Wereta and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Wereta and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 737 (8 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/0079
Re:Amber Wereta
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:8 March 2024
Date of written reasons: 15 April 2024
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
..................[sgnd]...............................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of visa – whether ‘another reason’ for revocation of cancellation decision – Direction 99 – conviction of serious offences – frequent and extensive record of offending – history of drug dependence – troubled upbringing and poor associations – applicant’s desire to have visa reinstated motivated by concern for her children’s welfare – interests of minor children weigh substantially in applicant’s favour – outstanding warrant for applicant’s arrest in Australia – substantial public interest in the Australian criminal justice system prosecuting outstanding charges – decision set aside and revocation of cancellation decision substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
15 April 2024

After I delivered oral reasons for my decision in this matter, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons include certain standard paragraphs, especially [5] and [25].
This is an application by Ms Amber Wereta seeking a review of the decision of the respondent’s delegate dated 4 January 2023. By this decision, the delegate declined to revoke the cancellation of Ms Wereta’s visa,[2] which had taken place mandatorily under section 501(3A) of the Migration Act, 1958 (Cth) (“the Act”) on 10 November 2021. The visa was cancelled because Ms Wereta had been convicted of serious offences for which she had received two separate sentences of 12 months’ imprisonment. Although she had been paroled on the day of her sentencing, the Parole Board later concluded she had breached her parole conditions and required her to return to jail. Ms Wereta returned to jail, and whilst she was continuing to serve her sentences there, her visa was cancelled under section 501(3A) of the Act.
[2] A Class TY Subclass 444 Special Category (Temporary) visa.
Ms Wereta made a timely application for an internal review of the cancellation decision. The internal-review delegate was required to address two questions by section 501CA(4)(b). First, the delegate had to decide whether Ms Wereta passed the so-called ‘character test’ under the Act. Secondly, if Ms Wereta did not pass the character test, the delegate had to decide whether there was ‘another reason’ for the cancellation decision to be revoked. The delegate was required to apply any direction issued under section 499 of the Act in respect of the second question. The delegate applied Direction no. 90,[3] then in force. The delegate decided that Ms Wereta did not pass the character test in light of her serious convictions and also decided that there was not another reason to revoke the visa cancellation.
[3] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 CA.
Hearing the matter afresh on the evidence before me, I must address the same questions the delegate was required to address. So far as the first question is concerned, there was no dispute before me that Ms Wereta does not pass the character test. That view is clearly correct because Ms Wereta’s two sentences of 12 months each, to which I have referred, cause her to fail the test by virtue of the operation of section 501(6)(a) and (7)(c) of the Act.
So far as the second question is concerned, the Tribunal, like the delegate, must apply any direction issued under section 499. Since the internal-review delegate’s decision in this matter, Direction no. 99[4] has taken Direction no. 90’s place. Neither party suggested I should apply Direction no. 90 in preference to Direction no. 99, and I have proceeded to apply Direction no. 99 (hereafter ‘the Direction’) in my review.
[4] Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (effective from 3 March 2023).
TRIBUNAL’S TASK
In proceedings like this, the Tribunal conducts a full hearing on the merits, reaching the correct or preferable decision on the evidence before it.[5] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.
[5] See, for example, Frugniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at 51.
At the hearing before me, Dr Dickie appeared for the applicant; Mr Duldig, for the respondent. I acknowledge their assistance to me. I particularly note Mr Duldig’s very fair presentation of his client’s case, which well reflected the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of Ms Wereta’s visa be revoked. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Ms Wereta was born on 10 September 1991 in Napier, New Zealand and is a citizen of that country. She is 32 years of age as at the date of my decision.
Ms Wereta began using drugs at the age of 14, according to her evidence, which I accept. She used marijuana and ice. I accept that her youth was problematic from that perspective. She appears to have been first exposed to serious drugs when she was living alone with her father in Napier. More generally, she had a very troubled background and upbringing there.
Ms Wereta moved from New Zealand to Brisbane in 2008. She had earlier visited Australia on holiday as a child, she said, in 2001. She said she moved back to New Zealand but returned in 2009[6] and lived in Cairns. She was living with relatives at that time. One good job she held in Cairns was at the Shangri-La Hotel where she worked as a housekeeper. She also worked as the manager of the Grosvenor Motel. She managed the motel for almost two years, she said.
[6] Her travel records show that she moved to Australia permanently in December 2010.
Her personal relationships with male partners in Australia have been poor. I accept her evidence in this regard. She met a man, to whom I shall refer simply as ‘Guy’. Guy used marijuana and towards the end of their relationship methylamphetamine or ‘ice’, she said. I accept that her genuine view of that relationship is that it was, in her words, ‘abusive’ and ‘toxic’. The relationship did lead to two children, however: ‘A’, who was nine years of age at the time of the hearing before me, and ‘M’, who was seven years old.
Her second relationship was with a man to whom I shall refer simply as ‘Kaiss’. In 2016, she moved in with him. He was unemployed at the time. Again, the relationship proved to be a poor choice: he was violent and abusive. A child was born of the relationship, ‘J’, who was six years of age at the time of the hearing before me.
There is much in Ms Wereta’s life that elicits concern. As I have said, she commenced using drugs at the young age of 14, not an age when she should be held responsible for poor life choices. These drugs involved marijuana and ice. She admitted using drugs with Guy, and she continued using drugs with Kaiss. I accept her evidence that Kaiss was heavily addicted to drugs.
Ms Wereta described the impact of drugs on her life as highly significant. Ms Wereta gave evidence that she believes drugs influenced her criminal offending. I accept that evidence. Ms Wereta’s criminal record was before me.[7] The respondent helpfully set out the offending in a table in its Statement of Facts, Issues and Contentions.[8] I shall not reiterate that offending in these reasons. It is, however, a very extensive record.
[7] Ex R1, 33ff.
[8] Ex R2, [2].
I also had before me the remarks of the sentencing Court dated 6 July 2021. These remarks relate to certain serious offences.[9] I accept and rely upon the remarks. The sentencing Court noted that Ms Wereta’s offending began in 2012, when she was approximately 20 or 21 years of age. Much of this early offending involved petty theft and the misuse of drugs. From 2012 to 2018, there were many offences, but none attracted a jail sentence, and in many cases no conviction was recorded. All in all, it is clear Ms Wereta was on the wrong path up to 2018, but her offending remained at the less serious end of the scale.
[9] Ex R1, 40ff.
From that time onwards, however, it must be said that her offending persisted, and it began to attract sentences of imprisonment. On 25 March 2020, a number of offences were committed. On this occasion, more serious sentences were imposed that comprised a number of concurrent sentences, the longest of which was 12 months. The sentencing took place on 25 March 2020, and Ms Wereta became eligible for parole on 3 May 2020. In August 2020, Ms Wereta was convicted of possessing drugs, a conviction was recorded and a fine imposed. In September 2020, Ms Wereta was convicted of breaching an undertaking she had given to the court in August, and she was sentenced to a suspended term of imprisonment of 28 days. In December 2020, she was convicted of possessing dangerous drugs and utensils and was fined $600.
On 6 July 2021, Ms Wereta was convicted of a very large number of offences involving dishonesty and the unlawful use of another person’s motor vehicle. These are the offences that led to the cancellation of her visa. She received two concurrent sentences of 12 months, and further terms of 6 months and 4 months, respectively. Ms Wereta had been taken into custody on 10 March 2021, and she was granted parole on 6 July 2021 (the day of her sentencing) which meant she had spent some four months spent in jail.
I understand that Ms Wereta failed to comply with her parole conditions. The parole board suspended her parole for an indefinite period on 28 October 2021, and she was required to return to jail. While in jail, her visa was cancelled on 10 November 2021.
I note further that Ms Wereta failed to disclose convictions she then had against her name when she re-entered Australia from New Zealand in April 2019. These ought to have been disclosed on her incoming passenger card but were not.
After being released from jail, Ms Wereta was transferred to immigration detention. She elected to return to New Zealand from Australia in November 2022 rather than stay in immigration detention.
Ms Wereta has an outstanding warrant against her dating from 2019. This warrant was issued in New South Wales. The warrant relates to charges of aggravated break and enter, taking or detaining a person in company with the intention of taking advantage of that person, and occasioning actual bodily harm.[10] Ms Wereta denied the charges before me. It appears that she avoided answering the charges by returning to Queensland from New South Wales. She has now returned, of course, to New Zealand. It is not part of my function in this review to decide whether she is, or is not, guilty of what is alleged against her.
[10] The charges are referred to in Ex R1, 37.
The evidence before me suggests that Ms Wereta has made a sustained effort to transform her life since her return to New Zealand in November 2022. I heard evidence from Ms Frost and Ms Cable who are associated with a communal house to assist women with troubled life histories to return to society. Ms Wereta has been admitted to this house. Their evidence suggests that Ms Wereta has made progress in her attempts to overcome drugs.[11] The rehabilitative process is undoubtedly a long one, and it is clear that Ms Wereta will need to be constantly attentive to the risks she will face of a relapse if she becomes involved with inappropriate partners or becomes homeless (as has occurred in the past). A resident’s behaviour in the house is monitored, and the use of drugs is not accepted. I was told that a use of drugs would lead to a warning, and to the resident’s ‘support person’ being notified. The evidence before me from Ms Frost suggests that Ms Wereta has kept to the house rules and has benefited substantially from the family-like living and support the communal house has provided. She now lives in private accommodation.
[11] See also Ms Cable’s character reference appearing at Ex A1, doc. 4.1.
Finally, I note the reasons for Ms Wereta’s desire to have her visa reinstated. She wishes to ensure that she maintains contact with her children on a one-on-one basis. She believes she has legitimate concerns for the welfare of the children given her experiences with the fathers. She does not wish to re-establish herself in Australia at the present time because she appreciates her ongoing need for stability and support. She is solely motivated to return to Australia at the present time by a genuine concern for her children’s welfare.
REASONS
With that background in mind, I turn now to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I turn now to apply the Direction. The first primary consideration I must consider is the protection of the Australian community. Paragraph 8.1(1) requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers need to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.
By paragraph 8.1(2), decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I turn first to consider the nature and seriousness of Ms Wereta’s conduct. In respect of Ms Wereta’s criminal convictions, I accept the respondent’s submission that her ‘criminal history is marked by a number of drug offences, breaches of bail conditions, obstructing police, and dishonesty offences, including fraud and stealing’.[12] I accept further the respondent’s categorisation of this offending as serious. More generally, I accept the respondent’s written submissions that appear in paragraphs [20] to [32] of its Statement of Facts, Issues and Contentions.[13] There is no doubt that at the time of her offending, Ms Wereta was largely ‘spiralling out of control’ if I may use that expression. She was offending repeatedly. No doubt much of the offending was prompted by a perceived need, or impulse, to obtain money to fund the purchase of illicit drugs or to fund the purchase of everyday items (because she had already used her available cash to purchase drugs instead).
[12] See [19] of its Statement of Facts, Issues and Contentions (Ex R2).
[13] Ex R2.
Ms Wereta’s history of drug dependence causes me real concern. It has pushed her to antisocial offending on an extensive scale.
Ms Wereta’s participation in the purchase of drugs is reprehensible for another reason. I accept she was not involved in the trading of drugs as a supplier, but those who consume drugs assist in the propagation of the trade in Australian society by enriching suppliers. Consumption is a highly antisocial act from this perspective.

Paragraph 8.1.1(1)(c) of the Direction requires me to have regard to the sentences imposed by the courts. These have included longer sentences of imprisonment in more recent times. In Ms Wereta’s case, it is true to say that the courts extended her a significant degree of leniency in respect of her early offending so as to spare her the experience of jail. Jail, however, did follow in due course, and further offending occurred even after that experience. Much of the offending has also occurred while Ms Wereta was bailed, which is in itself a serious matter, as bail offers a conditional liberty only. It is given in ‘trust’, so to speak, and Ms Wereta breached that trust.
By paragraph 8.1.1(1)(d) of the Direction, I am to have regard to the frequency of the non-citizen’s offending. There is no doubt that Ms Wereta’s offending has been both very frequent and extensive, as I have said. There is also a trend of increasing seriousness in my opinion. Ms Wereta’s history of criminal offending commenced with minor offences and then became increasingly serious as her addiction to drugs deepened and her need for money grew. This is a common feature of drug-induced offending. There is a cumulative effect of repeated offending, which I must take into account, and a trend of increasing seriousness; and I note the respondent’s submissions in this regard.[14]
[14] See at Ex R2, [28] – [29].
I note again that Ms Wereta failed to disclose on her incoming passenger card convictions she then had against her name when she re-entered Australia from New Zealand in April 2019.
I agree with the respondent that, all in all, Ms Wereta’s offending has been very serious.
I am required to have regard to the risk to the Australian community should Ms Wereta commit further offences: see paragraph 8.1.2. Without setting it out, I bear in mind what appears in paragraph 8.1.2(1) of the Direction.
By subparagraph (2), I must have regard to two matters ‘cumulatively’. The first is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct, and the second is the likelihood of the non-citizen engaging in that further criminal or serious conduct.
The first matter requires me to assume that Ms Wereta engages in further offending or misconduct. On this assumption, there would be an ongoing harm to the Australian community. Ms Wereta’s criminal offending has been both serious and antisocial. The community is entitled to the safe enjoyment of their possessions and to be free from fraud. I regard Ms Wereta’s consumption of drugs as antisocial both because it makes her behaviour in the community unpredictable and also because she assists in the propagation of an illicit trade that continues to harm many people in Australia.
So far as the risk of her re-engaging in this behaviour is concerned, I regard it as low. At the present time she is living in New Zealand, and has been for some time, and I am satisfied that her circumstances are very good in that she began living in a house which is focussed on assisting those recovering from drug addiction and antisocial behaviour to re-establish themselves in the community. This has been a very positive feature of her life. Her participation in the home represents a mature decision by her to address the destructive behaviours that characterised her life in Australia. Her application to this Tribunal is principally motivated by her desire to see her children and contribute to their welfare. She is concerned about their welfare and concerned also that they should have some contact with her as their biological mother.
Against this background, I think Ms Wereta will avoid the poor associations of her past. She could scarcely believe that she will have contact with her children if she returns to drug addiction and criminal behaviour. She will not gain that contact, or if she has gained it, she will lose it promptly if she returns to drugs.
I think a sufficient time has elapsed from her last use of drugs to say that Ms Wereta’s behaviour has stabilised. I accept that drug addiction is a very serious illness, and that Ms Wereta will have to exercise vigilance throughout her life to avoid relapse. But there are positive signs in her life as I have said.
I must have regard to the strength, nature, and duration of the non-citizen’s ties to Australia. Ms Wereta has lived in Australia permanently since 2010 according to her evidence and has, therefore, spent some considerable time in the Australian community. She did not spend her formative years here, however. The first offence that resulted in convictions being recorded occurred in 2016 for stealing, which is some years after her arrival. The Direction says that I should have regard to the length of time that a non-citizen has been ordinarily resident in Australia, although less weight is to be attached when this period did not include the formative years.
She has a good relationship with a Mr Ah-Wong, the former partner of her mother. That close relationship is said to be that of stepfather and stepdaughter. That is a matter I take into account, as she will be able to establish one-on-one contact with him. There is an employment history, albeit limited, which I should also take into account.
I do not accept that I should take into account the failure of Ms Wereta to contribute to the community through community organisations, clubs, sport, voluntary work, and the like. The respondent submitted that this is a matter that should ‘moderate’ the positive weight otherwise attributable to Ms Wereta under this consideration.[15] I think I should approach the matter in the following way. Certainly, any contributions to the wider community are important and should be given weight and this is specifically reflected in para 8.3(4)(a)(ii) of the Direction; but the absence of positive contributions does not become a negative. It is simply the absence of a greater positive, and I should not use it to discount the weight I might otherwise attribute in Ms Wereta’s favour.
[15] Ibid, [39].
I must weigh the best interests of minor children in Australia affected by my decision: see paragraph 8.4. There are three such minor children. I accept, and weigh accordingly, the respondent’s submission that there has been a substantial gap in Ms Wereta’s contact with her children. There is also the fact that the children have other carers at the present time, which I must weigh. However, children benefit substantially, in my opinion, from positive relationships with a biological mother. So, I conclude that their interests count substantially in this matter notwithstanding what I have just put. I accept also that Ms Wereta could maintain contact with the children by phone or computer (including audio-visual contact); but that would not have the same beneficial impact upon them, particularly when they are relatively young. Finally, I accept that there is likely to be a great deal of resistance from the children’s carers to Ms Wereta’s further involvement in their lives. I weigh that, but, at this point, the evidence does not exclude the possibility of her gaining access in due course.
Paragraph 8.5 of the Direction concerns the expectations of the Australian community. These expectations do count substantially against Ms Wereta. I am not to assess the expectations in any particular case, as the Direction itself makes clear in paragraph 8.5(4), but am to have regard to the expectations as set out in the paragraph. I do so. Clearly, Ms Wereta has failed to meet the expectations of the Australian community that she should abide by Australian laws. I accept that Ms Wereta’s past criminal conduct in Australia has been seriously antisocial. I acknowledge that the Australian community expects ‘as a norm’ ─ although not as an inflexible rule ─ that she not be allowed to re-enter Australia.
I must take into account other considerations under section 9. The list in section 9 is non-exhaustive. The legal consequence of a decision to affirm the decision under review is, of course, that Ms Wereta will not be permitted to re-enter Australia. I do not see that there are any impediments that I need consider as Ms Wereta has now resettled in New Zealand and done so well.
There is, however, one matter that I believe I should weigh carefully, and this concerns the warrant for Ms Wereta’s arrest in connection with the outstanding charges in New South Wales. A warrant[16] for Ms Wereta’s arrest was issued on 11 June 2019 by the Downing Centre Local Court of New South Wales. I have referred to these charges earlier in these reasons.[17] These are serious offences. Ms Wereta denied the offending before me, and, of course, I am not in a position to decide whether or not she is guilty of the charges.
[16] Or possibly warrants as there is a double entry in the criminal record before me: see Ex R1, 37.
[17] See above at [22].
I had initially thought that as Ms Wereta had left Australia before facing these charges, that factor would count substantially against her. In my opinion, anyone who wishes to visit or live in Australia should co-operate with the criminal justice system and face any charges against him or her. Upon more careful reflection, however, it does seem to me that Ms Wereta’s decision to return to Australia can be said to be in the community’s interests because she will be liable to be arrested on re-entry to Australia. Dr Dickie made the point in her submissions[18] that Ms Wereta understands she will have to face the charges, and Ms Wereta herself acknowledged that as a fact before me. There is a substantial community interest in a prosecuting authority bringing proceedings against those who are alleged to have breached Australian law. It does seem to me that Ms Wereta’s return to Australia would be in the public interest from that perspective. The outstanding charges are not minor.
[18] See Ex A2, [48].
WEIGHING THE CONSIDERATIONS
I turn now to weighing the various considerations. This has not been an easy case. There has been a great deal of offending of an antisocial variety as I have made clear. It is also clear that Ms Wereta had become dependent on drugs. That in itself raises concerns as those who are drug-dependent very often descend into antisocial and criminal behaviour; they frequently fail to hold down jobs and maintain a stable contribution to their families; and, eventually, they depend substantially on welfare payments and use health systems disproportionately. Through their purchase and consumption of drugs, they also financially support an illicit trade that harms Australian society substantially. Ms Wereta’s offending has caused a great deal of harm to community members who have had to put up with the loss of their property or been defrauded. There can be no doubt that the Direction speaks clearly against the criminal and other antisocial conduct in which Ms Wereta has engaged.
There are, however, countervailing considerations. These include the substantial interests of her children in Australia developing a positive relationship with their biological mother even though the contact has not been extensive in the past, and they have other carers. That is a very important matter. I attach some weight to Ms Wereta’s ties to Australia although not a great weight. I attach significant weight to the unusual circumstance in this case; namely, that implicit in Ms Wereta’s decision to seek to return to Australia is an acceptance that she is liable to be arrested and taken into custody to face outstanding charges. She is aware that there is an outstanding warrant for her arrest in Australia, and she is aware that if she returns to Australia, she may well be arrested and have to face the criminal justice system. There is, as I have said, a substantial public interest in the Australian criminal justice system prosecuting the outstanding charges against Ms Wereta. I do not say she will be convicted ‒ the question of her guilt or innocence lies outside my review ‒ but there is a substantial interest in her answering the charges. At the present time, it would appear there has been no attempt to extradite Ms Wereta, and I proceed on the basis that she would not probably face extradition if I affirmed the decision under review. I accept also that the risk of her reoffending is low, on the assumption that she does not relapse into drug misuse, although this is a matter to be considered ‘cumulatively’ under the Direction; that is, in conjunction with the nature and seriousness of harm to the community should Ms Wereta reoffend.
I believe that much of Ms Wereta’s offending has been influenced by a drug dependency and poor associations commencing with a troubled childhood. She is at risk of relapse, since she misused drugs for such a considerable time, but she has made progress in her transition to normal life; and there are, in my opinion, cautious grounds for optimism that her further presence in Australia will not see her misuse drugs or engage in further criminal acts. Her desire to re-establish contact with her children is a powerful incentive for her in this regard; indeed, it explains her application to the Tribunal.
CONCLUSION AND FORMAL DECISION
I have not found this case an easy one, but in my opinion, the correct or preferable decision on the evidence before me is to find that an assessment of the factors under the Direction favours a revocation of the cancellation decision. I have reached the conclusion that I am satisfied that there is ‘another reason’ for the cancellation decision to be revoked under s 501CA(4)(b)(ii). Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of Ms Wereta’s visa be revoked.
I certify that the preceding fifty-two (52)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]…………………………..
Associate
Dated: 15 April 2024
Date of hearing:  24, 25 May 2023 and 8 March 2024
Advocate for the Applicant:      Marianne Van Galen Dickie
Sisters Inside
Advocate for the Respondent:  Ingmar Duldig
Clayton UTZ

[2024] AATA 737

8 March 2024

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Immigration

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Judicial Review

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