WFFJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2626

WFFJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2626 (10 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4233
Re:WFFJ
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:10 August 2022
Place:Perth

The decision of the delegate of the Minister dated 17 May 2022 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa – whether there is “another reason” to revoke the cancellation of the applicant’s visa – index offence drug dealing – extensive criminal record – applicant a 35-year-old citizen of New Zealand who arrived in Australia as a 12-year-old – unaddressed mental health conditions– protection of Australian community – there is not another reason to revoke the mandatory cancellation of the applicant’s visa – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 500(1)(ba), 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Barsby and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3296
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127
Mesarich and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 430
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227
Wade and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 202
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Department of Health, National Drug Strategy 2017–2026 (18 September 2017)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
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 (8 March 2021) paras 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8.1, 8.1(4), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2), 9.4.1(2)(a)(i), 9.4.1(2)(a)(ii)
REASONS FOR DECISION
Deputy President Boyle
10 August 2022
THE APPLICATION

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 17 May 2022[1] not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1/11.
The applicant’s visa was cancelled under s 501(3A) of the Act on 13 April 2021 on the basis that she did not pass the character test by reason of her substantial criminal record, and she was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review was made on 26 May 2022 pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if she does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 27 July 2022. The applicant was represented by Mr D Nikolic and the Minister was represented by Mr J Papalia of the Australian Government Solicitor. The following witnesses gave evidence at the hearing:
(a)the applicant;
(b)Warren Simmons, psychologist;
(c)the applicant’s stepfather;
(d)the applicant’s older daughter; and
(e)the applicant’s mother.
The following documents were admitted into evidence:
(a)Statement of the applicant dated 7 July 2022 (A1);
(b)Psychological report of Warren Simmons filed 22 July 2022 (A2);
(c)Statement of the applicant’s stepfather dated 8 July 2022 (A3);
(d)Statement of the applicant’s older daughter dated 7 July 2022 (A4);
(e)Statement of the applicant’s mother dated 8 July 2022 (A5);
(f)Statement of the applicant’s older daughter’s partner dated 8 July 2022 (A6);
(g)The applicant’s statement of facts, issues and contentions filed 21 July 2022 with annexures 1–10 (applicant’s SFIC) (A7);
(h)Section 501G Documents filed 12 July 2022 (R1);
(i)The applicant’s history for court filed by the respondent on 22 July 2022 (R2);
(j)Client incident report dated 10 July 2022 (R3); and
(k)A letter dated 21 July 2022 from Holyoake regarding the applicant’s participation in allied drug and alcohol treatment (R4).
BACKGROUND
The applicant is a 35-year-old citizen of New Zealand who arrived in Australia in January 1999 as a 12-year-old.
The applicant lived with her mother and stepfather in Perth. She moved around to a number of high schools and left school at the completion of year 10. The applicant says that she has only worked “on and off since then”.[2]
[2] A1 para 7.
In 2005 the applicant gave birth to her first child, a girl, in New Zealand. She had returned to New Zealand in August 2004 and came back to Australia in December 2005. In 2011 the applicant had her second daughter who was born in Australia and is an Australian citizen.
The applicant’s criminal record is extensive with offences recorded in Western Australia, New South Wales and Queensland. The criminal record[3] indicates that the applicant first appeared in the Rockingham Children’s Court in December 2003 on charges of assault and resisting arrest. She was convicted and referred to the Juvenile Justice Team in respect of those charges. As an adult, the applicant has been convicted of 51 offences from June 2006. The applicant’s full criminal record is set out in the annexure to these reasons for decision.
[3] R2.
In August 2016 the applicant was convicted in the Central Local Court in New South Wales of supply a prohibited drug (methylamphetamine) and sentenced to 12 months imprisonment.[4]
[4] R1/37.
In March 2021 the applicant was convicted, following a jury trial, of two counts of possession of a prohibited drug (methylamphetamine) with intent to sell or supply. These offences (and others) were committed in December 2017. The applicant was sentenced to terms of imprisonment of 10 months on each count of possession with intent to sell or supply, with the sentences to be served concurrently.
On 13 April 2021 the applicant’s visa was cancelled under s 501(3A) of the Act (see [2] above). The applicant was invited to make representations about revocation of the decision to cancel the visa under s 501(3A) of the Act and the applicant made such representations. On 17 May 2022 a delegate of the Minister found that the applicant did not pass the character test and that there was not another reason why the decision to cancel the applicant’s visa should be revoked.[5] The applicant was duly notified of the delegate’s decision.
[5] R1/11.
On 26 May 2022 the applicant lodged the application for review in the AAT.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[6] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.[7] (Direction 79).
[6] 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 (8 March 2021).
[7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(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.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[8] The character test is defined in s 501(6) of the Act (see [16] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [17] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and she therefore has a substantial criminal record. Accordingly, she does not pass the character test.
[8] [2009] AATA 47; (2009) 106 ALD 66.
As the applicant does not pass the character test, she cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel her visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [18] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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 conduct (para 8.1.1)

Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The earliest of the applicant’s more serious convictions was the August 2016 conviction in New South Wales for possession of a prohibited drug with intent to sell or supply (methylamphetamine). The circumstances of that offence were set out by Magistrate L Mabbutt in his sentencing remarks as follows:
The facts are that the accused travelled to New South Wales, it would appear for the purpose of supplying ice, and was ultimately detected and arrested by the police. She was engaging in that with another person and here ..(not transcribable).. extent of some of the text messages to show what the defendant had come to New South Wales for. …
“You chasing any shards, meth. Hit me up if you're interested. No time wasters, no fucking arounds, no sex just purely business. I have the best ties here in Sydney direct from the West of Australia. So help me put a bit and don't waste my time, I'm trying to make some money here in Sydney”.
If that text message does not describe that the accused has travelled specifically to commit this offence, is doing it for money, financial gain, and is prepared to sell this drug which causes so many problems in society to just about anyone that has got money, nothing else does. The entire case relates to the messages the defendant was prepared to send to anyone that was interested in buying drugs. I am told she left two children behind in Western Australia and came to New South Wales to engage in that criminal conduct. A very sad set of facts.[9]
[9] R1/60.
His Honour went on the observe:
Of course the people that end up buying the drugs and causing the problems they do to the community is also something the Court must take into account because this is an offence, of course, that is serious and its impact upon the community is serious, difficult to detect and comes with substantial penalties. The offence itself involves some level of organisation. I am satisfied this offence was conducted purely for financial gain. The amount of drugs involved is not a small amount, not to the indictable and large amounts where substantial penalties apply but the accused is facing two years imprisonment for this offence.
…
I am told the defendant's time in custody has made an impact upon her, it is the ultimate sanction of the Court. ..(not transcribable).. plea of guilty but the decision to travel anywhere for the sole purpose of supplying drugs to people and not small amounts of drugs, these are not small street deals, it is clear from what the police have obtained there was one gain, and one gain only, to make money results in serious conduct. That is balanced against the defendant's somewhat limited record, her first time in custody and, ultimately, an earlier plea of guilty…
Taking all those factors into account the maximum penalty for this offence is two years. This is not at the top range of those offences albeit that is the jurisdictional limit. I have considered that, and on the Court's view taking into account the objective seriousness of the offence, factors of general deterrence, balance against prospects of rehabilitation, which I do find for this accused has some possibility but that, of course, will depend on the defendant's conduct when she is released from custody.[10]
[10] R1/60.
On 9 March 2020 the applicant was convicted in the Fremantle Magistrates Court of stealing a motor vehicle on 1 January 2019[11] for which the applicant received a sentence of imprisonment of seven months, two counts of possession of stolen or unlawfully obtained property (offence date 12 January 2019) for which the applicant received sentences of one month imprisonment on each charge (concurrent), and one count of stealing (offence date 2 January 2019) for which the applicant received a fine.
[11] R2/2.
On 14 December 2020 the applicant was convicted of possession of a prohibited drug and possession of a firearm/ammunition (offence date for both 22 December 2017).
On 23 March 2021 the applicant was convicted in the District Court of Western Australia of two counts of possession of a prohibited drug (methylamphetamine) with intent to sell or supply for which the applicant was sentenced to terms of imprisonment of 10 months on each. These offences occurred on 22 December 2017 and arise out of the same circumstances which gave rise to the convictions referred to in [35].
The circumstances of the offences committed on 22 December 2017 were set out in the sentencing remarks of Wallace DCJ as follows:
… you’re here today to be sentenced for the two counts of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The court entered judgments of conviction for you on 18 December last year. That was after you were found guilty of those two counts by a jury after trial.
…
The maximum statutory penalty … is a fine not exceeding a hundred thousand dollars and/or a term of imprisonment not exceeding 25 years. So that gives you an indication as to how serious our Parliament here in Western Australia views this kind of offending.
…
So in the morning on 22 December 2017 you were waiting in a car whilst your partner at the time, … who is also your co-offender, checked into the Adina Apartment Hotel in the city which he’d booked online. Mr [omitted] checked into room 8 at approximately midday and he obtained two access cards, one which he retained and the other which he gave to you when you joined him in room 8.
At the time of check-in, Mr [omitted] had in his possession a brown shoulder bag or a man bag. Staff at the Adina Apartment Hotel became concerned when they realised that the driver’s licence Mr [omitted] had provided by way of identification appeared to be a fake ID. They therefore contacted police, who ultimately did attend at room 8 at approximately 8.15 that evening.
When police entered room 8 they arrested Mr [omitted] and they secured the premises and they started to conduct a search warrant. You’d temporarily left the room to buy groceries and other items.
During the search, police located the brown shoulder bag or the man bag. It was on the couch inside room 8 and identified that it contained five small clipseal bags which contained what was later analysed as methylamphetamine in the following quantities, 1.71 grams, 1.71 grams, 1.65 grams, 1.64 grams and 1.78 grams. The total weight of the methylamphetamine seized from that brown shoulder bag was 8.49 grams of methylamphetamine and that’s count 1 on the indictment.
A further search of the room located a modified handgun next to the brown bag. I find that this firearm was in the sole possession of Mr [omitted] and he was not the holder of a licence or permit under the Firearms Act 1973 entitling him to be in possession of it.
The firearm was originally manufactured as a Bruni make, nine millimetre PAK calibre blank firing imitation automatic pistol, but it had been modified to allow it to discharge 32 automatic Cold pistol calibre ammunition designed to be fired in firearms and operated as a single shot pistol.
Police also found a smoking implement in their search of room 8 and I find that earlier in that day you had smoked methylamphetamine together with Mr [omitted] and his friend Mohammed.
Police then located a number of items during their search in the bedroom of room 8 which included a set of digital scales which had white residue powder on them, a measuring spoon, a straw, unused clipseal bags, two clipseal bags within which there was analysed to be 20.2 grams of dimethyl sulfone, which is a common cutting agent used in the mixing of methylamphetamine for sale. Those items were discovered by police in the open safe in the bedroom.
In addition, police found a small plastic container in the open safe which was analysed to contain 1.08 grams of methylamphetamine and that’s the subject of count 2 on the indictment. Above the safe police located a glass baking dish with white powder residue on it.
When you arrived back at room 8 that evening, you found it being searched by the police. Police searched your person and found you to be in possession of .2 grams of methylamphetamine secreted inside your mobile phone case which you admitted was yours.
The mobile phone in your possession contained many messages consistent with the sale of methylamphetamine, including in December 2017. A white mobile phone was also seized by police from inside room 8, which I find had also been used by you to send and receive messages relating to the sale of methylamphetamine, which evidences a persistent involvement on your part in drug dealing. Exhibits M and N tendered at the trial support this finding.[12]
[12] R1/44–6.
In relation to the seriousness of the offences, Wallace DCJ commented as follows:
In relation to looking at the seriousness of the offending or the aggravating factors, there are a number of factors that reflect on the seriousness. Certainly count 1 is the more serious of the two offences. It involved 8.49 grams of methylamphetamine. In my view, that’s not an inconsequential amount of methylamphetamine. It’s capable of doing significant harm to the community.
Another aggravating feature in respect to count 1 is the fact that you were involved in the sale or supply of methylamphetamine for commercial reasons.
…
It’s also open to the court to find that this was not a one-off or isolated incident or an aberration, but more so reflects persistent behaviour on your part. I say this taking into account the candid admissions you made which are reflected in the psychological and psychiatric reports before the court.
But it’s also supported by the historical messages on the mobile phone seized by police which clearly evidence in my view your engagement in the supply and sale of prohibited drugs over time. This persistent offending on your part evidences a deliberate choice you made in that regard and is in my view an aggravating factor.
In relation to count 2 on the indictment. Clearly it involves a smaller quantity of methylamphetamine, that’s the 1.08 grams. But it’s still a drug capable of causing harm to the community, particularly if it was supplied in .1 grams, for example, it’s still capable of supplying 10 people. So again, it’s not inconsequential. But certainly, unfortunately it’s not the largest kind of quantity that this court sees.
…
In my view, for the purposes of sentencing I accept your counsel’s submission. I do categorise you as a low-level user/dealer for the purpose of sentencing.[13]
[13] R1/47.
The Minister points to the following factors[14] as indicative of the seriousness of the applicant’s offending:
(a)The applicant’s record is extensive, characterised by a variety of offences;
(b)The applicant’s adult offending commenced in June 2006 and has increased in seriousness;
(c)Driving offences can be considered as serious;[15]
(d)The applicant’s record demonstrates an inability to distinguish right from wrong and a callous disregard for the safety of the public;
(e)The applicant has also been convicted of violent offences on two occasions;
(f)The applicant has committed offences against public officials; and
(g)The applicant has provided false information in an intentional attempt to mislead the Department.
[14] Minister’s SFIC paras 21–6.
[15] Citing JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26 [50]–[55] and the cases referred to therein.
In relation to the seriousness of the applicant’s offending, the applicant submits:[16]
[16] Applicant’s SFIC paras 23–32.
(a)The applicant acknowledges that her criminal record is lengthy and is characterised by a variety of offending;
(b)The majority of the offending from 2006–2016 relate to various driving offences, the applicant was not sentenced to a period of imprisonment for these offences;
(c)These offences (I assume the traffic offences) should only carry minor weight when considering the sanctions received for the offending;
(d)The three convictions relating to drug supply (23 August 2016 and 23 March 2021) for which the applicant received prison sentences, can be categorised as serious offending due to the potential harm to members of the community. However, as Wallace DCJ noted, the maximum sentence for such offences is 25 years.
(e)The offending that led to the cancellation of the applicant’s visa was devoid of violence.
(f)In assessing this consideration, the Tribunal should take into account the applicant’s circumstances at the time of the offending, which included a substance abuse problem and her mental health conditions (i.e. post-traumatic stress disorder) (PTSD);
(g)The offending cannot be characterised as violent or sexual in nature and was not committed against vulnerable members of the community;
(h)The applicant’s offending, while serious, should therefore be viewed through the lens of her addictions and mental health diagnosis;
(i)The applicant’s offending, though lengthy, should be considered serious only insofar as the supply of drugs is considered a serious offence.
In closing submissions, Mr Nikolic for the applicant contended that the last offence of a violent nature, which must be considered as very serious,[17] was committed in November 2013, nine years ago. He argued that “… on that basis … her offending is not increasing in seriousness but it certainly has been persistent”.[18] According to Mr Nikolic, the applicant’s offences largely relate to the applicant’s drug use and her need to “feed that habit”.[19]
[17] Direction 90 para 8.1.1(1)(a)(i).
[18] Transcript/73.
[19] Transcript/73.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [31] above), I find that:
(a)Paragraph 8.1.1(1)(a) – the applicant has two convictions of assault public officer (recorded 15 March 2012) and one of common assault (recorded 22 November 2013) which, by operation of this paragraph, must be considered as very serious.
(b)Paragraph 8.1.1(1)(b) – as noted above, the applicant has two convictions of assault public officer. By operation of sub-para (ii), these convictions are to be considered as serious.
(c)Paragraph 8.1.1(1)(c) – ten-month sentences of imprisonment were imposed for each of the two more recent convictions for possession of a prohibited drug with intent to sell or supply. I accept that those sentences were at the lower end of the scale of possible terms of imprisonment (maximum 25 years; see [37] above). I also note, however, that the applicant has been sentenced to other terms of imprisonment, namely, 12 months in August 2016 for the supply of a prohibited drug, one month on each of two counts of receiving stolen or unlawfully obtained property and seven months for stealing a motor vehicle imposed in March 2020. As the courts have repeatedly stated, imprisonment is the last resort in the sentencing hierarchy. The courts imposing these terms of imprisonment on each occasion is indicative of the courts’ views as to the seriousness of the applicant’s offending.
(d)Paragraph 8.1.1(1)(d) – the frequency of the applicant’s offending is significant. She has been convicted of 51 offences as an adult since 2006. The applicant, in effect, suggests that the only serious offences are the three counts of drug possession with intent to sell of supply (see [40](d) above). I do not accept that. In addition to her three convictions for possession of a prohibited drug with intent to sell or supply, the applicant, as an adult, has 12 driving related offences (including drink driving), three convictions for assault (including two for assault a public officer), seven convictions for stealing, two convictions for stealing a motor vehicle, four convictions for possession of a prohibited drug or drug paraphernalia, three convictions for possession of stolen or unlawfully obtained property (for which the applicant received sentences of imprisonment), ten convictions for gains benefit by fraud, one conviction for carried an article with intent to injure, one conviction for possession of a firearm/ammunition, one conviction for burglary and commit an offence in a dwelling as well as five sundry other offences.
The sheer number and types of offences of which the applicant has been convicted over a 15-year period makes her criminal record very serious. To describe it as being “lengthy” as the applicant does (see [40(a)] above), downplays the seriousness of the offences committed, the frequency at which they were committed and the repetition of similar offending.
I also reject the applicant’s argument that there is not a trend of increasing seriousness in her offending (see [41] above). The argument that, because none of the applicant’s convictions since 2013 has involved violence, there is not a trend of increasing seriousness, is fundamentally flawed. The mere fact that para 8.1.1(1)(a) requires violent offences to be viewed very seriously, does not mean that if subsequent offences do not involve violence there is, by definition, no trend of increasing seriousness. Clearly the offences committed after the last of the applicant’s violent offences were more serious than the assaults for which the applicant received fines in 2012 and 2013. Since the offences involving violence, the applicant has committed offences which have resulted in the imposition of sentences of imprisonment totalling 41 months. I acknowledge that the most serious of the offences were committed in December 2017 (for which the applicant was sentenced in March 2021) and that the applicant appears to have continued to offend up to the time that she was arrested in January 2019,[20] however, even taking that into account, the offences committed by the applicant from January 2016 (possession of a prohibited drug with intent to sell or supply committed in New South Wales) to January 2019 when she was arrested and taken into custody, are more serious than the applicant’s earlier offences. I am satisfied that there is a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) – as noted above, the sheer number and types of offences of which the applicant has been convicted over a 15-year period makes her criminal record very serious. While I accept that the applicant’s offending may be linked to her mental health, toxic relationships and long-term drug use, her record indicates a disregard for the law and for members of the Australian community.
(f)Paragraph 8.1.1(1)(f) – I accept that the applicant provided false declarations regarding her criminal history on her incoming passenger cards on 22 February 2007, 3 September 2009, 30 April 2010 and 22 October 2011.[21] The Minister pointed out[22] that the delegate accepted the applicant’s explanation that this was not an intentional attempt to mislead the Department. Other than that statement in the Minister’s SFIC, no reference was made by either party to this issue in their respective SFICs, submissions at the hearing or in the examination or cross-examination of the applicant. As the Minister appears to place no weight on this factor and appears to accept the applicant’s explanation of it being a mistake, I place no weight on it.
(g)Paragraph 8.1.1(1)(g) – the evidence does not disclose that the applicant received any formal warning.
[20] Transcript/30.
[21] R1/272–5.
[22] Minister’s SFIC para 26.

The applicant contends that, when assessing her offending, the applicant’s “circumstances at the time of the offending, which included a substance abuse problem and her mental health conditions, i.e. PTSD”[23] should be taken into account and that the applicant’s “offending, while serious, should therefore be viewed through the lens of her addictions and mental health diagnosis”.[24]
[23] Applicant’s SFIC para 28.
[24] Applicant’s SFIC para 30.
It seems clear that much of the applicant’s criminal behaviour has occurred while the applicant has been using drugs. It is also apparent on the evidence that the applicant has long-standing mental health conditions. These are spelt out in some detail in the report of consulting psychologist Warren Simmons[25] and in the pre-sentence reports which were before Wallace DCJ when sentencing the applicant.[26] While those factors are relevant to a number of considerations, the seriousness of the applicant’s conduct is primarily to be assessed objectively, having regard to the factors identified in para 8.1.1 of Direction 90.
[25] A2.
[26] R1/191–206.
The offences of which the applicant has been convicted are clearly serious offences, particularly the three offences of possession of a prohibited drug with intent to sell or supply for which the applicant received not insubstantial prison sentences. I am also conscious of the comments made by the magistrate and the judge in sentencing the applicant as to the seriousness of the three possession with intent to sell or supply charges (see [32], [37] and [38] above). This consideration requires the decision-maker to take into account the factors identified in the sub-paragraphs of paragraph 8.1.1. The number and type of offences of which the applicant has been convicted, the frequency of the applicant’s offending and the cumulative effect of the offending cause me to characterise the applicant’s criminal offending as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The Tribunal in CZCV and Minister for Home Affairs[27] at [56] summarised the task for the decision-maker as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[27] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[28] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[28] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
The Minister submits that the nature of the harm that would be caused if the applicant were to offend as she has in the past, is serious and self-evident and points to the comments made by the courts in sentencing the applicant. The Minister also cites the National Drug Strategy 2017–2026[29] which notes that the Australian community faces both direct and indirect harm from drugs.
[29] Department of Health, National Drug Strategy 2017–2026 (18 September 2017).
Both courts in sentencing the applicant on the possession with intent to sell or supply convictions, referred to the harm caused by drug dealing, particularly methylamphetamine (see Magistrate Mabbutt’s comments cited at [32] and [33] above and Wallace DCJ’s comments cited at [38] above). Wallace DCJ also noted:
So in relation to this kind of offending. It is the experience of the courts that illicit drugs cause or materially contribute to a significant proportion of the criminal offences that are unfortunately committed in this state. That’s either because people commit offences when they’re under the influence of illicit substances or the need to finance or secure their supply of drugs.
…
In addition, there’s a significant public resource that’s devoted to this difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.[30]
[30] R1/51–2.
The applicant concedes that the three possession with intent to sell of supply offences are of a type which “can be categorised as serious offending, due to the potential harm to members of the community”.[31]
[31] Applicant’s SFIC para 26.
In relation to these offences, and the multiple other drug related offences, I have previously outlined the sort of harm to the community and to individuals within the community that is caused by drug related offending. In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[32] at [41], I referred to the National Drug Strategy 2017–2026 finding that the Australian community faces both direct and indirect harm from drugs. These include mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly and healthcare and law enforcement costs.
[32] [2021] AATA 2227.
At [42] of Nguyen I also noted that, as in this case, the applicant in that case was involved in a commercial illegal drug operation with others. Organised crime prospering in the community is clearly a drain on policing and other public services and creates the environment for associated criminal activity. These considerations are reflected in Wallace DCJ’s comments cited at [51] above.
I also again refer to the comments of McKerracher J at [48] in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[33] and Colvin J’s comments on that passage at [43]–[45] in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[34] I adopt their Honours’ observations. In the present case, while it might be that the applicant’s criminal activities did not cause direct harm, or had no apparent victim, as McKerracher J noted at [48] of RQRP:
... the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result...
[33] [2021] FCA 266.
[34] [2021] FCA 762.
In her SFIC, the applicant refers to the fact that the offending that led to the cancellation of her visa was devoid of violence (see [40(e)] above). While that might be the case, the applicant has three convictions for assault (including two for assault a public officer) (see [42(d)] above). The harm to the community or to individuals in the community if that violent behaviour were to be repeated is obvious.
The applicant also has multiple convictions for stealing, multiple convictions for gaining a benefit by fraud and a conviction for burglary and commit an offence in a dwelling. Again, the harm that would be caused if the applicant were to repeat that offending behaviour is obvious, significant and should not be overlooked.
The applicant’s significant record of driving offences is also of concern. While obviously at the lower end of criminality, the Tribunal and courts have consistently held that the potential harm inherent in driving offences is not insignificant.[35]
[35] See JNMK at [44]; see also the comments of Senior Member Dr Evans-Bonner in Mesarich and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 430 at [79] and Barsby and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3296 at [52] and the cases cited therein.
The harm that would be caused to the community or to individual members of the community if the applicant were, in the future, to engage in the serious offending that she has in the past is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))
The applicant made the following contention in her SFIC:
35. The Applicant clearly regrets her actions. All of the Applicant’s family are supportive of her. She has ready access to accommodation and her extended family unit for support. Her family are supportive of her ongoing rehabilitation efforts.
36. The Tribunal can therefore be comforted that the Applicant’s risk of recidivism remains low. The Tribunal can be satisfied of this for the following reasons:
a.    The Applicant is remorseful for her actions;
b.    The Applicant has good prospects for rehabilitation;
c.     The Applicant’s family remains supportive of him [sic]; and
d.    The Applicant has many protective factors that reduce his [sic] risk of reoffending.
The applicant points to the courses that she has undertaken, the fact that she has remained drug-free while in prison and immigration detention[36] and to the applicant’s “commitment to improving her life and staying drug-free” as evidenced by:
[36] Applicant’s SFIC para 37.
(a)Completion of the “Allied Drug and Alcohol Programs and Treatment” counselling.
(b)The lack of evidence of negative drug tests.
(c)Completion of the following courses in prison:
(i)“Operate work processing applications”;
(ii)“Apply workplace health and safety concepts”;
(iii)“Contribute to health and safety of self and others”;
(iv)“Develop Painting Skills”;
(v)“Use Hygenic [sic] Practices for Food Safety”;
(vi)“Course of Blood-Borne Viruses”;
(vii)“Why are relationships challenging?” (21 May 2019);
(viii)“Remain connected with your partners” (23 May 2019);
(ix)“Staying connected with your family” (25 May 2019);
(x)“Parenting from a distance” (30 May 2019);
(xi)“Why are relationships challenging?” (4 June 2019); and
(xii)“Certificate II in Engineering” (12 June 2019).
(d)Maintaining employment while in prison.
(e)The support of her parents, children and current partner in assisting in her remaining drug free.
(f)The applicant has showed promising signs of rehabilitation in relation to both her offending behaviour and drug-abuse.
(g)She has voluntarily undertaken several courses to increase her employability upon release from detention and ability to better cope with difficult situations and to understand her trauma and address those underlying issues.
The Minister disputes the applicant’s claim that she is a low risk of reoffending. The Minister refers to the psychiatric and psychological pre-sentence reports which were before Wallace DCJ,[37] redacted copies of which appear at R1/191–206. The Minister highlighted the following aspects of the reports:[38]
(a)The consultant forensic psychiatrist confirming that the applicant meets the criteria for PTSD and that she has stimulant use disorder and attention deficit hyperactivity disorder (ADHD).
(b)The assessment that the applicant’s offending was primarily due to her substance addiction on a background of underlying psychological vulnerabilities.
(c)The view expressed that the applicant requires long-term specialist care and a multidisciplinary approach with the goals of treatment to include addressing her psychiatric condition and drug addiction.
(d)The assessment that the applicant needed ongoing support from a psychiatrist and optimisation of her medication regime, and that the applicant would benefit from long-term psychological therapy, such as cognitive behaviour therapy, to help tackle some of her negative cognitions.
(e)The assessment that in the long term, the applicant would also benefit from further treatment related to her childhood trauma and the underlying emotional issues which have not been fully explored.
(f)The view that the applicant must maintain complete abstinence from alcohol and illicit drug use, suggesting that the applicant consider drug and alcohol counselling to help develop skills to deal with cravings and remain abstinent from substances.
[37] R1/48.
[38] The first dated 16 February 2021 (R1/191–7) and the second dated 1 March 2021 (R1/199–206)).
The Minister accepts that the applicant has completed a number of vocational courses in custody and has also enrolled/enquired with drug and alcohol course providers. The Minister notes, however, that the applicant’s prior term of imprisonment in 2016 did not seem to deter her from re-offending and the protective factors of her family similarly did not seem to prevent the applicant’s re-offending both in respect of the index offending and more broadly. A similar observation was made by Wallace DCJ when sentencing the applicant (see [76] below).
The Minister contends that the applicant’s likelihood of re-offending is closer to moderate and that there are clear and cogent reasons to be concerned about her risk of recidivism.
As noted above, a report was provided by Warren Simmons,[39] a psychologist, who also gave evidence at the hearing. Mr Simmons, in his report, advised the following:
[39] A2.
(a)He had interviewed the applicant via videoconference on 15 July 2022 and had reviewed the G documents.[40]
[40] R1.
(b)The applicant reported an unstable home environment in Australia but that she had good family and good parents who were still supportive of her.
(c)The applicant reported having been sexually abused by an uncle in New Zealand when she was five years old. She only disclosed the assault to her family later.
(d)She reports having been further sexually abused when she was six years old and three times when she was aged 13. These incidents involved oral penetration and rape. The applicant reported that she had not undertaken any counselling and had tried to deal with it herself over the years.
(e)The applicant reported going to a number of schools in Australia and leaving school upon completion of year 10.
(f)The applicant’s employment had been “very unstable”.
(g)When she was 17, the applicant became pregnant. She and the father of the baby (born in New Zealand) were together for around 18 months. He struggled with alcohol and she considered the relationship to be very destructive.
(h)When she was 21 years of age, the applicant started a relationship with a photographer (she was modelling at that time) which lasted about nine months. It was in this relationship that she says her drug use started.
(i)The applicant started another relationship in 2010 with a person that she met at a nightclub. She was using methylamphetamine at that time. That relationship, which she described as never being a good one, lasted one year. She found him “controlling” and there was “a lack of trust”. She became pregnant to that partner who is the father of the applicant’s younger daughter. He was physically and psychologically abusive to her when she was pregnant.
(j)Subsequent to that relationship, the applicant was in a relationship for two years with another man who was controlling and had mental issues and was physically abusive. Following that relationship, the applicant was in a relationship for about one year, during which time she was in prison for eight months.
(k)The applicant was then not in a relationship for some two and a half years until she met Mr Montgomery who she met at the Yongah Hill Immigration Detention Centre.
(l)In relation to the applicant’s drug and alcohol history, the report states that the applicant “was introduced to alcohol” when she was 14 years of age, adding that “she enjoyed anything that would "blank out her mind" and "take her away from where she was". She says that she drank daily “from the start” and that “she would consume alcohol until she passed out”. This continued until she was pregnant.
(m)The applicant reported that she would use ecstasy, cocaine and MDMA whenever someone provided it, stating that cocaine was more regular for three months and made her feel better. She explained that she ceased using drugs when she became pregnant.
(n)In 2013, the applicant commenced using methamphetamine, revealing that she was initially smoking or snorting the drug. She explained that it was an escape and admitted to eventually injecting the drug. It was difficult to ascertain the exact amount of the drug she was using, but it appears that she was using quite heavily.
(o)Mr Simmons observes at para 20 of his report that “It appears that there has been some involvement in drug and alcohol treatment programs”.
(p)In relation to her psychiatric history, Mr Simmons reports that the applicant advised him that she was diagnosed with ADHD and obsessive-compulsive disorder (OCD) at the age of five with Ritalin and dexamphetamines being prescribed at different times. She reported that she is currently on dexamphetamines and Naproxen which she feels is of assistance.
(q)Mr Simmons records that while she has been in custody, the applicant was reviewed by a psychiatrist and a psychologist, the former diagnosing PTSD, ADHD and stimulant use disorder, with the latter diagnosing a severe personality disorder. Mr Simmons notes that the specific type of personality disorder was not identified, but that “the note to Dialectical Behaviour Therapy would suggest that the diagnosis was of the borderline type”.
(r)While the applicant reported having difficulties with sleep and that she felt uncertain about her future, she denied feeling hopeless or suicidal. Mr Simmons assessed the applicant’s mood as “stable”. Mr Simmons reported that “… [the applicant] has no intrusive memories of the abuse she suffered and there was no evidence of hyperarousal or hypervigilance”.[41]
(s)The applicant reported that she had used drugs while previously incarcerated, although not during her most recent sentence. She explained that this related to wanting to make changes in her life.
(t)Under the heading “Opinion”, Mr Simmons relevantly opined as follows:
28.   [The applicant] has had several long-term relationships, although most have not lasted more than several years. While some of these relationships have been marred by both physical and emotional violence, others have been with individuals who are a great deal older than her. She indicated that she has been with her current partner for the past year, having met at a detention centre.
29.   [The applicant’s] childhood would have left her vulnerable to substance use, revealing the use of various drugs over the years. Initially [the applicant] consumed alcohol as a way of managing her emotional state and helping her forget whatever she was dealing with at the time. There has been a history of the use of other drugs over the years and more recently, the use of methamphetamines. [The applicant] has found it difficult to abstain from substance use while in custody until her most recent incarceration.
30.   Associated with [the applicant’s] substance use has been a history of offending, generally to fund her substance use or while substance affected. It was noted that there have been more serious offences in recent years involving the trafficking of significant quantities of drugs.
31.   [The applicant] has been diagnosed with Attention Deficit Hyperactivity Disorder for which she is currently on medication. There is certainly evidence for a diagnosis of Obsessive Compulsive Disorder and although this varies on occasion, appears to be a way of controlling any anxiety that she feels. [The applicant] certainly presents with evidence of a personality disorder with borderline traits. While there has been a previous diagnosis of [PTSD], there was little evidence that this is a diagnosis for which she is currently experiencing significant symptoms. This is a condition which can vacillate between being quite impactful on the individual and there can be periods where it is not creating significant difficulties. However, [the applicant’s] substance use has been a method of controlling her emotional state, which she readily identified as an initial maintaining factor in her use of drugs. In addition, she would have previously met the criteria for a diagnosis of various substance use disorders depending on which drugs she was using at the time. Of course, these are no longer current given that she is in a custodial environment.
32.   With regard to the probability of further offending, this is assessed as being in the moderate range. [The applicant] has evidence of a borderline personality disorder which although may be assisted by medication, generally requires long-term ongoing dialectic behaviour therapy which is the treatment of choice. [The applicant] is also still presenting with some symptoms of Attention Deficit Hyperactivity Disorder which also makes her more impulsive and more likely to act without thought. While this is controlled to some extent while she is on medication, should she cease treatment this will create further difficulties. Should [the applicant] struggle with her feelings of identity, loneliness and emotional state, she is likely to drift back into substance use and therefore return to offending behaviour. While [the applicant] does have some protective factors such as a history of employment, a supportive family and children, it will require long term interventions for [the applicant] to make significant changes in the future.
[41] A2 para 24.

Mr Simmons was asked at the hearing whether the applicant remaining drug free since her imprisonment and detention affected his assessment of the likelihood of the applicant remaining drug free if released into the community. Mr Simmons’ evidence was:
When a person remains substance-free, especially with methamphetamines, the likelihood, or the greater likelihood that the brain has reset. Evidence has shown that it takes somewhere between 12 to 18 months for, if you like, brain function to return to normal after there’s been a prolonged use of methamphetamines. Admittedly in the later stages it’s only obvious in times testing where you’re looking at speed of the time does something. And then obviously the longer you remain substance free then the, if you like, the biochemical changes in the brain are ceasing to have the effect that they did before.
…
… I think that almost four years is a significant period of time for the chemical aspect of the drug use to have abated.[42]
[42] Transcript/48.
Mr Simmons was also asked whether the detailed plan that the applicant had submitted to the parole board,[43] which set out her goals and prevention mechanisms, was significant in his assessment of risk. His evidence was:
… I do believe that that level of planning and acknowledgement of the difficulties is actually very important for [the] client and for [the applicant], and is significant. Most people who are talking to the parole board, in my experience, tend to make rather vague statements, you know, going to attend counselling, but are usually going to be reliant on agencies like Community Corrections, et cetera, to provide all of that. I think the fact that not only did [the applicant] address the substitutes but she addressed some of her other underlying issues, and the letter to the parole board is a significant factor and shows at least a commitment to (audio malfunction) and make changes.[44]
[43] R1/164–7.
[44] Transcript/49.
Asked to explain why he had assessed the applicant’s risk of re-offending as moderate, Mr Simmons’ evidence was:
I think the psychiatric difficulties that [the applicant] (indistinct) although at the time I saw her she didn’t meet the full criteria for PTSD. That’s a condition that waxes and wanes. She has a borderline personality disorder. There is ADHD which will make her susceptible to amphetamine-based stimulants, so all of those issues are probably going to be significant for some time. A borderline personality disorder, I think in the report by the psychologist in the G documents, I think it was either B or W, indicated that, you know, a program will be six to 12 months. That’s the program but its effect will take longer. The PTSD can flare up again. If [the applicant] is exposed to trauma there is something that triggers the event, and of course if she doesn’t for any reason remain on her medication, which given that there is a reluctance to prescribe stimulants to adults in the community, may also be an issue that she will face. As all of these conditions are lifelong, that’s the major contributors to the moderate risk.[45]
[45] Transcript/50.
In relation to the effect of the threat of deportation on the applicant’s risk of re-offending, Mr Simmons’ evidence was:
I do believe that the risk of - for all individuals who are facing deportation is a motivating factor to make changes. The fact that people are challenging that advice and seeking a review with the AAT is suggesting that they find being here is quite important to them, and it helps provide an incentive to continue with the changes she’s made.
In her statutory declaration,[46] the applicant made the following statements relevant to this consideration:
30. In prison I did drug and alcohol programs to address my behaviour. I also had counselling while there. I did not use drugs or alcohol at any point while in prison or detention. I only used them before to help ease my mental health but now I have support networks so I do not need drugs or alcohol. I was only tempted by them when I had a bad mental state and now I do not. I have not had drugs or alcohol for over 3 years now. It has been offered to me in prison and detention but I have turned it down every time.
31. I want to be a good role model for my daughters and I want to be there for my kids, parents and partner. Having my visa cancelled was a shock to me and was very difficult as my family are my rocks. I don’t believe I would still be here today if it wasn’t for my family. My mum is my biggest support and I always go to her when I am upset.
32. I am not the same person I was when I was offending. My family have all said how much I have changed and I can see it myself. I am so proud of myself for how I deal with situations where people are getting under my skin. I walk away now instead of getting angry and I am so proud of myself for this. I can now think of the bigger picture and can empathise that other people also have things going on that might make them angry. I now avoid disagreements and apologise because it is important to me.
33. My future plans are to get ahead for my daughters and to keep being a good mum to them. I want to study fitness and hopefully open up my own gym. I haven’t been able to study while in detention but there is a personal trainer here that I have been talking with her to learn more about fitness. I train everyday and she shows me how to do things. I am focused now on fitness and being fit and healthy. I do not want to go near drugs or alcohol at all because I am focused on being healthy and want to be a good role model for my daughters. When I was offending I looked awful and drug affected and now I can’t imagine not being fit and healthy. I have stayed with my training while in detention and have lost around 20 kilograms just from focusing on myself and my health.
[46] A1.
At the hearing the applicant’s counsel asked the applicant to explain her statement that she will not re-offend. Her evidence was that previously she had not been conscious of the immigration repercussions of her offending and the potential for her to be taken away from her family which would mean that she would not be able to help her mother and would not be able to see her younger daughter.[47] The applicant also spoke about the drug rehabilitation programs that she had undertaken, in particular, the Holyoake program, which she said she found very useful.
[47] Transcript/9.
The applicant was cross-examined about her claim that she would not associate with people who were a negative influence as she had in the past. She was asked why she considered her new partner, Mr Montgomery, whom she met 12 months ago in detention, was not such a person. Her answer was:
I know that he - he’s got - from Yongah Hill they said there’s accusations of, but not actual record of drugs. He has never been charged with drugs. And like I said, people better themselves, and that’s what I’ve seen about him.[48]
[48] Transcript/28.
I sought some clarification from the applicant about the relationship with Mr Montgomery, in particular, how she says that she has been in a relationship with him for 12 months but has been in prison or immigration detention since January 2019. Her evidence was:
APPLICANT:   Well, he used to be here at Perth Immigration Detention Centre, so    they sent us to Yongah Hill. So he used to come every Sunday to   see his little girl because his little girl - it’s too far for her to drive to   Melbourne, [sic] so I’d see him when he’d come (indistinct) and I was   just like, yes, like, we exchanged numbers and like I said, he was   telling me to be positive while I was in here… Maybe he had a   negative background but people want to better themselves and that’s   all I’ve seen from him, and that’s all he’s been there, is been positive   towards our relationship, towards the children. He only like tries like   to be positive, you know, and I see that as a major positive. Yes,    people have negative - they might have negative pasts, but people   all want to like do better, you know. He’s got his visa back now and   he wants to be a better person, you know.
TRIBUNAL:     And what was his negative past?
APPLICANT:   I know it’s not drugs because he told me. I know he’s got, from    Yongah Hill there’s accusations of drugs, but he’s never been   charged with drugs. I know that it was a violence, something, a   violent charge, yes.
TRIBUNAL:     Which resulted in his visa being cancelled, was it?
APPLICANT:   Yes, that’s correct, yes.
Mr Papalia then advised that Mr Montgomery was the respondent in case S192/2021 in the High Court of Australia. According to the Appellants’ chronology filed in those proceedings, Mr Montgomery, a New Zealand citizen, was convicted of “aggravated burglary and commit offence in dwelling” and sentenced to 14 months’ imprisonment in March 2018. Mr Montgomery’s visa was cancelled pursuant to s 501(3A) of the Act in July 2018. A writ of habeas corpus was granted in November 2021. It appears from the publicly available information that the appeal by the Minister and another was discontinued in July 2022. Mr Papalia advised that the Minister had recently, following the discontinuance of the High Court proceedings, issued another visa to Mr Montgomery.
The applicant was cross-examined on her behaviour while in prison and immigration detention. In her evidence-in-chief, the applicant had referred to herself as having “got bad notes from in here, being disruptive, verbal”.[49] Mr Papalia took the applicant to a number of detention authority reports of incidents involving the applicant.[50] The applicant disagreed with some of the reports and said that she did not want to comment on others.[51] Asked then to provide a general comment, the applicant’s evidence was that:
When I first came in here, yes. I had a bad note - these are some of when I first came in here. As you can see the dates, they’re not like - they’re not all recent. They’re situations that I had with one detainee. She was sort of targeting me for a while.
…
She’d do it when officers are there, but she would do it discretely, and then I wouldn’t do it discretely, I would go off. Like, you know, “What the fuck are you hissing at?” you know. It was very immature of me to go back at her, but since I have been seeing a psychologist since I’ve been in here and I’ve been medicated, and I’ve actually been able to get along with everyone in here. Yes, there was an incident from the other day, but that’s someone that I’m celled up with and we’re both going through stuff and we’re both on medication that we’d not received for 45 minutes like. It was just a miscommunication, there was no further escalation from that. I’ve actually come a long way since all these incident reports, and me being abusive and me being able to control my anger, when I never used to be able to do that. I’ve come a long way to deal with people, and I’ve grown from all that.[52]
[49] Transcript/28–9.
[50] R1/217; R1/218; R1/227; R1/229; R1/231; R1/232; R1/234.
[51] Transcript/35.
[52] Transcript/36.
In sentencing the applicant, Wallace DCJ made the following observations regarding the risk of the applicant re-offending:
It’s always difficult to predict somebody’s risk of reoffending. We don’t have a crystal ball, so we don't know what’s going to happen when you come out of custody. There are risk factors for you though. Those risk factors include your prior drug taking and the negative drug peers and antisocial peers and the vulnerabilities that you have as far as the traumas that you’ve experienced. And you need to come to terms with all of that and seek some support and rehabilitation and that will reduce those risk factors.
You do have stable family support, you clearly love your children so that’s a positive influence for you. But this offending did occur in the context of you having that support. But this has given you, no doubt, some reason to pause and think.
…
We talked about remorse before. As I said, I accept what your counsel says. You have shown some insight and I accept that to be true. But remorse requires a bit more than that, unfortunately. And it is hard to find genuine remorse when somebody pleads not guilty, it’s very difficult in that context.
It’s also difficult because you maintain the denial of an intent to sell or supply. That makes it difficult to find genuine remorse. So in those circumstances I’m not able to find remorse by way of mitigation.[53]
[53] R1/50–1.
It is clear that the applicant’s long history of offending, some of which has been serious and very serious, is linked to her drug addiction and her mental health. The applicant herself says that that is the case. The obvious concern in looking at the risk of the applicant re-offending is whether the applicant’s drug addiction and mental health conditions have been addressed. The applicant says that she has undertaken courses and programs while most recently in prison and thereafter in immigration detention. However, the only program that I am able to identify which would directly address the applicant’s drug addiction is the Holyoake program, described in the applicant’s SFIC as the “Allied Drug and Alcohol Programs and Treatment, counselling serious” (see [61(a)] above). By letter dated 21 July 2022,[54] Holyoake confirmed that the applicant attended three sessions at Bandyup Women’s Prison, one on 24 June 2020 (intake and assessment) and individual counselling on 1 July 2020 and 19 August 2020. This was confirmed by the applicant in cross-examination.[55]
[54] R4.
[55] Transcript/27.
Unfortunately, there is no program completion report or other independent way of assessing how well the applicant engaged with the counselling sessions or what effect, as assessed by a professional, the sessions had on the applicant. We are left with the applicant’s assertion that she found them useful (see [70] above). Similarly, while the applicant’s evidence was that she had been helped with her issues of aggression by the psychologist that she has seen in immigration detention,[56] there is no independent report or assessment as to the efficacy of the counselling that the applicant has apparently received.
[56] Transcript/36; see [77] above.
Mr Simmons assessed the risk of the applicant re-offending as moderate. I think that Mr Simmons’ assessment may be optimistic. As the Minister notes, the applicant has a very long, serious record of frequent offending. She started consuming alcohol heavily at an early age (see [65(l)] above) moving to ecstasy, cocaine and MDMA and then, in 2013, methylamphetamine to which she became addicted. She has significant, extant mental health conditions. In that regard, I note the relatively recent report of an incident in immigration detention recorded on 6 July 2022,[57] to which counsel for the Minister took the applicant at the hearing. The incident concerned an altercation between the applicant and another detainee. The applicant explained that the incident was, in part, due to the fact that she and the other detainee had not been given their medication that morning (it was 45 minutes late).[58] While the applicant has indicated that she has been prescribed dexamphetamines to medicate her ADHD and claims to have more recently engaged with a counsellor or psychologist of some sort, there is no evidence before me of any long-term psychotherapeutic treatment plan which could assist with her PTSD, OCD or personality disorder.
[57] R3.
[58] Transcript/33.
Mr Simmons’ report (see [65] above) sets out in detail the issues that the applicant faces in relation to her mental conditions and drug addiction and, in part, bases his assessment of the applicant being a moderate risk on the presence of “… some protective factors such as a history of employment, a supportive family and children” but that “it will require long term interventions for [the applicant] to make significant changes in the future”.[59] That is not an encouraging prognosis. I also question Mr Simmons’ reference to “a history of employment” as being a supporting factor. While there is some evidence that while in prison the applicant was gainfully engaged as a level 1 recreation worker in which role she showed “dedication to her work”,[60] the applicant does not have a history of employment. Mr Simmons’ report identified the applicant’s employment record as “very unstable” (see [65(f)] above) and the applicant herself described her work as being “on and off” (see [8] above).
[59] R4/6.
[60] R1/163.
Insofar as the applicant’s family could be seen as a supporting factor, the applicant’s parents clearly love and are keen to do everything possible to support their daughter. I do not doubt their sincerity in this regard, however, their love and support has not provided protection against the applicant offending in the past and I am not satisfied that it will be any more effective in the future.
I accept that the impending birth of the applicant’s older daughter’s child and that separation from her parents, her children and soon-to-be grandchild, would be an incentive against the applicant re-offending. I also accept that while her children did not prevent the applicant offending in the past, she now should have a much keener understanding of the consequences of her offending and the effect that that would have on her visa status and her ability to remain with her family.
I find it hard to accept that Mr Montgomery would be a protective factor against the applicant re-offending. The applicant has never lived with Mr Montgomery and has only known him for a short time. Mr Montgomery also has a substantial criminal record, as that term is defined in the Act. He did not give evidence or provide a statement. It is also the case that the applicant has had difficulty maintaining relationships for any extended period and most of the relationships that the applicant has had have not been positive (see the history given to Mr Simmons set out in [65] above). To an objective observer, it is difficult to see how Mr Montgomery could be a stabilising, protective influence against the applicant re-offending.
While I would not assess the applicant as being a high risk of re-offending, my assessment of that risk is higher than that of Mr Simmons. I assess the applicant’s risk of re-offending at moderate to high.
As noted above, the harm that would be caused should the applicant engage in the criminal offending that she has in the past is serious. This, coupled with my assessment of the risk of the applicant re-offending as moderate to high, means that this first primary consideration weighs heavily against revocation of the cancellation of the applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
There is no evidence before me that the applicant has ever engaged in family violence and the Minister does not contend that this is a relevant consideration. I find that this consideration is not relevant to this matter.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The applicant has two daughters, the older aged 17 and the younger aged 11. The older daughter is pregnant, with the baby due before she turns 18. That daughter has no contact with her father. The applicant says that she cared for her daughters before she was arrested and that they now both live with her parents. She says that her parents would not be able to care for her daughters if she were to be deported.[61]
[61] A1 paras 36, 38.
The applicant submits that:
Depriving the Applicant’s children of his [sic] presence would also be contrary to Australia’s international obligations, including our ratification of the Convention of the Rights of Child (“CROC”), which at Articles [sic] 7 states that children will have “the right to know and be cared for by his or her parents” and states at Article 9 that:
“State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with law and procedures, that such separation is necessary for the best interests of the child”.[62]
[62] Applicant’s SFIC para 45.
I do not accept that a decision not to revoke the cancellation of the applicant’s visa would cause Australia to breach its obligations under the CROC. Firstly, the CROC cannot be read to deprive Australia of its right to determine who holds a visa, particularly in circumstances where a person has lost the right to hold a visa by reason of their criminal conduct. Secondly, separation of the applicant from her children, if in fact that does happen, will not be a direct consequence of a decision not to revoke the mandatory cancellation of the visa, it will be a result of extraneous circumstances and the decisions of others. There is no reason why the applicant’s older daughter, mindful of the fact that she will be a minor only for a matter of months, could not go to New Zealand. While it may be the case that the father of the applicant’s younger daughter will object to her travelling to New Zealand (which is a matter of speculation at this time), the applicant being separated from her younger daughter will be the result of decisions of others. It is also the case that for the last four years the applicant has been separated from her children, in the sense that they have not lived with her because of her imprisonment and then her being moved to immigration detention.
The applicant says that she has maintained a close relationship with her daughters despite being in prison and detention, and that remaining in Australia and forming a meaningful relationship with her children is of the utmost importance.[63] The applicant says that comments made by Wallace DCJ in sentencing the applicant accepted her positive role as a parent and love for her children. The applicant, however, did not identify where in her sentencing comments Wallace DCJ made such a statement, noting that it is not the Tribunal’s role to “search out” material to find a basis for a proposition.[64] What her Honour did do was to refer to statements made by the applicant’s mother and stepfather as “speak[ing] of you of [sic] a very good mum to your daughters”.[65]
[63] Applicant’s SFIC para 46–7.
[64] See Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [49]–[51] and the cases cited therein.
[65] R1/51.
While the applicant clearly loves her daughters and it is equally clear that her daughters love her, it is less clear whether the applicant would play a positive role in their lives. In that regard I note the comment of Magistrate Mabbutt that the applicant “… left two children behind in Western Australia and came to New South Wales to engage in that criminal conduct. A very sad set of facts” (see [32] above).[66]
[66] R1/60.
Magistrate Mabbutt made those comments on 23 August 2016, however, they appeared to have little impact on the applicant who was, by December 2017, again engaged in what Wallace DCJ described as “a joint enterprise” in dealing methylamphetamine.[67] It would seem that notwithstanding the pointed comments of Magistrate Mabbutt about the applicant having left her children to engage in the sale of not insignificant amounts of methylamphetamine, the applicant was, within a relatively short time, again engaging in drug dealing. It seems that the applicant had little regard for the best interests of her daughters when she made that choice.
[67] R1/53.
In her statutory declaration,[68] the applicant also refers to the daughter of her partner, Mr Montgomery. She says that while that child spends time with her father, she does not have a mother figure. The applicant says that she sees this child in person and speaks to her by phone regularly.[69] This child also provided a letter.[70]
[68] A1.
[69] A1 para 37.
[70] A7, annexure 10.
The applicant’s evidence at the hearing was that Mr Montgomery and his daughter are now living with the applicant’s parents as are the applicant’s two daughters and the partner of the older daughter. I note that the evidence of the applicant’s stepfather at the hearing was that Mr Montgomery’s daughter currently lives with her aunty.[71]
[71] Transcript/59.
Asked by her counsel whether she would be a positive influence in her daughters’ lives notwithstanding her criminal record, the applicant said that she would be as she has changed; that she is not the person who she used to be. She says that she is fit and wants to focus on her life and maintaining her and her daughters’ health.
In cross-examination it was pointed out that the applicant had committed the assaults of a public officer a short time after she had given birth to her younger daughter. She said that she was suffering post-natal depression and the assaults occurred because she was intoxicated. She said that she had not drunk alcohol for some time prior to that evening as she had been pregnant. She said that her heavy intoxication was caused by a mixture of medication that she was taking for post-natal depression and alcohol.[72]
[72] Transcript/24.
The applicant’s older daughter provided a statement.[73] Her statement says that the applicant is like a “rock” to her and that she needs her for support. She says that it would impact her in a major way if the applicant were to be deported and that she suffers from mild depression and is fearful of developing post-natal depression without the support of her mother. The older daughter says that she only has her mother, grandparents, partner, sister and Mr Montgomery in her life. She also gave evidence at the hearing to the effect that she speaks to the applicant by phone “practically every day”[74] and that she needs the applicant present at the time of the birth of her child to provide support “mentally and physically” particularly given her grandmother’s illness.
[73] A4.
[74] Transcript/63.
At the hearing I asked the applicant’s older daughter whether her partner, the father of the baby (with whom she lives), provides support. She confirmed that he works in a fencing business (with the intention to one day start his own fencing business) and that he does provide support. He also provided a statement.[75] Asked whether she and her partner intended moving into their own house when the baby is born, her evidence was that they intended continuing to stay with her grandparents because of her grandmother’s illness.
[75] A6.
Handwritten notes from the applicant’s daughters were included in the G documents.[76] These clearly indicate that the two girls love their mother and want to be re-united with her. A handwritten statement[77] was also provided by Mr Montgomery’s eight-year-old daughter stating that she loved the applicant, whom she saw as her mother.
[76] R1/139–45.
[77] Annexed to A7.
The applicant’s mother and stepfather provided statements[78] and gave evidence at the hearing. In her statement,[79] the applicant’s mother stated that if the applicant were forced to leave Australia, the applicant’s older daughter would not have a parental figure in her life anymore and would be devastated. She said that as the applicant’s older daughter was pregnant, it would be difficult for her daughter without her mother to support her.
[78] Applicant’s mother: A5 and R1/152; applicant’s stepfather: A3 and R1/153–4.
[79] A5.
The applicant’s mother’s evidence at the hearing was that the applicant:
… did a lot for the girls when she was at home. She’s a good mum. She was always taking them places and their - you know, swimming, all the school activities. And by the - when they did their races she was there cheering them on. She was always the loudest mother and, yes, she’s a good mum.[80]
[80] Transcript/66.
Her evidence was also that, while she was able to provide support to the applicant’s daughters now, she was in poor health and would not be able to provide physical support in the future:
… it is difficult for me to do anything physically for them. I mean, I do their ironing but their grandfather has had to pick up the slack a lot but they desperately need their mum home to help or help us in that regard. Plus I know [the applicant] will be good for me too because she can do things to help with my physical health and then it’ll take a bit of pressure off her dad.
The applicant’s stepfather’s statement[81] confirmed that, while he was the applicant’s stepfather, he had known her just about since the time of her birth, having met the applicant’s mother when the applicant was about nine months old. He said that he takes the applicant’s daughters to visit her in immigration detention and took them to visit while she was in prison, and that the applicant is a great support to her daughters. He confirmed that the youngest daughter’s father would not let her travel to New Zealand to visit the applicant.
[81] A3.
His evidence at the hearing was that the applicant had, prior to her going to prison, been a good mother; “[s]he really looked after them” and that she has maintained a good relationship with the girls, visiting her in prison and immigration detention “probably twice a month” prior to the COVID-19 pandemic and regularly talking to them on the phone.[82]
[82] Transcript/56.
Starting with the child of Mr Montgomery, it is difficult to see how her best interests would be served to any significant extent by the revocation of the cancellation of the applicant’s visa. This child has never lived with the applicant and has only recently come into the applicant’s life through her father’s recent association with the applicant. For the reasons that I set out in [83] above, I also have questions about the potential longevity of Mr Montgomery’s relationship with the applicant. They have only been in some form of relationship for 12 months, during which time the applicant has been in immigration detention. It does seem that there is fondness on the part of this child towards the applicant, however, the factors identified in para 8.3(4) of Direction 90 do not indicate that much, if any, weight should be given to this consideration in relation to his child.
I also note that in closing, the applicant’s counsel made the following submission:
Deputy President, there has been mention of a number of other children. The applicant doesn’t seek to take that any further in terms of them being given any meaningful weight due to there being a real lack of any parental responsibility with any children other than the two that I’ve just mentioned.[83]
[83] Transcript/76.
I take that concession by the applicant’s counsel to be a reference to the child of Mr Montgomery, as well as to the children of the applicant’s half-brother who were referred to in the representations made to the Department. No representations about the children of the applicant’s brother were made at the hearing or in the applicant’s SFIC.
Looking at the specific considerations identified in para 8.3(4) of Direction 90 in relation to the applicant’s two daughters:
(a)8.3(4)(a) – The nature and duration of their relationship is parental and obviously long-standing, albeit interrupted by periods of imprisonment and detention. I also note that in relation to the older daughter, the applicant is the only parent playing a role in her life.
(b)8.3(4)(b) – Whether the applicant is likely to play a positive parental role will largely depend on whether the applicant re-offends or slips back into her substance abuse. It is clear to me that the applicant loves her children, that they love her and that such affection would undoubtedly be a positive influence on the children. I note that the older daughter will turn 18 in the near future.
(c)8.3(4)(c) – While there is no evidence that the applicant’s criminal behaviour had a direct impact on either of the girls, obviously, periods of absence of close physical contact during periods of incarceration is likely to have had negative impacts on the children. It is also clear that if the applicant were to go back to drug use and abuse of alcohol of the type that she did in the past, she is going to struggle to be a positive role model or influence in their lives.
(d)8.3(4)(d) – The impact of the applicant being separated from her children would be significant. Such impacts are set out in detail in the various statements provided by the applicant, in particular those of her parents and the girls themselves. While it will be possible for the applicant’s younger child to maintain contact through electronic means, that is going to be a sub-optimal means of maintaining and building a relationship. This consideration is less critical with regard to the older daughter. She will turn 18 shortly and could at least visit her mother in New Zealand. Again, however, given the cost and the fact that she will be a new mother, that is less than an optimal option.
(e)8.3(4)(e) – The applicant’s parents have largely been providing the parental role in the applicant’s absence, however, it seems that their ongoing ability to do so is limited given their age and the applicant’s mother’s poor health.
(f)8.3(4)(f) – Both of the applicant’s daughters are of the firm view that they want their mother to stay in Australia.
(g)8.3(4)(g) and 8.4(4)(h) – There is no evidence that either of the circumstances described in these sub-paragraphs applies to the present case.
The Minister in his SFIC stated his position to be:
The Applicant has given evidence that she is in regular contact with the children via telephonic means. If she were to be removed to New Zealand, the same facilities would be available to them. Nevertheless, The Minister accepts that it is the best interests of [older daughter], [younger daughter] and [daughter of Mr Montgomery] that the cancellation decision be revoked, and that this primary consideration weighs in favour of revocation accordingly.
It is clear that the best interests of the applicant’s two daughters would be served by the cancellation of the applicant’s visa being revoked. There is, in my view, insufficient evidence to find that the best interests of Mr Montgomery’s daughter would be served by a revocation of the cancellation of the applicant’s visa. Taking into account the factors identified in para 8.1(4) of Direction 90, it is my view that this factor weighs moderately to heavily in favour of revocation of the cancellation of the applicant’s visa.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly 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 ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
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 principles set out in para 5.2 of Direction 90 as set out in [23] above are also relevant to this consideration.
In FYBR v Minister for Home Affairs[84] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65[85] (a predecessor to Directions 79 and 90: see [21] above). The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65.
[84] FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.
[85] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[86] at [156] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[86] [2020] AATA 3953.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)

In that case Justice Charlesworth observed:
75.Having regard to all that is said above, cl 11.3 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.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the applicant’s visa.
I must, however, determine what weight should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [112] above) which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f) of Direction 90.
The applicant contends that her offending is not of the type explicitly identified in para 8.4(2) of Direction 90 and that, therefore, while this consideration weighs against revocation of the cancellation of the applicant’s visa, only minimal weight should be given to it.[87]
[87] Applicant’s SFIC para 56.
The Minister submits that the applicant’s assault public officer convictions, on their face, clearly come within the reach of para 8.4(2)(d) of Direction 90. The Minister accepts that para 5.2(4) of Direction 90 and the applicant’s residence in Australia from the age of 12, should be considered in determining the appropriate weight to be afforded to this primary consideration, but that that guidance needs to be considered against the balance of para 5.2 and the specific terms of para 8.4 of Direction 90. The Minister contends that this should involve consideration of the applicant’s extensive and serious criminal history.
The Minister contends that this primary consideration should weigh against the applicant to a significant degree.
I think that the Minister’s analysis of the factors to be taken into account in determining the weight to be given to this consideration is correct. I agree with the Minister’s contention that the applicant’s convictions for assaulting a public officer come within the scope of para 8.4(2)(d) of Direction 90. Independently of those offences, the applicant does have a very serious criminal record and has, over an extended period, repeatedly engaged in serious conduct which breaches the expectations of the Australian community. It is the case, however, that apart from the convictions for assaulting a public officer, the applicant’s offending does not fall into the categories of offending specifically identified under this consideration of Direction 90.
I agree that the fact that the applicant has been a resident in this country for nearly 23 years, having arrived as a child, and the best interests of her children, one of whom is about to have a baby, would afford her with some degree of tolerance with the Australian community. Given the nature of her offending, however, in particular the repeated dealing in methylamphetamine, this consideration weighs against revocation and, in my view, should be given moderate weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
The applicant has not raised any claims in respect of non-refoulement and none appear to arise on the material before the Tribunal. I am satisfied that this is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) 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 relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
The Minister accepts that the applicant is likely to experience some hardship as a consequence of returning to New Zealand. He accepts that the applicant suffers from ADHD, PTSD and substance abuse disorder, but notes that she has recently undertaken various vocational training courses which would better equip her for employment. The Minister also accepts that the applicant has some dental issues and a grade 4 capsular contracture subsequent to breast implant placement, for which the applicant is considering removal, mastopexy and implant re-insertion.
The Minister submits that while there are likely to be some transitional difficulties, those impediments would by no means be insurmountable. New Zealand is, according to the Minister, a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security. The Minister contends that the applicant’s health would affect her equally in whichever country she lived and there is no evidence that the health conditions could not be treated effectively in New Zealand.
The Mister also refers to the availability of services for people returning to New Zealand provided by organisations such as People at Risk Solutions (PARS), citing the comments of the Tribunal in CFVG and Minister for Immigration and Border Protection.[88]
[88] [2017] AATA 1395.
The Minster contends that while this consideration weighs in favour of revocation, only “limited” weight should be given to it.
The Applicant submits that she has not returned to New Zealand, other than for short holiday periods, for 23 years and has no substantive connections or support structures in place in New Zealand. She says that she would face isolation from her children which has the potential to affect her mental health.
I accept that New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to social services.[89]
[89] See Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [44].
In closing, Mr Nikolic for the applicant stated that:
The impediments to the applicant is that she clearly is ready in Australia to hit the ground running in terms of knowing where to access the supports that she needs.
And having the support in place, being her family. And that detailed plan. And the impediment to her is that in New Zealand without knowledge of those services to the extent that she has in Australia, there will defiantly [sic]- there will be a period at which she is - faces a deterioration to her mental health and the resulting issues that lead from that.
But it is accepted that New Zealand does have psychological services, drug rehab programs, but it will clearly in the applicant’s submission, take time for her to be able to access those.[90]
[90] Transcript/77–8.
As noted at [128] above, the relevant test for this consideration is, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), whether the applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
On that test, comparisons of how better off the applicant would be if she were allowed to stay in Australia, are not relevant. The test is whether she can establish and maintain basic living standards in New Zealand. It would invariably be the case that an applicant would find establishing and maintaining a basic living standard to be easier if they stayed in Australia.
While the applicant does not raise any age, cultural or language impediments to her establishing and maintaining a basic living standard, she does refer to her lack of connections and family supports and to her mental conditions. In relation to the applicant’s mental conditions, set out in detail in Mr Simmons’ report (see [65] above) and acknowledged by the Minister in this context (see [129] above), I accept that her separation from her family, in particular her two daughters (and potentially her grandchild), would cause significant distress to the applicant and that that would have a detrimental effect on her mental conditions. I accept that these conditions, exacerbated by her separation from her loved ones, would be an impediment to the applicant establishing herself. I am not as confident as the Minster seems to be that this would be “transitional” only.
In relation to the physical conditions identified by the Minister (see [129] above), there is no evidence that those physical conditions would be an impediment of the type contemplated by this consideration. The applicant also referred to her having been the victim of sexual abuse while a child in New Zealand. There was, however, no evidence that memories of these assaults might be triggered if the applicant were to return to New Zealand and Mr Simmons report did not indicate that that might be the case. In any event, this was not an argument raised before me as causing an impediment to the applicant establishing a basic living standard in New Zealand or another reason to revoke the cancellation of the applicant’s visa.
I find that that the applicant’s psychological issues, likely to be exacerbated by separation from her family and children and a lack of family support available in New Zealand, would be impediments in the applicant establishing herself to the standard described in para 9.2 of Direction 90. I find that this consideration should be given moderate weight.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1) 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 applicant made no submission on this consideration. The Minister conceded that the views of victims are unknown and that, accordingly, this factor should be given neutral weight.
I have commented on this factor in various decisions[91] and the potential for it to have broader application than simply the impact on victims. As I did in Wade, insofar as a consideration broader than the impact on victims is required, the possible impact of the applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under other relevant considerations.
[91] See for example, Wade and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 202 at [122]–[125].
As a stand-alone consideration, I agree with the Minister’s submission that this consideration should be given neutral weight.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia as a 12-year-old and has, except for a 15-month period when she returned to New Zealand for the birth of her first daughter, lived in Australia. The impact of a decision on the applicant’s visa will have a significant impact on her immediate family members. The impact on her two daughters has been discussed in the above consideration of the best interests of children. As set out in that consideration, the impact will be significant.
The impact on the applicant’s mother and stepfather will also be significant. As noted above, it is clear from their statements and the heartfelt evidence given by both of them at the hearing, that they love their daughter and will miss her if her visa were to remain cancelled. The applicant’s mother is in poor health. In her statement[92] the applicant’s mother states that she is unemployed, is currently bed-bound and can walk only short distances. She says that her husband cares for her.[93] She describes the impact on her of the applicant being deported as follows:
[The applicant] going back to New Zealand would have a massive impact on us and her daughters.[94]
[92] A5.
[93] A5 paras 4 and 6.
[94] A5 para 13.
In her handwritten statement provided to the Department,[95] the applicant’s mother said:
I have several health problems asthma, shingles, anxiety, constant pain … having her home would be most helpful for me and her girls…
[95] R1/152.
The applicant’s mother’s evidence at the hearing was:
I have lots of lung issues, respiratory issues. I have shingles. My bowel issues. So and I’m pretty much bed-bound at the moment. I’m not mobile. So, yes, I have a few health issues to name some.[96]
[96] Transcript/67.
In relation to her ability to assist with the care of the applicant’s daughters, the applicant’s mother’s evidence was:
… it is difficult for me to do anything physically for them. I mean, I do their ironing but their grandfather has had to pick up the slack a lot but they desperately need their mum home to help or help us in that regard. Plus I know [the applicant] will be good for me too because she can do things to help with my physical health and then it’ll take a bit of pressure off her dad.[97]
[97] Transcript/67.
In his statement,[98] the applicant’s stepfather confirms his wife’s medical problems as she described them and that he is his wife’s carer. He says that:
It would have an impact on me and my family if [the applicant] had to return to New Zealand. It would be devastating for [the applicant’s mother] and [the applicant’s] daughters. They would be broken.[99]
[98] A3.
[99] A3 para 11.
The applicant’s stepfather says that he and the applicant’s older daughter would be able to visit the applicant in New Zealand but that the cost would be significant, and the applicant’s mother’s medical condition would prevent her from travelling to New Zealand. He is presently not working. He says further that:
I love my daughter more than anything and it would devastate our family to not have her here anymore. She is a support to all of us and we miss her.[100]
[100] A3 para 12.
Similar sentiments were expressed by the applicant’s stepfather in his handwritten statement provided to the Department[101] in which he also confirmed that the applicant has no family in New Zealand. His evidence at the hearing was also that the applicant has no family in New Zealand.[102]
[101] R1/153–4.
[102] Transcript/58.
While he is not an immediate family member, a statement was provided by the applicant’s older daughter’s partner[103] who describes the applicant as his “soon to be mother-in-law”. He says that deporting the applicant will have a major impact on him as:
I am only 20 years old and we will have a new born child and I am worried about having to be the only one to pick up the pieces while looking after our new born baby…[104]
[103] A6.
[104] A6.
In relation to the above comments, I note that the evidence of the applicant’s older daughter at the hearing was that her partner is employed, that he lives with her at the applicant’s parents’ house and that he provides support to her.[105]
[105] Transcript/64.
The applicant’s SFIC identifies the following as being relevant to this consideration:
(a)The fact that the applicant arrived in Australia as a 12-year-old and has spent the vast majority of her life in Australia, including her childhood.
(b)The applicant’s entire family resides in Australia.
(c)The applicant is, and has been for 12 months, in a committed relationship with Mr Montgomery. Her removal will adversely affect that relationship.
The Minister accepts that the applicant has built social and familial ties within Australia, including people who have an indefinite right to remain in Australia. The Minister notes, however, that the applicant commenced her offending at a young age and has committed numerous criminal offences during her time in Australia with little to no break in offending. The Minister submits that the applicant’s ties to the community should be given somewhat less weight in those circumstances.
Insofar as the applicant relies on her relationship with Mr Montgomery, the Minister notes that Mr Montgomery is also a New Zealand citizen.
In relation to the factors identified in para 9.4.1(2), the applicant has lived in Australia for 23 years, being the vast majority of her life. She has no family or other ties in New Zealand and, in effect, all of her ties are to Australia. While it is the case that she arrived as a child, the applicant started offending as a juvenile relatively soon after arriving (see [10] above). Less weight should therefore be given to the fact that she arrived as a child and the longevity of her time in Australia.[106] There is little evidence that the applicant has contributed positively to the Australian community. She does not have a record of regular employment and has frequently committed crimes through her life in Australia. Accordingly, the factor in sub-para 9.4.1(2)(a)(ii) does not apply in the applicant’s favour.
[106] Direction 90 para 9.4.1(2)(a)(i).

There is little evidence of any social or other links to Australia outside the applicant’s family.
I accept that the impact on the applicant’s family of her visa remaining cancelled would be significant. This is particularly the case with the applicant’s parents and her daughters. I do not consider that the impact on Mr Montgomery of the applicant being returned to New Zealand would be significant. As I noted above, no statement was provided by Mr Montgomery and he did not give evidence at the hearing. He has only known the applicant for a relatively short time, has never lived with her and his relationship has, in effect, been limited to visits in immigration detention. I also take account of the fact that the applicant has had a long line of relatively short-lived and unsuccessful relationships. The longevity of her relationship with Mr Montgomery is questionable. I do not consider that there would be any significant impact on Mr Montgomery’s daughter if the applicant were to be returned to New Zealand and note that counsel for the applicant in closing conceded that the relationship between the applicant and Mr Montgomery’s daughter (see [107] above) was not a relationship that needed to be considered. Even without that concession I would find that to be the case.
I find that this consideration, particularly the impact on the applicant’s immediate family, weighs in favour of the revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [25] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[107] and the Full Court judgment in Minister for Home Affairs v HSKJ.[108]
[107] [2018] FCA 594; (2018) 74 AAR 545.
[108] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[109] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it 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.
(Emphasis omitted.)
[109] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the applicant’s visa.
The second primary consideration, family violence, is not relevant in this case.
I find that the third primary consideration, the best interests of minor children, weighs moderately to heavily in favour of revocation of the cancellation of the applicant’s visa.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa and that this consideration should be given moderate weight.
In relation to the “other considerations” identified in Direction 90, there are two considerations relevant in the present case. The first is the extent of impediments if removed, which I find weighs in favour of revocation of the cancellation and that it should be given moderate weight. The second relevant consideration, links to the Australian community, I find weighs in favour of revocation of the cancellation of the applicant’s visa and that, again, moderate weight should be given to that consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations against revocation, particularly the protection of the Australian community, outweigh those in favour of revocation. It is my assessment that the seriousness of the applicant’s criminal offending, the unaddressed mental health conditions which include substance abuse issues, and the moderate to high risk of the applicant re-offending coupled with the expectations of the Australian community, outweigh the considerations in favour of revocation. Accordingly, I do not find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 17 May 2022 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Act, is affirmed.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 10 August 2022

Date of hearing: 27 July 2022

Counsel for the Applicant: Mr D Nikolic

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Mr J Papalia

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE

Court	Result Date	Offence	Offence Date	Result
Perth District Court of Western Australia	29 November 2021	Stealing	16 January 2020	$500 fine
Perth District Court of Western Australia	23 March 2021	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	22 December 2017	Destruction order; 10 months’ imprisonment (concurrent) from 23 March 2021
Perth District Court of Western Australia	23 March 2021	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	22 December 2017	Destruction order; 10 months’ imprisonment (concurrent) from 23 March 2021
Perth District Court of Western Australia	14 December 2020	Possess firearm/ammunition whilst not the holder of licence or permit	22 December 2017	Guilty of principal charge; start date: 18 December 2020
Perth District Court of Western Australia	14 December 2020	Possess a prohibited drug (methylamphetamine)	22 December 2017	Guilty of principal charge; start date: 18 December 2020
Fremantle Magistrates Court	9 March 2020	Possession of stolen or unlawfully obtained property	12 January 2019	One month imprisonment (concurrent) from 31 January 2020
Fremantle Magistrates Court	9 March 2020	Possession of stolen or unlawfully obtained property	12 January 2019	One month imprisonment (concurrent) from 31 January 2020
Fremantle Magistrates Court	9 March 2020	Steal motor vehicle to use without the consent of the owner	1 January 2019	Seven months’ imprisonment (concurrent) from 31 January 2020
Fremantle Magistrates Court	9 March 2020	Stealing	2 January 2019	$500 fine
Perth Magistrates Court	21 November 2019	Gains benefit by fraud	11 July 2019	$500 fine
Fremantle Magistrates Court	25 October 2019	Stealing	1 July 2019	$250 fine
Perth Magistrates Court	6 August 2019	Steal motor vehicle	11 July 2019	$1,000 fine
Perth Magistrates Court	6 August 2019	Stealing	11 July 2019	$500 fine
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Rockingham Magistrates Court	15 February 2019	Gains benefit by fraud	30 July 2018	$1,200 fine (global)
Fremantle Magistrates Court	24 December 2018	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	26 November 2018	$400 fine
Rockingham Magistrates Court	26 October 2018	Possess a prohibited drug (cannabis)	7 September 2018	$300 fine
Perth Magistrates Court	19 March 2018	Possess a prohibited drug (methylamphetamine)	22 December 2017	$500 fine
Perth Magistrates Court	19 March 2018	Possession of stolen or unlawfully obtained property	22 December 2017	$500 fine
Central Local Court	23 August 2016	Supply a prohibited drug	-	12 months’ imprisonment commencing 14 January 2016, concluding 13 January 2017 (non-parole period with conditions: seven months)
Perth Magistrates Court	9 June 2015	Without lawful excuse trespassed on a place	12 May 2015	$500 fine
Fremantle Magistrates Court	10 December 2014	No authority to drive – never held an disqualified (second or subsequent offence; no motor driver’s licence)	4 July 2014	Motor driver’s licence disqualified for 12 months (cumulative); $1,500 fine
Mandurah Magistrates Court	5 September 2014	Burglary and commit offence in dwelling	27 January 2013	$1,000 fine (global)
Mandurah Magistrates Court	5 September 2014	Stealing	27 January 2013	$1,000 fine (global)
Mandurah Magistrates Court	5 September 2014	Stealing	27 January 2013	$1,000 fine (global)
Mandurah Magistrates Court	21 March 2014	No authority to drive – suspended (second or subsequent offence; no motor driver’s licence)	21 November 2013	$1,500 fine; motor driver’s licence disqualified for nine months (cumulative)
Mandurah Magistrates Court	21 March 2014	Refuse name and address (driver); no motor driver’s licence	21 November 2013	$700 fine
Rockingham Magistrates Court	22 November 2013	Carried an article with intent to injure (disable)	17 December 2011	$400 fine
Rockingham Magistrates Court	22 November 2013	Common assault	17 December 2011	$600 fine
Rockingham Magistrates Court	22 November 2013	Failed to comply with a prohibition order	17 December 2011	$300 fine
Mandurah Magistrates Court	4 September 2013	No authority to drive – suspended (second or subsequent offence; no motor driver’s licence)	24 July 2013	$1,000 fine; motor driver’s licence disqualified for nine months (cumulative)
Mandurah Magistrates Court	9 January 2013	No authority to drive – never held and disqualified; no motor driver’s licence	27 November 2012	$400 fine; motor driver’s licence disqualified for nine months (cumulative)
Rockingham Magistrates Court	3 September 2012	Breach of bail undertaking	12 June 2012	$100 fine
Fremantle Magistrates Court	15 March 2012	Assault public officer	25 September 2011	$500 fine
Fremantle Magistrates Court	15 March 2012	Assault public officer	25 September 2011	$700 fine
Rockingham Magistrates Court	2 December 2011	Exceed 0.05g alcohol per 100ml of blood; probationary motor driver’s licence; reading of 0.057; method is breath	13 September 2011	$150 fine (motor driver’s licence disqualified for three months)
Rockingham Magistrates Court	21 September 2011	Unauthorised driving by learner drivers; probationary motor driver’s licence	4 August 2011	$400 fine (motor driver’s licence seven day delay: four months)
Fremantle Magistrates Court	28 September 2010	Stealing	25 August 2010	Conviction spent; $400 fine
Rockingham Magistrates Court	14 April 2010	Unauthorised driving by learner drivers’; learner’s permit	30 December 2009	$300 fine
Mandurah Magistrates Court	2 December 2009	Fail to give way when entering land abutting; learner’s permit	10 October 2009	$300 fine
Mandurah Magistrates Court	2 December 2009	Breach other conditions of learner’s permit	10 October 2009	$200 fine
Downing Centre Local Court	8 April 2009	Drive with middle range PCA	-	$1,200 fine; two-year disqualification commencing 8 April 2009
Downing Centre Local Court	8 April 2009	Never licensed person drive vehicle on road – first offence	-	$400 fine
Southport Magistrates Court	1 June 2006	Unauthorised dealing with shop goods (maximum $150)	24 April 2006	$150 fine; “I/D IMP. 1 day”
Rockingham Children’s Court	3 December 2003	Common assault	-	Referred to Juvenile Justice Team, Rockingham
Rockingham Children’s Court	3 December 2003	Resist arrest	-	Referred to Juvenile Justice Team, Rockingham

Date of hearing:	27 July 2022
Counsel for the Applicant:	Mr D Nikolic
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Mr J Papalia
Solicitors for the Respondent:	Australian Government Solicitor