistance to apply for multiple residential drug and alcohol rehabilitation programs and once released the Applicant would have a bed available with a women’s program run by the Salvation Army within a month.
[40] Exhibit A32.
[41] G35 at pp.139-140.
[42] Exhibit A33.
[43] G38.
[44] G31 at p.133; G32 at pp.134-135.
[45] Exhibit A23.
[46] G16 to G33 at pp.99-136.
The Respondent asserts that, whilst the Applicant has provided some evidence of rehabilitation with respect to drugs, alcohol and mental health issues,[47] the Tribunal should have regard to the following:
a.It is of concern that the Applicant has been found with contraband whilst in prison including buprenorphine and home brew.[48]
b.The report by Dr Loretta Evans (2010), Carla Ferrari (2018) and Andrew Carroll (2020) each addressed the causes of the Applicant’s offending and made recommendations as to steps the Applicant could take to address her offending behaviour, yet the Applicant continued to offend demonstrating that she has been unable to address her offending behaviour and remains a significant risk of reoffending.
c.Limited weight should be placed on numerous rehabilitative certificates lodged by the Applicant in circumstances where the Applicant continued to offend after completing some of the rehabilitative courses. In particular the letter by Caraniche dated 10 November 2020, where it was reported that the Applicant had been involved in their Intensive Residential Drug and Alcohol Treatment Program since 19 October 2020, and had complied with all program requirements and has engaged well in counselling should be given little weight as approximately half a year later the Applicant engaged in the offending conduct leading to her most serious conviction for kidnapping and theft.
d.There is insufficient detail as to the nature of the support provided under NDIS, WestCASA, Inside Access, Women’s Housing and RhED Pathways Case Management to assist the Applicant on return to the community to mitigate the likelihood of reoffending.
[47] G19-30, G35 and G49.
[48] G55 at pp.209 and 213.
The Respondent referred to prison incident records which it said demonstrated that the Applicant has displayed drug seeking or drug related conduct. The incident reports record that the Applicant failed to submit one urine sample,[49] that a Buprenorphine strip was found in her cell and investigated but no action taken by prison authorities,[50] some dough used in making ‘brew’ was found in a bin in her cell[51] and on another occasion, a brew was found in the kitchen that the Applicant and other prisoners used.[52] The Applicant denied that she was responsible for the material found in each case.[53] The Tribunal notes that no findings where made against the Applicant by the prison authorities in any of these incidents and the Tribunal is not in a position to make its own findings. Accordingly, the Tribunal does not accept that the Applicant engaged in what the Respondent sought to characterise as drug seeking or drug related conduct while in prison.
[49] G55 at pp.188-189.
[50] G55 at pp.208-209.
[51] G55 at pp.212-213.
[52] G55 at pp.226-227.
[53] Exhibit R31.
The evidence of Ms Neyland, Ms Scremin and Ms Docherty together with the Applicant’s NDIS Plan satisfy the Tribunal that the Applicant has available to her professional support services which will assist her to address many of the underlying factors contributing to her offending. However, as the record of her participation in the Caraniche program illustrates these programs do not guarantee that the Applicant will not re-offend. The Applicant has been aware for many years, at least since Dr Evans’ report in 2010, of what she needs to address in order to avoid further criminal behaviour. Prior to 2021 she did not act on these assessments. However, the Applicant has demonstrated in her evidence to the Tribunal and in her recent actions in seeking out services and support that she now understands what she needs to do. It remains a matter for the Applicant whether she will follow through on her rehabilitation, but the fact that professional services are available to her is a significant factor mitigating the risk that she will re-offend.
Abstinence
The Applicant claims to have abstained from drug and alcohol use while in prison. Between 19 August 2022 and 1 April 2024 the Applicant underwent drug tests (urine and saliva) while in prison and tested negative each time.[54] Ms Docherty gave evidence that she has not seen any signs that the Applicant has taken or has any interest in taking drugs. Ms Pike also confirmed that the Applicant has abstained from drug use. Dr Chau’s report of 16 May 2022 records that the Applicant was abstinent at that time. On the basis of this evidence the Tribunal accepts that the Applicant has not used drugs or alcohol while in prison since her arrest on the kidnapping charges in June 2021. Given the role played by drug and alcohol abuse in her criminal offending the Applicant’s abstinence is a positive sign. However, her abstinence has been untested in the community and in particular she has not been subject to the influence of violent men while in prison. Each of the psychological reports comment on the Applicant’s susceptibility to influence and especially in cases where she is in fear of violence. In the past she has had an involvement with several violent and abusive men.
[54] Exhibit A2.
Conduct in Prison
The Respondent asserted that prison incident reports show that the Applicant has a history of aggression whilst incarcerated, including physically assaulting other prisoners[55] which suggests that the Applicant has unresolved aggression issues and has continued to demonstrate violent behaviour.
[55] G55 and pp.194-195, 198-199, 200-201, 202-203, 218-219.
The Applicant provided a written statement responding to the incident reports referred to by the Respondent[56] and gave oral evidence. In her response she acknowledged that:
a.    in March 2020 she was involved in a verbal altercation with another prisoner in which she slapped the other prisoner;
b.    she got into a heated argument and physical altercation with another prisoner in June 2020;
c.     on two occasions in August 2021 she was disciplined for failing to follow prison officers’ instructions; and
d.    in August 2022 she was again involved in a physical altercation with another prisoner.
[56] Exhibit A31.
The Tribunal is not in a position to make findings in relation to these incidents, but on the basis of the admissions offered by the Applicant it is satisfied that at least in the early days of her incarceration she demonstrated continuing aggressive behaviour. The prison records do tend to confirm the Applicant’s assertions that more recently and since her conviction on 13 September 2023 she has a better understanding of herself and has been able to control her behaviour.
The Applicant has demonstrated some insight into the cause of her offending and has actively pursued opportunities through counselling to better understand her behaviour. She has undertaken courses and has explored opportunities to secure support for herself if released into the community. She has abstained from alcohol and drug use since her most recent incarceration. These rehabilitative measures are positive signs and indicate a reduced likelihood that she will re-offend. However, the medical evidence confirms that the Applicant has deep-seated mental health issues resulting from a lifetime of serious physical, emotional and sexual abuse. She has been a heavy drug and alcohol user since her early teens. She has grown up with violence and has shown through her offending and her earlier interactions in prison that she can respond violently in some situations. She will need to maintain a firm commitment to her rehabilitation in order to address these matters when she is released. Her resolve is untested in the community and a relapse into drug and alcohol abuse remains a possibility.
Protective factors
If the Applicant is released on parole there will be encouragement to not offend during the parole period due to the possibility of further time in prison for breaching the terms of her parole. In addition, she is likely to be subject to ongoing supervision and support from a caseworker and may be obligated to undertake rehabilitation and engage in community service.
The Applicant will have the benefit of the program support provided under NDIS, WestCASA, Inside Access, Women’s Housing and RhED Pathways Case Management to assist her on return to the community.
In addition, the Applicant has strong positive support from her family and her partner.
The documents tendered by the Applicant included letters of support[57] from Alisha, a former prisoner, Ms B, her aunt and godmother, Ms L, her aunt, Ms MB, her great aunt, her uncle, her second cousin, her mother, her grandmother, Ms T, her cousin, Mr L, her cousin and Ms D, her great aunt, as well as from Jessica Pike, her partner,[58] Mr W, her brother,[59] Ms SD, her cousin,[60] Suzi Scremin her NDIS Support Coordinator [61] and Ms P, her sister.[62]
[57] G37-G48.
[58] Exhibit A26.
[59] Exhibit A28.
[60] Exhibit A29.
[61] G38; Exhibit A30.
[62] Exhibit A27.
The Applicant’s mother, and her aunts Ms L and Ms Ball gave oral evidence and expressed their support for the Applicant and confirmed her strong relationship with her mother. Her mother would provide the Applicant with a place to live in her home if released.
Ms Pike also gave evidence and confirmed that she and the Applicant had formed a relationship while in prison and intended to live together as a couple if the Applicant is released. Ms Pike confirmed that she had been in an abusive relationship, had a drug and alcohol problem and had committed multiple crimes. She said that she and the Applicant had supported each other in prison to be drug free and would continue to do so in the community to overcome their drug and alcohol problems. She said that she has three children. She said that she and the Applicant share the goal of each getting custody of their respective children and living a normal happy family life together.
The Applicant has some prospects of gaining employment having some limited history of employment in Australia in the industrial and hospitality sectors.[63] In addition, that Applicant completed a 4-month civil construction course while in prison which allowed her to obtain a Forklift license, Stick Steer and Excavator Qualifications.
[63] G8 at p.69.
These factors provide some positive indication that the Applicant will not reoffend but, as the Respondent has contended, the Applicant has had the support of her family and friends previously and that has not deterred her from offending in the past. The important difference currently is the fact that the Applicant has the opportunity to establish a positive domestic relationship with Ms Pike and avoid the abusive relationships she had previously with her former partners. On one hand Ms Pike as experiences in common with the Applicant including having endured domestic violence, drug use, criminality and loss of custody of her children which may enable Ms Pike and the Applicant to assist each other to deal with the challenges they face. On the other hand, it is possible the problems faced by each of them will compound their difficulties and make the challenges harder.
Other factors
The Applicant’s stated determination to regain custody rights to her daughters can be anticipated to involve considerable stress and the potential to exacerbate the Applicant’s mental condition. It will most likely place her in direct conflict with her ex-partner who has a history of manipulation and abusive behaviour. It will likely involve protracted legal proceedings. The prospect of this development heightens the risk of the Applicant relapsing into drug and alcohol abuse and consequent re-offending.
Professional Assessment
The Tribunal has not been assisted by any professional assessment of the risks of re-offending. Ms Ferrari expressed the view in her 2018 report that the Applicant was a low risk of re-offending, but her assessment proved to be unwarranted given the Applicant’s subsequent convictions. Otherwise, the authors of the various psychological reports. Dr Evans (2010), Carla Ferrari (2018), Andrew Carroll (2020), Dr Chau (2022) and Mr Mazzolin (2023) did not conduct any risk assessments with respect to the likelihood of the Applicant reoffending.
Conclusion
The Applicant asserts in her submission that she has excellent prospects of rehabilitation and is unlikely to re-offend.[64] The Respondent asserts that the Tribunal should conclude that the risk of further offending by the Applicant is significant and unacceptable. The Tribunal accepts neither.
[64] ASFIC at [45].
The Applicant is 36 years old. She has a history of criminal conduct which has escalated over time and has involved serious violence. In the past she has not been dissuaded from further offending by the imposition of non-custodial sentences nor deterred by imprisonment. The Applicant has expressed remorse for her offending but has not accepted full responsibility for her actions. The use of drugs and alcohol has played a prominent part in her criminal offending and is associated with her serious mental health conditions resulting from the physical, emotional and sexual abuse she has suffered since childhood. The Applicant has made efforts to address her drug and alcohol problem and to seek treatment for her mental health conditions, but they are matters which are not easily addressed and the prospect of a relapse into drug use remains a possibility. The Applicant has positive support in the community through the provision of governmental programs and particularly through the NDIS as well as a supportive family and the opportunity to establish a positive domestic life with her partner. However, the prospect of conflict with her ex-partner over the custody of their daughters may act as a catalyst for her to relapse into drug use and subsequent crime.

Taking all of these matters into account the Tribunal’s objective assessment is that the risk the Applicant will re-offend in the manner of her previous offences, including the violent offences, is not a high risk but it is substantive. The assessment is that it is a moderate risk.
The nature of the Applicant’s offending was very serious involving violence and the infliction of physical and psychological harm on members of the community. The existence of even a moderate risk that this offending will be repeated is a threat to the wellbeing of members of the Australian community. The protection of the Australian community from harm resulting from criminal activity is a primary consideration under Direction 99 and the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa
Family Violence
Paragraph 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence to suggest this consideration is engaged in this matter.
The Strength, Nature and Duration of Ties to Australia
The Applicant is 35 years of age. She first arrived in Australia in 1992 at the age of 4. She returned to New Zealand temporarily with her family in about 1993 and returned to Australia in 1996. She has lived in Australia ever since.
Paragraph 8.3(4) of Direction 99 requires that decision-makers have regard to the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The fact that the Applicant has been ordinarily resident in Australia during and since her formative years attracts considerable weight.
Paragraph 8.3 of Direction 99 also requires that decision-makers:
(1)… 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)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The Applicant has extended family in Australia. The Applicant’s immediate family, her mother, two sisters, and one brother reside in Australia and are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Applicant also has some extended family members in Australia including aunts, uncles, grandparents and cousins some of whom have provided support letters on behalf of the Applicant.[65] In those letters various family members expressed their support for the Applicant and their desire that she remain in Australia.
[65] G39-G43, G45-G48.
The Applicant has twin daughters K and S born in January 2013, who live with her ex-partner under the terms of a Family Court Order dated 8 November 2019[66] which confers sole parental responsibility on her ex-partner with the Applicant to have access as agreed between the parties. The Applicant stated in her evidence that her ex-partner took custody of the children from her in June 2017 and she was denied access to them for about a year due to intervention orders (IVOs) taken out by her ex-partner and his mother. She said that she had supervised visits with the children every weekend under the terms of an interim order of the Court, but since the making of the final Order she has effectively been denied access to the children by her ex-partner. In her evidence she said she has had no contact with her children for around 4 years. Notwithstanding the Applicant’s limited involvement with her children since 2017 she expressed a strong desire to re-establish her relationship with them if released and to initiate steps to restore her access and custody rights.
[66] G12.
The Applicant claims to have established a relationship with Jessica Pike, a fellow prisoner, while in prison and both she and Ms Pike gave evidence of their intention to live together as a couple if the Applicant is released into the community. Ms Pike described the Applicant as a great support for her and said she would be upset if the Applicant were deported to New Zealand.
The Tribunal is satisfied that the Applicant has strong and enduring ties to the Australian community through her extended family and her relationship with her daughters and Ms Pike.
Paragraph 8.3(4) also requires decision-makers to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The Applicant attended school in Australia and has participated in numerous rehabilitation programs.[67] She has some limited history in undertaking employment in Australia having worked between 2003 and 2008 mainly in factory jobs and then from 2017 to 2021 in the hospitality sector.[68] She has contributed to the Australian community through the payment of taxes. While these ties are not particularly strong in themselves, they do add to the strength and extend the nature of her ties to the Australian community generally.
[67] See G16-G30.
[68] G8 at p.69.
Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, which weighs in favour of revocation. The Tribunal is satisfied that the strength, nature or duration of the Applicant’s ties to the Australian community warrant the Tribunal affording that consideration substantial weight.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) requires that decision-makers must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
The Applicant has raised the interests of:
a.two (2) minor children from her previous relationship, the twins K and S both born in January 2013; and
b.the children of her sister Whitney, being a son SLF (born May 2022) and an infant daughter[69] (born December 2023).
[69] The statement of Whitney does not identify a name for the child – Exhibit A27.
Paragraph 8.4(3) provides that 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. The evidence does not establish a basis to distinguish between the interests of the twins K and S. However, by reason of their age and different familial relationship, the interests of Whitney’s children do warrant separate consideration.
In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(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)…;
(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);
There is no evidence that paras 8.4(4)(c), (g) and (h) are relevant to the Applicant in the case of any of the children.
The Applicant’s Daughters
K and S are twins. They are currently 11 years old. They are the children of the Applicant’s previous relationship with Andrew.
The Applicant’s evidence was that she has had a very disrupted relationship with K and S. In summary her evidence was:
a.K and S were born in January 2013;
b.between January 2013 and June 2017 the Applicant and her ex-partner had an on-and-off relationship in which the Applicant had principal custody and by private arrangement her ex-partner had access to the children on weekends;
c.in June 2017 the ex-partner refused to return the children following an access period and for about twelve months the Applicant was subject to 5 separate IVOs which prevented her from having access to the children;
d.subsequently the Applicant applied to the Family Court and interim orders were made by which the ex-partner retained custody of the children and the Applicant had supervised access on weekends;
e.in November 2019 a final order (Order) was made by the Court granting the ex-partner sole parental responsibility for the children and allowing the Applicant access as agreed with her ex-partner; and
f.since the making of the Order the ex-partner has effectively denied the Applicant access to the children and for this reason (and also the incarceration of the Applicant) she has not had access to the children for around 4 years.
The Applicant has had a volatile relationship with the children’s father. She gave evidence, confirmed by the evidence of her mother, that her ex-partner was physically and emotionally abusive and that she went to live with her mother at the time of the children’s birth to get away from the violence. She later resumed an on-and-off relationship with her ex-partner but had to flee to a women’s refuge with the children because of the violence.[70]
[70] G49 at p.169.
The Applicant has expressed her intention to re-establish contact with her children if released and has demonstrated that she has a serious commitment to fulfilling a parental role.[71] She has also indicated her intention to take action in the Courts to obtain access rights and to secure custody.[72] She needs her Visa is to be restored in order to do so. She also asserted that if she is deported from Australia she will have to wait for seven years before her children turn 18 before they can visit her.
[71] A Family Engagement Worker from the Department of Justice and Community Safety, noted the Applicant's positive participation in a series of programs aimed at enhancing her care giving skills and her capacity to support her family, including care for an infant under the Living with Mum Program - G36 at p.142.
[72] G13-15 and G49.
The Tribunal accepts that the Applicant is genuine in her desire to re-establish her relationship with her children and that it would be very much against her interests for her not to be able to remain in Australia.
However, clause 8.3 of part 2 of Direction 90 requires the Tribunal to consider the interests of the child affected by the decision. The Applicant’s submission stresses her desire to re-establish herself as the children’s mother. While the interests of the Applicant are able to be considered generally under other parts of the Direction, clause 8.3 requires the Tribunal to focus on the best interests of the children. The question is not whether it is in the Applicant’s best interests to remain in Australia with her children, it is whether it is in the children’s best interests for her to do so.
The relationship between the Applicant and K and S is currently not an effective parental relationship. The Court has awarded sole parental responsibility to her ex-partner. The Applicant has not had custody of the children since June 2017. Since then the parental role has been performed by her ex-partner. There have been long periods of absence as a result of her ex-partner’s refusal to allow access and because of the Applicant’s imprisonment. There has been no contact for around four years and limited meaningful contact since 2017.
It is problematic whether the Applicant will be able to play a positive parental role in the future. Currently there are court orders conferring sole parental responsibility on her ex-partner. The Applicant’s evidence suggests that the ex-partner is likely to resist any changes to that arrangement through the courts. It is not for the Tribunal to pre-judge the outcome of any possible family court proceedings, but there are factors which the Applicant would need to address in any application she might make, including her criminal record and history of drug and alcohol abuse and the reality that the children have been parented by the ex-partner for the last seven years. The children will turn twelve in January 2025 and so the time available until they turn 18 is limited.
Importantly, the Tribunal does not have any evidence from persons involved with the children to assess what might be in their best interests. The views of the children are not known. There is no professional opinion available on the matter. In the absence of such evidence a proper assessment of the likely effect that any separation from the Applicant would have on either or both children is not possible.
While the Tribunal readily accepts that as a general rule it is in the best interests of a child to have direct contact with each of their parents the rule does not necessarily apply in every case. There are factors in this case which raise the possibility that the general rule may not be applicable. The relationship between the Applicant and her ex-partner lacked stability and was marked by violence and abuse. The Applicant has a history of drug and alcohol use and has been involved in crimes of violence. There has been prolonged separation. The effect of these things on the children is not known. The evidence of the Applicant and her family members casts the ex-partner in a bad light but his perspective was not addressed in the evidence. In this respect the Tribunal notes that the Family Court was prepared to make orders conferring sole parental responsibility on the ex-partner and making the Applicant’s access to the children subject to the ex-partner’s agreement. A conclusion that it is in the children’s best interests that the Applicant remain in Australia cannot simply be assumed.
The Respondent accepts that it is in the Applicant’s children’s best interests that cancellation of the applicant’s visa be revoked but asserts that the weight to be given to this consideration is limited by the current parenting restrictions in place and in circumstances where the prospect of the Applicant’s future access to her children is far from certain.
On balance the Tribunal is prepared to accept that the best interests of K and S would be served by the Applicant remaining in Australia at least so that the possibility of them re-establishing a relationship with their mother is able to be pursued in circumstances where there is an opportunity for the orderly resolution of any custody and access issues through the courts. However, the Tribunal gives this consideration limited weight in view of the current and pre-existing parenting arrangements and the limited role the Applicant has played in the children’s lives over the last seven years.
Whitney’s Children
In her written statement[73] Whitney stated:
During my pregnancy [the Applicant] was a big part of my support system even though she was not with me physically. Phone calls, zoom calls, letters and visits helped us to grow closer than we’ve ever been growing up. She was over the moon to have a nephew that she was going to meet one day soon so she continued to try her best and did what she could whilst incarcerated to keep her mind, body and spirit healthy and growing.
Recently I gave birth to my second child, my daughter on New Year’s Eve of last year. Being able to see [the Applicant] whilst I was carrying her was so special and then for her to meet her and my son have been big highlights for not only [the Applicant] but myself. Especially when her daughters were my pride and joy whilst we had the pleasure of being with them and will always have a big part of my heart and soul. For her to be able to grow close with my children, her nephew and niece have been lifesaving for her. She has just fallen in love with them waiting for the day she gets to babysit, care and watch them grow.
[73] Exhibit A27.
Both of Whitney’s children were born while the Applicant has been in prison.[74]
[74] The sentencing remarks confirm that the Applicant had been held in pre-sentence detention for 614 days prior to her trial on 13 September 2023 - G4 at [75].
In representations to the Delegate in October 2023[75] the Applicant asserted that she was close to her nephew SLF and her removal from Australia would have a devastating impact on him. She said she had communication with her nephew through Zoom, phone calls and contact visits and has developed a strong bond with him.
[75] G8 at p.66.
The Tribunal readily accepts that it is in the best interests of both of Whitney’s children to have the opportunity to have contact with their aunt while growing up and it would not be in their best interests if cancellation of the Visa is not revoked. However, the Applicant has not played a parental role in relation to either child and is not expected to play a parental role in the future. She has had very limited contact with either of them to date. Accordingly, the Tribunal gives this consideration limited weight.
The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of revoking the cancellation of the Applicant’s Visa.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 99 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.
The Applicant, relying on the comments of Flick J. in FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [13], contends that this primary consideration weighs in favour of revocation. Her submission was:
The Australian community would favour revocation as the applicant’s conduct was mainly due to her growing up in a dysfunctional family. Her Tongan father being an alcoholic who was violent to her mother and the children including the applicant. She was raped by her uncle several times from the age of 6 and she was later raped by two men when she was at the age of 14. She has been struggling with substance abuse and has been unable to think clearly. It is evident that she has been making every effort to seek assistance in order to live a life free from drugs and alcohol.
The Australian community would be compassionate and would be willing to extend the Applicant the opportunity to reintegrate into the Australian community, particularly when she has two (2) minor children.

The Applicant’s submission misconstrues the conclusions of the Court in FYBR and the effect of Paragraph 8.5(4) which states:
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.
The majority of the Full Court of the Federal Court in FYBR explained that paragraph 11.3 of the former Direction 65 which mirrors the wording of paragraphs 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[76]
[76] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
The Applicant has clearly acted contrary to the deemed community expectation in her offending. The offences for which she was convicted on 13 September 2022 are very serious offences and as a norm the expectation is that the Applicant should not remain in Australia. It is a matter for the Tribunal in the exercise of its discretion to assess the weight to be attributed to this community expectation in the overall assessment of each of the relevant considerations under Direction 99.[77]
[77] Ibid at [76] per Charlesworth J.
In WVJB v Minister for Immigration, Citizenship and Multicultural Affairs[78] the Court endorsed the Tribunal’s approach to the weighting of the expectations of the Australian community stating that:
… the Tribunal considered that it was required to take account of community expectations as deemed by Direction 99, that it should do so without any independent assessment of those expectations, that there were circumstances that the applicant said bore upon how significant those expectations should loom in the context of his Review Application, and that it should assess (as it did) each of those circumstances. Proceeding on that basis to make an assessment about the significance of (or the weight that should attach to) community expectations involved no misunderstanding of the jurisdiction with which the Tribunal was invested.
[78] [2024] FCA 320 at [45].
In assessing the weight to give to this consideration, the Tribunal notes that there are factors which confirm the expectation expressed in paragraph 8.5(1). The Applicant’s offences were serious departures from accepted community standards. Her offences involved violence and the use of weapons. She has a criminal record demonstrating a broad pattern of offending with escalating seriousness over an extended period. She has breached community correction orders, bail conditions and intervention orders. She has not responded positively to the imposition of non-custodial sentences and has offended while on bail.
On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant is a relatively young woman who has been the victim of repeated physical, emotional and sexual abuse. She suffers from a range of serious mental conditions including Complex Post Traumatic Stress Disorder, Bipolar Affective Disorder Type 2, Attention Deficit Hyperactivity Disorder, and an Acquired Brain Injury. She has struggled with drugs and alcohol abuse since she was a teenager. She is the mother of twin daughters for whom she has lost custody and been denied access. She has also expressed remorse for her offending and taken positive steps to try to address the cause of her offending. She enjoys strong support from her extended family and has the benefit of generous government support to re-establish her life if released into the community.
Having regard to these various considerations the Tribunal is satisfied that the Applicant’s circumstances warrant the expectations of the Australian community being given only limited weight in the overall assessment of the considerations in favour of not revoking the cancellation of the Applicant’s Visa, notwithstanding that it is a primary consideration under Direction 99.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2
Legal Consequences of the Decision
Paragraph 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulment claim – paragraph 9.1.1(3). However, claims which may give rise to international non-refoulement obligations can be raised by a non-citizen who is not the subject of a protection finding – clause 9.1.2(1). Where such claims are raised they must be considered by the Tribunal - clause 9.1.2(1).
The Applicant is not covered by a protection finding and has not expressly raised a non-refoulment claim in these proceedings. It is not apparent that there would be any general reason why non-refoulment would arise in the Applicant’s case given her country of citizenship is New Zealand.
Accordingly, the Tribunal is satisfied that the legal consequence of a decision not to revoke the cancellation of the Applicant’s Visa is that the Applicant would be liable to removal from Australia as soon as reasonably practicable in the circumstances specified in section 198 of the Act, with detention under section 189 pending removal.
Deportation to New Zealand and continued detention pending removal are matters which adversely affect the interests of the Applicant and weigh in favour of revocation but it is not a primary consideration under Direction 99 and the Tribunal gives the consideration little weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen 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.
The Respondent notes the Applicant’s evidence of a lack of family support remaining in New Zealand and contends that, notwithstanding her long residence in Australia, there is nothing to suggest that the Applicant would be unable to re-establish herself in New Zealand and maintain basic living standards. In those circumstances, this consideration weighs neutrally and, to the extent that the Tribunal find that it weighs in favour of revocation, does not outweigh the primary considerations weighing heavily in favour of non-revocation.
The applicant is 35 years old and has spent some periods of her life in New Zealand and would not face any substantial language or cultural barriers on return to New Zealand. However, she is a vulnerable person due to her mental health issues and her history of drug and alcohol abuse.
Her evidence was that most of her extended family has left New Zealand and the only relatives she has in New Zealand are her father, who subjected her to violence and abuse as a child, and her uncle, who sexually assaulted her when she was 5 or 6. She claimed that she would not be able to avoid coming into contact with either of them if she returned and that this would adversely affect her mental health. The Tribunal accepts that the prospect of contacting either of these people would involve emotional and psychological stress for the Applicant, but the Applicant would have access to the same legal protections in New Zealand as other citizens to deal with any actual unlawful contact with either person should that eventuate. The absence of positive family support and the prospect of unwanted contact with her father and uncle are matters which could negatively impact the Applicant’s mental health and represent a significant detriment to her establishing herself in New Zealand.
Mr Mazzolini, prison psychiatrist, observed in his report of 23 October 2023 that:
To return [the Applicant] to a country where she has experienced significant trauma, has no housing, has no familial supports, and where she would not have continuity in professional supports is to put her in a situation where she would be at an almost certain risk of significant and severe deterioration in her mental health with many potential negative consequences occurring as a result of this.[79]
[79] G34 at p.138.
The Applicant’s counsellor/advocate from WestCASA-DPFC, Ms Neyland expressed the view:
With regards to the topic of [the Applicant’s] visa status, I have significant concerns about the possible impacts on [the Applicant’s] mental health and wellbeing in the event that she is forced to return to New Zealand. lt is my understanding that most of [the Applicant’s] support network, including family and friends, resides in Australia, where I understand she has lived since she was primary school age. I would anticipate that living away from all of her primary supports, in a country where she does not feel at home, will pose significant barriers in her recovery from trauma and addiction.[80]
[80] G32 at p.134.
The Tribunal was not provided with any evidence regarding the social, medical and/or economic support available to the Applicant if she were removed to New Zealand. The Respondent asserted without evidence that support available to the applicant in New Zealand would cater for any care required with respect to the Applicant’s drug and alcohol history and mental health disorders. The Applicant equally asserted without evidence that the assistance provided to the Applicant under her NDIS Plan and through WestCASA, Inside Access, Women’s Housing and RhED Pathways Case Management would not be available to her in New Zealand.
New Zealand is an advanced economy with a well-developed social welfare system. The Tribunal is entitled to accept that, as a citizen of New Zealand, the Applicant would have access to the social, medical and/or economic support available to other citizens.[81] It is possible that not all of the types of assistance now available to the Applicant and the level of funding now approved under the NDIS Plan would be available to her in New Zealand. In addition, it can be expected that it would require a significant effort for the Applicant to access the available support in New Zealand.
[81] Uelese v Minister for Immigration and Border Protection (2016) FCA 348 at [68]-[69].
Having regard to these matters, the Tribunal is satisfied that the Applicant would face some significant impediments in establishing herself and maintaining basic living standards in New Zealand, and given the Applicant’s mental health issues this consideration warrants substantial weight in favour of a decision to revoke the cancellation of the Applicant’s Visa.
Impact on Victims
Paragraph 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Full Court of the Federal Court has held that Paragraph 9.3(1):
… does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal.[82]
[82] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [134].
There is no evidence before the Tribunal of any impact on victims of the Applicant’s crimes related to whether she remains in Australia or is excluded from the country. This consideration is not relevant.
Impact on Australian Business Interests
Paragraph 9.4(1) requires:
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 Applicant has a limited work history. There is no evidence that the Applicant possesses any special skills which could not be sourced in the general labour market.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[83] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[83] [2016] FCA 1166 at [38].
A summary of the factors for and against revocation is set out below:
Factors Against
There are two considerations under Direction 99 which weigh against revoking the cancellation of the Applicant’s Visa:
(a)The Applicant’s offending was very serious and involved violence and the infliction of physical and psychological harm on members of the community and there is a moderate risk that the Applicant will re-offend. The protection of the Australian community is a primary consideration under Direction 99 and the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
(b)The expectation of the Australian community is that the Applicant, as a non-citizen, will obey Australian laws while in Australia. This is a primary consideration which favours not revoking the cancellation of the Applicant’s Visa. However, having regard to all of the circumstances, the Tribunal gives this consideration only limited weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all the considerations.
Factors in Favour
There are four considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
(a)The Applicant has strong ties to Australia from having lived in the country most of her life and through her immediate and extended family. The strength, nature and duration of the Applicant’s ties to Australia is a primary consideration which weighs substantially in favour of revocation.
(b)It would be in the best interests of the Applicant’s daughters K and S and her sister’s young children for the Applicant to remain in Australia but because the Applicant has had limited contact with the four children, does not play a parental role for her sister’s children and has not had parental responsibilities for her daughters for over seven years the Tribunal gives this consideration limited weight notwithstanding that it is a primary consideration.
(c)The legal implication of a decision not to revoke the cancellation of the Visa is deportation of the Applicant to New Zealand and her continued detention pending removal. This consideration weighs in favour of revocation, but it is not a primary consideration under Direction 99 and the Tribunal gives it little weight.
(d)Primarily because of her mental health condition the Applicant would likely face some substantial impediments in establishing herself and maintaining basic living standards in New Zealand, and these impediments attract significant weight in favour of a decision to revoke the cancellation of the Applicant’s Visa.
Conclusion
Paragraph 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[84]
[84] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in para 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those 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 noncitizens 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(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.

The Tribunal accepts that these principles generally reinforce the importance of the factors weighing in favour of not revoking the cancellation of the Applicant’s Visa, although the principles do recognise a higher level of tolerance of the Applicant’s criminal conduct because she has lived in the Australian community for most of her life and from a very young age.
In weighing the considerations for and against revocation the Tribunal notes that the considerations do not point decisively in either direction. The Applicant’s case rests on a fine line.
If the Applicant is to remain in Australia she poses a risk of doing harm to members of the community and the protection of the community is a primary consideration under Direction 99. However, the Tribunal is cognisant of the measures taken by the Applicant and those who support her to mitigate the risk of her re-offending. In particular, the efforts of the Applicant to recognise the underlying factors leading to her offending, her willingness to engage with various support services and her abstinence from drugs and alcohol since her incarceration which all encourage a conclusion that the risk is moderate.
The Tribunal recognises that it is required by Direction 99 to accept that there is a community expectation that persons who commit serious crimes should expect to forfeit the privilege of staying in Australia, and that this is a primary consideration. However, it is a matter for the exercise of the Tribunal’s discretion as to the weight to give this expectation. In the Applicant’s case the Tribunal gives this expectation minimal weight having regard in particular to the Applicant’s relatively young age, her history of physical, emotional and sexual abuse, her serious mental health issues and her drug and alcohol abuse.
The principal factor favouring revocation is the strength, nature and duration of the Applicant’s ties to Australia. It is a primary consideration. The Applicant has lived in Australia from a very young age as part of a large extended family whose members have expressed their support for her through letters of support and attendance at the hearing as witnesses. The Applicant has not lived the life of a model citizen, but she has had to deal with significant personal trauma and difficult relationship issues which offer some explanation for her history of antisocial behaviour and criminal activity. The Tribunal is satisfied that the Applicant’s ties to the Australian community weigh strongly in favour of revocation.
Of less significance but also of importance is the expected impact on the Applicant of deportation to New Zealand. While there are many similarities between Australia and New Zealand which suggest that a transition from one to the other should not involve significant detriment, the Tribunal is mindful of the Applicant’s particular circumstances and in particular her vulnerable mental health condition. Deportation to New Zealand would remove the Applicant from the support of her family and her partner and expose her to the prospect that she may come into contact with her abusive father or the uncle who abused her as a child. It would also disrupt the support arrangements that have been put in place to assist the Applicant to transition back into the Australian community and require the Applicant to seek out alternative support under the New Zealand social welfare system. It would also deny her the opportunity to seek to re-establish her relationship with her daughters. The effect of these matters on the Applicant’s mental health can be expected to be significant.
Finally, the Tribunal gives some limited weight to the interests of the Applicant’s daughters and to her sister’s young children. If the Applicant is able to remain in Australia her sister’s children will have the benefit of growing up in contact with their aunt, which is in their best interests. It is difficult to assess the best interests of the Applicant’s daughters on the basis of the limited evidence available to the Tribunal. The Tribunal is satisfied that revocation will at least keep open the possibility that the daughters can re-establish some relationship with their mother and the preservation of this opportunity is in their best interests. The weight to be given to this consideration, albeit that it is a primary consideration, is affected by the fact that the Applicant is not currently in a parental relationship with any of the children and has had limited contact with all of the children, especially her own daughters whom she has been unable to have any substantial contact since June 2017.
Weighing up these factors the Tribunal is satisfied on balance that the considerations in favour of revoking the cancellation of the Applicant’s Visa outweigh the considerations in favour of not revoking it. Accordingly, the Tribunal is satisfied that there is another reason why the cancellation of the Applicant’s Visa should be revoked under section 501CA(4)(b)(ii).
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent dated 22 February 2024 and substitutes a decision to exercise the discretion under section 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of the Applicant’s Subclass 444 Special Category visa.

1. I certify that the preceding 160 (one-hundred-and-sixty) paragraphs are a true copy of the reasons for the decision herein of Member R West

................................[SGD].......................................
Associate
Dated: 16 May 2024

Date of hearing: 6-7 May 2024

Advocate for the Applicant Mr Mukesh Chand

Advocate for the Respondent Mr Adam Cunynghame

Solicitors for the Respondent Sparke Helmore
APPENDIX A - LIST OF EXHIBITS

List of exhibits

A1

Applicants Statement of Facts, Issues and Contentions dated 29 April 2024.

A2

Urinalysis, Breath and Saliva Tests dated 10 April 2024.

A3

Participation letter of Hanner Haines from Living Free from Violence Program dated 18 April 2023.

A4

Certificate from The Strengthening Corrections dated 27 September 2021.

A5

Certificate from Tuning into Respectful Relationships dated December 2021.

A6

Certificate from Inside Out Prison Exchange Program dated May 2022.

A7

Attendance letter of Julie Kruss from WestCASA dated 21 April 2022.

A8

Letter from Consultant Psychiatrist, Dr Edtih Chau dated 16 May 2022.

A9

Letter from Suzanne Silver of the Salvation Army Bridgehaven program dated 04 April 2023.

A10

Letter from Consultant Forensic Psychiatrist, Andrew Carroll dated 28 July 2020.

A11

Certificate from MCWH Education Program dated 20 December 2021.

A12

Clinical Neuropsychologist Report from Dr Loretta Evans dated 9 April 2010.

A13

Certificate of Attendance from Good Shepherd ‘Safe, Strong & Connected Program Information Session’ dated 1 July 2022.

A14

Certificate from Fitted to Work dated November 2022.

A15

Certificates from Box Hill Institute.

A16

Certificate from 6-Hour Ice Effects Program dated 15 September 2022.

A17

NDIS Approval Letter dated 15 July 2022.

A18

Letter from MCM, Out of the Dark Family Violence Program dated 7 September 2020.

A19

Update letter from ACSO, Restart Program dated 3 March 2021.

A20

Letter from ACSO, Restart Program dated 12 November 2020.

A21

Letter from Gamblers Help dated 4 September 2020.

A22

Certificates from Triple P Program dated 14, 21 & 28 October 2020.

A23

Letter from Caraniche, Rehabilitation Program dated 10 November 2020.

A24

Medical File from Dandenong Superclinic dated 27 January 2020.

A25

Psychologist Report from Carla Ferrari dated 18 January 2018

A26

Support letter from Jessica Pike dated 19 April 2024.

A27

Support letter from Ms P.

A28

Support letter from Mr W.

A29

Support letter from Ms D.

A30

Reference letter from Suzi Scremin dated 29 April 2024.

A31

Comments on Incident Reports in Custody.

A32

Letter from Michael Mazzolin, Prison Psychiatrist dated 17 October 2023.

A33

NDIS plan, approved on 3 August 2022.

Date of hearing:	6-7 May 2024
Advocate for the Applicant	Mr Mukesh Chand
Advocate for the Respondent	Mr Adam Cunynghame
Solicitors for the Respondent	Sparke Helmore

List of exhibits
A1	Applicants Statement of Facts, Issues and Contentions dated 29 April 2024.
A2	Urinalysis, Breath and Saliva Tests dated 10 April 2024.
A3	Participation letter of Hanner Haines from Living Free from Violence Program dated 18 April 2023.
A4	Certificate from The Strengthening Corrections dated 27 September 2021.
A5	Certificate from Tuning into Respectful Relationships dated December 2021.
A6	Certificate from Inside Out Prison Exchange Program dated May 2022.
A7	Attendance letter of Julie Kruss from WestCASA dated 21 April 2022.
A8	Letter from Consultant Psychiatrist, Dr Edtih Chau dated 16 May 2022.
A9	Letter from Suzanne Silver of the Salvation Army Bridgehaven program dated 04 April 2023.
A10	Letter from Consultant Forensic Psychiatrist, Andrew Carroll dated 28 July 2020.
A11	Certificate from MCWH Education Program dated 20 December 2021.
A12	Clinical Neuropsychologist Report from Dr Loretta Evans dated 9 April 2010.
A13	Certificate of Attendance from Good Shepherd ‘Safe, Strong & Connected Program Information Session’ dated 1 July 2022.
A14	Certificate from Fitted to Work dated November 2022.
A15	Certificates from Box Hill Institute.
A16	Certificate from 6-Hour Ice Effects Program dated 15 September 2022.
A17	NDIS Approval Letter dated 15 July 2022.
A18	Letter from MCM, Out of the Dark Family Violence Program dated 7 September 2020.
A19	Update letter from ACSO, Restart Program dated 3 March 2021.
A20	Letter from ACSO, Restart Program dated 12 November 2020.
A21	Letter from Gamblers Help dated 4 September 2020.
A22	Certificates from Triple P Program dated 14, 21 & 28 October 2020.
A23	Letter from Caraniche, Rehabilitation Program dated 10 November 2020.
A24	Medical File from Dandenong Superclinic dated 27 January 2020.
A25	Psychologist Report from Carla Ferrari dated 18 January 2018
A26	Support letter from Jessica Pike dated 19 April 2024.
A27	Support letter from Ms P.
A28	Support letter from Mr W.
A29	Support letter from Ms D.
A30	Reference letter from Suzi Scremin dated 29 April 2024.
A31	Comments on Incident Reports in Custody.
A32	Letter from Michael Mazzolin, Prison Psychiatrist dated 17 October 2023.
A33	NDIS plan, approved on 3 August 2022.