Weti-Safwan and Minister for Immigration and Border Protection (Migration)
[2016] AATA 797
•12 October 2016
Weti-Safwan and Minister for Immigration and Border Protection (Migration) [2016] AATA 797 (12 October 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3592
Re
Anya Weti-Safwan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member Date 12 October 2016 Place Sydney The decision under review is set aside. The decision cancelling Ms Weti-Safwan’s visa is revoked under s 501CA(4) of the Migration Act 1958.
......................[sgd]..........................................
Dr L Bygrave, Member
CATCHWORDS
IMMIGRATION – mandatory visa cancellation under s 501CA – discretion to revoke – substantial criminal record – character test not satisfied – discretion to revoke mandatory visa cancellation if another reason – primary and other considerations – decision set aside
LEGISLATION
Migration Act 1958 ss 499(2), 501(3A), (7), 501CA(4)
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Do and Minister for Immigration and Border Protection [2016] AATA 390
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
12 October 2016
INTRODUCTION
The applicant, Ms Anya Weti-Safwan is a 34 year old citizen of New Zealand. She first arrived in Australia on 19 June 1985 and subsequently departed Australia on several occasions. She last arrived in Australia on 2 September 1996 and was granted a Class TY Subclass 444 Special Category (Temporary) visa (Subclass 444 visa).
On 25 September 2006, Ms Weti-Safwan was notified in writing that her Subclass 444 visa had been cancelled on 14 September 2006 under s 501(2) of the Migration Act 1958 (Cth) (the Act).
Following Ministerial intervention, Ms Weti-Safwan was granted a Class WR Subclass 070 Removal Pending Bridging visa (RPBV) on 14 August 2009.
On 18 February 2016, Ms Weti-Safwan’s RPBV was mandatorily cancelled under s 501(3A) of the Act after she was sentenced to 13 months imprisonment on 1 December 2015.
On 8 March 2016, Ms Weti-Safwan lodged a ‘Request for Revocation of a Mandatory Visa Cancellation Under S501(3A)’.
On 4 July 2016, the Minister’s delegate decided not to revoke the cancellation decision. Ms Weti-Safwan subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The matter was heard in Sydney on 15 and 16 September 2016. Ms Weti-Safwan attended the hearing in person and had legal representation.
BACKGROUND
Ms Weti-Safwan first arrived in Australia with her parents at the age of three years. She has lived permanently in Australia since that time apart from several short trips to New Zealand.
When Ms Weti-Safwan was nine years old, her mother had a stroke which resulted in paralysis of her right side and lengthy periods in hospital. Her mother required home care services as she learnt to speak and walk again over the next two years. During this time, Ms Weti-Safwan’s father moved out of the family home and began a relationship with his now wife. Ms Weti-Safwan records that she ‘was very anxious and distressed about the break-up of my parents, my mum’s health, and my dad having left’.[1]
[1] Applicant’s Statement, 5 September 2016, para 9.
Ms Weti-Safwan began to rebel against her family and stopped attending school about half way through year 10. She acknowledges that her ‘friends at the time were not a good influence but at the time I felt like they were more of a family to me than my actual family’.[2] She turned to drugs to deal with the emotional pain that arose from her problems at home; by the age of 15 years she was addicted to marijuana and later began binge drinking and eventually became addicted to heroin.[3]
[2] Applicant’s Statement, 5 September 2016, para 19.
[3] Applicant’s Statement, 5 September 2016, para 21.
Criminal record
Ms Weti-Safwan committed an extensive number of criminal offences between 1997 and 2015. Her criminal record is summarised below:
·25 February 1997: Sutherland Children’s Court – ‘possession of prohibited drugs’, ‘illegal use of a motor vehicle’, ‘offensive language’ and ‘unlawful entry’. Fined and probationary sentences supervised by juvenile justice for each offence.
·28 July 1998: Sutherland Children’s Court – ‘shoplifting value less than $2,000’ and ‘goods in personal custody reasonably suspected of being stolen’. Fined and probationary sentences supervised by juvenile justice for each offence.
·22 February 2000: Kogarah Local Court – ‘self-administer/attempt to self- administer prohibited drug’ and ‘resist or hinder police officer in the execution of duty’. Fined $300 and $200 respectively plus court costs.
·3 August 2000: Sutherland Local Court – ‘larceny’. Fined $500 plus court costs.
·6 March 2001: Newtown Local Court – ‘enter enclosed lands without lawful excuse (first instance warrant)’. Fined $200 plus court costs.
·7 June 2001: Sutherland Local Court – ‘shoplifting value less than $2,000’. Fined $400 plus court costs.
·22 November 2001: Sutherland Local Court – ‘larceny’. Fined $1,000 plus court costs.
·7 June 2002: Downing Centre Local Court – ‘shoplifting value less than $2,000’ (2 counts), ‘receive property threats – serious indictable offence less than $5,000’, ‘larceny less than $2,000’ and ‘goods in personal custody suspect of being stolen (not motor vehicle)’. Two suspended prison sentences (nine months total and subject to 12 month good behaviour bond), two years supervised probation service (to participate in a drug rehabilitation program) and directed to undertake urinalysis.
·22 July 2002: Sutherland Local Court – ‘shoplifting value <$2,000’, ‘enter enclosed land without lawful excuse’ and ‘fail to comply with s 12 suspended sentence good behaviour bond’. Eight months imprisonment with a parole period of six months and ordered to pay court costs. ‘Failure to comply with suspended sentence’. Nine months imprisonment which was appealed to the District Court of New South Wales. (On 9 August 2002, at Sydney District Court, Ms Weti-Safwan’s suspended sentence was upheld on appeal).
·4 February 2004: Central Local Court – ‘larceny value <$2,000’ and ‘break and enter building (steal) value <$15,000’. Fifteen months imprisonment with a parole period of six months (conditions attached).
·2 August 2004: Sutherland Local Court – ‘shoplifting value <$2,000’. Twelve months imprisonment with a parole period of nine months.
·21 December 2005: Burwood Local Court – ‘shoplifting <$2,000” (four counts), ‘larceny <$2,000’ and ‘enter enclosed land not presc premises w/o lawful excuse’. Nine months’ imprisonment with a parole period of six months (Ms Weti-Safwan lodged a severity appeal to the District Court of New South Wales. On 27 February 2006, at Parramatta District Court, her conviction was upheld on appeal).
·20 April 2010: Kogarah Local Court – ‘shoplifting <$2,000’, ‘enter enclosed land not presc premises w/o lawful excuse’, ‘unlicensed driver/rider (not licensed for 5 years)’ and ‘never licensed person drive vehicle on road’. Warrants issued for applicant to appear and on 28 April 2010: Central Local Court, Ms Weti-Safwan was convicted of each offence and sentenced to 12 months imprisonment with a parole period of three months and licence disqualification (Ms Weti-Safwan was released into the community upon completion of three month non-parole period. On 4 October 2010, Ms Weti-Safwan breached her parole reporting conditions and was returned to criminal custody to serve the balance of her 12 month sentence).
·18 December 2013: Bankstown Local Court – ‘drive motor vehicle while licence suspended’. Fined $500 and licence disqualified for a further 12 months.
·18 November 2014: Burwood Local Court – ‘drive motor vehicle whilst disqualified – 2nd offence’ (three counts) and ‘shoplifting <$2,000’. Driving offences: two years disqualification. Shoplifting: six months good behaviour bond.
·19 March 2015: Burwood Local Court – ‘shoplifting’ (six counts) and ‘larceny’ (two counts). Thirteen months suspended sentence upon entering s 12 bond requiring Ms Weti-Safwan to report to police daily and enter a rehabilitation program.
·1 December 2015: Burwood Local Court – ‘‘shoplifting’ and ‘call up’ on 19 March 2015 convictions due to Ms Weti-Safwan breaching the s 12 bond’. Thirteen months imprisonment with a non-parole period of three months, with release subject to supervision.
RELEVANT LEGISLATION AND ISSUES
The power to revoke a visa cancellation
Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.
Under s 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.
Ms Weti-Safwan has a ‘substantial criminal record’ and so she does not pass the character test. Ms Weti-Safwan does not dispute this.
I must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, I am required under s 499(2) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen’s visa should be cancelled, or their visa application refused.
Informed by the Principles, I must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under s 501CA of the Act. The primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:
(a)Strength, nature and duration of the applicant’s ties to Australia; and
(b)Extent of impediments if the applicant is removed from Australia.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of Ms Weti-Safwan’s conduct to date; and
(b)the risk to the Australian community should Ms Weti-Safwan commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of Ms Weti-Safwan’s conduct to date.
The summary of Ms Weti-Safwan’s criminal record at paragraph 11 shows she committed an extensive number of offences from February 1997 to December 2015. A psychological assessment of Ms Weti-Safwan reported her ‘overall criminality’ as:
Ms Weti-Safwan’s offending history is essentially limited to relatively minor property (e.g., shoplifting, larceny) and driving offences. She has never been charged with violent offences or other charges at the more severe end of the crime spectrum. Excluding her driving offences, her offending has always been a function of her heroin use (i.e., intended and designed to support her substance use and the financial strain associated with that use). Her offending history is notable for periods of non-offending in direct parallel with her periods of sobriety. She is not inherently antisocial (e.g., she does not endorse criminal attitudes and beliefs, her offending behaviours are not sufficiently diverse or severe to warrant a diagnosis of antisocial personality disorder) and her offending prognosis is favourable (providing she receives the treatment that she needs).[4]
[4] Report on Anya Weti-Safwan by Ms Andrea Davidson (Psychologist) dated 29 August 2016, para 21.
At the Tribunal hearing, Ms Weti-Safwan’s legal representative did not dispute that she had a substantial criminal record. She acknowledged the cumulative effect of repeated offending and that Ms Weti-Safwan had received sentences from the courts, which included a sentence of 13 months imprisonment with a non-parole period of three months in December 2015.
I am satisfied that the frequency and cumulative effect of Ms Weti-Safwan’s criminal offending from 1997 to 2015 is a matter of serious concern. Although Ms Weti-Safwan’s offences have not been violent or committed against vulnerable members of the community, I find that the nature and seriousness of her offending weighs against her.
I must also consider the risk to the Australian community should Ms Weti-Safwan commit further offences or engage in other serious conduct.
The evidence before the Tribunal shows a pattern of repeated criminal offending by Ms Weti-Safwan and subsequent warnings from the Department of Immigration and Border Protection (the Department) about the impact of this behaviour on her ability to remain in Australia.
I note that, as a result of her criminal offences, Ms Weti-Safwan was warned in February 2005 that her visa could be cancelled. She continued to offend and in September 2006, her Subclass 444 visa was cancelled and she was detained in Villawood Immigration Detention Centre for almost three years. In August 2009, Ms Weti-Safwan was granted a RPBV following Ministerial intervention. Following further offences in 2010, Ms Weti-Safwan was notified in August 2010 that the Minister was considering ceasing her RPBV. The Department case summary stated that ‘as a result of changes in Ms Weti-Safwan’s circumstances, including the birth of a daughter [in] May 2012, and departmental priorities, no decision was taken to cease Ms Weti-Safwan’s RPBV and she remained in the community’.[5]
[5] Exhibit G2 document, page 5, para 10.
Ms Weti-Safwan’s RPBV has the mandatory condition that the ‘holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community’. Relevantly, cl 8(1) of the Direction also notes that non-citizens who hold a ‘substantive visa’ will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa. ‘Substantive visa’ is defined in s 5 of the Act as a visa other than a bridging visa. As Ms Weti-Safwan was granted a RPBV in 2009, she does not currently hold a ‘substantive visa’ as defined in the Act. However, I also note that Ms Weti-Safwan has been allowed to remain on the RPBV for seven years and the Department made no attempt to cease the visa after the birth of her daughter in 2012.
On the basis of this evidence, it is apparent that Ms Weti-Safwan has been aware since February 2005 that she may be removed from Australia if she continues to offend.
The aggregate risk of Ms Weti-Safwan reoffending has been assessed as ‘moderate’. Her psychological assessment report observed that:
Her repeat offending history (a static factor) precludes her from ever being considered a low-risk of re-offending. However, the absence of serious offences in her history, her lack of enmeshment in antisocial networks and lifestyle, her current insight and motivation to address her substance abuse and offending, and access to stable housing and professional and social supports greatly limit her risk of recidivism (placing her well below the threshold for high risk). Ongoing management of dynamic factors (e.g., heroin use, stress, symptoms of psychological trauma, involvement with antisocial and criminal peers) will help to minimise her risk of recidivism. At the age of thirty-four years, Ms Weti-Safwan is moving into a period of life characterised by increased stability and positive adjustment, and increased desistance from crime (consistent with the age-crime curve).[6]
[6] Report on Anya Weti-Safwan by Ms Andrea Davidson (Psychologist) dated 29 August 2016, para 33.
Given the history of Ms Weti-Safwan’s criminal offences and substance addictions, which have continued despite her knowledge that a mandatory condition of her visa is that she complies with Australian laws, I cannot be confident that she will not reoffend should she be released into the Australian community. In considering the nature of the harm and potential risk to the Australian community if Ms Weti-Safwan were to reoffend in the future, I accept that Ms Weti-Safwan’s offending history is partially mitigated by her non-violent behaviour in the past.
On balance, I find that the protection of the Australian community weighs against revoking the cancellation decision.
The best interests of minor children in Australia affected by the decision
Clause 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
In 2008, Ms Weti-Safwan married Mr Gehad Safwan. Mr Safwan resides in Australia on a Class XA Subclass 866 Protection (Permanent) visa. The Department noted that ‘Mr Safwan is unlikely to be permitted entry to New Zealand because of his criminal history’.[7]
[7] Exhibit G2 document, page 5, para 15.
Ms Weti-Safwan and Mr Safwan have a daughter who was born in May 2012 and is an Australian citizen. In late 2014, Ms Weti-Safwan’s daughter was removed from the custody of Ms Weti-Safwan and Mr Safwan by the New South Wales Department of Family and Community Services (FACS) and placed in the care of Ms Weti-Safwan’s father (the child’s maternal grandfather). Ms Weti-Safwan’s daughter has remained in the shared care of Ms Weti-Safwan’s father and step-mother, and has weekly visits (approximately one and a half days) with Ms Weti-Safwan’s mother (the child’s maternal grandmother). Both Ms Weti-Safwan and Mr Safwan have maintained frequent contact and visits with their daughter.
At the Tribunal hearing, Ms Weti-Safwan said she ‘hit rock bottom’ when her daughter was removed from her custody. Ms Weti-Safwan accepted responsibility for her past behaviour. She acknowledged that she has only recently admitted to herself that she has a drug addiction and previously blamed others for her circumstances.
Ms Weti-Safwan told the Tribunal that her situation is now different as she has the ‘tools’ to address her substance abuse and drug addiction. She is able to rely on her family, especially her mother and her husband, for emotional and financial support. She is also connected to support people and programs through the Narcotics Anonymous community. Ms Weti-Safwan is actively addressing her drug addiction through participating in the Methadone to Abstinence Program. Her dosage has been reduced from 80 mg to 15 mg.[8]
[8] See also Applicant’s Statement, 5 September 2016, para 37.
Ms Weti-Safwan is clearly motivated by her desire to reunite with her daughter. At the Tribunal hearing, she spoke about her love for her daughter in a tangible way. She spoke about reading books and playing games during their fortnightly visits at Villawood. She told of her daughter hugging her goodbye and asking when she was returning home. She spoke about her fears for her daughter being raised in a separated family, as she experienced, if she is removed from Australia.
Ms Weti-Safwan’s evidence was supported by her mother, Mrs Palamo, who described a ‘very strong and loving bond’ between Ms Weti-Safwan and Mr Safwan and their daughter.[9]
[9] Statement of Harata Palamo, 5 September 2016, para 27.
The psychological assessment of Ms Weti-Safwan reported that:
Ms Weti-Safwan’s daughter is a strong motivating factor in her rehabilitation. She has always maintained a relationship with her daughter, her daughter recognises her to be her mother, and they share an attachment and bond with each other. Her relationship (and attachment and bond) with her daughter will be seriously compromised in the event of her deportation, and there is little doubt that this will have a serious negative impact on her daughter’s emotional and psychological development (recall that secure parental attachment provides the foundation for healthy emotional and psychological development in children). For these reasons, Ms Weti-Safwan’s deportation is clearly not in the best interests of her daughter (and the community at large if her daughter grows up to experience emotional and psychological difficulties because of her separation from her mother). [emphasis added][10]
[10] Report on Anya Weti-Safwan by Ms Andrea Davidson (Psychologist) dated 29 August 2016, para 39.
Ms Davidson (Psychologist) gave extensive evidence at the Tribunal hearing about Ms Weti-Safwan’s relationship with her daughter. I note that Ms Davidson’s assessment did not include an interview or observations of the child (but relied on reports from Ms Weti-Safwan, Mr Safwan and Mrs Palamo) because the family has made the understandable decision to protect the child at this time from the knowledge that her mother could be removed from Australia.
Ms Davidson told the Tribunal that Ms Weti-Safwan has built a positive relationship with her daughter, which is crucial for her daughter’s development and need to feel safe and secure. Ms Davidson stated there was no evidence of abuse, neglect, harm or dysfunctional parenting, despite Ms Weti-Safwan’s drug addiction.
Ms Davidson gave unequivocal evidence to the Tribunal that removing Ms Weti-Safwan from Australia would result in the ‘worst case’ for her daughter. She said that Ms Weti-Safwan’s daughter, particularly at four years old, required regular (at least fortnightly) tactile and physical contact to maintain a secure attachment with her mother. She noted this was especially important as Ms Weti-Safwan’s daughter grows up and learns about ‘how she fits into the world as a young woman’.
Ms Davidson reiterated a number of times in her oral evidence that ‘attachment’ was the building block of child development, and that detachment from her mother would undermine the social, emotional and cognitive development of Ms Weti-Safwan’s daughter.
On the basis of the evidence before me, I find that it is in the best interests of Ms Weti-Safwan’s daughter that the cancellation decision is revoked.
The expectations of the Australian community
The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (cl 13.3(1)).
The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note the recent decision by the Tribunal in Do and Minister for Immigration and Border Protection, which states:
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done. [emphasis added][11]
[11] [2016] AATA 390, [at 23].
I also consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectation must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.[12]
[12] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [at 89].
Ms Weti-Safwan has lived in Australia since she was three years old. Ms Weti-Safwan’s mother, father, brother, step-siblings and step-mother are Australian citizens and reside permanently in Australia. Her daughter is also an Australian citizen. Her husband, Mr Safwan holds a Class XA Subclass 866 Protection (Permanent) visa; however, it is unlikely that he will ever be permitted to travel to New Zealand due to his criminal record.
Mrs Palamo, Ms Weti-Safwan’s mother, gave evidence before the Tribunal that Ms Weti-Safwan’s extended family had school, work and financial commitments in Australia that would make it difficult for family members to regularly visit or move to New Zealand. Mrs Palamo’s health and paralysis on her right side from her stroke would also make it difficult for her to travel regularly to New Zealand.
Ms Weti-Safwan’s substantial criminal record has been extensively addressed in my consideration of protection of the Australian community. I also note that, according to Ms Weti-Safwan’s evidence, her childhood experiences of her mother having a stroke and her father subsequently leaving the family home to start a new relationship contributed to her feeling anxious and distressed, rebelling against her parents, leaving school and associating with the wrong crowd. This led to a pattern of substance abuse, drug addiction and recurrent criminal offending characterised by shoplifting, larceny and driving offences.[13]
[13] Applicant’s Statement, 5 September 2016, paras 8-24.
Ms Weti-Safwan told the Tribunal that her daughter being removed from her care caused her to hit ‘rock bottom’ and she is determined to deal with her drug addiction and prove to the courts that she is a good mother and her daughter should be returned to her custody. She said that she was good at school and would like to use her experiences to be a youth social worker. Ms Weti-Safwan presented to the Tribunal as an articulate and bright woman; I have no doubt that she could achieve this outcome if she so decides.
In considering the expectations of the Australian community about Ms Weti-Safwan’s situation, I find myself contemplating two scenarios.
The first scenario is the implications if the decision to cancel Ms Weti-Safwan’s visa is not revoked and she is removed from Australia to New Zealand. This would lead to Ms Weti-Safwan’s permanent separation from her husband. Ms Weti-Safwan would only be able to see her daughter if and when her parents are able to travel to New Zealand. The evidence presented to the Tribunal was that, without the assistance of her family and support of Narcotics Anonymous and without the motivation of potentially regaining the custody of her daughter, Ms Weti-Safwan will find it difficult to remain sober and abstain from drugs in New Zealand.
The alternate scenario is to revoke the decision to cancel Ms Weti-Safwan’s visa. This would provide an opportunity for Ms Weti-Safwan to demonstrate her capacity to address her drug addiction with the support of her family and Narcotics Anonymous, and to redress her criminal record. It would give Ms Weti-Safwan and Mr Safwan a chance to show they are capable parents and to regain custody of and raise their daughter. It also provides an opening for Ms Weti-Safwan to become a positive, contributing member of the Australian community.
On balancing the expectations of the Australian community that a person with Ms Weti-Safwan’s criminal history should have their visa cancelled and the prospect for Ms Weti-Safwan’s daughter to have a relationship with her mother, I find that the Australian community would support Ms Weti-Safwan being given a final chance to remain in Australia. I make this finding in full acknowledgement of the many opportunities given to Ms Weti-Safwan by the Department and relevant Ministers over the past 11 years.
In these circumstances, I am satisfied the third primary consideration counts in favour of revoking the mandatory cancellation under s 501CA of the Act.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at cl 14 that other considerations must be taken into account where relevant.
There are no international non-refoulement obligations in this matter. I was not provided with any evidence about the impact of Ms Weti-Safwan’s removal on any Australian business interests. There is no evidence of any impact on victims from Ms Weti-Safwan’s criminal behaviour.
I now consider the strength, nature and duration of Ms Weti-Safwan’s ties to Australia and the extent of impediments if she is removed to New Zealand.
I have set out extensive evidence about Ms Weti-Safwan’s strong familial ties to Australia. Ms Weti-Safwan has resided in Australia since she was three years old. As set out in paragraphs 51-52, her removal from Australia would result in the permanent separation from her husband and extended separation from her family, including her daughter, mother, father, brother, step-mother, step-father and step-siblings. I find that this consideration weighs in favour of Ms Weti-Safwan.
The impediments to removing Ms Weti-Safwan from Australia rely on her being detached from her family network and Narcotics Anonymous members who provide support to Ms Weti-Safwan to deal with her drug addiction. Apart from her drug addiction, Ms Weti-Safwan has no medical conditions that could not be treated within the New Zealand health system.[14] There is no further information before the Tribunal that Ms Weti-Safwan would not be able to live and work in New Zealand. I therefore find that there are no substantial impediments, apart from being removed from her family, that prevent Ms Weti-Safwan commencing a life in New Zealand.
[14] Exhibit G14 document.
CONCLUSION
The primary consideration to protect the Australian community weighs against Ms Weti-Safwan. The primary considerations of the best interests of minor children and the expectations of the Australian community weigh in favour of Ms Weti-Safwan. The other relevant consideration of the applicant’s ties to Australia weigh for Ms Weti-Safwan, while the consideration of the impediments if the applicant is removed from Australia weighs against Ms Weti-Safwan. I am therefore satisfied that the considerations overall weigh in favour of the applicant.
In these circumstances, it is appropriate to find that there is a reason to revoke the original cancellation decision.
DECISION
The decision under review is set aside. The decision cancelling Ms Weti-Safwan’s visa is revoked under s 501CA(4) of the Migration Act 1958.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ………………….[sgd]………………..
Associate
Dated 12 October 2016
Date(s) of hearing 15 & 16 September 2016 Counsel for the Applicant Ms D Bampton Solicitors for the Applicant Legal Aid New South Wales Solicitors for the Respondent Sparke Helmore
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